Stein v. U.S. Department of Justice

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUM B IA

)

JEFFREY STEIN, )

)

P laintiff, )

)

v. ) Civil Action No. 13-cv-00571 (TSC)

)

U.S. DEP ARTMENT OF JUSTICE, )

)

Defendant. )

)

M EM ORANDUM OPINION

Plaintiff Jeffrey Stein brings six claims under the Freedom of Information Act, 5 U.S.C.

§ 552, et seq., as amended (“FOIA”), concerning six unrelated FOIA requests he made to the

Federal Bureau of Investigation (the “FBI”), the Civil Division of the United States Department

of Justice (the “Civil Division”) and the Executive Office for United States Attorneys (the

“Executive Office”), all of which are components of Defendant the United States Department of

Justice (“DOJ”).

Defendant moved for summary judgment as to all six claims, with the parties briefing

Counts I, II and III (which pertain to records sought from the FBI and the Civil Division)

separately from Counts IV, V and VI (which pertain to records sought from the FBI and the

Executive Office), per the court’s order.

Upon consideration of Defendant’s motions for summary judgment, the responses thereto

and the replies in support thereof, and for the reasons set forth below, summary judgment is

GRANTED on Counts I, II, III and VI; DENIED on Count IV; and GRANTED IN PART and

DENIED IN PART on Count V.

I. BACKGROUND AND PROCEDURAL HISTORY

For the sake of clarity, and because each count of the Complaint relates to a different

FOIA request, each count will be discussed separately. Counts I and II were previously part of

the case Ryan Shapiro, et al. v. Dep’t of Justice, Civ. A. No. 1:12-cv-01883 (BAH) (D.D.C.), but

were severed from that case and refiled in this action.

a. Count I (FBI Work Processing Unit Case Evaluation Forms)

On September 13, 2011, Plaintiff submitted a FOIA request to the FBI for all Work

Processing Unit (“WPU”) Case Evaluation Forms that it had completed since October 2008.

According to Plaintiff, these forms are completed during random quality control audits of FOIA

requests. (Compl. ¶ 8).

In December 2011, the FBI informed Plaintiff that it had failed to find any responsive

records during a two-hour search of approximately 345 records, and estimated that searching

approximately 18,322 additional potentially responsive records would consume over 106 hours of

search time. (First Hardy Decl. ¶ 9). The FBI further stated that it would be unreasonably

burdensome to search every FOIA request file to locate the requested Case Evaluation Forms,

and that it would close Plaintiff’s request unless he agreed to limit its scope. (First Hardy Decl.

Ex. E; Compl. ¶ 11).

The FBI eventually advised Plaintiff that it had learned that WPU Case Evaluation

Forms are normally maintained in employees’ personnel folders for a period of one year before

they are destroyed. (First Hardy Decl. Ex. G). Based on this fact, the FBI took the position that

retrieval and reproduction of the forms would be a “clearly unwarranted” invasion of personal

privacy, and that the forms were therefore exempt entirely from FOIA pursuant to exemptions

(b)(2) and (b)(6). (First Hardy Decl. Ex. G).

2

In response, Plaintiff limited the scope of his request to all Case Evaluation Forms

located in WPU employees’ personnel folders, regardless of their creation date, and stated that

the FBI could redact its employees’ personally identifiable information from the forms. (First

Hardly Decl. Ex. H; Compl. ¶ 13). The FBI responded by again asserting exemptions (b)(2) and

(b)(6) as to all the forms. (First Hardly Decl. Ex. I; Compl. ¶ 14).

Plaintiff appealed the FBI’s assertion of exemptions (b)(2) and (b)(6) to DOJ’s Office of

Information Policy (“OIP”), and OIP eventually closed the appeal after Plaintiff challenged the

FBI’s assertion of these exemptions in the Shapiro case, which Plaintiff filed in November 2012.

(First Hardy Decl. Exs. J-L; Compl. ¶¶ 15-16).

Here, Plaintiff does not challenge the adequacy of the FBI’s search, but challenges both

claimed exemptions.

b. Count II (FBI Reference Materials for ACS and FDPS Programs)

On September 13, 2011, Plaintiff submitted a FOIA request to the FBI for all manuals,

training materials and similar reference materials regarding the Automated Case Support

(“ACS”) and FOIA Document Processing System (“FDPS”) programs utilized by the FBI’s

Record/Information Dissemination Section. (First Hardy Decl. Ex. M; Compl. ¶ 20).

The FBI released a number of records to Plaintiff in March 2012. (First Hardy

Decl. ¶ 23; Compl. ¶ 22). It stated that it had reviewed 643 pages of records, 376 pages of which

it released to Plaintiff in full or in part, with the balance withheld pursuant to FOIA exemptions

(b)(6), (b)(7)(C), (b)(7)(D) and (b)(7)(E). (First Hardy Decl. Ex. R). These 643 pages

comprised two documents: The 274-page ACS Basic Reference Guide and the 369-page FDPS

Manual.

Plaintiff appealed the FBI’s assertion of FOIA exemption (b)(7)(E) to OIP, specifically

noting that he did not appeal the FBI’s assertion of the other three FOIA exemptions. (First

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Hardy Decl. Ex. S; Compl. ¶ 23). Subsequently, OIP remanded the FOIA request to the FBI for

reprocessing to determine whether any additional material could be released to Plaintiff. (First

Hardy Decl. Ex. U; Compl. ¶ 24).

In October 2012, after re-reviewing the same 643 pages of records, the FBI released to

Plaintiff 396 pages in full or part – 20 more pages than it had released in March 2012 – with

certain information again withheld pursuant to the same four FOIA exemptions. (First Hardy

Decl. Ex. V; Compl. ¶ 26).

Plaintiff again appealed the FBI’s assertion of FOIA exemption (b)(7)(E) to OIP. (First

Hardy Decl. Ex. W; Compl. ¶ 27). OIP eventually closed the appeal after Plaintiff challenged the

FBI’s assertion of exemption (b)(7)(E) in the Shapiro case. (First Hardy Decl. Ex. Y; Compl.

¶ 27).

Plaintiff does not challenge the adequacy of the FBI’s search, and does not challenge any

of the withholdings from the 369-page FDPS Manual. Instead, Plaintiff challenges only the FBI’s

assertion of exemption (b)(7)(E) with regard to the 274-page ACS Basic Reference Guide, only

27 pages of which were released to him.

c. Count III (Civil Division Monographs)

On September 13, 2011, Plaintiff submitted a FOIA request to the Civil Division for

copies of three monographs: Chevron Notes (2009), The Governmental Privileges (September

2006) and Defending Actions Brought Pursuant to the Privacy Act of 1974 (1982). (Kovakas

Decl. Ex. A; Compl. ¶ 31).

In January 2011, the Civil Division advised Plaintiff that it was withholding in full all

records responsive to the request – three monographs totaling 166 pages – as “intra-agency

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monographs consisting of agency attorney opinions” under exemption (b)(5). (Kovakas Decl.

Ex. B; id. ¶ 5; see also Compl. ¶ 33).

Plaintiff appealed the withholdings to OIP, which affirmed, advising Plaintiff that it had

reviewed his appeal and determined that the records were properly withheld under the exemption.

(Kovakas Decl. ¶ 4 (citing Ex. C thereto); Compl. ¶ 34).

Plaintiff does not challenge the adequacy of the Civil Division’s search, but challenges its

assertion of exemption (b)(5).

d. Count IV (Executive Office Records from USABook Desktop Library)

On September 13, 2011, Plaintiff submitted a FOIA request to the Executive Office for

all records in the USABook Desktop Library maintained by the DOJ Office of Legal Education

indexed under the topic “Freedom of Information.” (Luczynski Decl. Ex. A; Compl. ¶ 37).

In November 2011, the Executive Office notified Plaintiff that it was withholding in full

38 print-out pages that captured what it described as “the Chapters relevant to the request in the

FOIA portion of the USABook” pursuant to exemptions (b)(5) and (b)(7)(E). (Luczynski Decl.

¶ 8 (citing Ex. C thereto); Compl. ¶ 39).

Plaintiff appealed the Executive Office’s assertion of these exemptions and the adequacy

of the Executive Office’s search to OIP, which subsequently remanded the request to the

Executive Office for further processing. (Compl. ¶¶ 40, 41).

In September 2013, counsel for Defendant e-mailed Plaintiff a redacted copy of the list of

links on what she referred to as the USABook FOIA Topic Page. (Luczynski Decl. Ex. D; Pl.

Second Opp. Ex. C). Defendant states that this list was sent for the sole purpose “of reaching a

settlement and without any intentional or inadvertent waiver of the non-responsive determination

[the Executive Office] originally made.” (Luczynski Decl. ¶ 11 (citing Ex. D thereto)).

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In May 2014, counsel for Defendant e-mailed Plaintiff three of the 38 pages being

withheld – two pages titled “Freedom of Information” discussing wiretap recordings and

a one-page memo titled “FOIA and District Discover[y] Policies” – after confirming that these

pages had previously been publicly released. (Luczynski Decl. ¶¶ 12-13 (citing Ex. E thereto)).

Plaintiff argues that the Executive Office construed his FOIA request too narrowly and

challenges its assertion of exemptions (b)(5) and (b)(7)(E) over the material withheld.

e. Count V (FBI Records regarding Christopher Hitchens)

On January 9, 2012, Plaintiff submitted a FOIA request to the FBI for all records,

including cross-references, regarding the late Christopher Hitchens, the noted British author and

journalist. (Fourth Hardy Decl. Ex. A; Compl. ¶ 45).

In March 2012, the FBI released to Plaintiff 19 pages of material previously processed

for another requester, with certain information exempted pursuant to FOIA exemptions (b)(1),

(b)(6), (b)(7)(C), (b)(7)(D) and (b)(7)(E). (Fourth Hardy Decl. ¶ 8 (citing Ex. C thereto);

Compl. ¶ 47).

Plaintiff appealed the adequacy of the search and the FBI’s assertion of exemptions to

OIP. (Fourth Hardy Decl. Ex. D; Compl. ¶ 48). OIP remanded Plaintiff’s request for additional

searches, and otherwise affirmed the FBI’s determination, including the assertion of all

exemptions. (Fourth Hardy Decl. Ex. F; Compl. ¶ 50).

After conducting additional searches, the FBI reviewed 65 pages of records and released

42 of those pages to Plaintiff in full or in part, with certain information exempted pursuant to the

same five FOIA exemptions, as well as exemption (b)(3). (Fourth Hardy Decl. ¶ 13).

Plaintiff does not challenge the adequacy of the FBI’s search for the Hitchens records, and

challenges only its assertion of exemption (b)(7)(D).

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f. Count VI (FBI Records regarding Gwyneth Todd)

In May 2012, Plaintiff and Gwyneth Todd jointly submitted a FOIA request to the FBI

for all FBI records regarding Todd. (Fourth Hardy Decl. Ex. G). The request specified that

Plaintiff sought “all records about the events last year” involving an FBI agent that Todd claimed

had visited her Canberra, Australia home under false pretenses. (Id.). Plaintiff and Todd

requested a fee waiver and provided a privacy waiver form signed by Todd, which authorized the

FBI to release the requested information to both Plaintiff and his counsel. (Id.; Compl. ¶ 54).

On April 26, 2013, Plaintiff commenced this action, citing constructive exhaustion based

on the fact that twenty working days had elapsed from the time of his request without a

substantive determination by the FBI. (Compl. ¶ 57).

In November 2013, the FBI denied Plaintiff’s fee waiver request and informed him that it

had located approximately 10,000 pages of potentially responsive material. (Fourth Hardy Decl.

Ex. I). Pursuant to 28 C.F.R. § 16.11, Plaintiff was advised that the estimated fee associated

with his FOIA request was $290.00, which exceeded $250.00; therefore, the FBI requested

partial advance payment of $72.50 within thirty days. (Fourth Hardy Decl. ¶ 17 (citing Ex. I

thereto)). Plaintiff was also advised that he could consider reducing the scope of his request to

accelerate the processing and potentially reduce the fees associated with his request. (Id.).

In the meantime, consistent with 28 C.F.R. § 16.l l(d)(3)(i), the FBI reviewed one file

consisting of 174 pages and released 147 pages to Plaintiff in full or in part, with certain

information exempted pursuant to FOIA exemptions (b)(6), (b)(7)(C) and (b)(7)(E). (Id. ¶ 18 &

n.2). In February 2014, the FBI advised Plaintiff that it had administratively closed his FOIA

request without processing any records beyond the 174 pages that it had processed pursuant to

28 C.F.R. § 16.l l (d)(3)(i), due to his unwillingness to pay the fees associated with processing

his request. (Id. ¶ 18).

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Plaintiff challenges the denial of his fee waiver request. 1

II. LEGAL STANDARD

a. Motion for Summary Judgment

Summary judgment may be granted if a movant “shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (“the mere

existence of some alleged factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the requirement is that there be no genuine

issue of material fact.”); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). Summary

judgment may be rendered on a “claim or defense . . . or [a] part of each claim or defense.” Fed.

R. Civ. P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support

the assertion by . . . citing to particular parts of materials in the record.” Fed. R. Civ. P.

56(c)(1)(A). “A fact is ‘material’ if a dispute over it might affect the outcome of a suit under the

governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary

judgment determination. An issue is “genuine” if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Holcomb, 433 F.3d at 895 (quoting Liberty

Lobby, 477 U.S. at 248) (citation omitted). The party seeking summary judgment “bears the

heavy burden of establishing that the merits of his case are so clear that expedited action is

justified.” Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987).

1 In his opposition to Defendant’s second motion for summary judgment, Plaintiff reserves the

right to challenge the adequacy of the FBI’s search and any future withholdings related to the

FOIA request at issue in Count VI if the court determines that he is entitled to a fee waiver.

(Pl. Second Opp. at 2).

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In considering a motion for summary judgment, “the evidence of the nonmovant is to be

believed, and all justifiable inferences are to be drawn in [their] favor.” Liberty Lobby, 477 U.S.

at 255; see also Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006) (“We

view the evidence in the light most favorable to the nonmoving party and draw all inferences in

its favor.”). The nonmoving party’s opposition, however, must consist of more than mere

unsupported allegations or denials, and must be supported by affidavits, declarations or other

competent evidence setting forth specific facts showing that there is a genuine issue for trial. See

Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is

required to provide evidence that would permit a reasonable jury to find in his favor. See

Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).

b. FOIA

“FOIA provides a ‘statutory right of public access to documents and records’ held by

federal government agencies.” Citizens for Responsibility & Ethics in Washington v. DOJ, 602

F. Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir.

1982)). FOIA requires that federal agencies comply with requests to make their records

available to the public, unless such “information is exempted under [one of nine] clearly

delineated statutory [exemptions].” Id. (internal quotation marks omitted); see also 5 U.S.C.

§§ 552(a)-(b).

“‘FOIA cases typically and appropriately are decided on motions for summary

judgment.’” Georgacarakos v. FBI, 908 F. Supp. 2d 176, 180 (D.D.C. 2012) (quoting Defenders

of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). The district court

conducts a de novo review of the government’s decision to withhold requested documents under

any of FOIA’s specific statutory exemptions. See 5 U.S.C. § 552(a)(4)(B). Thus, the burden is

on the agency to show that nondisclosed, requested material falls within a stated exemption. See

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Petroleum Info. Corp. v. U.S. Dep’t of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing

5 U.S.C. § 552(a)(4)(B)); Liberty Lobby, 477 U.S. at 254.

In cases concerning the applicability of exemptions and the adequacy of an agency’s

search efforts, summary judgment may be based solely on information provided in the agency’s

supporting declarations. See, e.g., ACLU v. U.S. Dept. of Def., 628 F.3d 612, 619 (D.C. Cir.

2011); Students Against Genocide v. Dept. of State, 257 F.3d 828, 838 (D.C. Cir. 2001). “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, 628 F.3d

at 619. “Ultimately, 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)). However, an agency’s “affidavits must show, with reasonable specificity, why the

documents fall within [a given] exemption. The affidavits will not suffice if the agency’s claims

are conclusory, merely reciting statutory standards, or if they are too vague or sweeping.”

Hayden v. Nat’l Sec. Agency, 608 F.2d 1381, 1387 (D.C. Cir. 1979). This requirement is

consistent with an agency’s general obligation to create “as full a public record as possible,

concerning the nature of the documents and the justification for nondisclosure.” Id. at 1384.

Additionally, a motion for summary judgment should be granted in favor of a FOIA requester

“[w]hen an agency seeks to protect material which, even on the agency’s version of the facts,

falls outside the proffered exemption.” Coldiron v. DOJ, 310 F. Supp. 2d 44, 48 (D.D.C. 2004)

(quoting Petroleum Info. Corp., 976 F.2d at 1433).

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FOIA also requires that “[a]ny reasonably segregable portion of a record shall be

provided to any person requesting such record after deletion of the portions which are exempt.”

5 U.S.C. § 552(b). More specifically, “[i]t has long been a rule in this Circuit that non-exempt

portions of a document must be disclosed unless they are inextricably intertwined with exempt

portions.” Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir.

1977). In order to withhold a record or portion thereof under a FOIA exemption, “the

Government must make that showing in its Vaughn index and in such affidavits as it may submit

therewith.” Kimberlin v. DOJ, 139 F.3d 944, 950 (D.C. Cir. 1998). “The purpose of a Vaughn

index is to permit adequate adversary testing of the agency’s claimed right to an exemption, and

those who contest denials of FOIA requests – who are, necessarily, at a disadvantage because

they have not seen the withheld documents – can generally prevail only by showing that the

agency’s Vaughn index does not justify withholding information under the exemptions invoked.”

Schiller v. NLRB, 964 F.2d 1205, 1209 (D.C. Cir. 1992) (internal quotation marks and citations

omitted).

III. ANALYSIS

a. Count I (FBI Work Processing Unit Case Evaluation Forms)

The FOIA request at issue in Count I seeks all FBI WPU Case Evaluation Forms located

in WPU employees’ personnel folders, regardless of their creation date. The FBI asserted FOIA

exemptions (b)(2) (covering agency personnel rules and practices) and (b)(6) (covering

personnel and other private files) in withholding all documents responsive to Plaintiff’s request.

Initially, the agency appeared to rely on each exemption to categorically withhold all forms.

(See First Hardy Decl. ¶¶ 44-45). Plaintiff objected to the withholding of all forms under

exemption (b)(6), correctly noting that the exemption has generally been held to categorically

protect only names and identifying information. The FBI then clarified in its reply brief that it

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“categorically denied the request under [e]xemptions (b)(2) and (b)(6) together,” as exemption

(b)(6) “protects employee names but not the other information on them” while exemption (b)(2)

“protects the other information on the forms but not employee names.” (Def. First Reply at 5).

The FBI therefore concluded that, together, the two exemptions supported its “categorical denial

of the forms.” (Id.). Since the parties agree that employee names and other identifying

information are properly withheld pursuant to exemption (b)(6), the only issue for the court to

decide is whether the balance of the information on the forms may be withheld under exemption

(b)(2).

According to the FBI, WPU Case Evaluation Forms are maintained in administrative

personnel files “for purposes of tracking and evaluating the performance of employees who

process FOIA and Privacy Act requests” and are “solely internal” and “kept by the agency for its

own use,” reflecting the FBI’s “internal administrative practices with respect to the management

and evaluation of FBI personnel.” (First Hardy Decl. ¶ 44). Each form “applies to a particular

person” (id. ¶ 45), and the forms “are used solely as a tool for evaluating employee performance

and as a learning tool for employees who may need to focus on improving skills in particular

areas. They exist only for this purpose.” (Third Hardy Decl. ¶ 5). The FBI also states these

forms are “related to hiring, firing, discipline, compensation, benefits, and the like” because

“[t]hey can reflect poor performance, which can be a basis for removal from Federal service,

demotion, or reassignment,” and can also “reflect good performance, which can be the basis for

promotion or performance awards.” (Id. ¶ 9). The FBI argues that “[e]mployees maintain a

substantial privacy interest in information about them and their performance that is maintained in

their administrative personnel files,” and that “disclosure of this information would constitute a

clearly unwarranted invasion of personal privacy” (First Hardy Decl. ¶ 45), as it could cause

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employees “embarrassment or humiliation if forms reflecting deficiencies in their performance

were publicly released.” (Third Hardy Decl. ¶ 10).

The blank two-page WPU Case Evaluation Form that Plaintiff attached to his brief

supports the FBI’s position that the forms are used by supervisors to evaluate the performance of

FBI personnel tasked with processing FOIA requests. For example, the form contains a

“Correction List” with 36 checkboxes denoting different errors that a FOIA request processor

may make, as well as three checkboxes for a supervisor’s overall assessment of a processor’s job

performance: “Unacceptable,” “Satisfactory” and “Error Free.”

i. Exemption (b)(2)

Exemption (b)(2) provides that FOIA “does not apply to matters that are . . . related

solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2). Until

2011, following the D.C. Circuit’s opinion in Crooker v. Bureau of Alcohol, Tobacco &

Firearms, 670 F.2d 1051 (1981), courts in this Circuit applied exemption (b)(2) to two categories

of documents: Materials concerning human resources and employee relations (referred to as

“Low 2”), and predominantly internal materials whose disclosure would significantly risk

circumvention of agency regulations or statutes (referred to as “High 2”).

The Supreme Court overturned Crooker in Milner v. Dep’t of Navy, 562 U.S. 562, 571

(2011), analyzing the exemption’s statutory language to conclude “that Low 2 is all of 2 (and

that High 2 is not 2 at all).” The Court explained that while “[j]udicial decisions since FOIA’s

enactment have analyzed and reanalyzed the meaning” of exemption (b)(2), “comparatively little

attention has focused on the provision’s 12 simple words: ‘related solely to the internal personnel

rules and practices of an agency.’” 562 U.S. at 569. “The key word in that dozen – the one that

most clearly marks the provision’s boundaries – is ‘personnel.’” Id.

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The Court found that the word “personnel” was used in the exemption to “refer[] to

human resources matters,” and in common parlance to refer to “‘the selection, placement, and

training of employees and . . . the formulation of policies, procedures, and relations with [or

involving] employees or their representatives.’” Id. (quoting Webster’s Third New International

Dictionary 1687 (1966)). The Court also found that “‘the common and congressional meaning’”

of the phrase “personnel file” is “the file ‘showing, for example, where [an employee] was born,

the names of his parents, where he has lived from time to time, his . . . school records, results of

examinations, [and] evaluations of his work performance’” – in short, the type of file “typically

maintained in the human resources office.” Id. at 570 (quoting Department of Air Force v. Rose,

425 U.S. 352, 377 (1976)). The Court thus concluded that “[a]n agency’s ‘personnel rules and

practices’ are its rules and practices dealing with employee relations or human resources,” noting

that “all the rules and practices referenced in [exemption (b)(2)] share a critical feature: They

concern the conditions of employment in federal agencies – such matters as hiring and firing,

work rules and discipline, compensation and benefits.” Id. at 571.

In addition to being “personnel records,” government records also must satisfy the other

requirements of exemption (b)(2) in order to be exempt from disclosure under FOIA. To wit, the

“[i]nformation must ‘relat[e] solely’ – meaning, as usual, ‘exclusively or only’ – to the agency’s

‘personnel rules and practices’” and “the information must be ‘internal’; that is, the agency must

typically keep the records to itself for its own use.” Id. at 570 n.4 (citations omitted). Plaintiff

does not dispute that the WPU Case Evaluation Forms are internal agency records. Instead, he

disputes whether the forms relate solely to personnel rules and practices, or whether they are also

related to other agency purposes, such as “the non-personnel function of evaluating FOIA

systems and processes.” (Pl. First Opp. at 7).

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The Supreme Court’s opinion in Milner makes clear that the WPU Case Evaluation

Forms are personnel records, given that the forms contain “evaluations of [employees’] work

performance” and concern “the selection, placement, and training of employees” and “employee

relations or human resources,” including “such matters as hiring and firing, work rules and

discipline, compensation and benefits.” Milner, 562 U.S. at 569-70 (citations omitted). The

information on each form “applies to a particular person” (First Hardy Decl. ¶ 45), and the forms

“exist only for th[e] purpose” of “evaluating employee performance” and helping “employees

who may need to focus on improving skills in particular areas.” (Third Hardy Decl. ¶ 5). The

court also credits the FBI’s representations that the forms relate to hiring, firing, discipline,

compensation, benefits, and the like, given their obvious use as a tool to evaluate the job

performance of individual employees. Clearly, then, the forms relate to “‘[p]ersonnel

management,’” which the Supreme Court defined as “‘the phase of management concerned with

the engagement and effective utilization of manpower to obtain optimum efficiency of human

resources.’” Milner, 562 U.S. at 569 (quoting Webster’s 1687).

While Plaintiff acknowledges that the forms “can relate to evaluation of an employee’s

performance,” he argues that because the forms “can also relate to measuring and improving the

overall quality of the FOIA service provided by the agency,” they do not relate solely to

personnel practices. (Pl. First Opp. at 7). This argument is unpersuasive, as taking it to its

logical conclusion would mean that personnel evaluations could never relate solely to personnel

practices, because an employee evaluative process always has the simultaneous goal of

improving not only the performance of individual employees, but also agency-wide performance.

This surely cannot be true, particularly in light of Milner’s finding that personnel management is

essentially “quality assurance” of human resources. (Id.).

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Plaintiff’s assertion that the WPU Case Evaluation Forms “can also relate” to the FBI’s

FOIA process more generally is also both conclusory and speculative. (Id.) (emphasis added).

Plaintiff offers no evidence to rebut the FBI’s representation that the forms “were created and are

used solely as a tool for evaluating employee performance and as a learning tool for employees

who may need to focus on improving skills in particular areas” and “exist only for this purpose.”

(Third Hardy Decl. ¶ 5). While Plaintiff may be able to imagine some conceivable use for the

forms aside from the purposes for which the FBI has declared that it actually uses them, such

speculation does not change the fact that they are used only as part of “the internal personnel

rules and practices of an agency.” 5 U.S.C. § 552. If an agency declares that an internal agency

document is used solely for personnel purposes and that declaration “is not contradicted by

contrary evidence in the record or by evidence of the agency’s bad faith, then summary judgment

is warranted.” ACLU, 628 F.3d at 619.

Here, there is no evidence in the record indicating that the WPU Case Evaluation Forms

are used as some kind of broad “quality assurance measure” for “improving the overall quality of

the FOIA service provided by the agency” as opposed to or in addition to simply being used for

evaluating the performance of individual employees. (Pl. First Opp. at 7). Indeed, the forms

themselves suggest that they are not used to improve the FBI’s FOIA process, generally, but are

instead employee-specific. For example, the “Correction List” includes checkboxes like

“Grammatically incorrect/misspelling(s) of outgoing communications” and “Failed to prioritize

work and multi-task.” These are not indicia of the FOIA process, but of the FOIA processor, as

there is no non-personnel use for this type of information. Additionally, because “[m]istakes or

deficiencies identified by supervisors that are reflected on the forms are corrected prior to FOIA

releases” (Third Hardy Decl. ¶ 7), these forms do not reveal “the type of information that the

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public needs to monitor official actions.” (Pl. First Opp. at 9). Rather, they show only the “type

of normal review and correction of work [that] goes on every day in likely every workplace.”

(Def. First Reply at 4).

For these reasons, the court finds that the WPU Case Evaluation Forms sought by

Plaintiff relate solely to the FBI’s internal personnel rules and practices, and as such are exempt

from disclosure under FOIA. The court therefore grants Defendant’s motion for summary

judgment on Count I.

b. Count II (FBI Reference Materials for ACS and FDPS Programs)

The FOIA request at issue in Count II seeks from the FBI all manuals and other reference

materials concerning its FDPS and ACS programs. According to the FBI’s declaration, FDPS is

a request management system used by government agencies to process FOIA and Privacy Act

requests (First Hardy Decl. Ex. M ¶¶ 32-34), and ACS is “the search engine by which the FBI

searches” its Central Records System (“CRS”), which is “the record system in which the FBI

maintains information it has acquired and compiled in the course of fulfilling its mandated law

enforcement responsibilities.” (Id. ¶ 53).

Two documents were responsive to this request: The 369-page FDPS Manual, the

withholdings from which Plaintiff does not challenge, and the 274-page ACS Basic Reference

Guide, the withholdings from which Plaintiff does challenge.

The FBI asserts that it withheld information in the ACS Basic Reference Guide that

concerned “techniques and procedures” that it uses “in conducting investigations, the release of

which would reveal what types of techniques and procedures are routinely used in such

investigations, and non-public details about when, how, and under what circumstances they are

used.” (First Hardy Decl. ¶ 55). The FBI also represents that

17

[t]o describe this information in further detail on the public record would identify

the very information that [it sought] to protect pursuant to th[e] exemption.

Specifically, revealing what techniques and procedures are commonly used in law

enforcement investigations (e.g., criminal or national security), and the details and

circumstances under which they are used, would enable the targets of these

techniques to avoid detection or develop countermeasures to circumvent the

ability of the FBI and/or law enforcement authorities to effectively use these

important law enforcement techniques in future investigations, therefore allowing

for circumvention of the law.

(First Hardy Decl. ¶ 55). The FBI further declares that releasing the withheld portions of the

ACS Basic Reference Guide “would identify where and how particular sorts of data are recorded

within [its] proprietary computer system[s],” as ACS “is the primary tool used by FBI special

agents and support personnel to . . . conduct federal criminal, national security, and intelligence

investigations.” (Id. ¶ 55(a)). As such, “revelation of particular contents of the ACS would

increase the risk that targets of investigations might . . . gain unauthorized access to, view and

manipulate data on, or otherwise interfere with the FBI’s system.” (Id.). 2

Plaintiff argues that the FBI has not given the court any way of determining what portion

of the ACS Basic Reference Guide’s 274 pages is legitimately withheld and has not sufficiently

explained how disclosing more of its contents could reasonably be expected to risk

circumvention of the law. (Pl. First Opp. at 17).

i. Exemption (b)(7)(E)

FOIA exemption (b)(7)(E) shields law enforcement records that, if produced, “would

disclose techniques and procedures for law enforcement investigations or prosecutions, or would

2 The FBI also withheld the street address of an FBI off-site records storage facility pursuant to

exemption (b)(7)(E). (See First Hardy Decl. ¶¶ 49, 56). Plaintiff does not appear to challenge

this particular withholding, and the court will treat Defendant’s arguments relating to that

withholding as conceded. See Baptist Mem’l Hosp.-Golden Triangle v. Leavitt, 536 F. Supp. 2d

25, 40 (D.D.C. 2008), aff’d sub nom. Baptist Mem’l Hosp.-Golden Triangle v. Sebelius, 566 F.3d

226 (D.C. Cir. 2009) (“A Party that fails to refute an opposing party’s argument on Summary

Judgment may be found to have conceded the point.”); see also LCvR 7(b).

18

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). Some courts

in this Circuit have held that the “risk of circumvention of the law” provision applies only to

guidelines, while others have held that this requirement applies to techniques and procedures as

well. See generally DOJ, Guide to the Freedom of Information Act: Exemption 7(E) at 1-5 (Apr.

23, 2013), available at http://www.justice.gov/oip/foia-guide13/exemption7e.pdf (last accessed

Apr. 2, 2014) (surveying cases). This court need not wade into this debate however, since it

finds, for the reasons set forth below, that Defendant has satisfied the stricter reading of the

exemption by establishing that disclosure of the techniques and procedures described in the

withheld portions of the ACS Basic Reference Guide could reasonably be expected to risk

circumvention of the law.

D.C. Circuit precedent “sets a relatively low bar for [an] agency to justify withholding”

information under this reading of exemption (b)(7)(E). Blackwell v. F.B.I., 646 F.3d 37, 42

(D.C. Cir. 2011). The exemption allows for withholding records or information

not just for circumvention of the law, but for a risk of circumvention; not just for

an actual or certain risk of circumvention, but for an expected risk; not just for an

undeniably or universally expected risk, but for a reasonably expected risk; and

not just for certitude of a reasonably expected risk, but for the chance of a

reasonably expected risk.

Mayer Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009). Thus, an agency must only

“demonstrate logically how the release of the requested information might create a risk of

circumvention of the law.” Id. at 1194 (emphasis added).

The D.C. Circuit’s opinion in Blackwell is instructive here. That case concerned the

invocation of exemption (b)(7)(E) with regard to two kinds of information: (i) details about

procedures used during the FBI’s forensic examination of a computer, and (ii) methods of data

collection, organization and presentation contained in a certain kind of report. See 646 F.3d

19

at 42. As to the details regarding forensic examinations of computers, the Court held that the

FBI’s explanation that “[t]he release of specifics of these investigative techniques would risk

circumvention of the law by individuals who seek to utilize computers in violation of laws”

because it would “expos[e] computer forensic vulnerabilities to potential criminals” satisfied the

(b)(7)(E) standard. Id. (citation omitted). As to the methods of data collection, organization and

presentation, the Court held that the invocation of exemption (b)(7)(e) was justified by the FBI’s

representations that these methods constituted “internal technique[s], not known to the public,”

which had been developed “to meet the specific investigative needs of the FBI,” and that

disclosure of the requested reports “could enable criminals to employ countermeasures to avoid

detection, thus jeopardizing the FBI’s investigatory missions.” Id. (citation omitted).

Here, the FBI has represented that ACS “is the primary tool used by FBI special agents

and support personnel to . . . conduct federal criminal, national security, and intelligence

investigations” by searching CRS, “the record system in which the FBI maintains information it

has acquired and compiled in the course of fulfilling its mandated law enforcement

responsibilities.” (First Hardy Decl. ¶ 55). It follows that “use of ACS itself is a law

enforcement technique or procedure.” (Third Hardy Decl. ¶ 13). It also follows that the ACS

Basic Reference Guide, which explains how to use ACS to search CRS and identifies “where and

how particular sorts of data are recorded within” these proprietary computer systems (First

Hardy Decl. ¶ 55), necessarily contains and describes “techniques” or “procedures” used for

“law enforcement investigations.” 5 U.S.C. § 552(b)(7)(E).

The ACS Basic Reference Guide need not provide step-by-step instructions for potential

law-breakers in order to fall within the scope of the exemption; it is enough that it provides

“information that could increase the risks that a law will be violated or that past violators will

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escape legal consequences.” Mayer Brown, 562 F.3d at 1193. The FBI has demonstrated how

the release of the ACS Basic Reference Guide might create a risk of circumvention of the law by

averring to the possibility that individuals could use it “to gain unauthorized access to, view and

manipulate data on, or otherwise interfere with the FBI’s system,” and that “[s]uch actions could

arm individuals with the information or ability to avoid detection or develop countermeasures to

circumvent the FBI’s ability to effectively use this investigatory tool.” (First Hardy Decl.

¶ 55(a)). See also McRae v. U.S. Dep’t of Justice, 869 F. Supp. 2d 151, 168-69 (D.D.C. 2012)

(holding that disclosure of information contained in a law enforcement database used to conduct

criminal history checks could reasonably be expected to risk circumvention of the law, and was

thus protected from disclosure under exemption (b)(7)(E), because, inter alia, disclosure of such

information to computer literate individuals could provide information on the structure of the

system and expose it to circumvention).

Plaintiff’s reliance on Dent v. Exec. Office for U.S. Attys., 926 F. Supp. 2d 257 (D.D.C.

2013), is misplaced. In that case, the court held that the government had not provided enough

information to invoke exemption (b)(7)(E), having relied “on a declaration written in vague

terms or in a conclusory manner,” and which did not actually explain the substance of the

records being withheld. 926 F. Supp. 2d at 272. In this case, while the FBI’s declaration does

not provide a wealth of information about the ACS Basic Reference Guide (because describing it

or ACS in too much detail would identify the information it seeks to protect), it is by no means

vague or conclusory. Instead, Defendant has submitted “evidence from which the Court can

deduce something of the nature of the techniques in question.” Dent, 926 F. Supp. 2d at 272-73.

For example, the FBI has explained what ACS and CRS are and what the ACS Basic Reference

Guide is, and it has provided Plaintiff with the Guide’s Table of Contents and Index, which

21

Plaintiff attached to his opposition. (See Pl. First Opp. Ex. B). Additionally, as discussed above,

the FBI has logically demonstrated “how the release of the requested information might create a

risk of circumvention of the law.” Mayer Brown, 562 F.3d at 1194. Dent is therefore inapposite

to the facts of this case.

For these reasons, the court finds that the FBI has provided enough information to

support its invocation of exemption (b)(7)(E) with regard to the withheld portions of the

ACS Basic Reference Guide, and Defendant’s motion for summary judgment on Count II is

therefore granted.

c. Count III (Civil Division Monographs)

The FOIA request at issue in Count III seeks from the Civil Division copies of three

specific monographs totaling 166 pages: Chevron Notes (2009), which is 18 pages;

The Governmental Privileges (September 2006), which is 119 pages; and Defending Actions

Brought Pursuant to the Privacy Act of 1974 (1982), which is 29 pages. (Kovakas Decl. Ex. A;

id. ¶ 5). The Civil Division asserts that all three monographs were withheld in full pursuant to

FOIA exemption (b)(5) because they “were created for the specific purpose of providing legal

guidance to federal attorneys and were not intended for public disclosure.” (Id. ¶ 5).

In support of its invocation of exemption (b)(5), the Civil Division states that none of the

monographs have been “disclosed outside the federal executive branch,” that all three

monographs provide specific guidance and legal analysis applicable to various cases handled by

Civil Division attorneys on a regular and recurring basis and that the use of this analysis by

government attorneys “is so detailed that it becomes part of the attorney work product and

deliberative process in these cases.” (Id. ¶¶ 7-8, 10-11, 13-14). Specifically, the Civil Division

declares the following:

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• Chevron Notes outlines and explains in detail “specific steps to be followed by

DOJ and other federal attorneys in determining the meaning of federal

statutes, generally when a court is called upon to determine whether an agency

action is in excess of statutory jurisdiction, authority or limitations,” and “sets

out guidance for the purpose of gaining a measure of deference from the court

to the statutory interpretation of the agency that has been delegated to

administer the statute” (id. ¶ 6);

• Governmental Privileges sets out the “legal reasoning necessary to assist

government attorneys in assessing the propriety of asserting privileges

available to the government and memorializes the procedures that must be

followed in accordance with DOJ policies” (id. ¶ 12); and

• Defending Actions Brought Pursuant to the Privacy Act of 1974 (“Defending

Actions”) “outlin[es] the specific legal requirements of the Privacy Act,”

“identifies case law supporting various legal interpretations of the statute” and

“outlines specific defenses to be used by government attorneys when certain

subsections of the [statute] are asserted against federal agencies” (id. ¶ 9).

The Civil Division also declares that releasing the contents of these monographs could unfairly

disadvantage government attorneys by disclosing their deliberations, legal tactics and legal

reasoning. (See id. ¶¶ 7, 10, 13).

Plaintiff argues that neither the attorney work product doctrine nor the deliberative

process privilege apply. 3 The question for the court to decide on Defendant’s motion for

3 Plaintiff seizes on the use of the word “potentially” in paragraphs 7 and 10 of the Kovakas

Declaration to argue that the attorney work product and deliberative process privileges are

inapplicable. Specifically, these two paragraphs state that disclosure of the Chevron Overview

and Defending Actions monographs “would unfairly disadvantage government attorneys by

potentially disclosing their deliberations, legal tactics and legal reasoning in support of their

client agencies.” (Kovakas Decl. ¶¶ 7, 10). Plaintiff cites Maydak v. DOJ, 218 F.3d 760, 765

(D.C. Cir. 2000), which held that withholding was not permitted where an agency stated that

certain exemptions “may be applicable.” Here, however, the Civil Division contends that

exemption (b)(5) is applicable and, as discussed in greater detail below, it supplies significantly

more support for that contention than the conclusory, “cursory, equivocal, and inconsistent

assertions” that the Maydak court deemed insufficient. 218 F.3d at 765. Accordingly, the Civil

Division’s use of the word “potentially” in these two paragraphs, when viewed in the context of

the entire Kovakas Declaration, does not render the exemption inapplicable.

Plaintiff also argues that, because the Kovakas Declaration only addresses Chevron Notes and

Defending Actions under the heading “Attorney Work Product Doctrine,” and does not discuss

Governmental Privileges under that heading, the court should not consider the Civil Division to

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summary judgment is whether the Civil Division has provided enough information to support its

invocation of exemption (b)(5) with regard to these three monographs. Because the court finds,

for the reasons set forth below, that the Civil Division has met its burden to establish the

applicability of the attorney work product doctrine, it will not address the parties’ arguments

relating to the deliberative process privilege.

i. Exemption (b)(5) and the Attorney Work Product Doctrine

FOIA exemption (b)(5) allows agencies to withhold “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). In determining whether a document is

properly withheld under this exemption, a court must ensure that the document satisfies two

conditions: “its source must be a Government agency, and it must fall within the ambit of a

privilege against discovery under judicial standards that would govern litigation against the

agency that holds it,” including the attorney work product privilege. Dep’t of Interior v. Klamath

Water Users Protective Ass’n, 532 U.S. 1, 8 (2001); see also NLRB v. Sears, Roebuck & Co.,

421 U.S. 132, 149 (1975) (finding it reasonable to construe exemption (b)(5) “to exempt those

documents, and only those documents, normally privileged in the civil discovery context”).

Because Plaintiff does not contest that the monographs at issue in Count III constitute

inter-agency or intra-agency memorandums, the court will focus exclusively on whether the

work product privilege applies to them.

have asserted work product privilege over Governmental Privileges. (Pl. First Opp. at 19 &

n.12). Elsewhere in the Declaration, however, the Civil Division describes the legal analysis

contained in Governmental Privileges as being covered by the work product privilege. (See

Kovakas Decl. ¶ 13). The court therefore disagrees with Plaintiff’s reading.

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The attorney work product privilege “should be interpreted broadly and held largely

inviolate,” Judicial Watch v. U.S. Dep’t of Justice, 432 F.3d 366, 369 (D.C. Cir. 2005), as “it is

essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by

opposing parties and their counsel.” Hickman v. Taylor, 329 U.S. 495, 510 (1947). That

principle is codified in Federal Rule of Civil Procedure 26(b)(3), which protects from disclosure

those “documents and tangible things that are prepared in anticipation of litigation or for trial by

or for another party or its representative.” For purposes of exemption (b)(5), the test “is whether

the documents would be ‘routinely’ or ‘normally’ disclosed upon a showing of relevance.” FTC

v. Grolier, Inc., 462 U.S. 19, 26 (1983) (quoting Sears, 421 U.S. at 148-49); see also Williams &

Connolly v. SEC, 662 F.3d 1240, 1243 (D.C. Cir. 2011) (“Although work product protection may

be overcome for cause in civil cases . . . any materials disclosed for cause are not ‘routinely’ or

‘normally’ discoverable and, for that reason, are exempt under FOIA.”) (citation omitted);

Stonehill v. IRS, 558 F.3d 534, 539 (D.C. Cir. 2009) (“not all documents available in discovery

are also available pursuant to FOIA” since “case-specific exceptions can sometimes permit

discovery of otherwise privileged material”).

“Any part of [a document] prepared in anticipation of litigation, not just the portions

concerning opinions, legal theories, and the like, is protected by the work product doctrine.” Tax

Analysts v. IRS, 117 F.3d 607, 620 (D.C. Cir. 1997). “Moreover, in the FOIA context, the

temporal relationship between the document at issue and the litigation for which the document

was prepared is irrelevant.” Shapiro v. U.S. Dep’t of Justice, 969 F. Supp. 2d 18, 29 (D.D.C.

2013), appeal dismissed, No. 13-5345, 2014 WL 1378748 (D.C. Cir. Feb. 26, 2014) (citing

Grolier, 462 U.S. at 28-31). As the Supreme Court recognized in Grolier,

disclosure of work product connected to prior litigation can cause real harm to the

interests of the attorney and his client even after the controversy in the prior

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litigation is resolved. Many government agencies, for example, deal with

hundreds or thousands of essentially similar cases in which they must decide

whether and how to conduct enforcement litigation. Few of these cases will be

“related” to each other in the sense of involving the same private parties or arising

out of the same set of historical facts; yet large classes of them may present

recurring, parallel factual settings and identical legal and policy considerations.

It would be of substantial benefit to an opposing party (and of corresponding

detriment to an agency) if the party could obtain work product generated by the

agency in connection with earlier, similar litigation against other persons. He

would get the benefit of the agency’s legal and factual research and reasoning,

enabling him to litigate on wits borrowed from the adversary. Worse yet, he

could gain insight into the agency’s general strategic and tactical approach to

deciding when suits are brought, how they are conducted, and on what terms they

may be settled.

462 U.S. at 30-31 (internal citation omitted).

The privilege is not endless, however, because “[w]hile it may be true that the prospect of

future litigation touches virtually any object of [an agency] attorney’s attention, if the agency

were allowed ‘to withhold any document prepared by any person in the Government with a law

degree simply because litigation might someday occur, the policies of the FOIA would be largely

defeated.’” Senate of the Com. of Puerto Rico on Behalf of Judiciary Comm. v. U.S. Dep’t of

Justice, 823 F.2d 574, 586-87 (D.C. Cir. 1987) (quoting Coastal States Gas Corp. v. Dep’t of

Energy, 617 F.2d 854, 865 (D.C. Cir. 1980)). Thus, “the privilege has no applicability to

documents prepared by lawyers ‘in the ordinary course of business or for other nonlitigation

purposes.’” In re Sealed Case, 146 F.3d 881, 887 (D.C. Cir. 1998) (quoting Linde Thomson

Langworthy Kohn & Van Dyke, P.C. v. RTC, 5 F.3d 1508, 1515 (D.C. Cir. 1993)).

The D.C. Circuit has employed two standards regarding what constitutes “anticipation of

litigation.” In one line of cases, the Circuit has held that in order for work-product protection to

apply, “the documents must at least have been prepared with a specific claim supported by

concrete facts which would likely lead to litigation in mind.” Coastal States, 617 F.2d at 865. In

the other line of cases, the Circuit has employed a more lenient standard, extending work-product

26

protection to “documents prepared in anticipation of foreseeable litigation, even if no specific

claim is contemplated.” Schiller, 964 F.2d at 1208.

The D.C. Circuit reconciled these two lines of cases in In re Sealed Case, explaining that

the specific-claim requirement only applies when the documents being sought have been

prepared “in connection with active investigations of potential wrongdoing” and the attorney

who prepared the documents was acting as a prosecutor or investigator. 146 F.3d at 885. By

contrast, a more lenient standard applies when the attorney who prepared the documents acted as

a “legal advisor” protecting his or her clients “from the possibility of future litigation.” Id. The

Court observed that “[i]t is often prior to the emergence of specific claims that lawyers are best

equipped either to help clients avoid litigation or to strengthen available defenses should

litigation occur,” that “[i]f lawyers had to wait for specific claims to arise before their writings

could enjoy work product protection, they would not likely risk taking notes about such matters

or communicating in writing with colleagues, thus severely limiting their ability to advise clients

effectively,” and that applying the specific claim standard to lawyers taking prophylactic

measures “would undermine lawyer effectiveness at a particularly critical stage of the legal

representation.” Id. at 886; see also United States v. ISS Marine Servs., Inc., 905 F. Supp. 2d

121, 136 (D.D.C. 2012). Thus, the court need not construe the attorney work product privilege

so narrowly as to protect only work product related to specific claims and litigation.

In this case, the Civil Division has sufficiently established that the monographs being

sought by Plaintiff were prepared by attorneys in anticipation of litigation, as they outline the

legal strategies of attorneys who will be required to litigate on behalf of the government. The

Civil Division states that Chevron Notes is essentially a playbook on how the government

litigates challenges to agency actions, as it sets out “specific steps” for interpreting federal

27

statutes and provides guidance on how to persuade courts to give deference to those

interpretations. (Kovakas Decl. ¶ 6). The Civil Division makes the same assertion for

Governmental Privileges, which sets out “legal reasoning necessary to assist government

attorneys” in asserting government privileges. (Id. ¶ 12). And the Civil Division states that

Defending Actions is essentially a manual for conducting Privacy Act litigation, as it “identifies

case law supporting various legal interpretations of the statute” and “outlines specific defenses to

be used by government attorneys.” (Id. ¶ 9). The government is therefore permitted to withhold

such records under the attorney work product privilege. See Delaney, Migdail, & Young,

Chartered v. IRS, 826 F.2d 124, 127 (D.C. Cir. 1987) (documents “advis[ing] the agency of the

types of legal challenges likely to be mounted against a proposed program, potential defenses

available to the agency, and the likely outcome” are privileged as work product); Soghoian v.

U.S. Dep’t of Justice, 885 F. Supp. 2d 62, 72 (D.D.C. 2012) (citing Delaney).

More specifically, the kind of cases, claims and legal arguments to which each of these

monographs relate – challenges to agency actions, assertions of governmental privileges and

Privacy Act litigation, respectively – all “present recurring, parallel factual settings and identical

legal and policy considerations.” Grolier, 462 U.S. at 30. “It would be of substantial benefit” to

a party challenging an agency action, challenging an agency’s assertion of a privilege or bringing

a claim against an agency under the Privacy Act, “and of corresponding detriment” to the

agency, if the party could obtain these monographs, which would give them “the benefit of the

agency’s legal and factual research and reasoning, enabling [them] to litigate on wits borrowed

from” the agency. Id. (citation omitted); see also Shapiro, 969 F. Supp. 2d at 32 (“The work

product doctrine, at its core, is intended to encourage effective legal representation within the

28

framework of the adversary system by removing counsel’s fears that his thoughts and

information will be invaded by his adversary.”) (quotation omitted).

If not for their potential to be useful to government attorneys in anticipated, foreseeable

future litigation, these monographs – none of which have been “disclosed outside the federal

executive branch” – would have no practical reason for existing. (Kovakas Decl. ¶¶ 8, 11, 14).

Indeed, Plaintiff has not provided any logical reason as to why government attorneys would have

prepared these monographs other than for use in foreseeable future litigation. Instead, Plaintiff

relies heavily on Shapiro, which is distinguishable from this case.

Shapiro concerned a “Brief Bank” accessible on DOJ’s intranet, which was composed of

two broad categories of documents: “court documents” and “summary documents.” Shapiro,

969 F. Supp. 2d at 24, 35. The court documents included selected filings from FOIA lawsuits

and related basic case information. Id. at 35. The summary documents included brief summaries

of cases and what the author of the summary considered “key issues” in those cases. Id.

The court documents within the Brief Bank in Shapiro are obviously distinguishable from

the monographs at issue here because they were filed in federal courts, which are not agencies,

and thus do not meet the exemption’s first condition of being either inter- or intra-agency

memoranda. See id. at 31 (citing 5 U.S.C. § 551(1)(B) (defining “agency” as not including “the

courts of the United States”)). Moreover, the monographs are not mere compendiums of

statutes, court decisions, filed legal briefs or other publicly available information, as was the case

in Shapiro. The Kovakas Declaration demonstrates that the monographs provide specific legal

reasoning and analysis on particular issues that go well beyond what is publicly available.

Accordingly, unlike the court documents in the Brief Bank in Shapiro, disclosure of the

29

monographs “would reveal mental processes and strategy to adversaries” that could be used in

future litigation. Shapiro, 969 F. Supp. 2d at 32.

The “[n]eutral summaries of the legal holdings of cases and the issues they present” at

issue in Shapiro, which did not “reveal any legal strategy or other case-specific legal

considerations that might have implications for future litigation if revealed to adversaries,” are

also clearly distinguishable. Id. at 36-37. The monographs here are much more than neutral

summaries. As stated above, they are “veritable ‘how to’ manuals for building defenses and

litigating” challenges to agency actions, assertions of governmental privileges and Privacy Act

litigation – precisely the kind of documents “provid[ing] advice to agencies or attorneys about

how to conduct legal proceedings on specific anticipated claims” that the Shapiro court

distinguished as the proper subjects of exemption (b)(5) withholdings in its discussion of Schiller

and Delaney. Id.

For the reasons set forth above, the court finds that the Civil Division has provided

enough information to support its invocation of exemption (b)(5) with regard to the Chevron

Notes, Governmental Privileges and Defending Actions monographs. The court therefore grants

Defendant’s motion for summary judgment on Count III.

d. Count IV (Executive Office Records from USABook Desktop Library)

The FOIA request at issue in Count IV seeks from the Executive Office all records in the

USABook Desktop Library maintained by the Office of Legal Education indexed under the topic

“Freedom of Information.” (Luczynski Decl. Ex. A; Compl. ¶ 37). The Office of Legal

Education maintains a non-public computer site called USABook, which hosts electronic copies

of, among other things, training materials and publications available to DOJ attorneys and staff.

30

(Luczynski Decl. ¶ 15). USABook “is not a publication, but a collection of ‘chapters’ of written

text, including at times certain hyperlinks inserted into the text.” (Id.).

“The USABook Library site includes approximately 650 ‘Topic Pages,’ (or Chapters),

each bearing the name of a legal topic.” (Id. ¶ 16).

A USABook topic page will always include a list of links (which may go to

documents on the USABook site, documents on the Internet, documents on other

intranet sites, or to commercial publications, as described above). It may include

a concise legal note defining the topic, and include a note, including contact

information, about DOJ sections that have supervisory responsibility over the

subject matter. Sometimes the definition section will be several paragraphs long,

breaking the topic down and alerting attorneys to issues or new federal cases that

they need to be careful about. The purpose of each page is to orient DOJ

attorneys on sometimes complex legal issues, and tell them where to go for

further research, and who to contact for advice. These notes are informal, and are

not subject to formal review by the DOJ sections with supervisory jurisdiction.

(Hagen Decl. ¶ 9). Notably, links to documents that are not themselves hosted on the USABook

site are sometimes included on USABook Topic Pages because “[t]here is no practical reason,

from the users’ point of view, to distinguish these publications from the ones that are actually

hosted on USABook.” (Id. ¶ 8).

Counsel for Defendant provided Plaintiff with a redacted copy of what the Executive

Office refers to as the “FOIA Topic Page” in September 2013. (Luczynski Decl. ¶¶ 10-11). The

FOIA Topic Page does “not contain a legal note or similar text”; it is “just a list of links.” (Hagen

Decl. ¶¶ 18-19). There are a total of 23 links that have not been redacted from the FOIA Topic

Page that was provided to Plaintiff. (Luczynski Decl. Ex. D). The Executive Office determined

that 12 of the 23 unredacted links were “to public documents that are posted on the Internet.”

(Hagen Decl. ¶ 20). As such, it determined that the content “behind” those 12 links was not

responsive to Plaintiff’s request, which sought only non-public records. (Luczynski Decl. Ex. A).

31

The FOIA Topic Page thus contained 11 unredacted links “to non-public documents.” (Hagen

Decl. ¶ 21). 4

Material was also redacted from the FOIA Topic Page under the heading “USAM

REFERENCES,” with the redaction marked as “Public Records.” (Luczynski Decl. Ex. D). This

section of the Topic Page contained references to the United States Attorneys’ Manual, which is

a public document, and thus not responsive to Plaintiff’s request. (Hagen Decl. ¶ 22). Material

marked as “N/R” – presumably for “Non-Responsive” or “Not Requested” – is also redacted

from the FOIA Topic Page under the heading “Training,” next to which are eight unredacted

camcorder icons which seem to indicate that links to eight different training videos have been

redacted. (Luczynski Decl. Ex. D).

i. The Executive Office’s Reading of Plaintiff’s FOIA Request

The Executive Office takes the position that content to which the FOIA Topic Page links

is only responsive to Plaintiff’s FOIA request where the content itself is actually located on the

USABook site. (See, e.g., Luczynski Decl. ¶ 18; Hagen Decl. ¶¶ 21-22). Thus, for example, it

argues that “[t]he FOIA and local discovery policies (EOUSA October 13, 2010) . . . document

resides on USANet, EOUSA’s intranet, and not on the USABook site, so it was not responsive to

the request”; that the “Criminal Practice Manual §§ 21:1-21:50 is . . . not on USABook, so it is

not responsive to the request,” and that “the Training Videos were not on the USABook site (and

consequently not requested).” (Hagen Decl. ¶¶ 21-22). Accordingly, the Executive Office only

4 The 11 unredacted links to non-public documents on the FOIA Topic Page are as follows:

“FOIA Litigation (Civil Practice Manual)”; “FOIA and local discovery policies (EOUSA October

13, 2010)”; “United States Attorneys’ Administrative Handbook (FOIA Q&A)”; “Privileges”;

“Deliberative Process Privilege”; “Governmental Privileges”; “Touhy Regulations”;

“Investigative Files Privilege”; “Privacy (Privacy Act)”; “Wiretap recordings”; and “Criminal

Practice Manual §§ 21:1-21:50.” (Luczynski Decl. Ex. D).

32

considered the content “behind” four of the 11 unredacted links to non-public documents on the

FOIA Topic Page to be responsive to Plaintiff’s request – specifically, the content “behind” the

links for “FOIA Litigation (Civil Practice Manual),” “United States Attorneys’ Administrative

Handbook (FOIA Q&A),” “Privacy (Privacy Act)” and “Wiretap recordings.” (Luczynski

Decl. ¶ 17; Hagen Decl. ¶ 21).

Plaintiff contends that the Executive Office construed his request too narrowly. He argues

that in requesting “all records in the USABook Desktop Library . . . indexed in the USABook List

of Topics by the topic ‘Freedom of Information’” (Luczynski Decl. Ex. A), he in effect requested

the FOIA Topic Page, even though he did not refer to it by that name. Thus, Plaintiff asserts that

the Executive Office should have simply processed everything that was on the FOIA Topic Page

rather than constructing an “unnecessarily convoluted” definition of what would be responsive –

i.e., only the content to which the FOIA Topic Page links that is actually located on the USABook

site. (Pl. Second Opp. at 11-12).

The court agrees with Plaintiff that the Executive Office applied an unnecessarily

hypertechnical reading to his request, and that its method of processing only those documents

“behind” links on the FOIA Topic Page which are themselves located on the USABook site was

inappropriate. See Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)

(“[T]he adequacy of a FOIA search is generally determined . . . by the appropriateness of the

methods used to carry out the search.”). The court therefore agrees with Plaintiff that a

“reasonable, simple, liberal construction of [his] request includes ‘the FOIA Topic Page’ and

whatever is on it, and if it includes a page of links, whatever is behind those links is also

responsive.” (Pl. Second Opp. at 12). See generally, Morley v. CIA, 508 F.3d 1108, 1114 (D.C.

Cir. 2007) (when an agency receives a request that “reasonably describes” the records sought, it

33

must carry out “a search reasonably calculated to uncover all relevant documents”) (internal

quotation omitted); Nat’l Sec. Counselors v. CIA, 849 F.Supp.2d 6, 12 (D.D.C. 2012) (“[A]n

agency is not permitted to deny requesters information by narrowing the scope of its search to

exclude relevant information.”); Hemenway v. Hughes, 601 F. Supp. 1002, 1005 (D.D.C. 1985)

(“[An] agency must be careful not to read the request so strictly that the requester is denied

information the agency well knows exists in its files, albeit in a different form from that

anticipated by the requester. To conclude otherwise would frustrate the central purpose of the

Act.”).

The court’s finding is reinforced by the Executive Office’s own statement that USABook

Topic Pages contain links to documents which are not themselves hosted on the USABook site

because “[t]here is no practical reason, from the users’ point of view, to distinguish these

publications from the ones that are actually hosted on USABook.” (Hagen Decl. ¶ 8.). If there is

no practical reason to distinguish between these two classes of documents from a user’s point of

view, there should be no practical reason to distinguish between them from a FOIA requester’s

point of view.

Accordingly, summary judgment is denied as to Count IV, and Defendant is hereby

ordered to provide to Plaintiff a fully unredacted copy of the USABook FOIA Topic Page (see

Luczynski Decl. Ex. D), as well as any and all non-exempt, not publicly available documents and

records “behind” the links listed on the unredacted FOIA Topic Page. Defendant shall also

provide to Plaintiff a Vaughn index listing all documents “behind” any of the unredacted FOIA

Topic Page’s links that it is withholding pursuant to any FOIA exemptions. The Vaughn index

shall also identify which links on the FOIA Topic Page link to publicly available material. Thus,

every link on the unredacted FOIA Topic Page should be accounted for on the Vaughn index as

34

being either (i) provided in full to Plaintiff; (ii) publicly available; or (iii) withheld in full or in

part pursuant to a FOIA exemption, with sufficient explanation of the asserted exemption.

There remains to be decided the issue of those links on the FOIA Topic Page that lead to

other Topic Pages which are themselves simply lists of links. The D.C. Circuit has long held that

“mere reference to other files does not establish the existence of documents that are relevant to”

a FOIA request because, “[i]f that were the case, an agency responding to FOIA requests might be

forced to examine virtually every document in its files, following an interminable trail of cross-

referenced documents like a chain letter winding its way through the mail.” Steinberg v. Dep’t of

Justice, 23 F.3d 548, 552 (D.C. Cir. 1994). Accordingly, for any link on the FOIA Topic Page

that leads to another list of links on another Topic Page, Defendant is hereby ordered to list the

links on the cross-referenced Topic Page on its Vaughn index, but it need not fully process the

content that is “behind” those links at this time. To the extent that Defendant believes that the

mere text of any link or list of links on a cross-referenced Topic Page is exempt under FOIA, it

should provide sufficient explanation of the asserted exemption on its Vaughn index.

e. Count V (FBI Records regarding Christopher Hitchens)

The FOIA request at issue in Count V seeks from the FBI all records, including

cross-references, regarding Christopher Hitchens. (Fourth Hardy Decl. Ex. A). The FBI initially

released to Plaintiff 19 pages of material previously processed for another requester, with certain

information exempted pursuant to FOIA exemptions (b)(1), (b)(6), (b)(7)(C), (b)(7)(D) and

(b)(7)(E). (Id. ¶ 8). After OIP remanded Plaintiff’s request back to the FBI, it reviewed

65 pages of records and released 42 of those pages to Plaintiff in full or in part, with certain

information exempted pursuant to the same FOIA exemptions, as well as exemption (b)(3).

(Id. ¶ 13). In the instant action, Plaintiff does not challenge the adequacy of the FBI’s search and

35

only challenges its assertion of exemption (b)(7)(D), which the FBI asserted with regard to parts

of 29 pages of records. (Id. ¶¶ 99-100 n.21-22).

The FBI’s records about Hitchens were compiled as part of government background

investigations related to his applications for permanent resident status and for a White House

press pass. (Id. ¶ 82(a)). According to the FBI, as part of its background investigation process,

it “conducts searches of its criminal and national security/intelligence files to locate any pertinent

information in its possession about the applicant. Any pertinent criminal or national security

intelligence information located as a result of such queries is re-compiled into the background

investigation file.” (Fifth Hardy Decl. ¶ 8).

In Hitchens’ case, the Secret Service and Immigration and Naturalization Service asked

the FBI to search its investigative files as part of those agencies’ processing of his applications.

(Id. ¶ 9). During this process, certain “information about Hitchens [that] was originally compiled

by a foreign intelligence/national security agency in furtherance of investigative/intelligence

activities that it had undertaken in furtherance of its national security” was shared with the FBI,

which then re-compiled that information into the background investigation files. (Id. ¶ 10).

Additionally, information about Hitchens was re-compiled from a document originally compiled

“from information provided by a foreign government agency to the FBI in furtherance of an

international terrorism investigation of a third party being conducted by the FBI.” (Id. ¶ 11).

Other information was re-compiled from information “provided by a third party to the FBI and/or

law enforcement officials during the course of law enforcement investigations.” (Fourth Hardy

Decl. ¶ 100 & n.22).

36

The FBI also represents that 28 of the 29 pages of records about Hitchens that it withheld

pursuant to exemption (b)(7)(D) were based on information provided to it “by an intelligence

agency of a foreign government with an implicit understanding of confidentiality”:

The FBI, in connection with a wide variety of criminal and national security

investigations, solicits and receives information regularly from state, local, and

foreign agencies and authorities. Inherent in this cooperative effort is a mutual

understanding that the identity of such a source and the information provided by it

will be held in confidence by the FBI, and not released pursuant to FOIA and

Privacy Act requests. We determined that the information provided here by a

foreign intelligence agency was part of a cooperative effort supporting an inference

of confidentiality.

(Fourth Hardy Decl. ¶ 99 & n.21). Additionally, one page withheld pursuant to exemption

(b)(7)(D) was

provided by a third party to the FBI and/or law enforcement officials during the

course of law enforcement investigations under an express grant of confidentiality.

The FBI and/or law enforcement officials expressly promised this source that

his/her identity and the information he/she provided would not be disclosed.

(Id. ¶ 100 & n.22). The FBI also withheld “the confidential source file number” of this

confidential source. (Id. ¶ 101 & n.23).

i. Exemption (b)(7)(D)

Exemption (b)(7)(D) exempts from disclosure under FOIA “records or information

compiled for law enforcement purposes, but only to the extent that the production of such law

enforcement records or information . . . could reasonably be expected to disclose the identity of

a confidential source, including a State, local, or foreign agency or authority or any private

institution which furnished information on a confidential basis, and, in the case of a record or

information compiled by [a] criminal law enforcement authority in the course of a criminal

investigation or by an agency conducting a lawful national security intelligence investigation,

information furnished by a confidential source.” 5 U.S.C. § 552(b)(7)(D). The exemption thus

“protects two distinct types of information: (1) information [that] ‘could reasonably be expected

37

to disclose the identity of a confidential source’; and (2) ‘information furnished by a confidential

source.’” Cobar v. U.S. Dep’t of Justice, 81 F. Supp. 3d 64, 72 (D.D.C. 2015) (quoting 5 U.S.C.

§ 552(b)(7)(D)). Here, Plaintiff seeks only the information provided by confidential sources; he

does not seek the identities of those sources.

To establish that its withholding of information under exemption (b)(7)(D) was

permissible, Defendant must establish two things. First, that the records were “compiled by

[a] criminal law enforcement authority in the course of a criminal investigation or by an agency

conducting a lawful national security intelligence investigation.” 5 U.S.C. § 552(b)(7)(D).

Second, that the source of the records or information was actually a confidential source – i.e., that

“the particular source spoke with an understanding that the communication would remain

confidential.” United States Dep’t of Justice v. Landano, 508 U.S. 165, 172 (1993). Such an

understanding is reasonable when the law enforcement agency receiving the information provides

either an express or implied assurance of confidentiality. See id. (“[A] source is confidential

within the meaning of Exemption 7(D) if the source provided information under an express

assurance of confidentiality or in circumstances from which such an assurance could be

reasonably inferred.”) (citation and quotation omitted).

With regard to the first requirement, Plaintiff argues that the FBI’s files on Hitchens were

not compiled as part of a criminal or national security investigation because FBI background

investigations do not constitute criminal or national security investigations. As Defendant points

out in its reply brief, however, the records for which the FBI asserts exemption (b)(7)(D) are

composed of information that was originally “compiled by a foreign intelligence/national security

agency in furtherance of investigative/intelligence activities that it had undertaken in furtherance

of its national security” (Fifth Hardy Decl. ¶ 10), “provided by a foreign government agency to

38

the FBI in furtherance of an international terrorism investigation of a third party being conducted

by the FBI” (id. ¶ 11), and “provided by a third party to the FBI and/or law enforcement officials

during the course of law enforcement investigations.” (Fourth Hardy Decl. ¶ 100). The FBI then

re-compiled this information as part of its background investigations related to Hitchens’

applications for permanent resident status and a White House press pass. (Id. ¶ 82(a)).

The Supreme Court has held that “information initially contained in a record made for law

enforcement purposes continues to meet the threshold requirements of [exemption (b)(7)] where

that recorded information is reproduced or summarized in a new document prepared for a

non-law-enforcement purpose.” F.B.I. v. Abramson, 456 U.S. 615, 631-32 (1982); see also

Dismukes v. Dep’t of Interior, 603 F. Supp. 760, 761 (D.D.C. 1984) (noting that Abramson’s

holding “focused on the information, not the form in which it was presented, even though

[exemption (b)(7)] by its terms covers only certain ‘investigatory records compiled for law

enforcement purposes’”). Thus, because the FBI has demonstrated that the 29 pages of records

over which it asserts exemption (b)(7)(D) were all originally compiled for law enforcement

purposes, those records remain protected by the exemption even if the background checks for

which they were re-compiled do not constitute “law enforcement purposes,” so long as the FBI

can make the requisite showing on the second prong of the test – i.e., that the information was

provided under an express or implied assurance of confidentiality.

As to that second prong, the FBI states that 28 pages of records about Hitchens contain

information provided “by an intelligence agency of a foreign government with an implicit

understanding of confidentiality.” (Fourth Hardy Decl. ¶ 99 & n.21). When an implicit or

implied assurance of confidentiality is asserted, the proper inquiry is “whether the particular

source spoke with an understanding that the communication would remain confidential.”

39

Landano, 508 U.S. at 172. While the court is mindful that there may be circumstances in which

an implied assurance of confidentiality can be inferred from the context and surroundings in

which the information was imparted, the FBI has not provided the court with enough evidence to

permit it to draw such an inference here. Instead, the FBI’s declaration speaks primarily in vague

generalities about how it cooperatively “solicits and receives information regularly from state,

local, and foreign agencies and authorities,” and how “a mutual understanding” regarding

confidentiality is “[i]nherent in this cooperative effort.” (Fourth Hardy Decl. ¶ 99). The only

statement that the FBI makes about the implied assurance of confidentiality purportedly made

with regard to these specific 28 pages of records, however, is an entirely conclusory recitation of

the burden it must meet: “We determined that the information provided here by a foreign

intelligence agency was part of a cooperative effort supporting an inference of confidentiality.”

(Id.). This is not sufficient.

As to the one page of information regarding Hitchens that was provided by a permanent

confidential source of the FBI who was purportedly operating under an express assurance of

confidentiality, in order to withhold information under exemption (b)(7)(D) by an express

assurance of confidentiality, “the FBI must present probative evidence that the source did in fact

receive an express grant of confidentiality.” Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 34

(D.C. Cir. 1998), as amended (Mar. 3, 1999) (quotation omitted). “Such evidence can take a wide

variety of forms, including notations on the face of a withheld document, the personal knowledge

of an official familiar with the source, a statement by the source, or contemporaneous documents

discussing practices or policies for dealing with the source or similarly situated sources.” Id.

(citing, inter alia, Computer Prof’ls for Soc. Responsibility v. U.S. Secret Serv., 72 F.3d 897, 906

(D.C. Cir. 1996), amended (Feb. 20, 1996)). “No matter which method the agency adopts to meet

40

its burden of proof, its declarations must permit meaningful judicial review by providing a

sufficiently detailed explanation of the basis for the agency’s conclusion” that there was an

express assurance of confidentiality. Id. This is because “[o]nce the FBI asserts that information

was provided by a confidential source . . . the requester – who has no knowledge about the

particular source or the information being withheld – very rarely will be in a position to offer

persuasive evidence that the source in fact had no interest in confidentiality.” Landano, 508 U.S.

at 177.

The FBI states that the confidential source here “provided detailed information that is

singular in nature concerning the activities of certain subjects of investigative interest to the FBI

and/or other law enforcement agencies,” and that “disclosure of the source’s identity and the

information he/she provided could have disastrous consequences because disclosure could subject

the source, as well as his/her family, to embarrassment, humiliation, and/or physical or mental

harm.” (Fourth Hardy Decl. ¶ 100). The FBI states that it withheld this source’s confidential

source file number, and explains that such numbers “are administrative tools that facilitate the

retrieval of information supplied by a source” and are “[s]imilar in usage to the confidential

source symbol number, [in that a] confidential source file number is assigned in sequential order

to confidential informants who report information to the FBI on a regular basis pursuant to an

express assurance of confidentiality.” (Id. ¶ 101). The FBI also represents that a confidential

source file number “is unique to the particular confidential informant and is used only in

documentation relating to that particular informant.” (Id.).

Given the FBI’s fairly in-depth explanation of its confidential source number system, and

in light of the fact that Plaintiff has not challenged the information provided by the FBI showing

that the source provided information under an express assurance of confidentiality, the court

41

concludes that the FBI has sufficiently established the existence of an express assurance of

confidentiality. See Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1185 (D.C. Cir. 2011) (“[T]he

FBI explains in its Vaughn index that it assigns permanent source symbol numbers . . . to

confidential informants who report information to the FBI on a regular basis pursuant to an

‘express’ assurance of confidentiality. Given that Roth fails to directly challenge this statement

on appeal, we conclude that the FBI has borne its burden of proving that it provided an express

assurance of confidentiality to the source-symbol-number informants mentioned in the in camera

documents.”) (citing Mays v. Drug Enforcement Admin., 234 F.3d 1324, 1328-29 (D.C. Cir. 2000)

(upholding withholding of information furnished by a “coded informant” based on an affidavit

“describ[ing] the DEA’s standard practice of identifying confidential informants” with such

codes)); Labow v. U.S. Dep’t of Justice, 66 F. Supp. 3d 104, 124 (D.D.C. 2014) (“Here, the FBI

has met its burden by showing that it provided an express assurance of confidentiality to the

source symbol number informants.”).

Accordingly, the court holds that the FBI properly withheld information pursuant to

exemption (b)(7)(D) on the one page for which it asserted an express assurance of confidentiality,

and grants summary judgment in Defendant’s favor with respect to the withholding of

information on that one page. The court further holds that the FBI has not met its burden of

establishing that it properly withheld information pursuant to exemption (b)(7)(D) on the 28 pages

of records for which it asserted an implied assurance of confidentiality, and denies Defendant’s

motion for summary judgment with respect to the withholding of information on those 28 pages.

Defendant is hereby ordered to provide to Plaintiff a Vaughn index providing sufficient

explanation for its assertion that an implied assurance of confidentiality permits the withholding

of information on these 28 pages pursuant to exemption (b)(7)(D).

42

f. Count VI (FBI Records regarding Gwyneth Todd) 5

The FOIA request at issue in Count VI seeks from the FBI all of its records regarding

Gwyneth Todd, who was a co-requester along with Plaintiff but is not a party to this action.

(Fourth Hardy Decl. Ex. G). The requesters specifically sought all FBI records about the events

described in a March 2, 2011 Sydney Morning Herald article they cited in their FOIA request. 6

Plaintiff and Todd provided a privacy waiver form signed by Todd, which authorized the FBI to

release information about her to both Plaintiff and his counsel, and requested a fee waiver on the

grounds that “the information sought would contribute to the public’s understanding of

government operations and activities” because the alleged incident was “of great importance to

the public, especially the facts around William Spencer’s impersonation of a State Department

employee.” (Fourth Hardy Decl. ¶ 14, Ex. G; Compl. ¶ 54).

In November 2013, the FBI informed Plaintiff that it had located approximately 10,000

pages of potentially responsive material. (Fourth Hardy Decl. ¶ 17 (citing Ex. I thereto)). 7

Pursuant to 28 C.F.R. § 16.11, plaintiff was advised that the estimated fee associated with his

FOIA request was $290.00, which exceeded $250.00; therefore, the FBI requested partial

5 The court will permit Plaintiff to incorporate by reference his Motion for a Preliminary

Injunction (ECF No. 18) and his Reply in support of that Motion (ECF No. 23). The court will

also permit Defendant to incorporate by reference its opposition to Plaintiff’s Motion for a

Preliminary Injunction (ECF No. 22).

6 The article states that an undercover FBI agent named William Spencer visited Todd’s

Canberra, Australia home and gained entry under the false pretense that he was “US embassy

consular officer Bill Phelps,” who was warning local Americans about an incident involving

Chinese hackers. According to the article, the same individual returned to Todd’s house the

following day and, after being challenged, admitted that he was an FBI agent who wanted to talk

to her about an investigation into her former partner.

7The FBI also sent a separate letter to Todd in response to the request. Because Todd is not a

party to this action, the court does not consider this letter to be a part of the administrative record

applicable to the fee waiver denial now before it.

43

advance payment of $72.50 within thirty days. (Id.). Plaintiff was also advised that he could

consider reducing the scope of his request to accelerate the processing and potentially reduce the

fees associated with his request. (Id.). The letter also advised him that his request for a fee

waiver had been denied:

We have reviewed the information that you provided in support of your request

for a fee waiver and have found that you do not satisfy either requirement because

disclosure of the requested information would not be of interest to the public as

this was not a widely known incident within the United States and would not

significantly contribute to the “public understanding of government operations or

activities.” Additionally, the commercial interest to the requester is sufficiently

larger than the public interest in the disclosure of this information.

(Fourth Hardy Decl. Ex. I). Because Plaintiff never provided the requested advance payment,

the FBI eventually closed his request.

Before closing his request however, the FBI reviewed one file consisting of 174 pages,

and released non-exempt information on 147 of those pages to Plaintiff at no cost. (Fourth

Hardy Decl. ¶ 18 n.2). 8 In the same correspondence, the FBI also reminded Plaintiff that it had

denied his request for a fee waiver, noted his failure to send partial advance payment and

informed him that he could file an appeal of the administrative closure of his request with OIP

within 60 days. (Fourth Hardy Decl. Ex. J).

i. Plaintiff’s Entitlement to a Fee Waiver

Under FOIA, agencies are permitted to charge a reasonable fee for searching, copying

and reviewing their files. See 5 U.S.C. § 552(a)(4)(A)(ii). Fees are to be reduced or waived if

8 Plaintiff argues that these documents “are almost twenty years old and fall far outside the

temporal scope of this request,” which he limited to post-2006 records. (PI Mot. at 8-9 & n.4).

But Plaintiff limited the scope of his request more than one year after initially making that

request, and the FBI explains that by the time Plaintiff’s counsel informed the agency that he was

limiting the scope of the request, the FBI had already completed processing the 174-page file.

(Second Hardy Decl. ¶ 15).

44

disclosure of the requested information satisfies a two-prong fee waiver test: the information

(i) must be “in the public interest because it is likely to contribute significantly to public

understanding of the operations or activities of government,” and (ii) must not be “primarily in

the commercial interest of the requester.” Id. § 552(a)(4)(A)(iii).

DOJ has promulgated guidelines for determining how FOIA requests will be processed

and how fees will be assessed or waived. See 28 C.F.R. § 16.11. For a request to be in the

“public interest,” four criteria must be met: “(1) the request must concern the operations or

activities of government; (2) the disclosure must be ‘likely to contribute’ to an understanding of

government operations or activities; (3) disclosure must contribute to an understanding of the

subject by the public at large; and (4) disclosure must be likely to contribute significantly to such

public understanding.” Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d 1108, 1126 (D.C. Cir.

2004) (citing 28 C.F.R. § 16.11(k)(2)). The requester bears the burden of satisfying the public

interest standard. See Larson v. CIA, 843 F.2d 1481, 1483 (D.C. Cir. 1988).

In any action regarding a fee waiver, a district court must determine the matter de novo,

and “the court’s review of the matter shall be limited to the record before the agency.” 5 U.S.C.

§ 552(a)(4)(A)(vii). Thus, in assessing whether Plaintiff met his burden of satisfying the public

interest prong of the fee waiver test, the court’s review is limited to Plaintiff’s FOIA request letter

(Fourth Hardy Decl. Ex. G), the FBI’s response thereto (id. Ex. I) and the Sydney Morning Herald

article to which Plaintiff’s FOIA request letter linked. 9

In support of his request for a fee waiver, Plaintiff simply stated that “[t]here can be no

question that the information sought would contribute to the public’s understanding of

9 Plaintiff’s argument that the court may take judicial notice of materials that were not before the

FBI when it denied Plaintiff’s fee waiver request – which cites no contextually relevant case law

for that proposition – is entirely unpersuasive.

45

government operations or activities and is in the public interest” because “[t]he events described

[in the article] are of great importance to the public, especially the facts around William

Spencer’s impersonation of a State Department employee.” (Fourth Hardy Decl. Ex. G). This

conclusory statement, without more, is insufficient to support a fee waiver request. See, e.g.,

Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003) (fee waiver requests “must

be made with reasonable specificity . . . and based on more than conclusory allegations”)

(quotation marks and internal citations omitted); Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 66

n. 11 (D.C. Cir. 1990) (determining that requester’s statement that “[t]he information requested is

beneficial to the public interest,” was conclusory and insufficient to support a fee waiver);

Edmonds Institute v. U.S. Dep’t of Interior, 460 F. Supp. 2d 63, 73-74 (D.D.C. 2006) (noting that

the requester’s statement that the request will “give the public substantial, new information

concerning the functions undertaken by the [agency] and its agency subdivisions” represented the

“type of overly general, conclusory justification that does not support a fee waiver”). Therefore,

the court finds that Plaintiff did not meet his burden of demonstrating that the release of the

requested records and information would be “in the public interest because it is likely to

contribute significantly to public understanding of the operations or activities of government.”

Id. § 552(a)(4)(A)(iii).

Because the court has found that Plaintiff has not satisfied the first prong of the fee waiver

test, it need not evaluate his arguments under the second prong of the test, which is satisfied by a

showing that the requested information “is not primarily in the commercial interest of the

requester.” 5 U.S.C. § 552(a)(4)(A)(iii). Accordingly, the court concludes that Defendant is

46

entitled to summary judgment on Plaintiff’s challenge to its fee waiver determination in

Count VI. 10

IV. CONCLUSION

For the foregoing reasons, summary judgment is GRANTED on Counts I, II, III and VI;

summary judgment is DENIED on Count IV; and summary judgment is GRANTED IN PART

and DENIED IN PART on Count V. An appropriate Order accompanies this Memorandum

Opinion.

Date: September 30, 2015

Tanya S. Chutkan

TANYA S. CHUTKAN

United States District Judge

10 Defendant also argues that Count VI should be dismissed for failure to exhaust administrative

remedies pursuant to Federal Rule of Civil Procedure 12(b)(6). This argument is without merit.

Under FOIA, when an agency fails to respond to a request within twenty working days, a

requester “shall be deemed to have exhausted his administrative remedies with respect to such

request,” 5 U.S.C. § 552(a)(6)(C), and may therefore immediately seek judicial review in federal

district court. See, e.g., Rossotti, 326 F.3d at 1310 (“A requester is considered to have

constructively exhausted administrative remedies and may seek judicial review immediately if . . .

the agency fails to answer the request within twenty days.”). Here, Plaintiff submitted his FOIA

request in May 2012 and Plaintiff commenced this action nearly one year later, on April 26, 2013,

which was more than six months before the FBI substantively responded to the request on

November 12, 2013. (See Fourth Hardy Decl. ¶¶ 14-17). Plaintiff therefore constructively

exhausted his administrative remedies before filing suit.

47