Muslim Advocates v. United States Department of Justice

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

________________________________

)

MUSLIM ADVOCATES, )

)

Plaintiff, )

) Civil Action No. 09-1754

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”), which were previously shown to

plaintiff and other civil rights and civil liberties groups

during two meetings at FBI headquarters in November 2008 (the

“November 2008 meetings”).1 Plaintiff principally argues that

the FBI waived its right to withhold those chapters of the DIOG

after it allowed representatives of Muslim Advocates and other

1

In its complaint, plaintiff initially sought disclosure of

the complete and unredacted final versions of the DIOG. Compl.

¶ 1. Plaintiff, however, subsequently limited its request to

“those four chapters of the DIOG that were circulated during the

November [2008] meetings[.]” Pl.’s Combined Opp’n and Cross-

Mot. at 3.

organizations to review and take notes on the materials during

the November 2008 meetings. Defendant, the Department of

Justice (the “government” or the “agency”), disputes plaintiff’s

allegation of waiver, and argues that it properly withheld the

material pursuant to FOIA Exemption 7(E), 5 U.S.C.

§  552(b)(7)(E), because production of the requested material

would result in disclosure of specific internal investigatory

techniques and procedures that are used by the FBI and would

present a risk that “criminals, terrorists and foreign

intelligence operatives would be assisted in or emboldened to

violate the law and circumvent the FBI’s enforcement efforts.”2

Def.’s Combined Opp’n & Reply at 2-3.

Pending before the Court are the parties’ cross-motions for

summary judgment. Upon careful consideration of the motions,

the responses and replies thereto, the parties’ supplemental

filings, the applicable law, and the entire record, including

the agency’s affidavits and the relevant chapters of the DIOG,

the Court hereby GRANTS IN PART AND DENIES IN PART defendant’s

2

In its motion for summary judgment, defendant also argued

that it properly withheld the disputed material pursuant to FOIA

Exemption (b)(2), 5 U.S.C. § 552(b)(2). Following the Supreme

Court’s decision in Milner v. Department of the Navy, 131 S. Ct.

1259 (2011), however, defendant withdrew that argument. See

Def.’s Response to Pl.’s Notice, Docket No. 26 (“In light of the

Supreme Court’s decision in Milner, Defendant no longer relies

on exemption (b)(2) to support its withholding of ‘High 2’

information. It continues to rely on FOIA’s exemption (b)(7)(E)

as justification for the same withholdings[.]”).

2

motion for summary judgment and DENIES plaintiff’s cross-motion

for summary judgment.

I. Background

A. The DIOG

As noted above, plaintiff seeks release of certain chapters

of the FBI’s Domestic Investigations and Operations Guide. The

DIOG was written to consolidate policy pursuant to the Attorney

General’s Guidelines for Domestic FBI Operations, which was

signed by Attorney General Michael Mukasey on September 29,

2008. Pl.’s SMF ¶ 1. In the preamble of the DIOG, FBI Director

Robert S. Mueller, III describes the purpose of the DIOG as

follows:

While investigating crime, terrorism, and threats to

the national security, and collecting foreign

intelligence, the FBI must fully comply with all

laws and regulations, including those designed to

protect civil liberties and privacy. . . . To assist

the FBI in its mission, the Attorney General signed

The Attorney General’s Guidelines for Domestic FBI

Operations (AGG-Dom) on September 29, 2008. The

primary purpose of the AGG-Dom and the Domestic

Investigations and Operations Guide (DIOG) is to

standardize policy so that criminal, national

security, and foreign intelligence investigative

activities are accomplished in a consistent manner,

whenever possible (e.g., same approval,

notification, and reporting requirements). . . . The

changes implemented by the DIOG should better equip

[the FBI] to protect the people of the United States

against crime and threat to national security and to

collect foreign intelligence.

Docket No. 12-1, DIOG-11. Implemented in December 2008, the

DIOG is a “‘comprehensive 270-page collection of procedures,

3

standards, approval levels, and explanations[,]’” that contains

information “ranging from general principles to chapters

detailing the FBI’s procedures for conducting clandestine

operations.” Def.’s Mot. at 2 (internal citations omitted).

B. The November 2008 Meetings & the December 2008

Implementation of the DIOG

Prior to implementing the DIOG, however, the FBI held two

meetings with civil rights and civil liberties groups in

November 2008.3 Specifically, by emails dated November 12, 2008

and November 17, 2008, the FBI invited various organizations to

attend two separate meetings as part of an outreach program to

obtain input on the civil liberty, privacy and civil rights

concerns on the DIOG. Pl.’s SMF ¶ 7. The invitation received by

Muslim Advocates provided as follows:

The FBI Office of General Counsel (OGC) would like to

invite you to participate in a discussion of

respectively, civil liberty/privacy and civil rights

protections in the FBI’s new Domestic Investigative

Operational Guidelines (which will implement the new

AGG) on Wednesday November 19th at 1:00 pm at FBI

headquarters. OGC will provide pertinent sections for

you to read. The manual has not been finalized. Your

input and suggestions will be well received and

appreciated. Please RSVP by November 14, 2008.

Ex. A to the Declaration of Brenda Abdelall (“Abdelall Decl.”),

Docket No. 16-3.

3

The Court will note that for purposes of resolving the

pending cross-motions, the FBI has agreed to accept Muslim

Advocates’ version of events at the November 2008 meetings. See

Def.’s Combined Opp’n & Reply at 6.

4

During the November 2008 meetings, a representative of the

FBI gave an introductory presentation about the DIOG. Pl.’s SMF

¶ 12. All of the attendees were provided with a copy of the

presentation, which they were required to return at the end of

the presentation. Pl.’s SMF ¶ 12.

Attendees were also provided with Chapters 4, 5, 10, and 16

of the DIOG (the “disputed chapters”). Pl.’s SMF ¶ 13. These

chapters discuss: (i) “Privacy and Civil Liberties, and Least

Intrusive Methods” (Chapter 4); (ii) “Assessments” (Chapter 5);

(iii) “Sensitive Investigative Matter / Academic Nexis” (Chapter

10); and (iv) “Undisclosed Participation” (Chapter 16). See

Docket No. 12-1, DIOG-3 – DIOG-9. The version of the disputed

chapters disclosed at the November 2008 meetings totaled

approximately 100 pages in length and did not contain any

redactions. See Pl.’s SMF ¶ 15; Abdelall Decl. ¶ 10.4

After the introductory presentation concluded, attendees

were given time to review and take notes on the disputed

chapters. Pl.’s SMF ¶ 16. FBI Deputy General Counsel Dave

Larson remained in the room while the attendees reviewed the

materials and “told them that they could take their time

4

Although the chapters provided to the attendees were in

draft form, see Pl.’s SMF ¶ 13, the government has stipulated

for purposes of summary judgment “that the chapters of the DIOG

reviewed at these meetings were substantially the same as the

chapters in the final DIOG.” Def.’s Combined Opp’n & Reply at

2.

5

reviewing the documents.” Pl.’s SMF ¶ 19. Mr. Larson also

“welcomed participant commentary and took notes on the

commentary.” Pl.’s SMF ¶ 19.

At the conclusion of the meetings, which lasted

approximately two hours, attendees were required to return the

disputed chapters and were thanked for their help and feedback.

See Pl.’s SMF ¶ 20; Abdelall Decl. ¶¶ 20-21. Attendees were

permitted, however, to take their notes on the DIOG with them

and were never asked to return them. Pl.’s SMF ¶ 17. In

addition, attendees were not told that the material reviewed at

the meeting was confidential or that they could not share the

information with their respective groups, communities, or the

general public; nor were participants required to sign any

documents affirming that they would keep this information

confidential. Pl.’s SMF ¶ 18; see also Pl.’s SMF ¶ 8.

The day after the second meeting, on November 26, 2008,

Muslim Advocates and several other organizations that had

attended the November 2008 meetings wrote a letter to Director

Mueller “reiterating their concerns over the civil liberties and

civil rights implications of the DIOG, as well as expressing

concerns with the lack of meaningful review of the DIOG and

again calling for the public release.” Pl.’s SMF ¶ 21; see also

Ex. H to Declaration of Farhana Khera (“Khera Decl.”), Docket

No. 16-15 (requesting an opportunity for “meaningful review” of

6

the DIOG in advance of its scheduled implementation; explaining

that “no copies [of the DIOG] have been released to date, ad

[sic] participants in the briefings were not allowed to examine

the 100-page document except during the live sessions, neither

of which afforded sufficient time for a rigorous examination”).

Despite plaintiff’s request that implementation of the DIOG be

delayed, see Ex. H to Khera Decl., Docket No. 16-15, the DIOG

was implemented on December 16, 2008, see Pl.’s SMF ¶ 23.

C. Plaintiff’s FOIA Request & Initiation of this Action

Soon thereafter, on January 28, 2009, plaintiff sent a FOIA

request to the DOJ Office of Information and Privacy and the FBI

FOIA Requester Service Center. Pl.’s SMF ¶ 25. The FBI

responded to plaintiff’s FOIA request on March 18, 2009,

informing plaintiff that portions of the DIOG would be released

to the public on the FBI’s public website, and that it was

therefore closing plaintiff’s FOIA request. Pl.’s SMF ¶ 27. On

May 15, 2009, after nearly two months of waiting for the public

release of the DIOG, plaintiff appealed the decision to close

its FOIA request to the Office of Information and Privacy.

Pl.’s SMF ¶ 30. The office acknowledged receipt of the appeal

on May 27, 2009, but did not release the DIOG. Pl.’s SMF ¶ 31.

Plaintiff then filed suit in this Court on September 16, 2009

seeking disclosure of the DIOG. See Compl. ¶ 1.

7

Following plaintiff’s initiation of this action, the FBI

posted a redacted version of the DIOG on its website on

September 25, 2009. See Pl.’s SMF ¶ 46. In response to this

limited release, plaintiff filed an amended complaint, in which

it renewed its request for a “complete and unredacted final

version” of the DIOG, arguing that the redacted material was

“wrongfully withheld.” Am. Compl. ¶¶ 34, 35; see also Am.

Compl. ¶ 2 (“On September 25, 2009, the Department posted a

significantly redacted version of the DIOGs to the FBI website,

withholding nearly entire sections on a number of topics—

including sections that address the infiltration of Muslim

community and religious organizations. These redactions are

particularly unjustifiable because unredacted versions of these

key sections were discussed and/or included in the version shown

to Plaintiff during the November 2008 meetings.”).

The agency subsequently filed a motion for summary

judgment. Although defendant initially sought summary judgment

as to all of the information withheld in the DIOG, the scope of

this litigation was significantly narrowed by plaintiff’s

decision to limit its arguments to “those four chapters of the

DIOG that were circulated during the November [2008] meetings -

Chapters 4, 5, 10, and 16[.]” Pl.’s Combined Opp’n and Cross-

Mot. at 3. The scope of this litigation was further narrowed

after the agency then determined that Chapter 4 of the DIOG

8

could be released “without harm” and produced that chapter in

its entirety. See Def.’s Combined Opp’n & Reply at 3. Pending

before the Court, therefore, are cross-motions for summary

judgment regarding the FBI’s decision to withhold certain

information contained in Chapters 5, 10, and 16 of the DIOG.

Those motions are now ripe for determination by the Court.

II. 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, 325 (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). Likewise,

in ruling on cross-motions for summary judgment, the court shall

grant summary judgment only if one of the moving parties is

entitled to judgment as a matter of law upon material facts that

are not genuinely disputed. See Citizens for Responsibility &

Ethics in Wash. v. Dep’t of Justice, 658 F. Supp. 2d 217, 224

9

(D.D.C. 2009) (citing Rhoads v. McFerran, 517 F.2d 66, 67 (2d

Cir. 1975)).

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). “It is designed to

pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.” Consumers’ Checkbook,

Ctr. for the Study of Servs. v. United States HHS, 554 F.3d

1046, 1057 (D.C. Cir. 2009) (internal quotation marks omitted).

“Consistent with ‘the basic policy that disclosure, not secrecy,

is the dominant objective of the Act,’ the statutory exemptions

are ‘narrowly construed.’” Id. (quoting Dep’t of Air Force v.

Rose, 425 U.S. 352, 361 (1976)); see also Wolf v. CIA, 473 F.3d

370, 374 (D.C. Cir. 2007) (“Given the FOIA’s broad disclosure

policy, the United States Supreme Court has ‘consistently stated

that FOIA exemptions are to be narrowly construed.’” (quoting

Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988))).

“FOIA’s ‘strong presumption in favor of disclosure places

the burden on the agency’ to justify nondisclosure.” Consumers’

Checkbook, 554 F.3d at 1057 (quoting 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

by submitting appropriate declarations and, where necessary, an

10

index of the information withheld. See Vaughn v. Rosen, 484

F.2d 820, 827-28 (D.C. Cir. 1973). “If an agency’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 agency’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.’’” ACLU, 628 F.3d at 619

(quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir.

2009)).

III. Discussion

A. Waiver

The threshold issue before the Court is whether the FBI

waived its right to invoke Exemption 7(E)5 and withhold the

redacted material in the disputed chapters of the DIOG after it

allowed members of various civil rights and civil liberties

5

Exemption 7(E) protects from disclosure “records or

information compiled for law enforcement purposes, but only 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

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).

11

groups to review unredacted versions of the chapters during the

November 2008 meetings. Plaintiff argues that waiver has

occurred, explaining that because the FBI “already disclosed

chapters 4, 5, 10, and 16 to members of the general public . . .

[it] can no longer rely on any exemption to continue withholding

the requested information.” Pl.’s Combined Opp’n & Cross-Mot.

at 17. Defendant, by contrast, contends that “because the

contested provisions of the DIOG have not been made part of a

permanent public record, the FBI has not waived any FOIA

exemptions.” Def.’s Combined Opp’n & Reply at 6. For the

reasons discussed below, the Court agrees with defendant and

finds that no waiver occurred.

In this Circuit, the “public-domain doctrine” has emerged

as the dominant paradigm for evaluating the waiver of a

potential FOIA exemption. “Under [the] public-domain doctrine,

materials normally immunized from disclosure under FOIA lose

their protective cloak once disclosed and preserved in a

permanent public record.” Cottone v. Reno, 193 F.3d 550, 554

(D.C. Cir. 1999) (citing Niagara Mohawk Power Corp. v. United

States Dep’t of Energy, 169 F.3d 16, 19 (D.C. Cir. 1999)

(Exemption 4); Public Citizen v. Dep’t of State, 11 F.3d 198,

201-03 (D.C. Cir. 1993) (Exemption 1); Davis v. United States

Dep’t of Justice, 968 F.2d 1276, 1276 (D.C. Cir. 1992)

(Exemptions 3 & 7(C)); Afshar v. Dep’t of State, 702 F.2d 1125,

12

1130-34 (D.C. Cir. 1983) (Exemptions 1 & 3)). The logic of this

doctrine is that “where information requested ‘is truly public,

then enforcement of an exemption cannot fulfill its purposes.’”

Id. (quoting Niagara Mohawk, 169 F.3d at 19). “[A] plaintiff

asserting that information has been previously disclosed bears

the initial burden of pointing to specific information in the

public domain that duplicates that being withheld.” Public

Citizen, 11 F.3d at 201.

Plaintiff principally argues that the disputed chapters of

the DIOG are in the public domain because the FBI allowed

individuals outside of the agency to review the material. See

Pl.’s Combined Opp’n & Cross-Mot. at 18 (“By handing out [the

disputed chapters] to persons outside the agency, the FBI

knowingly released the information to the public[.]” (citing

Leadership Conf. on Civil Rights v. Gonzales, 404 F. Supp. 2d

246, 254-55 (D.D.C. 2005)6); Pl.’s Reply at 6 (“When the FBI

6

The Court finds plaintiff’s reliance on Leadership

Conference on Civil Rights misplaced as that case does not

address the issue of waiver or the public-domain doctrine.

Instead, it deals with whether the government properly withheld

certain documents pursuant to Exemption 5 of FOIA, which

protects “inter-agency or intra-agency memorandums or letters

which would not be available by law to a party other than an

agency in litigation with the agency.” 5 U.S.C. § 552(b)(5).

That court found that Exemption 5 was inapplicable, explaining

that “[b]ecause the 2004 training manual was made available to

individuals not associated with the executive branch, it cannot

be ‘inter-agency or intra-agency’ communication, and thus does

not satisfy the requirements for application of the deliberative

process privilege of Exemption 5.” Leadership Conf. on Civil

13

allowed members of the general public to read and take notes on

the four chapters of the DIOG, it released the information in

those chapters to the public and lost control over the

distribution of that information. Members of the general public

now control that information, which puts it in the public

domain.”). The Court finds this argument unpersuasive.

Although the FBI allowed Muslim Advocates and several other

civil rights and civil liberties groups to view the disputed

chapters during a two-hour meeting at FBI headquarters, the

Court is not convinced that such a limited review is sufficient

to satisfy the requirements of the public-domain doctrine in the

absence of evidence that the disputed chapters are now “truly

public.” Cottone, 193 F.3d at 555. Indeed, the Circuit has

counseled that “[f]or the public domain doctrine to apply, the

specific information sought must have already been ‘disclosed

and preserved in a permanent public record.’” See Students

Against Genocide v. Dep’t of State, 257 F.3d 828, 836 (D.C. Cir.

2001).

On this point, the Court finds the D.C. Circuit’s decision

in Students Against Genocide particularly instructive. That

case involved classified “spy satellite” and “spy plane”

Rights, 404 F. Supp. 2d at 255. Because Leadership Conference

on Civil Rights dealt with whether an agency properly asserted a

particular FOIA exemption, id. at 254 – not whether the agency

had waived its right to assert the particular FOIA exemption –

the Court finds it inapposite to the facts of this case.

14

photographs that then-U.S. Ambassador Madeleine Albright showed

to members of the United Nations Security Council. 257 F.3d at

830. The plaintiff organizations in that case argued that

Ambassador Albright waived the government’s right to invoke the

pertinent FOIA exemptions (Exemptions 1 and 3) by displaying the

withheld photographs to the delegates of the foreign governments

that were members of the Security Council. Id. at 836. The

Circuit rejected plaintiff’s argument, explaining that:

The photographs in question here plainly do not fall

within the [public domain] doctrine. They were not

released to the general public; only the Security

Council delegates saw them. In fact, the

photographs were not “released” at all. Although

Ambassador Albright displayed them to the delegates,

she retained custody, and none left the U.N.

chamber. Hence, there is no “permanent public

record” of the photographs.

Id. at 836 (internal citations omitted) (citing Cottone, 193

F.3d at 554). After also rejecting the plaintiff organizations’

“slight variation[s]” on the public-domain doctrine theme, the

Circuit concluded that the government had not waived its right

to withhold the classified photographs from release under FOIA

by displaying them to the Security Council. Id. at 836, 837.

Similarly, in this case, the disputed chapters were not

released to the general public; rather, they were only shown to

a select group of organizations – personally invited by the FBI

- at FBI headquarters. Although the attendees were permitted to

view and take notes on the disputed chapters for approximately

15

two hours, they were required to return the documents at the end

of the meeting. As none of the disputed chapters left FBI

headquarters, the Court finds that there is no “permanent public

record” of the disputed chapters in the public domain.

Plaintiff attempts to circumvent the public-record

requirement by arguing that “[t]he free and full note taking

allowed during the meeting . . . provided the meeting

participants with ample means to make the distributed material

part of the permanent public record, therefore satisfying this

standard.” Pl.’s Combined Opp’n & Cross-Mot. at 19 n.5; see

also Pl.’s Reply at 9 (arguing that the retention of notes

created a permanent public record). The Court finds this

argument unpersuasive. Even assuming that plaintiff had “ample

means” to make a permanent record of the approximately 100 pages

of the DIOG that was distributed during the two-hour meeting,

plaintiff has produced no evidence that the redacted sections of

the disputed chapters are, in fact, in the public domain.

While the D.C. Circuit has not established “a uniform,

inflexible rule requiring every public-domain claim to be

substantiated with a hard copy simulacrum of the sought-after

material[,]” it has recognized that “it will very often be the

case that some type of hard copy facsimile will be the only

practicable way for a FOIA requester to demonstrate that the

specific information he has solicited has indeed circulated into

16

the public domain.” Cottone, 193 F.3d at 555. No such evidence

has been provided in this case. Without such documentation, the

Court lacks confidence that the redacted portions of the

disputed chapters are “truly public.” See id. (explaining that

“while the ‘logic of FOIA’ postulates that an exemption can

serve no purpose once information – including sensitive law-

enforcement intelligence – becomes public, [courts] must be

confident that the information sought is truly public and that

the requester receive no more than what is publicly available

before we find a waiver” (internal citation omitted)).

The Court will note that its lack of confidence stems, in

part, from plaintiff’s repeated complaints regarding its

inability to conduct a “meaningful review” of the DIOG. Pl.’s

SMF ¶ 21. Indeed, the letter that Muslim Advocates sent to FBI

Director Mueller immediately following the November 2008

meetings argued that a “meaningful review” of the DIOG was

necessary, explaining that “no copies have been released to

date, ad [sic] participants in the briefings were not allowed to

examine the 100-page document except during the live sessions,

neither of which afforded sufficient time for a rigorous

examination.” Ex. H to Khera Decl., Docket No. 16-15.

Plaintiff reiterated those concerns in its FOIA request, in

which it complained that participants in the November 2008

meetings “were allowed only limited time to examine the 100-page

17

document, which was insufficient for a meaningful review.”

Def.’s Ex. 2, Docket No. 12-8. As the participants in the

November meetings lacked sufficient time for a “rigorous

examination” or “meaningful review” of the disputed chapters,

the Court is not persuaded – absent some evidence to the

contrary – that the note-taking participants assembled a

permanent public record that “duplicates that being withheld.”

Public Citizen, 11 F.3d at 201.7

7

If there was a permanent public record of the disputed

chapters then plaintiff would not have had to file a FOIA

request in order to conduct a meaningful review of the material.

See Assassination Archives and Research Ctr. v. Central

Intelligence Agency, 334 F.3d 55, 60 n.6 (D.C. Cir. 2003) (“[A]s

a practical matter waiver under [the public-domain doctrine]

yields the FOIA plaintiff little new information. Indeed, if a

plaintiff can establish that the specific records he seeks have

become ‘freely available, there would be no reason to invoke the

FOIA to obtain access to the information.’” (quoting and

discussing Davis v. Dep’t of Justice, 968 F.2d 1276, 1279-80

(D.C. Cir. 1992)) (internal citations omitted)). Although

plaintiff contends that this “broad view of the public domain

doctrine renders FOIA meaningless[,]” Pl.’s Reply at 10, the

Court disagrees. As noted above, the public-domain doctrine is

premised upon the logic that a FOIA exemption can no longer

serve its purpose when there is a permanent public record of the

requested information. See Cottone, 193 F.3d at 554. The Court

is not persuaded, however, that the application of the public-

domain doctrine in this case – a case where a FOIA exemption can

still serve its purpose because the information requested is not

truly public - renders FOIA meaningless. See Students Against

Genocide, 257 F.3d at 836 (“This circuit has held that the

government may not rely on an otherwise valid exemption to

justify withholding information that is already in the ‘public

domain.’ We have noted, however, that while the logic of FOIA

postulates that an exemption can serve no purpose once

information . . . becomes public, we must be confident that the

information sought is truly public and that the requester

18

The Court, therefore, finds that plaintiff has failed to

meet its “initial burden of pointing to specific information in

the public domain that appears to duplicate that being

withheld.” Afshar, 702 F.2d at 1130; see also, e.g., Davis, 968

F.2d at 1280 (“[T]o obtain portions of tapes alleged to be in

the public domain, [the FOIA applicant] has the burden of

showing that there is a permanent public record of the exact

portions he wishes. It does not suffice to show - as he has done

- that some of the tapes were played to shift the burden to the

government. [The FOIA applicant] has not satisfied his burden to

point to specific information in the public domain.”).8

Accordingly, plaintiff’s motion for summary judgment is DENIED.

receive no more than what is publicly available before we find a

waiver.” (internal citations and quotation marks omitted)); cf.

Prison Legal News v. Exec. Office for United States Attys., 628

F.3d 1243, 1253 (10th Cir. 2011) (“The public domain doctrine is

limited and applies only when the applicable exemption can no

longer serve its purpose. Given that the public domain doctrine

nowhere appears in the statutory text of FOIA, only the failure

of an express exemption to provide any protection of the

interests involved could justify its application.”).

8

Plaintiff also argues that “this Court should apply a less

deferential waiver standard for material withheld under

Exemption 7(E), and not the national security standard developed

under Exemption 1.” Pl.’s Combined Opp’n and Cross-Mot. at 23.

The Court finds this argument unpersuasive for several reasons.

First, the D.C. Circuit has never limited application of the

public-domain doctrine to cases involving national security,

but, instead, has applied it in several non-national security

contexts. See, e.g., Cottone, 193 F.3d at 554 (citing cases

that apply the public-domain doctrine in the context of FOIA

Exemptions 1, 3, 4, and 7(C)). The Court will nevertheless

19

B. Exemption 7(E)

Having found that no waiver occurred, the Court must now

determine whether the agency properly withheld material from 52

note, however, that “the FBI’s rationale for withholding

portions of the DIOG is directly intertwined with concerns

regarding national security. . . . In considering the risks of

widespread disclosure of certain DIOG provisions, the FBI

explicitly found that concerns about national security and

counterintelligence issues counseled withholding.” Def.’s

Combined Opp’n & Reply at 13 (internal citations omitted).

Therefore given both the “circumstances of prior disclosure” –

in which a small group of civil rights and civil liberties

groups were invited to FBI headquarters and given approximately

two hours to review and give feedback to the FBI on the civil

liberty, privacy, and civil rights concerns of the FBI’s

domestic investigation guidelines - and “the particular

exemption[] claimed” – i.e., Exemption 7(E)’s protection of

information compiled for law enforcement purposes, the Court

finds that application of the public-domain doctrine is

appropriate in this case. Carson v. U.S. Dep’t of Justice, 631

F.2d 1008, 1015 n.30 (D.C. Cir. 1980).

The Court will also note its disagreement with plaintiff’s

contention that this Court “should follow the strong presumption

of disclosure under FOIA in fashioning a test for waiver under

7(E) that results in a narrow exemption from disclosure.” Pl.’s

Reply at 4 (citing Wolf, 473 F.3d at 374). In Wolf, the D.C.

Circuit stated as follows: “The FOIA mandates broad disclosure

of government records to the public, subject to nine enumerated

exemptions. Given the FOIA’s broad disclosure policy, the

United States Supreme Court has ‘consistently stated that FOIA

exemptions are to be narrowly construed.’” 473 F.3d at 374

(internal citations omitted). Despite plaintiff’s arguments to

the contrary, the Court is not persuaded that FOIA’s broad

presumption in favor of disclosure is applicable in the waiver

context. Indeed, the Court finds its obligation to narrowly

construe FOIA exemptions in favor of requiring an agency to

disclose information that is being improperly withheld,

fundamentally different than creating a less stringent waiver

standard whereby an agency loses the right to assert an

otherwise applicable FOIA exemption (and is thereby required to

disclose information that is not truly public).

20

pages of the DIOG pursuant to Exemption 7(E). As noted above,

Exemption 7(E) protects records or information compiled for law

enforcement purposes from disclosure “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 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, 1994 (D.C. Cir. 2009) (quoting PHE, Inc. v.

Dep’t of Justice, 983 F.2d 248, 251 (D.C. Cir. 1993)).

Defendant asserts Exemption 7(E) in order to “protect

information consisting of special internal investigatory

techniques and procedures that are used by the FBI . . . [that]

if release[d] could reasonably be expected to give anyone with

21

that particular knowledge the ability to circumvent the law.”

Declaration of John S. Pistole, Docket No. 13-5 (“Pistole

Decl.”) ¶ 30. Defendant explains that “revelation of [the

redacted material] could enable the targets of these techniques

to avoid detection or develop countermeasures to circumvent the

ability of the FBI to effectively use this important national

security law enforcement technique.” Pistole Decl. ¶ 30.9

With respect to the 52 pages of redactions at issue in this

case, defendant has submitted an affidavit that specifically

identifies ten categories of information involving the FBI’s

techniques and procedures, which it avers, “would cause harm to

FBI’s criminal and national security investigations” if

released. See Def.’s Combined Opp’n & Reply at 5; Pistole Decl.

¶ 7. Those categories are: (i) information identifying the

contents of particular file numbers, forms, and databases;

(ii) information about the FBI’s operational directives;

9

Defendant also avers that “[t]he FBI’s rationales for

withholding this information must be understood in the larger

context of the current security and criminal prosecution

climate. In addition to combating the criminal acts of

sophisticated illicit enterprises (such as organized crime

syndicates and drug cartels), the FBI is also charged with

protecting the nation from security risks posed by individuals,

organizations (such as terrorist groups), and foreign nations

that seek to harm the United States. The FBI’s public

disclosure of information is carefully scrutinized by the

enemies of the United States. Intelligence services and

terrorists use open-source information to gather intelligence

about United State’s capabilities and methods. . . .” Pistole

Decl. ¶ 8.

22

(iii) specific scenarios in which specific techniques are

authorized; (iv) approval limitations on techniques or

procedures that may be used in certain types of investigations;

(v) identification of obscure capacities and investigative

techniques; (vi) the scope of sensitive investigative matters;

(vii) information on the duration for which particular actions

are authorized; (viii) details about undisclosed participation;

(ix) information concerning the FBI’s collection and/or analysis

of information; and (x) certain terms and definitions. See

Def.’s Combined Opp’n & Reply at 5; see also Pistole Decl. ¶ 7.

In its affidavit, defendant provides descriptions of each of

these categories and discusses how release of the information

within that particular category could create a risk of

circumvention of the law. See generally Pistole Decl.; see also

Def.’s Mot. 6-22.

In its opposition brief, Muslim Advocates does not

challenge the applicability of Exemption 7(E) nor does it

challenge the rationale for any of the categories of redactions.

See generally Pl.’s Combined Opp’n & Cross-Mot. at 27-34.

Instead, plaintiff more generally responds by reprising its

waiver argument, asserting that “the same facts supporting a

finding of waiver at the very least call into question whether

the information the FBI seeks to protect is sufficiently

‘unknown to the public’ to qualify for Exemption 7(E).” Pl.’s

23

Combined Opp’n & Cross-Mot. at 27; see also Pl.’s Reply at 12

(“The Department’s own actions in holding the meetings without

confidentiality restrictions refute its current claim that

disclosure of the materials risks circumvention of the law.”).

Plaintiff then points to “numerous press reports about the FBI’s

infiltration of mosques and use of undercover agents or

confidential informants to gather information from members of

ethnic or religious communities,” and argues that those

materials create “a material issue of fact regarding whether the

material claimed exempt is generally known to the public such

that the FBI should not be granted summary judgment.” Pl.’s

Combined Opp’n & Cross-Mot. at 29-30.10

The Court finds these arguments unpersuasive. With respect

to plaintiff’s waiver argument, the Court agrees with defendant

that “[t]here is a difference between showing the contested DIOG

provisions to a limited audience of a handful of representatives

of particular public interest groups and generally disclosing

the actual document itself to the public at large.” Def.’s

10

Plaintiff also argues that “[t]he FBI is not entitled to

summary judgment for the additional and independent reason that

it errs in baldly attempting to deny the significant public

interest in the DIOG – a public interest that it has repeatedly

recognized.” Pl.’s Opp’n & Cross-Mot. at 31. While the Court

is sensitive to plaintiff’s frustration regarding its inability

to obtain an unredacted copy of the DIOG, the Court is not

persuaded that that the FBI’s purported minimization of “the

strong public interest in releasing the DIOG to the public” is

an independent ground upon which to deny summary judgment.

Pl.’s Opp’n & Cross-Mot. at 31.

24

Combined Opp’n & Reply at 17. Because “[d]isclosing the DIOG in

the way Muslim Advocates now demands would increase the risk

that criminal elements would either be emboldened to commit

crimes or structure their activities to evade detection[,]”

Def.’s Combined Opp’n & Reply at 18, the Court finds that the

FBI’s limited disclosure at the November 2008 meetings does not

preclude the agency’s claim of Exemption 7(E) as to the redacted

material.11 Nor is the Court convinced that plaintiff’s news

articles create a genuine issue of material fact regarding

whether the FBI’s techniques and procedures are sufficiently

unknown to the public. Although some information regarding the

FBI’s use of the particular techniques and procedures discussed

in the disputed chapters may be known, “[t]here is no principle

. . . that requires an agency to release all details concerning

[its] techniques simply because some aspects of them are known

to the public[.]” Barnard v. Dep’t of Homeland Sec., 598 F.

Supp. 2d 1, 23 (D.D.C. 2009) (rejecting the plaintiff’s argument

that information regarding particular procedures witnessed by

11

See also Def.’s Combined Opp’n & Reply at 18 (“More widely

distributing the DIOG would allow an opportunity for close

analysis of the document’s provisions that was not provided at

the meetings at issue in this matter. . . . [I]mmediately after

the meetings at issue, Muslim Advocates complained that the

meetings did not, in fact, allow for careful analysis of the

DIOG. Making a full public release of the DIOG would allow just

such a detailed review and would not be limited to entities

familiar to the FBI.”).

25

the plaintiff and others could no longer be withheld); see also,

e.g., Blanton v. Dep’t of Justice, 63 F. Supp. 2d 35, 49-50

(D.D.C. 1999) (finding that public information regarding the

FBI’s use of polygraph tests, including “[b]ooks that claim to

reveal its techniques and ways to beat the test,” did not

require disclosure of the information withheld by the FBI;

explaining that this public information, “although widely

available,” did not “indicate the specific methods employed by

the FBI” (internal quotation marks omitted)). Because “the

public does not have specific knowledge of the circumstances in

which undisclosed participation is or is not allowed in FBI

investigations or what undisclosed participants are or are not

allowed to do,” Def.’s Combined Opp’n & Reply at 19, the Court

is not persuaded that plaintiff’s news articles require the FBI

to release the redacted portions of the DIOG.

Therefore, having carefully considered the parties’

arguments, the agency’s affidavits, as well as the redacted

materials, the Court hereby GRANTS IN PART AND DENIES IN PART

the government’s motion for summary judgment. The Court first

finds that the government is entitled to summary judgment as to

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

Specifically, the Court concludes, based upon the limited amount

of information withheld from those chapters, that the agency’s

affidavits, in conjunction with a review of the released

26

material and the agency’s index, provides the Court with enough

context to conclude that the FBI fairly and accurately described

the withheld material and the potential danger created by its

release. The Court is not so persuaded, however, with respect

to Chapter 16. That chapter is entirely redacted with the

exception of the opening paragraph and Section 16.1.A. See

Docket No. 12-4, DIOG 253 - DIOG 266. Although the agency’s

affidavit establishes the general applicability of Exemption

7(E) to the withheld material, see Pistole Decl. ¶¶ 25, 45, the

Court finds that the affidavit is not sufficiently detailed to

allow this Court to undertake a meaningful assessment of the

redacted material. Therefore, in light of plaintiff’s

objections regarding the “nearly wholesale redaction” of Chapter

16, see Pl.’s Reply at 12, as well as the extremely unusual

facts of this case, the Court finds it appropriate to require

the government to submit a more specific affidavit providing

additional details in support of its extensive redactions in

this chapter. Accordingly, the Court hereby DENIES defendant’s

motion for summary judgment as to Chapter 16 without prejudice

pending receipt of this additional affidavit. If necessary, the

government may submit the declaration ex parte. See, e.g.,

Pistole Decl. ¶ 31 (explaining that its affidavit contains “as

much information as the FBI can provide about the redacted

material without potentially increasing the risk that FBI

27

techniques or procedures will be circumvented or potential

lawbreakers will be encouraged to engage in illegal

activities”).12 This supplemental affidavit shall be filed by no

later than November 30, 2011.

IV. CONCLUSION

For the reasons set forth above, the Court GRANTS IN PART

AND DENIES IN PART defendant’s motion for summary judgment and

DENIES plaintiff’s cross-motion for summary judgment. A

separate Order accompanies this Memorandum Opinion.

SIGNED: Emmet G. Sullivan

United States District Court Judge

November 10, 2011

12

Because the Court finds that the FBI has generally

established that the material redacted from the disputed

chapters could reasonably be expected to potentially increase

the risk of circumvention of the law, the Court declines to

reach defendant’s alternative argument that the redacted

portions of the DIOG are “categorically exempt” from disclosure

under Exemption 7(E).

28