The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
BENJAMIN HARRISON and MARKISHA
PRESCOD, Individually and as Parents
and Natural Guardians of Infants MY.H,
MA.H and MI.H, infants under the age of MEMORANDUM & ORDER
thirteen, 22-cv-04169 (NCM) (CHK)
Plaintiffs,
–against –
CITY OF NEW YORK, DET. ADAM
GEORG, DET. RYAN PRETTY, SGT.
EDWARD SCALI, PO COREY FISCHER,
UNIDENTIFIED OFFICERS OF THE
NEW YORK CITY POLICE
DEPARTMENT, THE UNITED STATES,
and the FEDERAL BUREAU OF
INVESTIGATION,
Defendants.
NATASHA C. MERLE, United States District Judge:
Plaintiffs Benjamin Harrison and Markisha Prescod, individually and on behalf of
their minor children, bring suit against the City of New York, Detective Adam Georg,
Detective Ryan Pretty, Sergeant Edward Scali, Police Officer Corey Fischer, and
unidentified officers of the New York City Police Department (“NYPD”) (collectively, “City
Defendants”) alleging that NYPD officers violated plaintiffs’ Fourth Amendment rights
when they executed a no-knock warrant at plaintiffs’ residence in search of a suspect who
lived in a different unit. Third Am. Compl. (“TAC”) ¶¶ 1–11, ECF No. 50. Plaintiffs also
bring a claim against the United States and the Federal Bureau of Investigation (“FBI”)
(collectively, “Federal Defendants”) seeking an order requiring them to provide plaintiffs
with documents regarding the execution of the warrant that are not redacted to a greater
degree than permitted by law. TAC 3, 10–13.1
Plaintiffs initially sued only City Defendants. See Compl., ECF No. 1. During
discovery, plaintiffs served a series of document requests on the FBI (at the time a non-
party) seeking information concerning the raid on plaintiffs’ home. See ECF Nos. 76-5, 76-
11; see also TAC ¶ 82. After receiving over 450 pages of heavily redacted documents,
plaintiffs amended their complaint to add a claim against Federal Defendants that
challenges the redactions as overbroad and seeks an “order compelling [Federal
Defendants] to un-redact the response to the Touhy Request.” TAC 10–13. Before the
Court is Federal Defendants’ motion for summary judgment requesting that the Court
conclude that the FBI’s redactions were proper in all respects. See Mot.2
The Court has reviewed the parties’ submissions, including the redacted version of
the FBI’s production to plaintiffs and the unredacted version submitted to the Court for in
camera review. The Court finds that in many instances (though not all), Federal
Defendants’ choice to redact information is not supported by law. In some instances,
information plainly within the scope of plaintiffs’ requests has been redacted on the basis
that it is “non-responsive.” Moreover, a large number of the redactions were made on the
1 Throughout this Opinion, page numbers for the Certified Administrative Record
(“CAR”), ECF No. 61-1, refer to the numbers found in black typeface at the top right corner
of each page formatted as “FBI AR 00xxx” rather than the page numbers assigned by the
Electronic Case Filing system (“ECF”). All other page numbers for docket filings refer to
the page numbers assigned by ECF.
2 The Court hereinafter refers to Federal Defendants’ Memorandum of Law in
Support of their Motion for Summary Judgment, ECF No. 75, as the “Motion” (“Mot.”);
plaintiff’s Memorandum of Law in Opposition to Federal Defendants’ Motion, ECF No. 76,
as the “Opposition” (“Opp’n”); and Federal Defendants’ Reply Memorandum of Law in
Further Support of their Motion, ECF No. 77, as the “Reply.”
basis of the law enforcement privilege, but the FBI did not follow procedural requirements
necessary to invoke the privilege. For these reasons, Federal Defendants’ motion for
summary judgment is GRANTED in part and DENIED in part. Moreover, as further
explained below, the parties are notified that the Court intends to grant summary
judgment for the nonmovant plaintiffs with respect to the remaining issues pursuant to
Fed. R. Civ. P. 56(f)(1) following an opportunity for the parties to respond.
BACKGROUND
On July 16, 2019, just before 6:00 A.M., armed NYPD officers knocked down
plaintiffs’ front door. TAC ¶¶ 1, 19–20. Officers directed plaintiff Prescod and her children
to remain in the living room while other officers searched plaintiffs’ apartment. TAC ¶¶ 1,
24. Plaintiff Harrison arrived at the apartment as it was being searched and was prevented
from going inside. TAC ¶ 1. After conducting the search and causing significant physical
damage to plaintiffs’ apartment, officers explained to plaintiffs that they had inadvertently
searched the wrong dwelling. TAC ¶ 3. They had meant to execute a warrant to search for
an individual named Matthew Elias, who lived in a different unit. TAC ¶ 3.
In July 2022, plaintiffs brought suit against the City of New York and several NYPD
officers under 42 U.S.C. § 1983, seeking damages for violation of their Fourth Amendment
rights. See Compl. During discovery, plaintiffs served a series of document requests on the
FBI for documents related to the execution of the warrant. See February 15, 2023 Touhy
Request, Opp’n Ex. D, ECF No. 76-5; August 29, 2023 Touhy Request, Opp’n Ex. J, ECF
No. 76-11. At the time, the FBI was not a party to the suit. See Compl. Each of these requests
was titled “Touhy Request” and stated that it was seeking documents “pursuant to United
States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).” See Opp’n Exs. D, J.
Federal agencies commonly establish rules governing what information their
employees can disclose under various circumstances. See Carbone v. Martin, No. 18-cv-
03509, 2021 WL 1224102, at *1 (E.D.N.Y. Mar. 31, 2021). In United States ex rel. Touhy
v. Ragen, the Supreme Court held that an FBI employee who invoked Department of
Justice (“DOJ”) regulations governing the disclosure of information as a basis to refuse to
answer a subpoena could not be held in contempt of court. 340 U.S. 462, 468 (1951).
Agency regulations governing the production and disclosure of information for purposes
of legal proceedings have since been known as “Touhy regulations.” The DOJ’s Touhy
regulations are promulgated under the Federal Housekeeping Statute, 5 U.S.C. § 301,
which authorizes the head of each executive branch agency to issue regulations “for the
government of his department, the conduct of its employees, the distribution and
performance of its business, and the custody, use, and preservation of its records, papers,
and property.” The regulations are codified at 28 C.F.R. §§ 16.21–29. Because the FBI is a
component of the DOJ, these regulations apply to Touhy requests for documents held by
the FBI. See Meisel v. F.B.I., 204 F. Supp. 2d 684, 686 n.1 (S.D.N.Y. 2002).
The DOJ’s Touhy regulations require that an official considering whether to
disclose information in response to a Touhy request consider “(1) [w]hether such
disclosure is appropriate under the rules of procedure governing the case or matter in
which the demand arose, and (2) [w]hether disclosure is appropriate under the relevant
substantive law concerning privilege.” 28 C.F.R. § 16.26(a). In addition, the regulations
prohibit disclosure where one or more of six enumerated factors exist, including if “(1)
[d]isclosure would violate a statute . . . or a rule of procedure . . . ; (2) [d]isclosure would
violate a specific regulation; (3) [d]isclosure would reveal classified information . . . ; (4)
[d]isclosure would reveal a confidential source or informant . . . ; (5) [d]isclosure would
reveal investigatory records compiled for law enforcement purposes, and would interfere
with enforcement proceedings or disclose investigative techniques and procedures the
effectiveness of which would thereby be impaired . . . [; or] (6) [d]isclosure would
improperly reveal trade secrets without the owner’s consent.” 28 C.F.R. § 16.26(b).
Plaintiffs’ most recent Touhy request, submitted to the FBI on August 29, 2023,
sought two categories of records. First, it sought “[t]he identification of all law enforcement
officials who were present at 125-60 Sutphin Boulevard, Jamaica, New York 11434, on July
16, 2019, in connection with the arrest of Matthew Elias pursuant to the attached arrest
warrant and in connection with FBI Case No. 281D-NY-2129723.” Opp’n Ex. J at 3.
Second, the request sought “[a]ny FBI or DOJ documents, photographs, or recordings
documenting the execution of the . . . arrest warrant.” Opp’n Ex. J at 3. As with each of
plaintiffs’ Touhy requests, plaintiffs’ most recent request asserted that it complied with the
DOJ’s Touhy regulations. See Opp’n Exs. D, J.
After several months of correspondence between plaintiffs and the FBI about the
breadth of plaintiffs’ Touhy request and the timing of the FBI’s production, the FBI
formally responded to the request on March 12, 2024. See March 12, 2024 Touhy
Response, Opp’n Ex. K, ECF No. 76-12. The FBI noted a variety of objections, bases for
withholding documents, and bases for redacting documents. Opp’n Ex. K at 4. The FBI
objected that the request was “overbroad and would place an undue burden on the FBI” to
the extent the request sought “documents other than those regarding law enforcement’s
knowledge of the correct apartment at which to execute the arrest warrant.” Opp’n Ex. K
at 4. The FBI also objected to the extent the request sought information subject to any
privilege or otherwise protected from disclosure under the FBI’s Touhy regulations or any
other law. Opp’n Ex. K at 4. Along with these objections, the FBI produced 457 pages of
records, many of which were substantially or completely redacted. See CAR 82–538, ECF
No. 61-1 (totaling 457 pages, inclusive of the cover sheet and list of redaction codes). The
response stated that it constituted a final agency decision in response to the Touhy request.
Opp’n Ex. K at 4.
Believing the extent of the redactions to be overbroad, plaintiffs sought a court
order directing the FBI to provide plaintiffs with unredacted versions of the documents.
Specifically, in July 2024, plaintiffs amended their complaint in the instant action to add
a claim under Section 706 of the Administrative Procedure Act (“APA”) against Federal
Defendants. TAC ¶¶ 81–97. Plaintiffs challenge the final agency action of providing
documents containing allegedly improper redactions. TAC ¶¶ 91–97; Opp’n 5–6. Plaintiffs
assert that Federal Defendants should “be compelled to substantially un-redact the records
. . . in order to provide records and information illuminating the extent to which law
enforcement was aware of Matthew Elias’s address and/or whereabouts.” TAC ¶ 97.
Specifically, plaintiffs seek “[a]n order compelling [Federal Defendants] to un-redact the
response to the Touhy Request except as necessary to protect the names or identifying
information of confidential informants, and vacating the agency decision regarding the
redactions in its current response to the Touhy Request.” TAC 13.
Federal Defendants now move for summary judgment under Federal Rule of Civil
Procedure 56 requesting that the Court find that the FBI’s redactions were proper. See
Mot. Plaintiffs filed an opposition, Opp’n, and Federal Defendants filed a reply, Reply.
Plaintiffs did not file a cross-motion for summary judgment.
STANDARD OF REVIEW
I. Proper Standard of Review
Plaintiffs and Federal Defendants disagree about the proper legal standard for
assessing the present motion. Federal Defendants argue that the Court should engage in a
deferential analysis under Section 706 of the APA of whether the redactions were
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A);3 Mot. 16. Plaintiffs, meanwhile, argue that the APA merely provides
the waiver of sovereign immunity necessary to challenge the federal government’s actions
in court, and that Section 706 is not the appropriate standard of review for the actual
validity of Federal Defendants Touhy response. Opp’n 12–13. Plaintiffs argue that the
Court should instead examine whether the redactions comply with the standards set forth
in Federal Rules of Civil Procedure 26 and 45, which typically control the validity of
objections to non-party subpoenas. Opp’n 16–18, 22 n.9. Those rules generally permit the
discovery of “any nonprivileged matter that is relevant to any party’s claim . . . and
proportional to the needs of the case,” Fed. R. Civ. P. 26(b)(1), while disallowing subpoenas
that “require[] disclosure of privileged or other protected matter [or] subject[] a person to
undue burden,” Fed. R. Civ. P. 45(d)(3).
The Second Circuit has explicitly left undecided whether a non-party federal
agency’s refusal to comply with a demand to produce documents for purposes of civil
litigation should be reviewed under the standard contained in Section 706 of the APA or
the standard contained in Federal Rules of Civil Procedure 26 and 45. See U.S. E.P.A. v.
Gen. Elec. Co., 212 F.3d 689, 690 (2d Cir. 2000); see also Manzo v. Stanley Black &
3 Throughout this Opinion, the Court omits all internal quotation marks, footnotes,
and citations, and adopts all alterations, unless otherwise indicated.
Decker, Inc., No. 13-cv-03963, 2017 WL 1194651, at *7 (E.D.N.Y. Mar. 30, 2017). The
question is also the subject of an “entrenched circuit split,” with the D.C. Circuit and Ninth
Circuit applying the standard of the Federal Rules and the Fourth Circuit and Eleventh
Circuit applying the arbitrary and capricious standard of Section 706. Zoe Niesel, Terrible
Touhy: Navigating Judicial Review of an Agency’s Response to Third-Party Subpoenas,
41 Cardozo L. Rev. 1499, 1502 (2020). In light of this open question, district courts within
the Second Circuit have taken a variety of approaches. “[S]ome have opted for one
standard over the other,” while others “choose the standard that is more favorable to the
ultimately losing party, since the result would presumptively be the same under the other
standard that is less deferential to that party.” Manzo, 2017 WL 1194651, at *7. In other
instances, district courts will “analyze the case before them under both standards,
particularly where the end result is the same.” Id. (citing Solomon v. Nassau County, 274
F.R.D. 455, 458 (E.D.N.Y. 2011)).
Federal Defendants argue that even if it is an open question which standard applies
in certain cases, in the present case it must be the APA standard that applies because the
claim contained in plaintiffs’ third amended complaint “is not a discovery dispute
governed by Rules 26 or 45” but rather “is brought pursuant to the APA” and “challenges
the redactions as arbitrary and capricious.” Reply 5. Federal Defendants insist that courts
only apply the standard of the Federal Rules when a “challenge to a non-party agency’s
subpoena response is brought by a motion to compel” rather than by an APA Section 706
claim. Reply 6 n.1. Plaintiffs, on the other hand, contend that APA Section 706 is only a
vehicle that waives the federal government’s sovereign immunity and is not dispositive of
which standard applies. Opp’n 12–16.
The Court finds that it is not necessary to resolve which standard applies at this
juncture. The Court examines Federal Defendants’ actions under both standards and
concludes that, under either one, the Court would reach the same disposition on Federal
Defendants’ motion.
II. Review Under the Standard of the APA
Reviewing Federal Defendants’ release of documents as a final agency action under
Section 706 of the APA requires the Court to examine whether the redactions were
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A). Review under the arbitrary and capricious standard “is necessarily
narrow,” and the Court may not “substitute its judgment for that of the agency.” Islander
E. Pipeline Co., v. McCarthy, 525 F.3d 141, 150 (2d Cir. 2008). Moreover, the Court is
“confined to the administrative record compiled by that agency when it made the
decision.” Nat’l Audubon Soc’y v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997). An agency’s
decision counts as arbitrary and capricious if the agency “offered an explanation for its
decision that runs counter to the evidence before the agency[] or is so implausible that it
could not be ascribed to a difference in view or the product of agency expertise.” Motor
Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
An agency’s decision also counts as arbitrary and capricious if the agency did not “set out
a satisfactory explanation including a rational connection between the facts found and the
choice made.” Karpova v. Snow, 497 F.3d 262, 268 (2d Cir. 2007).
Summary judgment is generally an appropriate vehicle to resolve a challenge to an
agency action under the APA, but “the usual summary judgment standard under Federal
Rule of Civil Procedure 56 does not apply.” Saleh v. Blinken, 596 F. Supp. 3d 405, 413
(E.D.N.Y. 2022), aff’d, No. 22-1168, 2023 WL 5091819 (2d Cir. Aug. 9, 2023). Instead, “the
district judge sits as an appellate tribunal” and “the entire case on review is a question of
law.” Kapoor v. USCIS, 763 F. Supp. 3d 247, 254 (E.D.N.Y. 2025) (quoting Am. Bioscience,
Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001)). The “Court’s role is not to decide
whether there is a genuine dispute of material fact, but [rather] to decide, as a matter of
law, whether the agency action is consistent with the APA standard of review.” Id. An
agency’s legal determinations receive no deference under the APA. Loper Bright Enters.
v. Raimondo, 603 U.S. 369 (2024). Instead, “the reviewing court shall decide all relevant
questions of law” on a de novo basis. 5 U.S.C. § 706; Loper Bright, 603 U.S. at 393 n.4.
If a district court finds that an agency’s action was arbitrary and capricious or
otherwise impermissible under APA, the proper remedy is to remand to the agency for a
do-over. Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also OhioHealth
Corp. v. U.S. Dep’t of Veteran Affs., No. 14-cv-00292, 2014 WL 4660092, at *7 (S.D. Ohio
Sept. 17, 2014). On remand, the agency can engage in “additional investigation or
explanation,” Fla. Power, 470 U.S. at 744, or “deal with the problem afresh by taking new
agency action,” DHS v. Regents of the Univ. of Cal., 591 U.S. 1, 21 (2020).
III. Review Under the Standard of the Federal Rules
Reviewing Federal Defendants’ response to plaintiffs’ document request under the
standard established by the Federal Rules of Civil Procedure calls for verifying that the
request is consistent with Rules 26 and 45 of the Federal Rules of Civil Procedure, as well
as the agency’s Touhy regulations. See In re Terrorist Attacks on Sept. 11, 2001, 523 F.
Supp. 3d 478, 488–90 (S.D.N.Y. 2021). First, Rule 26(b)(1) sets the scope of discovery in
federal court litigation, specifying that “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense and proportional to
the needs of the case.” Fed. R. Civ. P. 26(b)(1). Factors the Court considers in this analysis
include “the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the importance of
the discovery in resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit.” Id. Discovery also should generally be limited if,
among other reasons, the information “sought is unreasonably cumulative or duplicative”
or the material in question “can be obtained from some other source that is more
convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C)(i).
Rules 26 and 45 of the Federal Rules of Civil Procedure require courts to be sensitive
to the burdens imposed by discovery on non-parties, and courts must be particularly
solicitous about avoiding undue burden on the government and its employees. “Discovery
under Rules 26 and 45 must properly accommodate the government’s serious and
legitimate concern that its employees not be commandeered into service by private
litigants to the detriment of the smooth functioning of government operations.” In re
Terrorist Attacks, 523 F. Supp. 3d at 489–490 (quoting Exxon Shipping Co. v. U.S. Dep’t
of the Interior, 34 F.3d 774, 778–79 (9th Cir. 1994)).
Moreover, “it is clear from the Department of Justice regulations governing the
disclosure of confidential information, as well as the common law doctrine in Touhy and
the litany of succeeding case law, that the United States may restrict the release of its
information.” Id. at 490 (quoting Edwards v. U.S. Dep’t of Just., 43 F.3d 312, 317 (11th Cir.
1994)). “The decision about production rests with the agency, based on the factors
provided in the agency’s Touhy regulations. Even if the information [sought] is relevant to
the underlying litigation, [the seeking party] is not automatically entitled to the documents
it has requested.” Id. (quoting Agility Pub. Warehousing Co. K.S.C.P. v. U.S. Dep’t of Def.,
246 F. Supp. 3d 34, 44 (D.D.C. 2017)).
DISCUSSION
I. The FBI’s Redactions
Plaintiffs’ most recent Touhy request sought two categories of information: “[t]he
identification of all law enforcement officials who were present at 125-60 Sutphin
Boulevard . . . on July 16, 2019, in connection with the arrest of Matthew Elias” as well as
“[a]ny FBI or DOJ documents, photographs, or recordings documenting the execution of
the . . . arrest warrant.” Opp’n Ex. J at 3.
In response, the FBI produced 457 pages of documents, most of which are heavily
or entirely redacted. See generally CAR. Each redaction is tagged with one or more of
seven “redaction codes,” which each correspond to a distinct basis for redaction. See CAR
86. Those codes are: code “F” (FBI file numbers), code “M” (information which is not
responsive), code “O-1” (information originating with a non-federal entity), code “P-1”
(information the disclosure of which would be an unwarranted invasion of personal
privacy), code “S” (personal identifying information related to law enforcement
personnel), code “G” (information covered by law enforcement privilege because
disclosure could harm an investigation or investigative interest), and code “H”
(information covered by law enforcement privilege because disclosure would impair the
effectiveness of an investigative method or procedure).
Code F was invoked with respect to three (3) documents, code M was invoked with
respect to one hundred and thirty seven (137) documents, code O-1 was invoked with
respect to twenty four (24) documents, code P-1 was invoked with respect to one hundred
and seventeen (117) documents, code S was invoked with respect to forty three (43)
documents, code G was invoked with respect to one hundred and twenty one (121)
documents, and code H was invoked with respect to twenty five (25) documents. See
Redaction Log for Certified Administrative Record (“Redaction Log”), ECF No. 66-1. Many
of the documents were redacted on the basis of more than one redaction code. See
Redaction Log.
In the following sections, the Court reviews each purported basis for redaction
under both the standard of the APA and the standard of the Federal Rules.
A. Redactions of Purportedly Non-Responsive Information (Code M)
One hundred and thirty seven documents contain redactions, labeled with code M,
of “information which is not responsive.” CAR 86. The FBI of course acts lawfully when it
withholds information that is in fact not responsive to the plaintiffs’ request. Plaintiffs
furthermore have explicitly disclaimed any attempt to seek nonresponsive information.
Opp’n 18 (“Plaintiffs do not seek information that is not responsive or irrelevant”); see also
Opp’n 23 n.10 (“Plaintiffs are not seeking nonresponsive material”). Upon examination,
however, the Court concludes that the FBI has redacted information on the basis that the
information is not responsive even though it is in fact encompassed by plaintiffs’ most
recent Touhy request.
Rather than addressing all one hundred and thirty seven documents in sequence,
the Court begins by discussing the first four documents that contain redactions on the
basis of code M.
i. Document Located at CAR 82–84
The FBI’s first redaction made on the basis that the redacted information is not
responsive occurs within a document located at CAR 82–84. The FBI states that two types
of information were redacted in this document as not responsive. First, the FBI redacted
“details of Matthew Elias’s arrest” on the basis that the information was not responsive.
Redaction Log 1. The Court concludes that “details of Matthew Elias’s arrest” are plainly
responsive to the request for “[a]ny FBI or DOJ document[] . . . documenting the execution
of [Matthew Elias’s] arrest warrant.” Opp’n Ex. J at 3. Although it is conceivably possible
that the FBI could redact this information for a different lawful reason, the FBI cannot
redact “details of Matthew Elias’s arrest” on the basis that it is not responsive to a request
for “documents . . . documenting the execution of [Matthew Elias’s] arrest warrant.” Opp’n
Ex. J at 3.
In this respect, the Court finds the FBI’s actions to be arbitrary and capricious. By
claiming that information is “not responsive” when it is plainly encompassed by plaintiffs’
Touhy request, and by providing no further explanation of how the FBI reached the
conclusion that the redacted information is not responsive, the FBI has failed to “set out a
satisfactory explanation including a rational connection between the facts found and the
choice made.” Karpova, 497 F.3d at 268.
The FBI claims this document requires redaction because of a second type of
allegedly not responsive information: “details of Matthew Elias’s . . . personally identifiable
information (PII).” Redaction Log 1. A footnote in the redaction log explains that “Elias’s
PII includes personal non-responsive information, such as information about his health
or family.” Redaction Log 1 n.2. The Court finds that this constitutes a “satisfactory
explanation” of why the redacted information is not responsive. See Karpova, 497 F.3d at
268. It is clear from the FBI’s explanation that the information redacted on this basis
qualifies neither as information identifying law enforcement officials present for the raid,
nor as records “documenting the execution of the . . . arrest warrant.” Opp’n Ex. J at 3.
ii. Document Located at CAR 87
The second document containing redactions on the basis that the redacted
information is not responsive is located at CAR 87. See Redaction Log 1. The FBI states
that three types of non-responsive information were redacted. First, the FBI redacted
“information about unrelated ongoing case(s).” Redaction Log 1. The Court agrees, and the
plaintiffs do not dispute, that information about “unrelated . . . cases” is not responsive.
See Opp’n 12.
Second, the FBI redacted “law enforcement personnel’s PII.” Redaction Log 1. A
footnote attached to that explanation states that “Law enforcement personnel’s PII
includes their name, title, agency, office, squad, phone number, email address, and other
personal information, such as information related to their family.” Redaction Log 1 n.3.
The FBI claims that this information is being redacted because it is “not responsive” and
the purported reason it is not responsive is that it is “law enforcement personnel’s PII.”
Redaction Log 1. This is an important difference from redactions made on the basis of code
“S,” which signals information—whether responsive or not responsive—that is redacted
because it is “personal identifying information related to law enforcement personnel and
their family members, the disclosure of which is routinely guarded for security reasons.”
CAR 86.
The Court disagrees that all information in the category of “law enforcement
personnel’s PII” is necessarily unresponsive to plaintiffs’ request. For example, the “name,
title, agency, office, [and] squad” of law enforcement officers, Redaction Log 1 n.3, falls
plainly within a request that the FBI provide “the identification of all law enforcement
officials who were present” during the raid, Opp’n Ex. J at 3 (emphasis added). On the
other hand, the Court agrees that information such as an officer’s “phone number, email
address, and . . . information related to their family,” Redaction Log 1 n.3, does not fall
within the scope of information that plaintiffs seek.
Third, the FBI redacted “information about law enforcement personnel’s training.”
Redaction Log 1. Plaintiffs did not seek information about training, and thus the Court
agrees that information regarding training can be redacted as nonresponsive.
iii. Document Located at CAR 88
The third document containing redactions on the basis that the redacted
information is not responsive is located at CAR 88. Redaction Log 2. The FBI states that
two types of non-responsive information were redacted. First, the FBI redacted
“information about unrelated ongoing case(s).” Redaction Log 2. As stated above, this is a
proper basis for redaction as not responsive.
Second, the FBI redacted “tactical information related to operational plan for Elias’s
arrest.” Redaction Log 2. The Court finds that this information is plainly within the scope
of information “documenting the execution of the . . . arrest warrant.” Opp’n Ex. J at 3.
Accordingly, the Court finds that the FBI’s choice to redact this information on the basis
that it is not responsive was arbitrary and capricious. See Karpova, 497 F.3d at 268.
iv. Document Located at CAR 89–95
The fourth document containing redactions on the basis that the redacted
information is not responsive is located at CAR 89–95. Redaction Log 2–3. The FBI states
that five types of non-responsive information were redacted. First, the FBI redacted the
“date/time stamp on document.” Redaction Log 3. Because the date and time appear to be
an after-the-fact stamp applied in the course of evidence preparation, rather than
information constituting part of the original substance, the Court holds that it was proper
for the FBI to redact the stamp as non-responsive.
Second, the FBI redacted an “attachment name.” Redaction Log 3. The Court agrees
with the FBI that the digital filename of a document sent by email neither documents the
execution of the warrant nor identifies officers who were present.
Third, the FBI redacted an “FBI non-public intranet web address.” Redaction Log
3. The Court agrees that this information is not encompassed by either of the categories of
information sought by plaintiffs.
Fourth, the FBI redacted “law enforcement personnel’s PII, including name of law
enforcement personnel not present for Elias’s arrest.” Redaction Log 3. The Court agrees
that the names of “law enforcement personnel not present for Elias’s arrest” are not
responsive to plaintiffs’ request, which was only for the identification of officers “present”
at the raid. Opp’n Ex. J at 3. With respect to all other “law enforcement personnel’s PII”
redacted for purportedly not being responsive to plaintiffs’ request, as stated in section
I.A.ii, supra, the mere fact that information is “law enforcement personnel’s PII” does not
establish that it falls outside of plaintiffs’ request. The FBI must either offer a valid
explanation of why this information is not responsive, redact this information on a
different basis, or unredact the information.
Finally, the FBI redacted “tactical information related to operational plans for
arrests of Elias and his co-defendants.” Redaction Log 3. The Court concludes that
information exclusively concerning the arrest of co-defendants is indeed beyong the scope
of plaintiffs’ request. Plaintiffs only requested “information documenting the execution of
the attached arrest warrant,” Opp’n Ex. J at 3 (emphasis added), and the attached arrest
warrant concerned only Elias, Opp’n Ex. M at 2–4, ECF No. 76-14. However, the Court
also concludes that “information related to operational plans for arrest[] of Elias” is plainly
within the scope of “information documenting the execution of the attached arrest
warrant.” The FBI acted arbitrarily and capriciously when it redacted this information on
the basis that it was not responsive to the plaintiffs’ request. See also Opp’n at 23 n.10
(“Although the information behind the codefendants’ arrests may be nonresponsive . . . ,
the tactics and operations surrounding Elias’s arrest is most certainly relevant to the
Harrison Family’s claims.” (emphasis in original)).
v. Remaining Code M Redactions
The Court applies similar reasoning to the remaining 100+ documents containing
redactions on the basis of code M throughout the entirety of the certified administrative
record. See Redaction Log. The Court concludes that the following have been properly
redacted as nonresponsive: (1) “tactical information related to operational plans for arrests
of Elias[’s] . . . codefendants”; (2) “references to Elias’s co-defendants”; and (3) the
“name[s] of law enforcement personnel not present for Elias’s arrest.” Redaction Log
passim. The Court also concludes that the FBI has failed to “set out a satisfactory
explanation including a rational connection between the facts found and the choice made,”
Karpova, 497 F.3d at 268, in every instance where it redacted the following information
as not responsive: (1) “tactical information related to operational plans for arrest[] of Elias”
and (2) “law enforcement personnel’s PII” unless such information is not related to the
“execution of the . . . arrest warrant” and does not “identif[y] [any] law enforcement
officials who were present” during the raid. Redaction Log passim. For all of the
information redacted on the basis of code M with either of these explanations, the FBI
must either offer a new, valid explanation of why this information is not responsive, redact
this information on a different basis, or unredact the information.
B. Redactions on the Basis of Invading Personal Privacy (Code P-1)
One hundred and seventeen (117) documents contain redactions, labeled with code
P-1, of “information, the disclosure of which would be an unwarranted invasion of personal
privacy.” CAR 86. The FBI’s motion for summary judgment explains that these 117
redactions were ultimately made on the basis of the Privacy Act of 1974, 5 U.S.C. § 552a.
The FBI explains that the “DOJ’s Touhy regulations prohibit disclosure when such
disclosure would violate a statute” and “[o]ne such statute is the Privacy Act, which
generally prevents federal agencies from disclosing ‘any record which is contained in a
system of records to any person, or to another agency, except [with] written consent of[]
the individual to whom the record pertains, unless disclosure’ falls within one of twelve
delineated exceptions.” Mot. 24–25 (quoting 5 U.S.C. § 552a(b)). One of the twelve
exceptions enacted by Congress is for all information disclosed “pursuant to the order of a
court of competent jurisdiction.” 5 U.S.C. § 552a(b)(12). In response to Federal
Defendants’ arguments concerning the Privacy Act, plaintiffs offer several reasons why the
Court should not construe the Privacy Act to be a statute preventing the disclosure of
records in this case. Opp’n 25–30.
The Court finds it unnecessary to resolve the Privacy Act issue at this stage.
Although no Court order was in effect at the time the FBI sent its Touhy response to
plaintiffs, plaintiffs are now explicitly seeking a court “order compelling the [Federal
D]efendants to un-redact the response to the Touhy Request.” TAC 13. Such an order, if
granted, would moot any argument that the information must be redacted on the basis of
the Privacy Act. Moreover, courts routinely grant orders authorizing the disclosure of
information for litigation purposes notwithstanding the Privacy Act. See, e.g., Days v.
Eastchester Police Dep’t, No. 18-cv-11538, 2021 WL 75173, at *1 (S.D.N.Y. Jan. 8, 2021).
These orders typically include appropriate measures to ensure the continued
confidentiality of private information, such as a protective order. Id.
To streamline the Privacy Act issue, the Court directs the parties as follows.
Plaintiffs, or plaintiffs jointly with Federal Defendants, within 30 days of this order, may
move for an order of this Court authorizing the disclosure of information encompassed by
plaintiffs’ Touhy request that the FBI believes must be redacted on the basis of the Privacy
Act. The order sought should include appropriate measures to safeguard the information,
such as an extension or modification of the stipulated protective order currently in effect.
See Stipulation and Proposed Order for Protection of Materials and Information, ECF No.
21.
For information that the FBI believes must be redacted on the basis of both the
Privacy Act and a different, independent reason, the order will merely authorize the FBI to
disclose information notwithstanding the Privacy Act—it will not order the FBI to un-
redact information that is properly redacted on a distinct basis. See Days, 2021 WL 75173,
at *1 (“Pursuant to 5 U.S.C. § 552a(b)([12]), this Order authorizes the Government to
produce information that otherwise would be prohibited from disclosure under the Privacy
Act . . . . To the extent the Privacy Act allows the disclosure of information pursuant to a
court order, this Order constitutes such a court order and authorizes the disclosure of that
information. Nothing in this paragraph, however, shall require production of information
that is prohibited from disclosure (even with the entry of this Order) by other applicable
privileges, statutes, regulations, or authorities.”).
C. Redactions on the Basis of the Law Enforcement Privilege
(Codes G and H)
Two categories of redacted information are codes “G” and “H,” which correspond
to the law enforcement privilege. Code G reflects “The Law Enforcement Privilege - The
Disclosure Of This Information Could Cause Harm To, Impede, Impair, Or Hinder An
Investigation And/Or An Investigative Interest of The FBI.” CAR 86. Meanwhile, Code H
corresponds to “The Law Enforcement Privilege - The Disclosure Of This Information
Would Impede Or Impair The Effectiveness Of An Investigative Technique, Method Or
Procedure of The FBI.” CAR 86. For the following reasons, the Court concludes that the
FBI has not followed proper procedural requirements necessary to invoke the law
enforcement privilege.
i. Law Enforcement Privilege in the Second Circuit
The “law enforcement privilege” (sometimes called “law enforcement investigatory
privilege”) is a recognized common law privilege that protects the sensitive interests of law
enforcement agencies. Raphael v. Aetna Cas. & Sur. Co., 744 F. Supp. 71, 74 (S.D.N.Y.
1990). The Second Circuit gave its most detailed guidance on the law enforcement privilege
in the 2010 case In re The City of New York, 607 F.3d 923 (2d Cir. 2010) (“City of NY”).
The opinion explains that the purpose of the law enforcement privilege is “to prevent
disclosure of law enforcement techniques and procedures, to preserve the confidentiality
of sources, to protect witness and law enforcement personnel, to safeguard the privacy of
individuals involved in an investigation, and otherwise to prevent interference with an
investigation.” City of NY, 607 F.3d at 941. The opinion also explains that law enforcement
privilege is a qualified privilege rather than an absolute privilege, which means that there
are circumstances where information subject to the privilege must nevertheless be
disclosed. Id. at 940.
Analyzing an assertion of law enforcement privilege requires the application of a
multi-step framework. At the outset, “a district court must first determine if the law
enforcement privilege applies to the documents at issue.” Id. at 944. The Second Circuit
explicitly “adopt[ed] the holding of the District of Columbia Circuit that the party asserting
the law enforcement privilege bears the burden of showing that the privilege applies to the
documents in question.” Id. at 944 (citing In re Sealed Case, 856 F.2d 268, 271–72 (D.C.
Cir. 1988)). In order to “meet this burden, the party asserting the law enforcement
privilege must show that the documents contain information that the law enforcement
privilege is intended to protect[, such as] information pertaining to law enforcement
techniques and procedures, information that would undermine the confidentiality of
sources, information that would endanger witness and law enforcement personnel, . . . and
information that would otherwise interfere with an investigation.” Id.
If the court reviewing the assertion of privilege is satisfied that “the party asserting
the law enforcement privilege [has met its] burden of showing that the privilege applies,”
then the analysis moves to the next stage. Id. at 948. The D.C. Circuit in In re Sealed Case
adopted a balancing test under which the “public interest in nondisclosure must be
balanced against the need of a particular litigant for access to the privileged information.”
856 F.2d at 272. The Second Circuit again explicitly “adopt[ed] this sensible balancing test
as the law of our Circuit.” City of NY, 607 F.3d at 945. At this stage, there is a “strong
presumption against lifting the privilege,” and “[t]o rebut that presumption, the party
seeking disclosure must show (1) that its suit is non-frivolous and brought in good faith,
(2) that the information sought is not available through other discovery or from other
sources, and (3) that the information sought is important to the party’s case.” Id. If the
party seeking disclosure successfully rebuts the presumption, then the reviewing court
next balances “the public interest in nondisclosure against the need of a particular litigant
for access to the privileged information.” Id. Disclosure “is required only if that compelling
need outweighs the public interest in nondisclosure.” Id.
ii. The Three Procedural Requirements
A dispositive issue in the present case arises at the first step of the analysis, where
the party asserting the law enforcement privilege (here, the FBI) bears the burden of
showing that the documents in fact “contain information that the law enforcement
privilege is intended to protect.” City of NY, 607 F.3d at 944. Though it is clear that the
law enforcement agency bears the burden, the natural next question is what the agency
must do to meet the burden. The Second Circuit’s opinion in City of New York does not
address this directly. But the D.C. Circuit’s opinion in In re Sealed Case, whose reasoning
and tests the Second Circuit adopts, holds that for the government to meet its burden of
demonstrating that information is subject to the law enforcement privilege, “three
requirements must be met: (1) there must be a formal claim of privilege by the head of the
department having control over the requested information; (2) assertion of the privilege
must be based on actual personal consideration by that official; and (3) the information
for which the privilege is claimed must be specified, with an explanation why it properly
falls within the scope of the privilege.” In re Sealed Case, 856 F.2d at 271. According to the
D.C. Circuit, “[t]hese conditions ensure that the privilege is presented in a deliberate,
considered, and reasonably specific manner.” Id. In a case following In re Sealed Case, the
D.C. Circuit elaborated on the “head of the department” requirement, noting that this did
not have to be the ultimate head of the entire agency (e.g. the U.S. Attorney General or the
Director of the FBI), but rather just the head of the relevant office or division. Landry v.
F.D.I.C., 204 F.3d 1125, 1135-36 (D.C. Cir. 2000).
Since the Second Circuit’s decision in City of NY, several district courts within the
Second Circuit have read City of NY to incorporate the three procedural requirements. See,
e.g., United States v. Wey, 252 F. Supp. 3d 237, 250 (S.D.N.Y. 2017) (Nathan, J.) (“The
[Second Circuit] has expressly adopted the holding of the [D.C.] Circuit that the party
asserting the law enforcement privilege bears the burden of showing that the privilege
applies to the documents in question. To carry that burden, the asserting party must meet
three procedural requirements. . . .”); City of New York v. FedEx Inc., No. 13-cv-09173,
2017 WL 4155410, at *4 (S.D.N.Y. Sept. 19, 2017) (Ramos, J.) (“The parties agree that the
party asserting the law enforcement privilege bears the burden of showing that the
privilege applies, [but] dispute what that burden entails. . . . Post-[City of NY] decisions in
this Circuit continue to hold that the burden . . . cannot be discharged by conclusory or ipse
dixit assertions. . . . In its privilege logs, the State merely declares that the documents
reflect ‘law enforcement techniques and procedures’ . . . . These are mere recitations of the
categories of information that the law enforcement privilege is designed to protect . . . [and
do] not provide the requisite details.”). At least one district court has also come to the
opposite view—that because the Second Circuit did not explicitly mention the “procedural
component set forth in In re Sealed Case,” district courts in the Second Circuit should not
assume that it applies. United States v. Sixty-One Thousand Nine Hundred Dollars, No.
10-cv-01866, 2010 WL 4689442, at *2, 4 (E.D.N.Y. Nov. 10, 2010) (“United States v.
$61,900”).
This Court follows the bulk of district courts within the Second Circuit to address
the matter in the aftermath of City of NY and holds that the three procedural requirements
apply. The Second Circuit’s opinion extensively adopted the reasoning and tests of the D.C.
Circuit, and the best reading of that opinion is that that law enforcement agencies litigating
in the Second Circuit must comply with the same three procedural requirements that the
D.C. Circuit requires to invoke the law enforcement privilege.
The opinion in United States v. $61,900 argues that because the Second Circuit
explicitly mentioned it was adopting several tests from In re Sealed Case but said nothing
about whether it was adopting the procedural requirements, that should be read as the
Second Circuit declining to adopt the procedural requirements. 2010 WL 4689442, at *2.
This Court respectfully disagrees. First, the district court and the Second Circuit in City of
NY were adjudicating a case where the party asserting the law enforcement privilege in
fact complied with the procedural requirements. The NYPD (the party asserting the
privilege) in that case provided a declaration from a senior official of the law enforcement
agency claiming the privilege—specifically, a declaration from the Deputy Commissioner
of Intelligence of the New York City Police Department, David Cohen—noting that he had
engaged in personal consideration of the issue and explaining why the documents properly
fell within the scope of the privilege. See Decl. of David Cohen (“Cohen Decl.”) ¶¶ 1–7,
Schiller v. City of New York, No. 04-cv-07922 (S.D.N.Y. Aug. 23, 2007), ECF No. 264 (“I
have general oversight of the Intelligence Division . . . . I have personal knowledge of the
facts set forth below . . . . I have personally read all of the documents [over which the City
asserts the law enforcement privilege] . . . . Release of these documents or redacted
portions thereof would reveal information about sources and methods. Consequently,
release would severely damage the NYPD intelligence program, and in turn, seriously
undercut its ability to contribute to the security and safety of New York City . . . .”). Further,
the NYPD went beyond mere ipse dixit assertions that certain information was subject to
the law enforcement privilege and articulated an explanation of why the withheld
information was covered. See, e.g., Cohen Decl. ¶¶ 17–18, Schiller, No. 04-cv-07922 (“The
specific ways in which disclosure of [this] information” can “facilitate the . . . disclosure of
the identity of an undercover officer or confidential informant” include that revealing
“[d]ate time and location information . . . provides a clear indication of the undercover
officer’s physical presence at a particular place and at a specific point in time” risking the
possibility that “others present at the same time could determine the identity of the
officer.”)
The fact that the Second Circuit in City of NY was reviewing a case where the party
asserting the privilege complied with these procedural requirements undercuts the idea
that the Second Circuit impliedly communicated to district courts that it did not believe
that the procedural requirements were necessary. Had the Second Circuit meant to adopt
the holdings and reasoning of In re Sealed Case in every respect except for the procedural
requirements, in all likelihood it would have so stated. Given that the issue of whether the
three procedural requirements applied was not before the Court, it was not necessary for
the Second Circuit to opine on it one way or the other.
iii. In Camera Review
The FBI argues that the fact that the Court has had the opportunity to review the
unredacted documents in camera means that the Court can evaluate whether or not the
FBI’s claims of privilege are legitimate. Reply 9. The Court disagrees. In camera review of
the unredacted documents cannot, at least here, substitute for compliance with the
procedural requirements or replace the adversarial presentation of issues that the
procedural requirements facilitate. “The reason for requiring the government to provide a
situation-specific affidavit is to provide the adversary with a fair opportunity to challenge
the bases for the assertion of the privilege. Providing that opportunity is important to the
court as well because in our adversary system the court looks to opposing parties to help it
probe and measure the strength of the parties’ submissions.” United States v. Painting
Known as “Le Marche”, No. 06-cv-12994, 2008 WL 2600659, at *3 (S.D.N.Y. June 25,
2008). Even though the Court has been provided the unredacted documents in camera,
the Court is better positioned to evaluate whether or not the FBI has or has not met its
burden to “show that the documents contain information that the law enforcement
privilege is intended to protect” City of NY, 607 F.3d at 944, with the benefit of an
adversarial party able to call the Court’s attention to arguments and considerations not
offered by Federal Defendants.
iv. Potential Differences Between Common-Law Law
Enforcement Privilege and 28 C.F.R. § 16.26(b)(5)
Federal Defendants also cite a Fifth Circuit case to argue that “the FBI’s assertion
of a privilege under § 16.26(b)(5) is entitled to greater deference on APA review than a
typical assertion of the law enforcement privilege in a non-APA case,” and accordingly, the
three procedural requirements should not apply in this case. See Mot. 20 (citing CF Indus.,
Inc. v. Dep’t of Just. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 692 F. App’x
177, 182 (5th Cir. 2017)). Without taking a position on the argument’s merits, the Court
finds this argument immaterial. All of the code G and code H redactions were made
explicitly on the basis of “THE LAW ENFORCEMENT PRIVILEGE” rather than on the
basis of 28 C.F.R. § 16.26(b)(5). CAR 86 (capitalization in original). The law enforcement
privilege and Section 16.26(b)(5) are not identical. Among other differences, the law
enforcement privilege is a common law privilege while Section 16.26(b)(5) is a regulatory
provision promulgated by the Department of Justice as part of the DOJ’s Touhy
regulations. They may also not cover precisely the same material. Compare 28 C.F.R.
§ 16.26(b)(5) (covering only disclosures that satisfy two conjunctive conditions, namely
“disclosures that would reveal investigatory records compiled for law enforcement
purposes, and would interfere with enforcement proceedings or disclose investigative
techniques and procedures the effectiveness of which would thereby be impaired”
(emphasis added)), with City of NY, 607 F.3d at 941 (explaining that the law enforcement
privilege operates “to prevent disclosure of law enforcement techniques and procedures,
to preserve the confidentiality of sources, to protect witness and law enforcement
personnel, to safeguard the privacy of individuals involved in an investigation, and
otherwise to prevent interference with an investigation”). Because the redaction log
provided by Federal Defendants explicitly invokes “the law enforcement privilege” as the
basis for the code H and code G redactions, the Court declines to assume that the Federal
Defendants were actually invoking Section 16.26(b)(5) as the basis for codes H and G.
The FBI’s own statements reflect that it is aware that the law enforcement privilege
and Section 16.26(b)(5) are distinct. For example, the first letter that the FBI sent plaintiffs
in response to plaintiffs’ initial Touhy request contains a section titled “Applicable
Privileges” that includes separate paragraphs listing distinct bases for withholding
information. See March 29, 2023 Touhy Response 4–5, Opp’n Ex. E, ECF No. 76-6. The
FBI writes “First, disclosure of the requested categories would likely ‘reveal investigatory
records compiled for law enforcement purposes, and would interfere with enforcement
proceedings . . . .’ 28 C.F.R. § 16.26(b)(5).” Opp’n Ex. E at 4–5 (emphasis in original). Then,
in a new paragraph, the FBI writes “Second, the requested documents and information are
likely protected from disclosure by the law enforcement privilege.” Opp’n Ex. E at 5
(emphasis in original). When the FBI ultimately released the bulk of the records, it made
redactions tagged with codes H and G explicitly on the basis of “the law enforcement
privilege,” with no mention of Section 16.26(b)(5). CAR 86. The Court therefore concludes
that the code H and code G redactions were made on the basis of the law enforcement
privilege and that arguments regarding Section 16.26(b)(5) are inapplicable.
Furthermore, the Court notes that if Federal Defendants had stated that Section
16.26(b)(5) was the basis for the code H and code G redactions, the Court would need to
address—though declines to reach these issues now—whether the redacted material falls
under the text of Section 16.26(b)(5) and whether or not requirements applicable to the
law enforcement privilege also apply to Section 16.26(b)(5).
v. Application to Federal Defendants
In the present case, Federal Defendants did not comply with any of the three
procedural requirements. Its assertions of law enforcement privileged are based
exclusively on representations of counsel. The FBI has not provided plaintiffs or the Court
with a declaration or affidavit by the head of the relevant division of the FBI “having
control over the requested information” that states that the “assertion of the privilege [is]
based on actual personal consideration by that official.” In re Sealed Case, 856 F.2d at 271.
Moreover, the privilege log supplied by the FBI is simply a barebones table of which
redaction codes the FBI asserts apply to each page. See Redaction Log. The FBI has made
no attempt to actually explain what information it is claiming the privilege over, nor has
the FBI offered “an explanation why it properly falls within the scope of the privilege.” In
re Sealed Case, 856 F.2d at 271. Because Federal Defendants have not complied with the
three procedural requirements, the Court concludes that it will not—at this stage—credit
Federal Defendants’ assertions of law enforcement privilege.
D. Redactions for Other Reasons (Codes F, S, and O-1)
Federal Defendants redacted documents on three additional bases. First, Federal
Defendants redacted, as code F, “administratively designated FBI file numbers, which
represent individuals or matters which are not the subject of this file.” CAR 86. The Court
concludes that these redactions are appropriate on the basis that this information is not
responsive to plaintiffs’ requests.
Second, Federal Defendants redacted, under code S, “personal identifying
information related to law enforcement personnel and their family members, the
disclosure of which is routinely guarded for security reasons.” CAR 86. Federal Defendants
argue that these redactions are appropriate on the basis of 28 C.F.R. § 16.26(b)(5) and on
the basis of 28 C.F.R. § 16.26(a)(2), insofar as the latter incorporates the law enforcement
privilege as a “relevant substantive law concerning privilege.” Mot. 19–24. The Court does
not agree that § 16.26(b)(5) covers this information. Section 16.26(b)(5) covers
information that satisfies three elements. The first element is that the information must
reveal “investigatory records compiled for law enforcement purposes.” 28 C.F.R.
§ 16.26(b)(5). However, although “personal identifying information related to law
enforcement personnel and their family members” may be extremely sensitive, such
information is not an “investigatory record[] compiled for law enforcement purposes.” 28
C.F.R. § 16.26(b)(5). With respect to the argument that the information redacted on the
basis of code S is protected by the substantive law of the law enforcement privilege, the
Court holds as it did above that Federal Defendants must comply with the three procedural
requirements in order to invoke the privilege. See Section I.C.ii, supra.
Finally, Federal Defendants redacted twenty-four documents with code O-1,
corresponding to “information originating with a non-federal entity.” Redaction Log
passim. The FBI notes in each instance that “This is not an FBI document, and as such was
not produced by the Federal Government.” Redaction Log passim. The Court holds that
this information is not responsive to the request for “[a]ny FBI or DOJ documents,
photographs, or recordings documenting the execution of the . . . arrest warrant.” Opp’n
Ex. J at 3. (emphasis added). However, the Court notes that plaintiffs also requested “[t]he
identification of all law enforcement officials who were present” during the raid. Opp’n Ex.
J at 3. It is possible that a document could originate with a non-federal entity yet still be
responsive to this first request regarding the identification of law enforcement officials.
The fact that a document originated outside of the federal government is not an
automatic reason why the document cannot be produced in response to a Touhy request.
Nothing in the DOJ’s Touhy regulations explicitly exclude disclosure of information that
originated outside of the federal government but is currently held by the DOJ or one of its
components. See 28 C.F.R. §§ 16.21–16.29. Federal Defendants justify their decision to
redact information originating outside the federal government on the basis that the Touhy
regulations require the agency to consider relevant procedural rules, such as the Federal
Rules of Civil Procedure, and “[p]laintiffs could have obtained these documents from
‘some other source that is more convenient, less burdensome, or less expensive’”—namely,
the City Defendants—which the FBI argues “are in a better position to determine whether
the documents are privileged or discoverable in the underlying litigation.” Mot. 26
(quoting Fed. R. Civ. P. 26(b)(2)(C)). The FBI also argues that “seeking non-federal
documents from the FBI puts an unreasonable burden on the FBI, which would be tasked
with reviewing, analyzing, and redacting voluminous non-FBI documents for possible
privileges that would be better analyzed by the originating agencies.” Mot. 27.
Notwithstanding Federal Defendants’ concerns, the Court nevertheless finds that it
will be a minimal burden to unredact documents already collected and reviewed by
defendants that relate to “[t]he identification of all law enforcement officials who were
present” during the raid. Opp’n Ex. J at 3. Indeed, the majority of the redactions made on
the basis of code O-1 were also redacted for a different, independent reason, and may well
remain redacted on a different basis. The Court expects that it will require relatively little
time and expense to unredact, or redact on a new basis, information in documents
originating outside of the FBI (and subsequently obtained by the FBI) identifying law
enforcement officers present at the raid of plaintiffs’ home. Accordingly, with respect to
the redactions made on the basis of code O-1, the Court holds that it was arbitary and
capricious for the FBI to make such redactions with respect to information that constitutes
“[t]he identification of all law enforcement officials who were present” during the raid.
Opp’n Ex. J at 3.
E. Conclusions under the Standard of the Federal Rules
The Court holds that it would reach the same conclusions discussed above under
the standards of the Federal Rules. Rules 26 and 45 authorize the withholding of
information if the information is privileged, not relevant, not proportional to the needs of
the case, duplicative, or if producing the information would be burdensome or inefficient.
See Fed. R. Civ. P. 26(b), 45(d)(3). The Federal Rules are also consistent with the valid
application of Touhy regulations. See In re Terrorist Attacks, 523 F. Supp. 3d at 490.
Plaintiffs have explicitly stated that they “do not seek information that is not responsive or
irrelevant,” Opp’n 18, and the Court’s analysis with respect to responsiveness and
relevance under the Federal Rules would be the same as above. Moreover, the only
privilege that has been raised in this dispute is the law enforcement privilege, and the
Court would adopt the same conclusions under the Federal Rules as stated earlier in this
Order. Finally, the Court finds that the FBI has not demonstrated an entitlement to redact
information on the basis that disclosing the redacted information would be duplicative,
burdensome, inefficient, or disproportionate to the needs of the case.
II. Next Steps
Typically, challenges to agency action brought under section 706 of the APA are
resolved via cross-motions for summary judgment. See Am. S.S. Owners Mut. Prot. &
Indem. Ass’n, Inc. v. United States, 489 F. Supp. 3d 106, 128 (E.D.N.Y. 2020). In the
present case, Federal Defendants filed a motion for summary judgment that plaintiffs
opposed; plaintiffs did not file their own motion for summary judgment. The Court has
concluded that Federal Defendants are not entitled to summary judgment with respect to
all of their redactions because the actions of the FBI were, in part, “arbitrary, capricious, .
. . or otherwise not in accordance with law” under Section 706 of the APA. See 5 U.S.C. §
706 (“The reviewing court shall . . . hold unlawful and set aside agency action . . . found to
be . . . arbitrary, capricious, . . . or otherwise not in accordance with law.”). The Court
therefore finds that plaintiffs would be entitled to partial summary judgment on their APA
claim had they so moved. Accordingly, the Court hereby notifies Federal Defendants that
the Court intends to grant summary judgment on the remaining redactions for the
nonmovant plaintiffs sua sponte pursuant to Fed. R. Civ. P. 56(f)(1). Rule 56 explicitly
permits district courts to “grant summary judgment for a nonmovant” after first “giving
notice and a reasonable time to respond.” Fed. R. Civ. P. 56(f). Federal Defendants will
have thirty days to respond to this notification, and upon the expiration of that period, the
Court will enter summary judgment in favor of plaintiffs on the remaining aspects of
plaintiffs’ claim. See Koffarnus v. United States, 175 F. Supp. 3d 769, 781 (W.D. Ky. 2016).
CONCLUSION
For the stated reasons, Federal Defendants’ motion for summary judgment is
GRANTED in part and DENIED in part.
To the extent any information both (1) is encompassed within the scope of plaintiffs’
Touhy request and (2) has been redacted on the basis of the Privacy Act, by December 17,
2025, plaintiffs or plaintiffs jointly with Federal Defendants may move for an order
pursuant to 5 U.S.C. § 552a(b)(12) authorizing the disclosure of such information
notwithstanding the Privacy Act, with appropriate measures to ensure confidentiality and
safe handling of the information.
Federal Defendants are notified that the Court intends to grant summary judgment
for the nonmovant plaintiffs sua sponte pursuant to Fed. R. Civ. P. 56(f)(1). Federal
Defendants may respond to this notification on or before December 17, 2025, and upon
the expiration of that period, the Court will—absent persuasive argument otherwise—enter
summary judgment in favor of plaintiffs.
SO ORDERED.
/s/ Natasha C. Merle
NATASHA C. MERLE
United States District Judge
Dated: November 17, 2025
Brooklyn, New York