The plaintiff, Laura Poitras, a journalist and documentary filmmaker, Compl. ¶ 2, ECF No. 1, challenges the responses of the Federal Bureau of Investigation ("FBI"), a component of the Department of Justice ("DOJ"), and U.S. Customs and Border Protection ("CBP"), a component of the Department of Homeland Security ("DHS"), to her records requests submitted pursuant to the Freedom of Information Act ("FOIA"),
I. BACKGROUND
Summarized below is the factual background underlying the plaintiff's FOIA requests and a review of the defendants' responses.
A. Background on the Plaintiff
The plaintiff is a U.S. citizen and "professional documentary filmmaker, journalist, and artist" based in New York. Pl.'s Cross-Mot, Ex. 3, Pl.'s Second Statement of Material Facts ("Pl.'s SMF") ¶ 3, ECF No. 26-3.
The plaintiff submitted exhibits that describe a harrowing ambush of U.S. Forces, on November 20, 2004, in Adhamiya, Iraq, that resulted in the death of one American soldier and serious injuries to several others. See Pl.'s Reply Supp. Second Cross-Mot Summ. J. ("Pl.'s Reply"), Ex. A, Letter from U.S. Army Criminal Investigation Command ("USACIC") to FBI ("USACIC Package") at A-1, ECF No. 35-1. In the midst of this ambush, two soldiers witnessed an "unusual" sight,
Two days after the ambush, a Lieutenant Colonel from the U.S. Army met at the military base in the area with the Chairman and Vice-Chairman of the Adhamiya District Council.
A second Army officer who was present also observed that "Ms. Poitras' lower lip began quivering" when these questions were asked and that "her body instantly became tense and she leaned forward and crossed her arms" when the Vice-Chairman was asked about his whereabouts at the time of the ambush.
After returning from Iraq, the Lieutenant Colonel was interviewed about his war experiences by a historian, who later provided a sworn statement to the FBI as well as copies of his communications with the plaintiff. In her communications with the historian, the plaintiff confirmed that she "was in Adhamiya on the 19th ... and 20th filming" and had been "staying in the house of an Iraqi family."
According to the historian's sworn statement, before the ambush, "all the businesses along the streets were closed," "metal gates were barring many of the store fronts," and "[t]here was no one on the streets, which is unusual for a Saturday morning in downtown Baghdad."
On January 31, 2006, the Lieutenant Colonel's final debrief memorandum was sent to USACIC.
In July 2006, shortly after the FBI opened its investigation, the plaintiff began being detained and questioned at the U.S. border when she returned to the United States from international travel. Compl. ¶¶ 9-10. The plaintiff claims that from July 2006 through April 2012, she was detained every time she entered the country and occasionally was detained in foreign countries before boarding a return flight to the United States.
In April 2012, another journalist published an article about the plaintiff's detentions and questioning while traveling, and a group of documentary filmmakers submitted a petition to DHS protesting the plaintiff's routine detentions. Compl. ¶ 10. In June 2012, the plaintiff "was detained, questioned, and searched for the last time and has not been detained at the U.S. border since." Pl.'s SMF ¶ 8.
B. Plaintiff's FOIA Request and the Agencies' Responses
On January 24, 2014, the plaintiff sent FOIA requests, pursuant to
1. FBI Response
Upon receiving the plaintiff's FOIA request, the FBI opened Request Number 1250943-000. First Hardy Decl. ¶ 7. Starting on February 2, 2015, the FBI referred sets of pages to other agencies, including USACIC, the U.S. Army, the Executive Office for United States Attorneys ("EOUSA"), the Department of the Air Force, the U.S. Army Intelligence and Security Command ("USAISC"), the Central Intelligence Agency ("CIA"), CBP, the Department of State, the Department of Transportation, and the National Guard Bureau for direct response to the plaintiff or for coordination with the FBI.
The plaintiff initiated this lawsuit on July 13, 2015. On October 14, 2015, the FBI made its first interim release of records to the plaintiff.
In conducting its search, the FBI used the terms "Laura Poitras," "Laura Susan Poitras," "Lara Susan Poitras," a three-way phonetic breakdown of "Laura Poitras," and an on-the-nose search for "Laura Susan Poitras" and "Lara Susan Poitras." First Hardy Decl. ¶ 28. To justify its withholdings, the FBI relied on FOIA Exemptions 1, 3, 5, 6, 7(A), 7(C), 7(D), and 7(E).
2. CBP Response
After receiving and reviewing the plaintiff's request, CBP FOIA staff determined that responsive records within CBP's control were likely to be found within two CBP systems-TECS and the Automated Targeting System ("ATS")-and performed searches on those databases "using Plaintiff's name and date of birth." Burroughs Decl. ¶ 5.
While processing the plaintiff's request, "CBP FOIA became aware that additional responsive records" were likely to be found in CBP's New York field office. Burroughs Decl. ¶ 30; see also
The plaintiff does not challenge CBP's withholdings in the pending motion but rather challenges the adequacy of CBP's search. See Summ. J. Order at 3 n.2, 6.
C. The FOIA Lawsuit
The plaintiff initiated this lawsuit on July 13, 2015, challenging the agencies' responses to her request. The parties' first motions for summary judgment were granted in part and denied in part on March 31, 2017. See supra , n.4; Summ. J. Order at 6. Specifically, the defendants' motion was granted, as conceded, with respect to "(1) the withholdings of CBP, TSA, and ODNI, (2) the FBI's withholdings under FOIA Exemptions 1, 3, 6, and 7(C), and (3) the adequacy of the searches for documents by the FBI, the ODNI, DHS, CIS, ICE, and TSA." Summ. J. Order at 6. The Court noted that neither of the FBI's two declarations from the FBI's lead FOIA officer "contain[ed] a full Vaughn Index or any other detailed listing of the documents and information that the agency is withholding, or the particularized justifications for each withholding." Id. at 3. Thus, the pending motions were granted in part and denied in part to "provide the agency with an opportunity to refile the motion with the requisite supporting documents." Id. at 6. Although the plaintiff's first cross-motion challenged the adequacy of CBP's search on the same grounds given in the pending motion, see Pl.'s First Cross-Mot. at 20-23, the first Summary Judgment Order focused only on the FBI's withholdings and did not address or resolve any issues regarding CBP, see Summ. J. Order at 3-6. The parties' second motions for summary judgment are
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "In FOIA cases, 'summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.' " Judicial Watch, Inc. v. U.S. Secret Serv. ,
The FOIA was enacted "to promote the 'broad disclosure of Government records' by generally requiring federal agencies to make their records available to the public on request." DiBacco v. U.S. Army ,
In litigation challenging the sufficiency of "the release of information under the FOIA, 'the agency has the burden of showing that requested information comes within a FOIA exemption.' " Pub. Citizen Health Research Grp. v. Food & Drug Admin. ,
An agency may carry its burden of showing an exemption was properly invoked by submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, or both, to demonstrate that the government has analyzed carefully any material withheld and provided sufficient information as to the applicability of an exemption to enable the adversary system to operate.
The FOIA provides federal courts with the power to "enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant."
In addition, the court has an "affirmative duty" to consider whether the agency has produced all segregable, nonexempt information. Elliott v. U.S. Dep't of Agric. ,
III. DISCUSSION
The issues remaining in this case pertain only to the FBI and CBP. Specifically, the plaintiff challenges the FBI's withholdings under Exemptions 5 and 7, the adequacy of CBP's search, and the agencies' determinations that no additional nonexempt information could reasonably be segregated from the withheld material. These issues are taken in turn.
A. The FBI's Withholdings under Exemptions 5 and 7 Were Appropriate
1. Exemption 5
The parties dispute the FBI's withholding under Exemption 5, pursuant to the deliberative-process privilege, of portions of three pages from an "electronic communication" from the New York field office "documenting and providing intelligence analysis and analytical support for the investigation into Poitras' potential involvement in an ambush on US forces in Iraq." Pl.'s Reply at 9; Defs.' Mot., Ex. 2, Withheld in Full/Release in Part Vaughn Index for Specific Exemptions ("FBI Vaughn Index") at 46, ECF No. 24-2.
a) Overview of FOIA Exemption 5
Exemption 5 protects from disclosure "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency."
For the deliberative-process privilege to apply, the materials must be "both predecisional and deliberative." Mapother v. Dep't of Justice ,
b) The FBI's Exemption 5 Withholdings
The plaintiff challenges the FBI's invocation of Exemption 5 and the deliberative-process privilege on three pages, Poitras-158, Poitras-159, and Poitras-163, contending that "the FBI has failed to identify a specific agency decision to which the redacted paragraphs are predecisional or a decision-making process to which the redacted paragraphs contributed," Pl.'s Cross-Mot. at 20 (emphasis in original), and that the FBI's Vaughn index did not "identify with any particularity the reasons why the FBI was unable to segregate the factual material contained within the eight paragraphs redacted pursuant to Exemption 5's deliberative process privilege across the three pages at issue," Pl.'s Reply at 10.
The FBI has explained, in both its declarations and its Vaughn index, the specific agency decision under deliberation in the redacted pages: whether further investigative steps needed to be taken, or court involvement sought, in light of the FBI's database checks about the plaintiff's role, if any, in an ambush resulting in the death of an American soldier. The Vaughn index states that pages Poitras-158, Poitras-159, and Poitras-163 are part of the same document: an electronic communication dated February 12, 2009, from the New York field office, "documenting and providing intelligence analysis and analytical support for the investigation into Poitras's potential involvement in an ambush on US forces in Iraq." FBI Vaughn Index at 46.
2. Exemption 7
The plaintiff also disputes the FBI's withholdings on 252 pages in part and 19 pages in full, see Pl.'s Cross-Mot. at 14, pursuant to Exemptions 7(A), 7(D), and 7(E), arguing that "[b]ecause the FBI has failed to meet the threshold" showing of Exemption 7, namely, that the records or information were compiled for law-enforcement purposes, "the Court need not reach the applicability of the specific criteria set forth in 7(A), 7(D), and 7(E)," id. at 11. As discussed below, however, the threshold requirement for Exemption 7 is satisfied and the FBI has properly invoked Exemptions 7(A), 7(D), and 7(E) as the bases for its withholdings.
a) Exemption 7 Threshold Requirement
Exemption 7 protects from disclosure " 'records or information' [ ] 'compiled for law enforcement purposes,' " but only to the extent that "production of such 'records or information' would cause at least one of the specific harms described in the lettered subsections of Exemption 7." Sack v. U.S. Dep't of Def. ,
The plaintiff contends that the FBI "has not established a connection between Plaintiff and a possible violation of federal law or security risk," Pl.'s Reply at 4, and "cannot establish that its investigatory activities are realistically based on a legitimate concern that federal laws have been or may be violated or that national security may be breached," id. at 5-6 (emphasis in original) (internal quotation marks omitted). The plaintiff also argues that "the Hardy declarations' vague and highly generalized references to the FBI's 'criminal investigation' are not sufficient to satisfy the government's burden," Pl.'s Cross-Mot. at 16, and that "the Bureau's investigation of Plaintiff was conducted for intelligence gathering purposes-not law enforcement purposes-and that Exemption 7 therefore does not apply to the disputed records," id. at 14. The plaintiff is wrong.
The FBI has established that its investigation of the plaintiff was realistically based on a legitimate concern that she may have been either an intentional or unwitting tool to film or otherwise document an ambush that resulted in the death of one American soldier and serious injury to several others. As the declarations make clear, "the FBI initiated an investigation on the basis of an allegation and information indicating that the plaintiff may have been involved in an activity constituting a federal crime and/or threat to national security." Defs.' Reply Supp. First Mot. Summ. J. ("Defs.' First Reply"), Ex. 1, Second Declaration of David M. Hardy (FBI) ("Second Hardy Decl.") ¶ 8, ECF No. 19-1. This investigation stemmed from the plaintiff's "possible involvement with anti-coalition forces during her time in Iraq as an independent media representative." First Hardy Decl. ¶ 64. The Hardy declarations provide the requisite specific facts and circumstances giving rise to this investigation: the FBI learned from USACIC that the "plaintiff watched and filmed the ambush from on top of a nearby building and when questioned denied being present on the roof when several U.S. soldiers had positively identified her as being present during the ambush," Second Hardy Decl. ¶ 9. The FBI also "received further information about Poitras's involvement, including the possibility that she had prior knowledge of the ambush and purposely chose not to report it." First Hardy Decl. ¶ 31. The FBI thus opened an investigation into whether "the alleged activities constitute a federal crime and a threat to national security ... for potential prosecution and intelligence purposes," Second Hardy Decl. ¶ 9, in furtherance of the agency's law-enforcement duties of "investigat[ing] all violations of federal law not exclusively assigned to another agency, [ ] conduct[ing] investigations and activities to protect the United States and its people from terrorism and threats to national security, and further[ing] the foreign intelligence objectives of the United States." First Hardy Decl. ¶ 63. Thus, the FBI has established both "a rational nexus between the investigation and one of the agency's law enforcement duties" and a "connection between an individual or incident and a possible security risk or violation of federal law," Blackwell ,
The plaintiff nevertheless contends that the FBI's investigation was for purely intelligence-gathering, rather than law-enforcement, purposes, thus making Exemption 7 inapplicable. See Pl.'s Cross-Mot. at 14. She draws support for this argument from the USACIC's April 2006 package to the FBI, which stated that "credible information
The plaintiff's dissembling about her whereabouts at the time of the fatal ambush and about whether she documented the events, despite two eyewitnesses who saw her on a rooftop over-looking the ambush area with her camera and sound equipment, may reasonably have contributed to the FBI's view that an investigation was warranted. Indeed, the FBI repeatedly has explained that it was investigating the plaintiff's involvement in the ambush for both "potential prosecution and intelligence purposes," id. ¶ 9 (emphasis added), because "Plaintiff's potential involvement was at once a threat to national security warranting further intelligence gathering and a potential federal crime," Defs.' Reply at 5-6 (emphasis in original). Given that "[t]he FBI is an agency 'specializ[ing] in law enforcement,' [ ] its claim of a law enforcement purpose is entitled to deference." Kidder v. FBI ,
The plaintiff relies on several cases that, ironically, undercut her position and provide further support for the conclusion that the FBI compiled the records at issue for law-enforcement purposes. Pl.'s Cross-Mot. at 13, 18. In Shapiro v. U.S. Department of Justice ,
The plaintiff also relies on Lamont v. Department of Justice ,
Finally, in Weissman , the plaintiff was concerned about CIA investigative activity directed at left-of-center political activists, like himself, and sought "all files completed on [him] by the CIA." Weissman ,
b) The FBI's Withholdings under Exemption 7 Were Proper
The FBI also asserts that its withholdings under Exemptions 7(A), 7(D), and
i) Exemption 7(A)
Exemption 7(A) protects from disclosure "records or information compiled for law enforcement purposes," but only to the extent that the production of such records or information "could reasonably be expected to interfere with enforcement proceedings."
Here, the FBI relied on Exemption 7(A) to withhold the "file numbers of pending FBI investigations." First Hardy Decl. ¶ 77. These investigations "pertain[ ] to investigative activities of third parties of an on-going FBI investigation," and the file numbers are "intertwined with other ongoing investigations of known and suspected third party terrorists."
ii) Exemption 7(D)
Exemption 7(D) applies to records or information compiled for law-enforcement purposes that "could reasonably be expected to disclose the identity of a confidential source" who "furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation ..., information furnished by a confidential source."
The FBI relied on Exemption 7(D) to withhold "two categories of sources: confidential information from foreign governments, and information from third parties who provided information under an implied assurance of confidentiality." Defs.' Mem. at 14; see also First Hardy Decl. ¶¶ 81-85. According to the FBI, the Foreign Government Information Classification Guide # 1, which "governs classification of foreign government information that foreign governments have asked the FBI to protect over the course of time," First Hardy Decl. ¶ 81, indicates that "the foreign agency referenced in the records at issue here requested its relationship with the FBI be classified," id. ¶ 83, thus providing "an express assurance of confidentiality," Williams ,
The FBI also withheld information "regarding an individual source who is a source symbol numbered informant under an express grant of confidentiality." First Hardy Decl. ¶ 85. This Court previously has recognized that "it is the FBI's practice to assign source symbols to informants only if those individuals report information to the FBI on a regular basis pursuant to an express grant of confidentiality." Clemente v. FBI ,
iii) Exemption 7(E)
Finally, the FBI withheld certain information under Exemption 7(E), which protects from disclosure "records or information compiled for law enforcement purposes" that "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law."
The FBI invoked Exemption 7(E) to withhold "(1) sensitive file numbers or sub-file names; (2) internal, non-public email or IP addresses; (3) dates or types of investigations; (4) identity or location of FBI or Joint Units, Squads, or Divisions; (5) collection or analysis of information; (6) investigative focus; (7) law enforcement strategies or techniques for addressing the techniques, tactics or procedures (TTPs) used by an organization; [and] (8) monetary payments for investigative techniques." Defs.' Mem. at 16 (citing First Hardy Decl. ¶¶ 87-95). This information properly was withheld to prevent the disclosure of FBI techniques and procedures and to prevent the dissemination of information that might be gleaned from those techniques and procedures.
For example, releasing sensitive case file numbers would "identif[y] the investigative interest or priority given to such matters" because, "[a]pplying a mosaic analysis, suspects could use these numbers (indicative of investigative priority), in conjunction with other information known about other individuals and/or techniques, to change their pattern of activity to avoid detection, apprehension, or create alibis for suspected activities." First Hardy Decl. ¶ 87; see also Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice ,
B. The CBP's Search of the New York Field Office Was Adequate
The plaintiff next challenges the adequacy of CBP's search. See Pl.'s Cross-Mot. at 25-28. The CBP has carried its burden of establishing that its search was adequate.
1. Legal Standard for Evaluating the Adequacy of a FOIA Search
An agency "fulfills its obligations under [the] FOIA if it can demonstrate beyond material doubt that its search was reasonably calculated to uncover
At the summary judgment stage, an agency meets its burden of demonstrating beyond material doubt that it "made a 'good faith effort to conduct a search using methods which can be reasonably expected to produce the information requested,' " DiBacco ,
2. CBP's Search
CBP conducted two searches: one of CBP's central office and another of its New York field office. The adequacy of each of those searches is examined. In support of its motion, CBP submitted the declaration of the Director of CBP's FOIA Division, who averred that "CBP personnel determined that responsive records within CBP's control were likely to be found" within the TECS and ATS databases, and searches were performed on those databases "using Plaintiff's name and date of birth." Burroughs Decl. ¶¶ 1, 5. The plaintiff contends that this search was inadequate because "CBP has failed to provide
The plaintiff also argues that CBP's searches of its central office and its New York field office were inadequate because she "has identified paper documents that are missing from the agency's production," namely, "photocopies of Plaintiff's reporter notebooks and/or the contents of her pockets and wallet ... which were made by local CBP agents during her detentions." Pl.'s Reply at 15-16. The law is well established in this Circuit, however, that the adequacy of a FOIA search is judged not by the results of an agency's search but by the appropriateness of the agency's search methods. Iturralde v. Comptroller of Currency ,
The plaintiff raises additional concerns about the adequacy of CBP's supplemental search at the New York field office. As noted, while processing the plaintiff's request, CBP "became aware that additional responsive records," relating specifically to "an encounter between Plaintiff and CBP on August 1, 2010, at JFK International Airport," were "reasonably likely to exist in files located within CBP's New York field office." Burroughs Decl. ¶ 30. Staff at the New York field office thus "reviewed paper files known or reasonably believed to include records relating to Plaintiff or the August 1, 2010 encounter" and conducted an electronic search of "several custodians deemed reasonably likely to have information related to Plaintiff or the August 1, 2010 encounter, us[ing] the timeframe of August 1, 2010 through October
The plaintiff contends that this search was inadequate because it was limited "to a three-month period and failed to search any other New York field office files likely to contain records responsive to Plaintiff's request-which covers six years of airport detentions." Pl.'s Reply at 13-14. As the Burroughs declaration makes clear, however, the search of the New York field office was conducted only because "additional responsive records," specifically related to the August 1, 2010, encounter, were likely to be found at the New York field office. Burroughs Decl. ¶ 30. Importantly, the FOIA requires only that an agency conduct a reasonable search that is tailored to the "four corners of the request." Am. Chemistry Council ,
The plaintiff further contends that CBP's search of its New York office was inadequate because the Burroughs declaration does not "identify the specific files searched at the New York field office." Pl.'s Reply at 18. "To prevail on summary judgment," however, CBP must show only that "it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Reporters Comm. for Freedom of Press ,
C. The FBI and the CBP Have Satisfied Their Segregability Obligations
Finally, the plaintiff argues that the FBI and the CBP failed to satisfy their segregability obligations. See Pl.'s Cross-Mot. at 23-24. "The FOIA requires that '[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt.' " Morley ,
Here, the FBI and the CBP met their segregability burdens by submitting Vaughn indices, in combination with the attestations of their respective declarants, that the responsive documents were reviewed on a line-by-line basis and that no further segregation would be possible. See Judicial Watch, Inc. v. Consumer Fin. Prot. Bureau ,
IV. CONCLUSION
For the foregoing reasons, the defendants' Second Motion for Summary Judgment is GRANTED and the plaintiffs Second Cross-Motion for Summary Judgment is DENIED. An appropriate Order accompanies this Memorandum Opinion.
Notes
The plaintiff also submitted FOIA requests to the Office of the Director of National Intelligence ("ODNI"), U.S. Citizenship and Immigration Services ("USCIS"), U.S. Immigration and Customs Enforcement ("ICE"), and the Transportation Security Administration ("TSA"), but those agencies were previously granted summary judgment. See Order Denying Mots. Summ. J. Without Prejudice and Requiring Submission of a Vaughn Index ("Summ. J. Order") at 6, ECF No. 22 (K.B. Jackson, J.).
The parties filed multiple exhibits and declarations in connection with the pending cross-motions; each exhibit and submission from the parties has been reviewed, but only those exhibits necessary to provide context for resolution of the instant motion are cited herein.
The plaintiff does not deny that "windows in her host family's neighborhood had reportedly been taped up prior to the incident." Pl.'s Reply at 1 n.1. Although these circumstances may have raised questions for an inquisitive journalist-for example, why the windows were taped up or whether the host expected a violent confrontation-the record does not reflect that the plaintiff expressed any concern about these unusual preparations.
On March 31, 2017, summary judgment was granted to the defendants, as conceded, with respect to "(1) the withholdings of CBP, TSA, and ODNI, (2) the FBI's withholdings under FOIA Exemptions 1, 3, 6, and 7(C), and (3) the adequacy of the searches for documents by the FBI, the ODNI, DHS, CIS, ICE, and TSA." Summ. J. Order at 6 (K.B. Jackson, J.).
TECS was previously the abbreviation for the Treasury Enforcement Communication System. See Pineiro Decl. ¶ 34 n.2. After the creation of DHS and the migration of CBP systems to DHS, the system is now known simply as "TECS" and is no longer an abbreviation.
This case was reassigned to the undersigned Judge on October 24, 2017.
"The rule governing cross-motions for summary judgment ... is that neither party waives the right to a full trial on the merits by filing its own motion; each side concedes that no material facts are at issue only for the purposes of its own motion." McKenzie v. Sawyer ,
"A Vaughn index describes the documents withheld or redacted and the FOIA exemptions invoked, and explains why each exemption applies." Prison Legal News v. Samuels ,
After the FBI produced, on September 22, 2017, six additional pages documenting its decision to close the investigation into the plaintiff, see Fourth Hardy Decl. ¶ 4, the plaintiff advised the FBI that "she intend[ed] to challenge the FBI's withholding of attorney work product" on one of the six new pages. Defs.' Reply at 10. The plaintiff later abandoned this argument. See Pl.'s Reply at 3 n.6.
The plaintiff requests in camera review of the three pages at issue to determine whether the FBI "has adequately segregated completely factual material." Pl.'s Reply at 11. The segregability argument will be addressed below, infra Part III.C.
The FBI uses the term "electronic communication" to refer to communications "within the FBI in a consistent format that can be uploaded by the originating Division or office, transmitted, and downloaded by recipient Divisions or offices within the FBI's internal computer network." FBI Vaughn Index at 3 n.6.
The plaintiff further claims that the FBI "has consistently mischaracterized the circumstances surrounding its initiation of its investigation" by claiming that USACIC asked the FBI to investigate the plaintiff, thereby "attempt[ing] to establish a law enforcement purpose after the fact." Pl.'s Reply at 7 (capitalization omitted). While the parties dispute which agency requested the investigation into the plaintiff's involvement in this ambush, they agree that the FBI opened an investigation. See Defs.' Mot., Ex. 1, Mem. Supp. Second Mot. Summ. J. ("Defs.' Mem.") at 7, ECF No. 24-1; Pl.'s Cross-Mot. at 3. Whether USACIC requested the investigation or the FBI independently initiated the investigation does not change the fact that the FBI was investigating the plaintiff's involvement "in an activity constituting a federal crime and/or threat to national security." Second Hardy Decl. ¶ 8.
Despite some disagreement among the circuits as to whether the phrase "could reasonably be expected to risk circumvention of the law" applies only to "guidelines for law enforcement investigations," or to "techniques and procedures" as well, the D.C. Circuit "has applied the 'risk circumvention of the law' requirement both to records containing guidelines and to records containing techniques and procedures," noting that "given the low bar posed by the 'risk circumvention of the law' requirement, it is not clear that the difference matters much in practice." PEER ,