The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
GREGORY HOLT, ADC # 129616
also known as Abdul Maalik Muhammad PLAINTIFF
v. Case No. 4:22-cv-00605-KGB
DEPARTMENT OF JUSTICE DEFENDANT
OPINION AND ORDER
Before the Court are defendant Department of Justice’s (“DOJ”) motion to extend time
(Dkt. No. 22) and a motion for summary judgment (Dkt. No. 26). For the following reasons, the
Court grants the motion to extend time, considers the DOJ’s motion for summary judgment timely
filed, and grants the DOJ’s motion for summary judgment (Dkt. Nos. 22; 26).
I. Motion To Extend Time
On November 1, 2023, the DOJ filed its motion to extend time (Dkt. No. 22). The DOJ
requested up to, and including, November 22, 2023, to file its motion for summary judgment
because it required additional time to gather information regarding the response of the Federal
Bureau of Investigation (“FBI”) to plaintiff Gregory Holt’s requests (Id., ¶¶ 3–4). On November
2, 2023, the Clerk of Court filed a deficiency letter noting that the motion to extend time did not
contain a statement that the movant contacted the adverse party regarding the motion in accordance
with Rule 6.2(b) of the Local Rules of the United States District Court for the Eastern and Western
Districts of Arkansas (Dkt. No. 23). The Court notes that the DOJ filed an updated version to
correct the deficiency (Dkt. No. 22-1).
On November 8, 2023, Mr. Holt filed a response in opposition to the motion in which he
challenged the DOJ’s assertion that it needed additional time to gather information (Dkt. No. 24,
¶¶ 3–4). Mr. Holt asserted that he had not received the document that caused him to file the
litigation and that the DOJ’s motion was not made in good faith (Id., ¶¶ 5, 7). Additionally, Mr.
Holt noted the deficiency letter and stated that the DOJ’s motion should be denied, even if the DOJ
cured the deficiency (Id., ¶ 8).
The DOJ replied on November 15, 2023, stating that the additional time sought by the DOJ
was “required to fully explain the bases for its various responses to [Mr. Holt’s] broad request, and
the extension sought [wa]s not for the purpose of delay.” (Dkt. No. 25, ¶ 4). On November 24,
2023, Mr. Holt responded to the DOJ’s reply, renewing his objections (Dkt. No. 30). The DOJ
filed its motion for summary judgment on November 22, 2023 (Dkt. No. 26).
For good cause shown, the Court grants the DOJ’s motion to extend time (Dkt. No. 22).
The Court extends the time to file a motion for summary judgment up to, and including, November
22, 2023. The DOJ’s motion for summary judgment is timely filed (Dkt. No. 26).
II. Motion For Summary Judgment
Mr. Holt commenced this action under the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, on June 30, 2023 (Dkt. No. 2). Through his complaint, Mr. Holt seeks “the disclosure and
release of agency records pertaining to information that the Federal Bureau of Investigation (FBI)
supplied to Jacob Higgins, who is the Security Threat and Terrorist Group (STTG) Coordinator at
the Arkansas Department of Correction.” (Id., at 1–2). Mr. Holt further states that:
This information led directly to Plaintiff being placed in an STTG file, which is the
subject of another complaint pending in the Eastern District of Arkansas. (See Holt
[v.] Higgins, Case No. 4:21-cv-01226-JM-JTR, U.S.D.C., E.D. Ark.) These
records were improperly withheld from the Plaintiff by [the DOJ] and its
component, [the FBI].
(Id., at 2). On November 22, 2023, the DOJ filed its motion for summary judgment, along with a
statement of facts and a brief in support (Dkt. Nos. 26; 27; 28). On November 27, 2023, the DOJ
filed a motion for leave to file a supplemental declaration for ex parte in camera review, seeking
to provide the Court with additional information to demonstrate that the DOJ met its burden under
the FOIA (Dkt. No. 32). On March 29, 2024, Mr. Holt filed his response in opposition to the
motion for summary judgment, statement of materially disputed facts, and response to the DOJ’s
motion for leave to file supplemental declaration for ex parte in camera review (Dkt. Nos. 37; 38;
39). The Court granted the DOJ’s request for leave to file a supplemental declaration for ex parte
in camera review (Dkt. No. 41).
A. Factual Background
Pursuant to Rule 56.1 of the Local Rules of the United States District Court for the Eastern
and Western Districts of Arkansas, the DOJ filed a statement of undisputed facts along with its
motion for summary judgment (Dkt. No. 27). Under Rule 56.1, all material facts set forth in the
statement filed by the moving party shall be deemed admitted unless controverted by the statement
filed by the non-moving party. Failure to support or address properly the moving party’s assertion
of fact can result in the fact being considered as undisputed for purposes of the motion. Fed. R.
Civ. P. 56(e)(2). Mr. Holt filed a statement of materially disputed facts (Dkt. No. 37). The Court
understands Mr. Holt to agree with the facts as outlined in the DOJ’s statement of undisputed facts,
and incorporates the DOJ’s statement of undisputed facts, with the following exceptions:
The DOJ states:
The FBI has determined that intelligence sources and methods would be revealed
if any of the withheld information is disclosed to plaintiff. Id. ¶ 49. Accordingly,
information was withheld in part from documents identified as FBI (22-CV-065)-
224, 230, 232, 245-53, 290-93, 300-04, 386-87. See Index, Exhibit Q to Seidel
Decl., Ex. 1.
(Dkt. No. 27, ¶ 46). Mr. Holt replies: “The intelligence sources and methods exemption claimed
by the Defendant far exceed that allowed by Congress and the FOIA. Further, this exemption is
null and void due to Plaintiff’s knowledge of these sources.” (Dkt. No. 38, at 1–2 (citing Dkt. No.
27, ¶ 46)).
The DOJ states:
In Exemption Category (b)(5)-1, the FBI protected privileged, deliberative
information on four pages. Id. ¶ 53. The deliberative process privilege protects the
internal deliberations of the government by insulating recommendations, analyses,
opinions, and other non-factual information comprising the decision-making
process. Id. In turn, Exemption 5 allows for the withholding of such privileged
material – i.e., material that contains, or was prepared in connection with the
formulation of, opinions, advice, evaluations, deliberations, policies, proposals,
conclusions, or recommendations. Id. The privilege also protects records and
information that if disclosed, would reveal the agency’s collection of multitudinous
facts, and the sorting, evaluation, and analysis of those facts in order to make
recommendations or reach a final agency decision. Id. Exemption 5, when asserted
in conjunction with the deliberative process privilege, is predicated on the
recognition that release of this privileged information would stifle the agency’s
decision-making process. Id. Furthermore, exempting such documents from
disclosure also protects against public confusion that might result from preliminary
disclosure of opinions and information that do not, in fact, reflect the final views of
the FBI. Id. The exemption and privilege together protect not only documents but
also the integrity of the deliberative process itself where exposure of the process
would result in harm. Id. The FBI invokes Exemption 5 and the deliberative
process privilege because FBI employees would hesitate to offer their candid and
conscientious opinions to supervisors or coworkers if they knew that their opinions
of the moment might be made a matter of public record at some future date, and
because such self-censorship would, in turn, degrade the quality of agency
decisions by depriving the decision-makers of fully-explored options developed
from robust debate. Id.
(Dkt. No. 27, ¶ 49). Mr. Holt responds: “Exemption 5 was wrongly applied to Plaintiff pursuant
to the deliberative process privilege.” (Dkt. No. 38, at 2) (citing Dkt. No. 27, ¶ 49)).
The DOJ states:
The FBI relied on Exemption 5 and the deliberative process privilege, in
conjunction with attorney-client privilege to protect the opinion of a DOJ Assistant
United States Attorney (“AUSA”), and the associated discussion between the
AUSA and the investigative FBI SA. Id. ¶ 54. This opinion and discussion
reflected intra-agency deliberations prior to reaching a final agency decision. Id.
The FBI also relied on Exemption 5 and the [sic] to protect deliberative draft
investigative interview notes. Id. The draft interview notes reflected deliberations
integral to reaching final agency decisions regarding interview documentation. Id.
Additionally, in compliance with the FOIA Improvement Act of 2016, this material
was created less than 25 years before the submission of plaintiff’s request. Id.
(Dkt. No. 27, ¶ 50). Mr. Holt responds: “Exemption 5 was wrongly applied to Plaintiff pursuant
to the attorney-client privilege.” (Dkt. No. 38, at 2) (citing Dkt. No. 27, ¶ 50)).
The DOJ states:
The FBI protected a confidential communication between the FBI and DOJ counsel
and an FBI employee (their client), that reflect the seeking and providing of legal
advice. Id. ¶ 60. Specifically, the FBI withheld the opinion of a DOJ AUSA and
the associated discussion between the AUSA and the investigative FBI [Special
Agent (“SA”)] regarding plaintiff’s sentence and parole. Id. The communications
between clients and attorneys were made in confidence, were not shared with or
circulated to individuals outside the attorney-client relationship, and were made for
the purpose of securing legal advice in relation to government legal positions. Id.
Release of this information would call into question the FBI’s commitment to
withhold confidential information shared between agency clients and attorneys and
could dissuade agency attorneys and clients from fully sharing such information,
and endanger agency attorneys’ ability to provide the best possible legal
representation of their clients. Id. Furthermore, it would provide advantage to
individuals seeking legal action against the government and/or those targeted for
prosecution by the government. Id. It would provide information traditionally
privileged in a legal context and disrupt the adversarial process of litigation by
providing access to information related to the government’s potential legal
strategies regarding sentencing and parole. Id. Accordingly, the FBI properly
withheld these privileged communications pursuant to Exemption 5. Id.
(Dkt. No. 27, ¶ 53). Mr. Holt responds: “Defendant has not shown that any legal counsel was
provided to any specific client. The attorney and client were never identified.” (Dkt. No. 38, at 2)
(citing Dkt. No. 27, ¶ 53)).
The DOJ states:
Before an agency can invoke any of the harms enumerated in Exemption (b)(7),
such as the unwarranted invasion of personal privacy, it must first demonstrate that
the records or information at issue were compiled for law enforcement purposes.
Id. ¶ 61. Pursuant to 28 USC §§ 533, 534, and Executive Order 12,333 as
implemented by the Attorney General’s Guidelines for Domestic FBI Operations
(AGG-DOM) and 28 CFR § 0.85, the FBI is the primary investigative agency of
the federal government with authority and responsibility to investigate all violations
of federal law not exclusively assigned to another agency, to conduct investigations
and activities to protect the United States and its people from terrorism and threats
to national security, and further the foreign intelligence objectives of the United
States. Id. Under this investigative authority, the responsive records herein were
compiled to document the FBI’s investigation of Gregory Houston Holt for
potential violations of terrorist statutes. Id. Considering these records were
compiled to document the FBI’s investigation of possible bomb threats to military
recruiting stations and a police station, and a plot to harm United States government
officials, the FBI determined they were compiled for law enforcement purposes.
Id.
(Dkt. No. 27, ¶ 55). Mr. Holt responds: “Exemptions 7(C) and 7(E) were wrongly applied
to the Plaintiff.” (Dkt. No. 38, at 2) (citing Dkt. No. 27, ¶ 55)).
Finally, Mr. Holt further states that the DOJ “has not turned over the e-mail sought”
and that he “believes that the facts in dispute are the policies and practices of the FBI.” (Id.
at 3).
B. Legal Standard
Summary judgment is appropriate if there is no genuine issue of material fact for trial.
UnitedHealth Grp. Inc. v. Exec. Risk Specialty Ins. Co., 870 F.3d 856, 861 (8th Cir. 2017) (citing
Fed. R. Civ. P. 56). Summary judgment is proper if the evidence, when viewed in the light most
favorable to the nonmoving party, shows that there is no genuine issue of material fact and that the
defendant is entitled to entry of judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). “In ruling on a motion for summary judgment ‘[t]he district court must base the
determination regarding the presence or absence of a material issue of factual dispute on evidence
that will be admissible at trial.’” Tuttle v. Lorillard Tobacco Co., 377 F.3d 917, 923-24 (8th Cir.
2004) (internal citations omitted). “Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no genuine issue for trial.” Johnson Reg’l
Med. Ctr. v. Halterman, 867 F.3d 1013, 1016 (8th Cir. 2017) (quoting Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A factual dispute is genuine if the evidence
could cause a reasonable jury to return a verdict for either party. Miner v. Local 373, 513 F.3d
854, 860 (8th Cir. 2008). “The mere existence of a factual dispute is insufficient alone to bar
summary judgment; rather, the dispute must be outcome determinative under the prevailing law.”
Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989) (citation omitted).
However, parties opposing a summary judgment motion may not rest merely upon the
allegations in their pleadings. Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984). The initial
burden is on the moving party to demonstrate the absence of a genuine issue of material fact.
Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving party to establish that
there is a genuine issue to be determined at trial. Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366
(8th Cir. 2008), cert. denied, 522 U.S. 1048 (1998). “The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986) (citation omitted).
C. Analysis
In a FOIA case, summary judgment is available to a defendant agency where “the agency
proves that it has fully discharged its obligations under FOIA, after the underlying facts and the
inferences to be drawn from them are construed in the light most favorable to the FOIA requester.”
Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1382 (8th Cir.1985). An agency “must prove that
each document that falls within the class requested either has been produced, is unidentifiable, or
is wholly exempt from the Act’s inspection requirements.” Id. at 1382–83 (quoting Nat’l Cable
Television Ass’n, Inc. v. F. C. C., 479 F.2d 183, 186 (D.C. Cir. 1973)). “The adequacy of an
agency’s search for requested documents is judged by a standard of reasonableness, i.e., ‘the
agency must show beyond material doubt. . . that it has conducted a search reasonably calculated
to uncover all relevant documents.’” Id. at 1383 (quoting Weisberg v. U.S. Dep’t of Just., 705 F.2d
1344, 1351 (D.C. Cir. 1983)). The reasonableness of the search can be proved through affidavits
of agency officials that are detailed, nonconclusory, and submitted in good faith. Id. Moreover,
it was the intent of Congress that such agency affidavits “be accorded substantial weight in
national-security cases.” Id.
Vaughn indices can be used to help determine whether an agency has met its burden.
Missouri Coal. for Env’t Found. v. U.S. Army Corps of Engineers, 542 F.3d 1204, 1209 (8th Cir.
2008). A Vaughn index’s purpose is twofold. “First, to ensure an ‘effectively helpless’ party’s
right to information ‘is not submerged beneath governmental obfuscation and mischaracterization’
and second, to ‘permit the court system effectively and efficiently to evaluate the factual nature of
disputed information.’” Id. (quoting Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973)). An
adequate Vaughn index:
provides a specific factual description of each document sought by the FOIA
requester. Specifically, such an index includes a general description of each
document’s contents, including information about the document’s creation, such as
date, time, and place. For each document, the exemption claimed by the
government is identified, and an explanation as to why the exemption applies to the
document in question is provided.
Missouri Coal, 542 F.3d at 1209–10. An index can be considered in conjunction with affidavits
to detail why each purported exemption applies to the documents in question. Id. at 1210.
Mr. Holt emphasizes one document, an email purportedly sent to STTG Higgins, and Mr.
Holt seeks justification for why the email was not disclosed pursuant to his FOIA requests (Dkt.
No. 27-3, at 112-13). However, that is not the standard for an agency seeking summary judgment
in a FOIA case. An agency must show that its search for the documents was reasonably calculated
to locate the requested documents. Miller, 779 F.2d at 1383 (quoting Weisberg, 705 F.2d at 1351).
In support of its argument that it conducted an adequate search for the documents, the FBI
submitted an exemption application index which includes a summary of FOIA exemption
justification categories, a description of FBI document types, a description of each document, the
FOIA exemption claimed, if any, and whether the document was disclosed (Dkt. No. 27-3).
Additionally, the FBI offered the declaration of Michael G. Seidel, the section chief of the
record/information dissemination sections (“RIDS”), information management division (“IMD”),
of the FBI in which Mr. Seidel provides the FBI’s justification for withholding the requested
information under the Privacy Act and FOIA exemptions (Dkt. No. 27-3, ¶¶ 1, 4). The Court
addresses each of the FBI’s claimed FOIA exemptions and Mr. Holt’s corresponding objections
in turn.
1. Privacy Act Exemption (j)(2)
The Privacy Act exempts the disclosure of records maintained by an agency that has the
principal function of law enforcement. 5 U.S.C. § 552(a)(j)(2). The FBI is an agency that is
required “to investigate violations of law within its investigative jurisdiction and collect[]
information from a wide variety of sources.” 63 Fed. Reg. 8671, 8684 (Feb. 20, 1998). The FBI
maintains its records in the Central Records System (“CRS”) (Dkt. No. 28, at 9). The FBI’s law
enforcement records that are maintained in its CRS are exempted from disclosure under the
Privacy Act. 63 Fed. Reg. 8671, 8684 (Feb. 20, 1998).
The FBI located Mr. Holt’s requested records through a search of its CRS (Dkt. No. 27-3,
¶ 30). In accordance with the records being exempt from disclosure under the Privacy Act, the
FBI withheld the requested documents (Id.). Examining the record evidence with all reasonable
inferences drawn in favor of Mr. Holt, the Court concludes that the FBI properly denied Mr. Holt’s
request for documents under the Privacy Act.
2. FOIA Exemption 1
FOIA exemption 1 exempts the disclosure of records that are “specifically authorized under
criteria established by an Executive order to be kept secret in the interest of national defense or
foreign policy and are in fact properly classified pursuant to such Executive order.” 5 U.S.C. §
552(b)(1)(A)-(B). Executive Order (E.O.) 13526 is the applicable executive order governing
national security, and it outlines a “uniform system for classifying, safeguarding, and declassifying
national security information, including information relating to defense against transnational
terrorism.” Exec. Order No. 13526, 75 Fed. Reg. 707 (Dec. 29, 2009).
Pursuant to the Executive Order:
Section 1.1. Classification Standards. (a) Information may be originally classified
under the terms of this order only if all of the following conditions are met:
(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the control of the
United States Government;
(3) the information falls within one or more of the categories of information listed
in section 1.4 of this order; and
(4) the original classification authority determines that the unauthorized disclosure
of the information reasonably could be expected to result in damage to the national
security, which includes defense against transnational terrorism, and the original
classification authority is able to identify or describe the damage.
Exec. Order No. 13526, 75 Fed. Reg. 707 (December 29, 2009). In FOIA cases involving issues
of national security, courts defer to the expertise of the agency. Larson v. Dep’t of State, 565 F.3d
857, 865 (D.C. Cir. 2009). “If an agency’s statements supporting exemption contain reasonable
specificity of detail as to demonstrate that the withheld information logically falls within the
claimed exemption and evidence in the record does not suggest otherwise” then courts should not
question the agency’s expertise. Id.
Mr. Holt claims that the FBI used exemption 1 to withhold the e-mail that he seeks and that
the FBI’s purported justification for the exemption is “conclusory and it leaves this court and the
plaintiffs to speculate as to what national security interests are implicated by the email.” (Dkt. No.
37, at 84–85). The DOJ maintains that the FBI did not use exemption 1 to withhold the e-mail Mr.
Holt seeks; rather, the FBI withheld classified information on two electronic communications
concerning detailed intelligence activity (Dkt. No. 45, at 10).
Mr. Seidel determined that the information that the FBI withheld under exemption 1 “is
under the control of the United States government, is classified and requires a classification
marking at the ‘Secret’ level since the unauthorized disclosure of this information reasonably could
be expected to cause damage, serious damage, or exceptionally grave damage to national security.”
(Dkt. No. 27-3, ¶ 38) (citing Exec. Order No. 13526, 75 Fed. Reg. 707 (December 29, 2009)). Mr.
Seidel further noted that the records discussed information pertaining to the following categories
that are protected by the Executive Order: (1) intelligence activities (including covert action); (2)
intelligence sources or methods; or (3) cryptology (Id., ¶ 40). Specifically, Mr. Seidel identified
that the requested records contained information “concerning the character and title of the case for
a specific type of intelligence activity directed at specific targets of national security interest” and
the “detailed intelligence activity information gathered or compiled by the FBI on a specific
individual organization of national security interest.” (Dkt. No. 27-3, ¶¶ 44–45). Mr. Seidel
concluded that disclosure of this information would enable hostile entities to “develop
countermeasures which would, in turn, severely disrupt the FBI’s intelligence gathering
capabilities.” (Id., ¶ 42).
In sum, the FBI outlined in detail why Executive Order 13526 applies, how the requested
information was classified, and the harm that disclosure of the information would pose to national
security. Mr. Holt bases his argument on the wrongful application of this exemption to a specific
document, an email, but in the absence of any offered evidence, Mr. Holt has not established that
there is a genuine issue of material fact regarding how the FBI applied exemption 1 to the requested
information. The FBI properly applied exemption 1.
3. FOIA Exemption 3
Under exemption 3, records are exempt from disclosure if they are specifically exempted
from disclosure by another statute, other than the FOIA, if that statute “requires that the matters
be withheld from the public in such a manner as to leave no discretion on the issue; or establishes
particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C.
§ 552(b)(3). Moreover, statutes enacted after the OPEN FOIA Act of 2009 must specifically cite
to this paragraph of the FOIA exemptions to qualify under exemption 3. 5 U.S.C. § 552(b)(3).
Determining whether exemption 3 can be invoked requires a two-pronged analysis. C.I.A. v. Sims,
471 U.S. 159, 167 (1985). First, Courts determine whether the statute in question is subject to a
statutory exemption within the meaning of exemption 3. Id. Second, courts consider whether the
information requested falls under the statute. Id.
The FBI asserts that, pursuant to exemption 3, it can withhold information under the
National Security Act of 1947 (“NSA”), as amended by the Intelligence Reform and Terrorism
Prevention Act of 2004 (“IRTPA”) (Dkt. No. 27-3, ¶ 47). Mr. Holt disputes the applicability of
the Act claiming that the FBI does not provide any dates or time periods of the documents and that
he “does not believe that any of the documents contain classified information or that they qualify
under the National Security Act.” (Dkt. No. 37, at 89).
Mr. Holt’s argument fails because the Act does not require the agency to provide the time
period of the documents. The Act provides that the Director of National Intelligence (“DNI”)
“shall protect, and shall establish and enforce policies to protect, intelligence sources and methods
from unauthorized disclosure.” 50 U.S.C. § 3024(i)(1). Moreover, the Act requires that the DNI
establish and implement requirements for classification, access and dissemination, and preparation
of intelligence products. 50 U.S.C. § 3024(i)(1). With this authority, the DNI promulgated the
Intelligence Community Directive 700 that requires the intelligence community to protect
“national intelligence and intelligence sources and methods and activities from unauthorized
disclosure.” Director of National Intelligence Directive 700, Intelligence Community Directive
(2012). The FBI is one of the agencies comprising the intelligence community, and thus, pursuant
to the DNI’s directive, it must protect intelligence sources (Dkt. No. 27-3, ¶ 48). The FBI claims
that “intelligence sources and methods would be revealed if any of the withheld information is
disclosed.” (Id., ¶ 49). Specifically, the FBI’s Vaughn index identifies the documents, the page
number, and whether the document was released or withheld pursuant to exemption 3. Moreover,
the FBI’s index justifies withholding such records under exemption 3 for the “[p]rotection of
[i]ntelligence [s]ources] and [m]ethods” pursuant to 50 U.S.C. § 3024(i)(1). Because 50 U.S.C. §
3024(i)(1) constitutes a statutory exemption to disclosure under exemption 3, because the
information sought is protected by the statute, and because Mr. Holt has failed to establish a
disputed genuine issue of material fact regarding the applicability of this Act, the FBI has properly
invoked exemption 3.
4. FOIA Exemption 5
The FOIA exempts the disclosure of “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,
provided that the deliberative process privilege shall not apply to records created 25 years or more
before the date on which the records were requested.” 5 U.S.C. § 552(b)(5). “To qualify, [for the
exemption] a document must thus satisfy two conditions: its source must be a Government agency,
and it must fall within the ambit of a privilege against discovery under judicial standards that would
govern litigation against the agency that holds it.” Dep’t of Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 8 (2001).
Agency means “‘each authority of the Government of the United States,’ § 551(1), and
‘includes any executive department, military department, Government corporation, Government
controlled corporation, or other establishment in the executive branch of the Government. . . , or
any independent regulatory agency.’” Id. at 9 (quoting 5 U.S.C. § 552(f)). Here, the records
withheld under exemption 5 contain documents prepared by FBI Special Agent (“SA”) and
communications between the SA and DOJ AUSA, both of whom are employed by government
agencies (Dkt. No. 27, ¶ 50). Examining the record evidence with all reasonable inferences drawn
in favor of Mr. Holt, the Court concludes that the FBI established that the source of the records in
question is a government agency.
i. Deliberative Process Privilege
Under exemption 5, the deliberative process privilege “‘protect[s] the decisionmaking
processes of government agencies’ and ‘encourage[s] the frank discussion of legal and policy
issues’ by ensuring that agencies are not ‘forced to operate in a fishbowl.’” Mapother v. Dep’t of
Just., 3 F.3d 1533, 1537 (D.C. Cir. 1993) (quoting Wolfe v. Dep’t of Health & Hum. Servs., 839
F.2d 768, 773 (D.C. Cir. 1988)). This privilege protects pre-decisional and deliberative materials.
Id. The FBI claims that the records pertaining to a deliberative discussion between the FBI SA
and an AUSA were pre-decisional because the discussion was about “legal strategies regarding
Plaintiff’s violations, sentence, and parole” and because the information does not reflect the FBI’s
final decision (Dkt. No. 27-3, ¶ 55). The FBI further withheld two sets of handwritten notes by an
FBI SA under the deliberative process privilege (Dkt. No. 28, at 18). The FBI argues that the notes
“include facts that are intertwined with the SA’s impressions, thoughts, and judgments.” Id.
Moreover, it claims such notes are deliberative and pre-decisional because “they precede the final
writeup formally memorializing an interview.” (Dkt. No. 45, at 5). Mr. Holt does not offer an
argument as to why the discussion between the SA and AUSA and the handwritten notes are not
exempt from disclosure under the deliberative process privilege. Because the record undisputably
reflects that the SA and AUSA’s discussion about Mr. Holt and handwritten notes included the
agency’s legal strategies regarding Mr. Holt and were not the agency’s final positions, a reasonable
jury could conclude that the FBI properly invoked the deliberative process privilege.
ii. Attorney Client Privilege
The FOIA exemption 5 applies to all civil discovery privileges including the attorney-client
privilege. Fams. for Freedom v. U.S. Customs & Border Prot., 837 F. Supp. 2d 287, 293 (S.D.N.Y.
2011). The privilege protects confidential communications made for the purpose of receiving legal
advice or services. Id. “In the governmental context, the ‘client’ may be the agency and the
attorney may be an agency lawyer.” Tax Analysts v. I.R.S., 117 F.3d 607, 618 (D.C. Cir. 1997).
The FBI claims that there was an attorney-client relationship between the DOJ AUSA and the FBI
SA when they discussed Mr. Holt’s sentence and parole in confidence (Dkt. No. 27, ¶ 53). Mr.
Holt’s argument that the attorney-client privilege does not apply because the FBI did not identify
who the client is and has not maintained that the records were confidential is unavailing (Dkt. No.
37, at 44–45). In the absence of any evidence to the contrary, the record reflects that the FBI
employee was the client and the AUSA the attorney; further, it reflects that the FBI SA and AUSA
discussed the information at issue in confidence (Dkt. No. 27-3, ¶ 60). Therefore, the FBI properly
withheld the requested documents under the attorney-client privilege.
5. FOIA Exemptions 6 And 7(C)1
Under the FOIA, “personnel and medical files and similar files” are exempt from disclosure
when such disclosure would “constitute a clearly unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(6). Similarly, the FOIA exempts the disclosure of “records or information
compiled for law enforcement purposes” when such disclosure “could reasonably be expected to
constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).
As a threshold matter, to invoke any exemption under 7, the agency bears the burden to
establish that the sought after information was “compiled for law enforcement purposes.” 5 U.S.C.
§ 552(b)(7). “Courts determine whether the agency met its burden by review[ing] the adequacy
of the affidavits and other evidence presented by the Government in support of its position.”
Xanthopoulos v. Internal Revenue Serv., 35 F.4th 1135, 1138 (8th Cir. 2022) (internal quotations
omitted). The FBI contends that the records requested were compiled, pursuant to the FBI’s
investigatory authority, to document the FBI’s investigation of Mr. Holt for “possible bomb threats
to military recruiting stations and a police station, and a plot to harm United States government
officials.” (Dkt. No. 27-3, ¶ 61). In response, Mr. Holt claims that these records were released to
other agencies that, in turn, released the same documents to Mr. Holt through a FOIA request, but
he does not cite to any supporting evidence for this claim (Dkt. No. 37, at 53–54). Even if such
records were released to Mr. Holt by other agencies, this does not negate the fact that the records
in question were compiled for law enforcement purposes as required by exemption 7(C).
Therefore, examining the record evidence with all reasonable inferences drawn in favor of Mr.
1 The FBI asserts that it is standard agency practice to assert exemptions 6 and 7(C)
together, given that a similar analysis applies to the two. The Court follows suit in analyzing
exemptions 6 and 7(C) in conjunction.
Holt, the Court concludes that the FBI has met its burden that the records in question were
compiled for law enforcement purposes.
Additionally, exemption 7(C) mandates the protection of citizens’ privacy against
uncontrolled disclosure. Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 172 (2004). The
information the FBI withheld under exemptions 6(C) and 7(C) includes “personal information
about FBI employees, third parties interviewed by FBI, people of interest in the investigation,
employees of other agencies involved in the investigation, victims, and local and state government
professional staff.” (Dkt. No. 45, at 6) (citing Dkt. 27-3, ¶¶ 62–77). The FBI argues that it withheld
the requested information because disclosure would constitute an unwarranted invasion of personal
privacy and because there is not a public interest that would outweigh the third parties’ privacy
interest (Dkt. No. 45, at 6). The FBI further posits that it “scrutinized [every piece of information
requested] to determine the nature and strength of the privacy interest of every individual whose
name and/or identifying information appears in the documents at issue.” (Dkt. No. 27-3, ¶ 64).
Once privacy concerns are implicated, courts must balance these privacy interests against
the public interest in disclosure. Nat’l Archives, 541 U.S. at 172.
Where the privacy concerns addressed by Exemption 7(C) are present, the
exemption requires the person requesting the information to establish a sufficient
reason for the disclosure. First, the citizen must show that the public interest sought
to be advanced is a significant one, an interest more specific than having the
information for its own sake. Second, the citizen must show the information is
likely to advance that interest. Otherwise, the invasion of privacy is unwarranted.
Id. “‘Public interest’ in the context of Exemption 7(C) means an interest in [o]fficial information
that sheds light on an agency’s performance of its statutory duties, and contribute[s] significantly
to public understanding of the operations or activities of the government.” Peltier v. F.B.I., 563
F.3d 754, 762–63 (8th Cir. 2009) (internal citations omitted). “[A] prisoner may not override
legitimate privacy interests recognized in Exemption 7(C) simply by pointing to the public’s
interest in fair criminal trials or the even-handed administration of justice.” Id. at 764.
Mr. Holt claims that there is a public interest in disclosure because “Plaintiff has been
tarred and feather by the Defendant as a ‘terrorist’ simply for espousing unpopular ideas.” (Dkt.
No. 37, at 57). Mr. Holt further claims that he believes he has a right to challenge the credibility
of any third parties who cooperated in the investigation and the identity of the agent from the
Louisiana FBI field office who supplied the information that resulted in Mr. Holt being placed in
an STTG file (Id. at 58–59).
The FBI claims that Mr. Holt does not assert any public interest for the information, but
rather, he requests it for personal reasons (Dkt. No. 45, at 7). Examining the record evidence with
all reasonable inferences drawn in favor of Mr. Holt, the Court agrees with the FBI that Mr. Holt
does not advance a public interest in disclosure sufficient to satisfy that required by the exemption.
Therefore, Mr. Holt has not adequately asserted a public interest that outweighs the privacy
interests of the individuals whose personal information is contained in the documents at issue
sufficient to warrant disclosure.
6. FOIA Exemption 7(D)
The FOIA exempts the disclosure of records that “could reasonably be expected to disclose
the identity of a confidential source.” 5 U.S.C. § 552(b)(7)(D). A source is “confidential” if the
source disclosed the information to the agency under an express or inferred assurance of
confidentiality. Williams v. F.B.I., 69 F.3d 1155, 1159 (D.C. Cir. 1995). The FBI invoked
exemption 7(D) to withhold the disclosure of documents that contain the identity and information
provided by three categories of confidential sources: (1) third parties who had an inferred grant of
confidentiality; (2) third parties who had an express grant of confidentiality; and (3) local law
enforcement personnel who had an implied assurance of confidentiality (Dkt. No. 27-3, ¶¶ 81, 84,
87). The FBI argues that assuring confidentiality to all the categories of informants is important
to the Agency’s functioning because “when the identity of one source is revealed, that revelation
has a chilling effect on the activities and cooperation of other sources.” (Dkt. No. 27-3, at 40).
Mr. Holt claims that the FBI wrongly applied exemption 7(D) “to the email at issue”
because the FBI’s “Vaughn index does not state with specificity this exemption regarding the e-
mail.” (Dkt. No. 37, at 62–63). A Vaughn index is not required but can be used to determine the
reasonableness of an agency’s claimed FOIA exemptions. Missouri Coal, 542 F.3d at 1209.
Further, an agency’s Vaughn index can be considered in tandem with affidavits from agency
officials detailing a description of the documents at issue and the reason one of the FOIA
exemptions applies. Id. Here, the FBI provided a Vaughn index outlining the exemption
justification categories, a description of FBI document types, a description of each document, the
FOIA exemption claimed, if any, and whether or not the document was disclosed (Dkt. No. 27-3,
at 130–141). Additionally, the FBI provided the affidavit of Mr. Seidel who explained in detail
the purported reasons the FBI exempted the records from disclosure under exemption 7(D) (Dkt.
No 27-3, ¶¶ 79–88). Examining the record evidence with all reasonable inferences drawn in favor
of Mr. Holt, the Court concludes that the FBI properly withheld documents under exemption 7(D).
7. FOIA Exemption 7(E)
The FOIA exempts disclosure of “records or information compiled for law enforcement
purposes” to the extent that the production of such records “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.” 5 U.S.C. § 552(b)(7)(E). The agency has the burden to show that
the material was compiled for law enforcement purposes. “If the agency’s description of the
withheld material ‘adequately states its grounds for nondisclosure, and if those grounds are
reasonable and consistent with the applicable law, the district court should uphold the
Government’s position.’” Xanthopoulos, 35 F.4th at 1138 (quoting Cox v. U.S. Dep’t of Just., 576
F.2d 1302 (8th Cir. 1978)).
The FBI asserts that it withheld documents under exemption 7(E), (Dkt. No. 27-3, ¶¶ 89-
109), “to protect the integrity and effectiveness of FBI’s investigative techniques so criminals
cannot discover them and use them to circumvent investigation or avoid detection.” (Dkt. No. 45,
at 3–4). The information withheld under this exemption includes “FBI file numbers, identities of
squads and divisions, secure fax and telephone numbers, methods of information collection and
analysis, investigative techniques and capabilities, non-public coordination with other government
agencies, and criteria used to determine source suitability.” (Id., at 3 (see Dkt. No. 27-3, ¶¶ 93,
97, 99, 100–08)). Mr. Holt contends that the FBI withheld content, including an email sent to
former STTG coordinator Jacob Higgins “that described the plaintiff as a ‘radicalized, jihadist,’”
that does not fall under the “specialized, non-public techniques or procedures requirement” of 7(E)
(Dkt. No. 37, at 28–29). Mr. Holt further posits that “[a]lthough the FBI is a law enforcement
agency, not all FBI records are compiled for law enforcement purposes.” (Dkt. No. 37, at 31).
While the Court agrees that not all FBI records are compiled for law enforcement purposes, “there
is no reason to believe that the FBI would have compiled information regarding [Mr. Holt] outside
the context of a legitimate law-enforcement investigation.” Roth v. U.S. Dep’t of Just., 642 F.3d
1161, 1173 (D.C. Cir. 2011).
Without any contrary record evidence cited by Mr. Holt, examining the record evidence
with all reasonable inferences drawn in favor of Mr. Holt, the Court concludes that the FBI met its
burden to demonstrate that disclosure of the documents claimed exempt under 7(E) would disclose
FBI techniques and procedures, and thus, the FBI properly withheld documents under exemption
7(E).
8. Glomar Response
“[A]n agency may issue a Glomar response, i.e., refuse to confirm or deny the existence or
nonexistence of responsive records if the particular FOIA exemption at issue would itself preclude
the acknowledgement of such documents.” Elec. Priv. Info. Ctr. v. Nat’l Sec. Agency, 678 F.3d
926, 931 (D.C. Cir. 2012). A Glomar response is appropriate when “‘to answer the FOIA inquiry
would cause harm cognizable under’ an applicable statutory exemption.” Id. (quoting Wolf, 473
at 374). Regarding Glomar responses, “courts may grant summary judgment on the basis of
agency affidavits that 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.’” Id. (quoting Gardels v. C. I. A., 689 F.2d 1100, 1105 (D.C. Cir.
1982)). The affidavit “must justify the Glomar response based on ‘general exemption review
standards established in non-Glomar cases.’” Id. “[A]n agency’s justification for invoking a FOIA
exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Larson, 565 F.3d at 862.
It is the FBI’s standard practice to issue a Glomar response, “regardless of whether
responsive records exist (i.e., including when the FBI does not possess responsive records)” to
maintain the effectiveness of using such responses (Dkt. No. 27-3, ¶ 115). The FBI posits that
“[i]f the FBI invoked a Glomar response only when it possesses responsive records, the Glomar
response would be interpreted as an admission that responsive records exist.” (Id., ¶ 118). The
FBI gave Mr. Holt “its standard Glomar response concerning unacknowledged intelligence
records, watch list records, witness security program records, and records for incarcerated
individuals advising that it can neither confirm nor deny the existence of such records pursuant to
FOIA Exemptions 1, 3, 7(D), and 7(F).” (Dkt. No. 28, at 43–44; see also Dkt. No. 27-3, at 90–
91).
Mr. Holt claims that the FBI’s Glomar response is unlawful because “acknowledging the
existence or non-existence of records would not logically or plausibly reveal the specific facts the
Defendants list” and that some of the documents in question are not confidential and have already
been released by other agencies (Dkt. No. 37, at 68). Mr. Holt’s augment fails because, “[i]n light
of the substantial weight accorded agency assertions of potential harm” that could result by
disclosing records exempt under exemptions 1, 3, 7(D), and 7(F), the agency has put forth
plausible and logical justifications, as discussed previously, for invoking such exemptions. See
Wolf, 473 F.3d at 376. It follows, the agency’s Glomar response under those same exemptions is
adequate.
9. In Camera Review
The Eighth Circuit Court of Appeals has held that “in camera inspection should be limited
as it is ‘contrary to the traditional judicial role of deciding issues in an adversarial context upon
evidence openly produced in court.’” Missouri Coal, at 1210 (citing Barney v. Internal Revenue
Serv., 618 F.2d 1268, 1272 (8th Cir. 1980)). Even in instances when a party submits a “bare bones”
Vaughn index, courts do not hold in camera review if the Vaughn index is accompanied by
affidavits that adequately describe and provide support for the claimed exemptions. Id. “The court
is entitled to accept the credibility of the affidavits, so long as it has no reason to question the good
faith of the agency.” Cox, 576 F.2d at 1312 (citing Weissman v. Cent. Intel. Agency, 565 F.2d 692,
698 (D.C. Cir. 1977)).
The FBI asserts that in camera review is not warranted because it adequately described and
supported its purported reasons for nondisclosure and because Mr. Holt has failed to point to any
instance of bad faith on the FBI’s part (Dkt. No. 45, at 12-13). Mr. Holt relies on a Sixth Circuit
Court of Appeals case, Jones v. F.B.I., 41 F.3d 238 (6th Cir. 1994), to claim that in camera review
is warranted because the FBI acted in bad faith regarding the activities underlying the documents
at issue (Dkt. No. 37, at 98). Specifically, Mr. Holt claims that his advocacy on behalf of Muslims
“brought him into disfavor with both federal and state law enforcement agencies.” (Dkt. No. 37,
at 101). However, the Eighth Circuit did not apply the Jones reasoning, and did not require in
camera review, in a case where the plaintiff “point[ed] to nothing about the FBI’s response to the
instant FOIA requests that call[ed] into question the good faith of the agency.” Peltier, at 761.
Because the FBI’s Vaughn index and supporting declarations adequately describe its reasons for
non-disclosure and because Mr. Holt does not provide any record evidence of the FBI acting in
bad faith, in camera review is not warranted.
I. Conclusion
For these reasons, the Court grants the DOJ’s motion to extend time (Dkt. No. 22) and
grants the DOJ’s motion for summary judgment on Mr. Holt’s FOIA request claim (Dkt. No. 26).
After construing the underlying facts and the inferences to be drawn from them in the light most
favorable to the FOIA requester Mr. Holt, the Court concludes that the record evidence establishes
the DOJ has fully discharged its obligations under FOIA. Mr. Holt has failed to present evidence
from which a jury might return a verdict in his favor on his FOIA claim.
It is so ordered this 24th day of September, 2024.
Kushn A Palin
Kristine G. Baker
Chief United States District Judge
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