# Muslim Advocates v. United States Department of Justice

> District Court, District of Columbia · January 11, 2012 · 833 F. Supp. 2d 106

URL: https://www.frixlaw.com/law-library/cases/2663087

## Case

- **Full name:** MUSLIM ADVOCATES, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant
- **Court:** District Court, District of Columbia
- **Decided:** January 11, 2012
- **Citations:** 833 F. Supp. 2d 106; 2012 U.S. Dist. LEXIS 3551; 2012 WL 84501
- **Precedential status:** Published
- **Opinion:** Opinion by Sullivan
- **Judges:** Judge Emmet G. Sullivan
- **Nature of suit:** Civil
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

________________________________
)
MUSLIM ADVOCATES, )
)
Plaintiff, )
) Civil Action No. 09-1754 (EGS)
v. )
)
UNITED STATES DEPARTMENT )
OF JUSTICE, )
)
Defendant. )
)

MEMORANDUM OPINION

Plaintiff Muslim Advocates brings this action under the

Freedom of Information Act (“FOIA”), seeking the complete and

unredacted final version of certain chapters of the Domestic

Investigations and Operations Guide (the “DIOG”) of the Federal

Bureau of Investigation (“FBI”). In a Memorandum Opinion and

Order dated November 10, 2011, this Court granted in part and

denied in part defendant’s motion for summary judgment, and

denied plaintiff’s cross-motion for summary judgment. See

Muslim Advocates v. Dep’t of Justice, No. 09-1754, 2011 U.S.

Dist. LEXIS 130283, *34-35 (D.D.C. Nov. 10, 2011);1 see also

Order Granting in Part and Denying in Part Def.’s Mot. for Summ.

J. and Denying Pl.’s Cross-Mot. for Summ. J., Docket No. 29.

1
The relevant factual background was set forth in the
Court’s November 10, 2011 Memorandum Opinion, see Muslim
Advocates, 2011 U.S. Dist. LEXIS 130283, at *3-11, and need not
be recited here.
With respect to defendant’s motion for summary judgment, the

Court concluded that defendant was entitled to summary judgment

as to the material it withheld in Chapters 5 and 10 of the DIOG.

See Muslim Advocates, 2011 U.S. Dist. LEXIS 130283, at *35. As

to Chapter 16 of the DIOG, however, which was almost entirely

redacted, the Court found that the affidavit provided by the

government was not “sufficiently detailed to allow this Court to

undertake a meaningful assessment of the redacted material.”

Id. at *35. The Court therefore denied defendant’s motion for

summary judgment as to Chapter 16 without prejudice, and the

Court ordered defendant to provide a more detailed affidavit

describing its redactions in Chapter 16. Id. at *35-36.

On December 1, 2011, defendant filed, ex parte, the

Declaration of Sean M. Joyce for the Court’s in camera review.

See Def.’s Notice of Ex Parte Filing, Docket No. 32. Defendant

filed a redacted version of that declaration on the public

docket on December 6, 2011. See Def.’s Notice of Filing

Redacted Document, Docket No. 33. Upon careful consideration of

the ex parte Declaration of Sean M. Joyce, the applicable law

and the entire record in this case, and for the reasons set

forth below, the Court hereby GRANTS defendant’s motion for

summary judgment as to Chapter 16 of the DIOG.

2

I. LEGAL FRAMEWORK

A. Rule 56

Pursuant to Federal Rule of Civil Procedure 56, summary

judgment should be granted if the moving party has shown that

there are no genuine issues of material fact and that the moving

party is entitled to judgment as a matter of law. See Fed. R.

Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991

(D.C. Cir. 2002). In determining whether a genuine issue of

material fact exists, the court must view all facts in the light

most favorable to the non-moving party. See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

B. FOIA

FOIA requires agencies to disclose all requested agency

records, 5 U.S.C. § 552(a), unless one of nine specific

statutory exemptions applies, id. § 552(b). “Consistent with

‘the basic policy that disclosure, not secrecy, is the dominant

objective of the Act,’ the statutory exemptions are ‘narrowly

construed.’” Consumers’ Checkbook, Ctr. for the Study of Servs.

v. Dep’t of Health and Human Servs., 554 F.3d 1046, 1057 (D.C.

Cir. 2009) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352,

361 (1976)); see also Wolf v. Cent. Intelligence Agency, 473

F.3d 370, 374 (D.C. Cir. 2007) (quoting Dep’t of Justice v.

Julian, 486 U.S. 1, 8 (1988)).

3

FOIA’s “strong presumption in favor of disclosure places

the burden on the agency to justify the withholding of any

requested documents.” Dep’t of State v. Ray, 502 U.S. 164, 173

(1991). The government may satisfy its burden of establishing

its right to withhold information from the public under a FOIA

exemption by submitting appropriate declarations and, where

necessary, an index of the information withheld. See Vaughn v.

Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973). If the

government’s affidavit “describes the justifications for

withholding the information with specific detail, demonstrates

that the information withheld logically falls within the claimed

exemption, and is not contradicted by contrary evidence in the

record or by evidence of the [government’s] bad faith, then

summary judgment is warranted on the basis of the affidavit

alone.” ACLU v. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir.

2011). Moreover, “‘an agency’s justification for invoking a

FOIA exemption is sufficient if it appears ‘logical’ or

‘plausible.’’” Id. (quoting Larson v. Dep’t of State, 565 F.3d

857, 862 (D.C. Cir. 2009)).

Exemption 7(E) of FOIA protects from disclosure records or

information compiled for law enforcement purposes, “to the

extent that the production of such law enforcement records or

information . . . would disclose techniques and procedures for

law enforcement investigations or prosecutions, or would

4

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).

Courts have held that information pertaining to law enforcement

techniques and procedures is properly withheld where disclosure

reasonably could lead to circumvention of laws or regulations.

See, e.g., Skinner v. Dep’t of Justice, 744 F. Supp. 2d 185, 214

(D.D.C. 2011) (citing cases). “[A] highly specific burden of

showing how the law will be circumvented” is not required;

instead, “exemption 7(E) only requires that [the agency]

‘demonstrate[] logically how the release of [the requested]

information might create a risk of circumvention of the law.’”

Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009)

(quoting PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 251 (D.C.

Cir. 1993)).

II. ANALYSIS

Having carefully reviewed defendant’s ex parte declaration

of Sean M. Joyce, the Court finds that the government has now

satisfied its burden of establishing its right to withhold the

information contained in Chapter 16 of the DIOG. The

declaration describes in detail each redacted section of Chapter

16 and the justifications for withholding that information, and

it demonstrates that the information withheld logically falls

within exemption 7(E). See Declaration of Sean M. Joyce, Docket

5

No. 33-1, at ¶¶ 9-19. The declaration sufficiently demonstrates

how the release of the requested information might create a risk

of circumvention of the law. See id. For example, Mr. Joyce

states:

Whether and when a particular investigative activity
may be undertaken in connection with an assessment, a
predicated investigation and so forth is a matter of
internal procedure. . . . Disclosure of this internal
information could increase the risk of circumvention.
An individual considering commission of a crime and
attempting to evade detection, armed with the
knowledge as to whether and what types of
investigative activities are or are not allowed during
certain types of investigations, can determine whether
their activities are likely to be detected and alter
their behavior to avoid detection. Similarly,
knowledge that a particular activity will not be
approved internally at the FBI absent certain types of
information – or under what conditions – can be
exploited by someone seeking to evade detection, again
by altering their behavior, modifying their plan of
action, or ceasing to engage in any criminal behavior
until they believe the risk of potential FBI interest
has passed.

Id. ¶ 14. The Court concludes that it is both plausible and

logical that the disclosure of detailed information regarding

the FBI’s procedures for investigation of and undisclosed

participation in target organizations could risk circumvention

of the law and impede the FBI’s ability to carry out its

mission. See, e.g., Piper v. Dep't of Justice, 294 F. Supp. 2d

16, 30 (D.D.C. 2003) (approving the withholding of polygraph

test information on the ground that disclosure "has the

potential to allow a cunning criminal to extrapolate a pattern

6

or method to the FBI's questioning technique," and anticipate or

thwart the FBI's strategy); Perrone v. Fed. Bureau of

Investigation, 908 F. Supp. 24, 28 (D.D.C. 1995) (concluding

that the FBI FD-515 form was properly withheld under Exemption

7(E) because "disclosure of this information would help . . .

potential criminals predict future investigative actions by the

FBI and consequently employ countermeasures to neutralize those

techniques"). Moreover, the Court finds no evidence in the

record that contradicts the government’s justifications for

withholding the redacted information or demonstrates bad faith.

Therefore, the Court concludes that summary judgment as to

Chapter 16 is warranted on the basis of the government’s

declaration.

III. CONCLUSION

For the foregoing reasons, defendant’s motion for summary

judgment is hereby GRANTED. An appropriate Order accompanies

this Memorandum Opinion.

Signed: EMMET G. SULLIVAN
United States District Judge
January 11, 2012

7

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2663087. Public record. Not legal advice.