Shapiro v. United States Department of Justice

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

RYAN NOAH SHAPIRO, et al.

Plaintiffs,

v.

Civil Action No. 13-555 (RDM)

UNITED STATES DEPARTMENT OF

JUSTICE,

Defendant.

MEMORANDUM OPINION AND ORDER

This is the fourth in a series of opinions addressing the extent to which the Freedom of

Information Act (“FOIA”) requires the Federal Bureau of Investigations (“FBI”) to disclose

records relating to the FBI’s review and response to prior FOIA requests. Plaintiffs are nonprofit

organizations, advocates, and journalists who filed several FOIA requests seeking processing

documents associated with almost a hundred FOIA requests that they or others had previously

submitted to the FBI. In an earlier opinion, the Court rejected two categorical non-disclosure

policies adopted by the FBI; resolved the parties’ disputes regarding several case-specific

withholdings; concluded that a handful of the exemptions invoked by the FBI were not

adequately supported by the existing record; and granted both parties leave to renew their

respective cross-motions for summary judgment as to those exemptions. See Shapiro v. United

States Dep’t of Justice, 153 F. Supp. 3d 253 (D.D.C. 2016) (“Shapiro I”).

Of the many issues raised in this litigation, the FBI is particularly—and understandably—

concerned about its policy of withholding “search slips” and “processing notes” generated in

response to prior FOIA requests. As the FBI explains, disclosure of these records “might allow a

savvy FOIA requester to identify the rare” occasions when “the FBI has exercised its discretion

to issue a [‘No Records’] response to a FOIA request for records that are ‘excludable’ under

FOIA, and thus would risk the implicit disclosure of highly sensitive information relating to

ongoing investigations, confidential informants, and classified national security matters.” Id. at

256–57. As originally formulated, the relevant FBI policy required the withholding of all FOIA

processing records generated within the last twenty-five years in responding to FOIA requests

for investigative files or records. See Dkt. 31-1 at 9 (Second Hardy Decl. ¶ 20). Although the

Court has rejected that sweeping policy as inconsistent with FOIA, Shapiro I, 153 F. Supp. 3d at

270–76, the FBI’s conundrum regarding how to protect information relating to its “No Records”

responses while complying with FOIA remains at the core of this case.

In its current motion and opposition to Plaintiffs’ cross-motion, the FBI asserts a

“targeted” theory of non-disclosure of its “No Records” responses, which it contends is “tailored

to the specific and unique facts of this case,” Dkt. 57-3 at 56 (Fifth Hardy Decl. ¶ 116), and it

defends its withholding of other records and information based on an array of FOIA exemptions.

Plaintiffs, in turn, do not challenge many of the FBI’s withholdings,1 but they do challenge the

1

As the D.C. Circuit has explained, “a motion for summary judgment cannot be ‘conceded’ for

want of opposition.” Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016).

This does not mean, however, that the Court must assess the legal sufficiency of each and every

exemption invoked by the government in a FOIA case, regardless of whether the requester

contests the government’s invocation of that exemption. In many FOIA cases, like this one, the

dispute between the parties is not fully defined until the government has provided the FOIA

requester with a Vaughn index or its equivalent and the FOIA requester has had the opportunity

to decide which, if any, of the asserted exemptions he or she wants to challenge in the litigation.

Where the FOIA requester responds to the government’s motion for summary judgment without

taking issue with the government’s decision to withhold or to redact specific documents, the

Court can reasonably infer that the FOIA requester does not seek those specific records or

information and that, as to those records or information, there is no case or controversy sufficient

to sustain the Court’s jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

To the extent the FOIA requester does not seek to compel the release of the withheld

2

FBI’s continued withholding of (1) search slips and processing notes relating to those “parent

[FOIA] request[s] [that] resulted in . . . ‘No Records’ response[s],” Dkt. 57-3 at 56 (Fifth Hardy

Decl. ¶ 117); (2) certain case file and sub-file numbers, see Dkt. 68 at 8–15; (3) search slips and

processing notes relating to the murder of Hyram Kitchen, see id. at 15–17; (4) information that

Plaintiffs contend is not properly treated as classified or subject to the National Security Act, 50

U.S.C. § 3024(i)(1), see Dkt. 67 at 16–18; (5) certain information purportedly subject to the

attorney-work-product and deliberative-process privileges, see id. at 18–19; and (6) segregable

portions of search slips and processing notes that the FBI claims reflect protected personal

information but that have been discussed in publicly available declarations, Dkt. 67 at 19–20. In

addition, the FBI seeks leave to submit an ex parte, in camera declaration in support of its

motion for summary judgment and its opposition to Plaintiffs’ cross-motion for summary

judgment. Dkt. 75. Plaintiffs both oppose that motion, Dkt. 79, and move to strike the ex parte,

in camera declaration or to make portions of it public, Dkt. 81.2

information, moreover, the Court need not—and should not—enter summary judgment in favor

of the government. Rather, unlike in Winston & Strawn and similar cases, there is simply no

dispute to resolve.

2

The parties have spilled considerable ink on the additional question whether Plaintiffs are

entitled to receive one CD containing one hundred pages of records or one CD containing 500

pages of records free of charge. In Shapiro I, the Court held that this dispute was mooted by the

FBI’s agreement to process the records at issue free of charge. 153 F. Supp. 3d at 292.

Subsequently, however, plaintiff Stein moved to modify that holding on the ground that the “FBI

released a single CD containing 107 out of 572 pages to Stein.” Dkt. 54 at 2. The FBI, then,

briefed the issue on the merits, arguing that Stein received 107 pages, which—according to the

FBI—was in excess of the 100 free pages to which he was entitled. Dkt. 57-1 at 35–37.

Remarkably, Plaintiffs’ responsive brief reports that they have now “discovered [that], despite

FBI’s counsel’s protestations and claims that it had only produced 107 pages because of the fee

issue, [the FBI] actually accounted for all 572 pages.” Dkt. 67 at 20 n.15. The Court will,

accordingly, deny plaintiff Stein’s motion to modify as moot.

3

As explained below, the Court will grant the FBI’s motion for leave to file an ex parte, in

camera declaration and deny Plaintiffs’ motion to strike or make public portions of the FBI’s in

camera declarations; will grant in part and deny in part the FBI’s renewed motion for summary

judgment; and will grant Plaintiffs’ cross-motion for summary judgment with respect to the

application of Exemption 7(A) to records relating to the murder of Dr. Hyram Kitchen, and will

otherwise deny that motion. The Court will allow further briefing on the remaining issues in the

case.

I. BACKGROUND

Much of the administrative and procedural history of this case is set forth in Shapiro I,

153 F. Supp. 3d at 257–68, and the Court will not repeat that background here. The more recent

procedural history, however, requires some explication.

A. Shapiro I

In Shapiro I, the Court first rejected two categorical policies adopted by the FBI—a

policy of withholding all search slips and processing notes generated in the past twenty-five

years in responding to “parent” FOIA requests for investigative files or records, id. at 276, and a

policy of withholding all “case evaluation forms” used to track and evaluate the performance of

FBI FOIA analysts in processing FOIA and Privacy Act requests, id. at 282. The Court also

evaluated the adequacy of the FBI’s search for certain records and evaluated a number of case-

specific withholdings. Based on that request-by-request review, the Court required the release of

certain records, sustained the FBI’s withholding of others, and concluded that it needed

additional information or argument to evaluate yet other withholdings.

Three case-specific withholdings, in particular, required further factual and legal

development. As to the first, Plaintiffs sought records created by the FBI when it processed

4

twelve FOIA requests submitted by other FOIA requesters. Shapiro I, 153 F. Supp. 3d at 284.

The FBI released certain records, but declined to release others on the ground that those records

contained information about private parties (other than the Plaintiffs) and were thus exempt from

disclosure under Exemption 7(C). Id. at 284–85; see also id. at 286 n.11 (addressing Exemption

6). Plaintiffs did not dispute the premise of this argument, but they argued that the FBI had

already placed the relevant information in the public domain, and thereby waived the relevant

exemptions. Id. at 285. The Court agreed with the FBI that at least some of information sought

was protected by Exemption 7(C) but noted that neither party had addressed the issue of

segregability. Id. at 286–87. The Court, accordingly, granted the FBI leave to file a renewed

motion for summary judgment addressing segregability. Id. at 287.

The second and third case-specific withholdings requiring further development both

involved application of FOIA Exemption 5, which permits an agency to withhold records that

“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). As to one set of records, the FBI asserted the attorney-work-product

privilege, arguing that the requested records were prepared in connection with another FOIA

lawsuit, namely McGehee v. U.S. Dep’t of Justice, 800 F. Supp.2d 220 (D.D.C. 2011). Shapiro

I, 154 F. Supp. 3d at 289. In response, Plaintiffs maintained that the records at issue were

“substantially similar” to the search slips that the FBI would have prepared in the absence of the

McGehee litigation. Id. at 290. The Court concluded that the dispute between the parties

“expose[d] vacuums both in the record and in the governing precedent,” id., and granted the FBI

leave “to file an additional evidentiary submission regarding the nature of the withheld

documents,” id. at 291. With respect to the second set of records, the FBI asserted the

deliberative-process privilege, arguing that processing notes prepared by FBI analysts in

5

responding to a FOIA request for records about Hesham Abu Zubaydah, the brother of a

Guantanamo detainee, were deliberative materials prepared in the course of responding to the

FOIA request. Id. at 292–93. Noting that the FBI had withdrawn its contention that all

processing notes are protected by the deliberative process privilege, the Court concluded that the

FBI had failed to offer any non-conclusory factual support for its contention that the Zubaydah

notes—in particular—were protected. The Court, accordingly, granted the FBI leave to file a

renewed motion for summary judgment along with a supplemental factual submission further

addressing that issue. Id. at 293.

B. Shapiro II

After issuing its decision in Shapiro I, the Court convened a status conference to address

next steps in the litigation. At the status conference, the Court directed that the parties meet and

confer and submit a joint report to the Court proposing a schedule (1) for the production of the

records that the Court had, to date, ordered the FBI to release and (2) for further briefing and

evidentiary submissions on the handful of questions left unresolved in Shapiro I. The parties

were unable to reach agreement, but set forth their respective positions in their joint report. See

Dkt. 51.

The FBI, for its part, argued that—in light of the Court’s conclusion that its categorical

“No Records” policy was inconsistent with FOIA—it should be permitted to assert an array of

additional FOIA exemptions not presented in its original motion or in opposition to Plaintiffs’

cross-motion. Dkt. 51 at 2–3; see also Dkt 21-3 at 25 (First Hardy Decl. ¶ 75 n.20) (asserting

that “[i]nformation in the documents responsive to [P]laintiffs’ requests may also be exempt

pursuant to Exemptions 1, 3, 5, 6, 7(A), 7(C), 7(D) and/or 7(F)”). The FBI asserted, moreover,

that this was “a prudent opportunity to inform the Court that” it had, in fact, abandoned its

6

twenty-five-year categorical “No Records” policy almost ten months earlier—before the Court

had issued its decision on the legality of that policy and, indeed, before oral argument on the

parties’ cross-motions for summary judgment.3 Dkt. 51-1 at 2–3 (Fourth Hardy Decl. ¶ 5).

Under its new policy, the FBI explained, it only withholds responses seeking FOIA processing

records where the “parent” FOIA request resulted in either a “No Records” or Glomar

response—that is, where either no records were found or the FBI neither admitted nor denied that

any records were found. The FBI, accordingly, sought leave “to submit further briefing [to]

address[] its new targeted treatment” of “No Records” responses. Dkt. 51 at 3.

Plaintiffs disagreed. In their view, the FBI had a full and fair opportunity to raise any and

all applicable FOIA exemptions. It did not “reserve” the opportunity to raise additional

exemptions should its categorical defenses fail, and, indeed, it “was cognizant enough about the

nature of the proceedings to have invoked Exemption 6 with respect to the names of third parties

in search records.” Id. at 6. As Plaintiffs argued, permitting an agency “to play cat and mouse”

by raising new FOIA defenses each time it fails to persuade the Court on the merits of its

previously asserted defense risks interposing the type of delay that FOIA was designed to avoid.

Id. (citation omitted). Plaintiffs, accordingly, urged the Court to limit further briefing and

evidentiary submissions to the specific issues left open in Shapiro I.

3

At oral argument, the Court asked counsel for the FBI: “Do you know, has the FBI given

thought to whether there are narrower ways to address” the “No Records” issue?” Dkt. 52 at 30.

That is, had the FBI “given thought to ways of addressing the concern that it has raised that don’t

so categorically foreclose people from obtaining information that itself is not problematic?” Id.

at 31. Counsel for the FBI responded: “The answer is I don’t know whether something else has

been contemplated.” Id. He then added, “agency counsel is here,” but “I don’t know that we can

necessarily tell you, your Honor, if other options have been considered.” Id. at 32. Although the

Court agreed that counsel need not disclose internal deliberations, it appears that the revised

policy was not merely a subject of deliberations at that time but had, in fact, been adopted, Dkt.

51-1 at 2–3 (Fourth Hardy Decl. ¶ 5).

7

In considering the parties’ respective positions, the Court applied the standard set forth by

the D.C. Circuit in Maydak v. U.S. Department of Justice, 218 F.3d 760 (D.C. Cir. 2000), a case

that dealt with the related question whether the Court of Appeals should grant an agency’s

motion to remand a FOIA case in order to permit the agency to assert a new FOIA exemption

“based on changed circumstances.” 218 F.3d at 764. Under Maydak, the D.C. Circuit will

permit a remand for the purposes of asserting a new FOIA exemption (1) based on “a substantial

change” in the facts or “an interim development in the applicable law,” or (2) “where, from pure

human error, the government failed to invoke the correct exemption and will have to release

information compromising national security or sensitive, personal, private information unless the

court allows it to make an untimely exemption claim.” Id. at 767. In the Court’s view, neither

Maydak exception was applicable. As to the first, the FBI did not contend that any change in law

or fact justified the post-summary judgment assertion of new defenses; indeed, the FBI changed

its policy months before the Court issued its decision. And, as to the second, the Court

concluded that the FBI’s failure to bring its change in policy to the Court’s attention was

more than “a simple mistake.” Shapiro v. U.S. Dep’t of Justice, 177 F. Supp. 3d 467, 471

(D.D.C. 2016) (“Shapiro II”).

In light of the significant security and privacy issues raised in this case, however, the

Court did not strictly apply the Maydak standard and agreed that the FBI could submit further

“briefing on whether specific records sought by the plaintiffs should be withheld under a FOIA

exemption or exclusion because their disclosure would ‘compromis[e] national security or

sensitive, personal, private information.’” Id. at 471 (citation omitted). But the Court made

clear that this additional bite at the apple was a limited one and did not open the door for the FBI

to litigate, more generally, the merits of its new categorical “No Records” policy. Id. at 473.

8

The Court also rejected the FBI’s contention that it had somehow “reserved” the right to raise a

series of new document-by-document exemptions. Id. at 472. The Court, nonetheless, permitted

the FBI to raise new defenses to the extent necessary to protect “‘national security or sensitive,

personal, private information.’” Id. at 472–73 (citation omitted).

C. Shapiro III

The FBI moved for reconsideration, arguing that Maydak does not apply to cases still

pending in the district court but, rather, applies only to cases pending on appeal. Dkt. 55. The

Court agreed that neither Maydak nor any other D.C. Circuit precedent directly addresses when a

district court should consider late-asserted defenses in a FOIA action. Shapiro v. U.S. Dep’t of

Justice, 13-cv-555, 2016 WL 3023980, at *3 (D.D.C. May 25, 2016) (“Shapiro III”). Rather, the

case law recognizes that the district courts retain substantial discretion to determine whether an

untimely FOIA defense has been forfeited. Id. As the Court further explained, however, that

discretion must be guided by the Court’s balancing of “principles of fairness, efficiency, and

finality,” along with due respect for “FOIA’s ‘statutory goals [of] efficient, prompt, and full

disclosure of information.’” Id. at *4 (quoting August v. FBI, 328 F.3d 697, 699 (D.C. Cir.

2003)).

The parties agreed that, in light of the Court’s holding in Shapiro II, the FBI would be

allowed to assert new defenses based on FOIA Exemptions 1, 3, 6, 7(C), and 7(D), and the FBI

agreed, in light of Shapiro II, to “specifically tailor[ ]” its “No Records” defense to “the unique

facts and circumstances of this case.” Id. Over Plaintiffs’ objection, moreover, the Court

permitted the FBI to raise new defenses under FOIA Exemptions 7(A) and 7(E) and to assert the

attorney-client and attorney-work-product privileges under FOIA Exemption 5. Id. at *5. With

respect to the FBI’s request that it be allowed to argue that all substantive material contained in

9

search slips and processing notes is protected by the deliberative-process privilege, however, the

Court concluded that the equities tipped in favor of Plaintiffs. Id. As the Court explained, the

FBI had not simply neglected to make this argument prior to the Court’s summary judgment

decision, but had explicitly waived the same—or substantially the same—argument in its reply

brief in Shapiro I. Id. at *6. And, finally, the Court held that, even if the FBI did not intend to

assert the deliberative-process privilege with respect to all of the search materials, opening the

door to this late-asserted defense posed “a substantial risk of expanding the scope and duration of

the present litigation,” without good cause and to the unfair detriment of Plaintiffs. Id. at *7.

Taken together, the Court’s decisions in Shapiro II and Shapiro III foreclosed the FBI

from raising defenses based on its new, categorical “No Records” policy or on previously

unasserted (or waived) claims that the search slips or processing notes are protected by the

deliberative-process privilege. But the Court permitted the FBI to assert a “targeted” version of

its “No Records” defense, to assert FOIA Exemptions 1, 3, 6, 7(A), 7(C), 7(D), and 7(E), and to

assert the attorney-client and attorney-work-product privileges under Exemption 5. Id. at *9. In

light of these decisions, the parties have now filed a second set of cross-motions for summary

judgment, along with a number of related motions.

II. ANALYSIS

A. Motion For Leave To File Ex Parte, In Camera Declaration

As an initial matter, the FBI moves for leave to submit a further declaration of David M.

Hardy—his eighth so far in this case—in camera and ex parte in support of its renewed motion

for summary judgment. Dkt. 75. Plaintiffs oppose that motion and have also cross-moved to

strike or to make public portions of the declaration. Dkt. 81. They also seek to unseal portions

of Hardy’s third and sixth declarations. Id. Plaintiffs contend that Hardy’s eighth declaration is

10

“highly likely” to “include[] inadmissible legal argument,” based on what they view as “blatant

legal conclusions” in Hardy’s previous declarations. Id. at 3.

Although FOIA expressly contemplates in camera review of records “to determine

whether” they may be withheld in whole or in part, 5 U.S.C. § 552(a)(4)(B), “the use of in

camera affidavits has generally been disfavored” in the D.C. Circuit, Armstrong v. Exec. Office

of the President, 97 F.3d 575, 580 (D.C. Cir. 1996). This is because in camera filings are at odds

with the “strong presumption in favor of public access to judicial proceedings,” Johnson v.

Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991), and because ex parte

proceedings deprive the Court of the “benefit of criticism and illumination” that comes with the

arguments of opposing counsel, Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976). To be

sure, in camera, ex parte filings are at times necessary to permit the Court to perform its role of

ensuring that the agency has appropriately invoked a FOIA exemption without requiring the

agency publicly to disclose the very records or information it seeks to protect. See, e.g., Barnard

v. Dep’t of Homeland Sec., 598 F. Supp. 2d 1, 16 (D.D.C. 2009). But before accepting such a

filing, the Court “must both make its reasons for doing so clear and make as much as possible of

the in camera submission available to the opposing party,” Armstrong, 97 F.3d at 580, and to the

public, see Mobley v. U.S. Dep’t of Justice, 870 F. Supp.2d 61, 68–69 (D.D.C. 2012).

The Court has reviewed the proposed eighth Hardy declaration, and concludes that it

contains sensitive information not appropriate for disclosure and which is necessary for the Court

to make a decision on the agency’s renewed motion for summary judgment, and that it does not

contain impermissible legal argument. Accordingly, the Court concludes that it is appropriate to

permit the government to file the declaration ex parte and in camera. See Light v. Dep’t of

Justice, 968 F. Supp. 2d 11, 29–30 (D.D.C. 2013). Plaintiffs also move to make public portions

11

of Hardy’s third and sixth declarations, which were submitted in camera and in redacted public

versions. See Dkt. 31-1 at 14–18 (Third Hardy Decl.); Dkt. 90-1 (Sixth Hardy Decl.). The Court

has reviewed the redacted portions of those declarations, and concludes that they contain

sensitive material that cannot be made public without thereby disclosing the very information

that the agency withheld in the underlying FOIA requests.

Accordingly, the Court will GRANT the government’s motion to file the eighth Hardy

declaration in camera and ex parte, and will DENY Plaintiffs’ cross-motion to strike or make

public portions of the third, sixth, and eighth Hardy declarations.

B. “No Records” Responses

The challenge that the FBI faces in responding to FOIA requests seeking FOIA

processing records relating to “No Records” responses remains at the core of this case. As

explained in Shapiro I, 153 F. Supp. 3d at 258, FOIA permits the FBI to treat certain particularly

sensitive “records as not subject to the requirements of” FOIA, 5 U.S.C. § 552(c), and thus

permits it to issue a “No Records” or “None Found” response to a request for any such records,

see ACLU of Mich. v. FBI, 734 F.3d 460, 469–72 (6th Cir. 2013). This technique proves useful

because the explicit assertion of a FOIA exemption might permit a FOIA requester or other

member of the public to infer the precise information that the FOIA exclusion is intended to

secure. To take one hypothetical, a FOIA exclusion permits a criminal law enforcement agency,

like the FBI, to maintain the secrecy of the name or identity of a confidential informant. See 5

U.S.C. § 552(c)(2). Imagine, then, that a FOIA requester sought to confirm rumors that John

Adams was a confidential informant, and thus submitted a FOIA request seeking all FBI

investigative records including any reference to John Adams. If the FBI were to respond that it

had responsive records that were subject to a FOIA exemption—such as Exemption 7(A) or

12

7(C)—John Adams’ safety and the FBI’s investigation might be put in jeopardy. But, because

the FBI is allowed to treat records that are subject to exclusion as though they did not exist for

purposes of FOIA, little can be inferred from a “No Records” response. The FBI would simply

respond that it did not locate any records responsive to the FOIA request.

Plaintiffs’ practice of filing FOIA requests for records generated in responding to prior

FOIA requests, however, puts this practice to the test. Because the FBI inevitably generates

records, such as search slips and processing notes, when it receives any FOIA request, the FBI

faces a conundrum. It cannot, as the Court previously explained, simply “deny that the search

slip exits . . . because search slips are created as a matter of course.” Shapiro I, 153 F. Supp. 3d

at 270. It cannot release the search slip, which even in redacted form would likely reveal “the

existence of the file that the FBI told the requester did not exist.” Id. And it cannot withhold

“the entire search slip under one of the exemptions, because the withholding itself would ‘tip off’

the requester that the search slip must refer to a file that he or she had previously been told did

not exist.” Id.

In its original motion for summary judgment and opposition to Plaintiffs’ cross-motion,

the FBI relied on a sweeping policy to address this problem: As the Section Chief of the FBI’s

Records/Information Dissemination Section (“RIDS”) explained, “the FBI has determined that

the only way for it to protect information that is excludable is to deny access to [all] processing

records relating to FOIA/Privacy Act requests related to criminal investigative, national security,

counterintelligence, or foreign intelligence information pursuant to Exemption 7(E)” for a period

of twenty-five years. Dkt. 21-3 at 25 (First Hardy Decl. ¶ 75); see also Dkt. 31-1 at 9 (Second

Hardy Decl. ¶ 20). The Court concluded in Shapiro I that this categorical policy was

13

unsustainable under Exemption 7(E). Shapiro I, 153 F. Supp. 3d at 270–76. The Court, in

particular, identified three hurdles that the FBI failed to clear:

First, Exemption 7(E) applies only to “records or information compiled for law

enforcement purposes.” 5 U.S.C. § 552(b)(7). Although search slips and processing notes

might, at times, replicate “records or information compiled for law enforcement purposes,” the

FBI had failed to show—or even to argue—that “all of the withheld search slips in their entirety”

replicate such records or information. 153 F. Supp. 3d at 272. Second, Exemption 7(E) applies

only where the release of the records at issue “would disclose techniques and procedures for law

enforcement investigations or prosecutions, or would disclose guidelines for law enforcement

investigations or prosecutions” that would “risk circumvention of the law.” 5 U.S.C.

§ 552(b)(7)(E). The FBI, however, failed to explain how disclosure of the search slips would

reveal a law enforcement technique, procedure or guideline; rather, it merely asserted that “the

FBI’s use of informants is a law enforcement technique” and that other information contained

“on search slips would reveal law enforcement techniques and procedures.” Dkt. 31 at 21–22;

see also Dkt, 31-1 at 10 (Second Hardy Decl. ¶ 22). Third, the Court recognized that discrete

pieces of seemingly innocuous information might be subject to protection on a “mosaic” theory,

but held that the FBI did not, and could not, defend its categorical “No Records” policy on such a

theory.4 153 F. Supp. 3d at 274–75. In short, the FBI’s categorical policy did not seek to

protect individual mosaic tiles, which when placed together could reveal protected information,

4

The government’s only mention of the “mosaic” theory in its briefing on its initial motion for

summary judgment was the argument that search slips relating to criminal investigations or

national security information “are compilations of myriad types of information about criminal

and/or national security investigations that reveal the size, nature, location(s), sensitivity,

classification, and status of FBI investigations” and that “release of such compilations related to

multiple subjects could establish a mosaic that would allow individuals to alter their behaviors

and/or adopt countermeasures to conceal behaviors or avoid detection.” Dkt. 21-1 at 22.

14

but rather sought to “amass a haystack in which to hide” the small handful of protected search

slips. Id. at 275.

In its present motion and opposition brief, the FBI offers both a different policy and a

different—or, at least refined—theory. Rather than asserting a blanket policy applicable to all

search slips and FOIA processing notes generated in response to requests for investigative

records or files over the past twenty-five years, the FBI asserts a case-specific exemption

applicable to only the forty-two “No Records” responses to the fifty-eight “parent” FOIA

requests submitted by Ryan Shapiro. Dkt. 57-3 at 59 (Fifth Hardy Decl. ¶ 121). As to these

materials, the FBI asserts that “within the holistic context of Shapiro’s universe of inter-related

domestic terrorism requests,” release of FOIA processing records relating to the forty-two “No

Records” responses risks disclosure of confidential techniques and procedures used by the FBI to

hide or obscure its use of the FOIA exclusion, 5 U.S.C. § 552(c). Id. at 55–63 (Fifth Hardy Decl.

¶¶ 114-129). The FBI posits that—at least in the current context, which involves an array of

FOIA requests relating to domestic terrorism investigations—the implicit disclosure of the

existence or the nonexistence of the use of the FOIA exclusion poses a risk of circumvention of

the law. Either way, according to the FBI, disclosure of the redacted portions of the search slips

and processing notes risks “reveal[ing] the scope of the FBI’s [domestic terrorism] program in

the United States, the scope and focus of its investigative efforts, and strategies it plans to pursue

in preventing and disrupting domestic terrorist activity.” Id. at 62 (Fifth Hardy Decl. ¶ 128).

Disclosure would, as a result, “allow animal extremist terrorists to gauge the FBI’s strengths and

weaknesses within certain areas of the [domestic terrorism] arena and [to] structure their

activities in a manner that avoids detection and disruption by the FBI.” Id.

15

The Court concludes that the FBI’s case-specific assertion of Exemption 7(E) now clears

the hurdles described in Shapiro I. The first of those hurdles requires that the “records or

information” at issue have been “compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7).

In Shapiro I, the Court rejected the FBI’s efforts to protect all search slips from disclosure,

holding that “[i]n the absence of a showing that all of the withheld search slips . . . constitute

records ‘compiled for law enforcement purposes,’ the FBI’s categorical reliance on Exemption 7

fails at the threshold.” Shapiro I, 153 F. Supp. 3d at 272. That is not the case, however, with

respect to the FBI’s narrowed assertion of Exemption 7(E), which applies only to those search

records that correspond to forty-two “No Records” responses the FBI provided to Shapiro. To be

sure, those search records were not themselves compiled for law enforcement purposes; rather,

they were compiled to comply with FOIA. But to the extent they replicate information that was

compiled for law enforcement purposes, that distinction is immaterial. See FBI v. Abramson,

456 U.S. 615, 624 (1982) (Exemption 7 applies to records that “contain[] or essentially

reproduce[] all or part of a record that was previously compiled for law enforcement reasons”).

Nor does it make a difference whether any underlying records exists or not. Exemption 7

protects “information compiled for law enforcement purposes,” 5 U.S.C. § 552(b)(7) (emphasis

added), and the absence of a record can reflect “information” compiled by the agency just as

much as the existence of a record. To continue the hypothetical started above, a search slip

showing that the FBI relied on the § 552(c) exclusion in responding to a request for records

containing the name John Adams might support an inference that Adams was a confidential

informant, while a search slip showing that, in fact, no records were found might support a

contrary inference. Either way, however, release of the search slip would risk disclosing

16

information compiled for law enforcement purposes—i.e., the FBI’s list of informants in the

Continental Congress.

Reliance on Exemption 7(E) also requires that release of the records or information at

issue “would disclose techniques and procedures for law enforcement investigations or

prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions,”

and would thereby “risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). As the Court has

previously explained, the fact that the FBI is permitted to issue “No Records” responses based on

the § 552(c) exclusion is not a confidential “technique” or “procedure”—rather, that fact is

embodied in the statute and judicial precedent. Shapiro I, 153 F. Supp. 3d at 273. Although the

FBI has now further elaborated on its arguments, it is safe to say that it still has not identified a

relevant law enforcement “technique” or “procedure” with crystal clarity. It appears, however,

to make two arguments. First, it contends that “the use of § 552(c) as a subterfuge to prevent

disclosure of the existence or non-existence of sensitive law enforcement records” constitutes a

“law enforcement technique” every bit as much as, for example, use of “intentional

misinformation from an undercover agent or informant.” Dkt. 57-3 at 56, 58 (Fifth Hardy Decl.

¶¶ 116, 119). Although the existence of “the § 552(c) technique . . . is publicly known, its use in

connection with any particular FBI ‘No Records’ response is not.” Id. at 58 (Fifth Hardy Decl. ¶

120). And, second, it argues that “the FBI’s assembling and vetting of . . . investigative

information to understand the inter-relation[ship] of varied [domestic terrorism] investigations,

targets, and priories—resulting in ‘No Records’ responses to Shapiro’s requests—is itself a

protective mechanism, technique, or [procedure] necessary to safeguard the FBI’s national

[domestic terrorism] investigative program.” Id. at 61 (Fifth Hardy Decl. ¶ 126).

17

The Court in convinced that information contained in the limited universe of search slips

now at issue risks disclosing a “technique” or “procedure” that could aid in the “circumvention

of the law.” 5 U.S.C. § 552(b)(7)(E). As explained above, there is little meaningful difference

between records compiled for law enforcement purposes and information relating to the search

of those records. In both cases, knowledge of the existence or non-existence of an investigation,

for example, might assist those seeking to evade detection. And, more importantly for present

purposes, the existence or non-existence of such an investigation would likely reflect important

information about the “scope of the FBI’s [domestic terrorism] program in the United States, the

scope and focus of its investigative efforts, and strategies it plans to pursue in preventing and

disrupting domestic terrorist activity.” Dkt. 57-3 at 62 (Fifth Hardy Decl. ¶ 128).

The FBI does not argue that disclosure of any single unredacted search slips, or even

disclosure of all of the search slips at issue, would—standing alone—disclose protected law

enforcement techniques or procedures. It does contends, however, that the information that it

has withheld under Exemption 7(E) forms part of a mosaic that, when viewed as a whole, would

reveal confidential law enforcement techniques and procedures and would risk circumvention of

the law. Dkt. 57-1 at 29. This “mosaic” theory finds support in both Supreme Court and D.C.

Circuit precedent recognizing that “bits and pieces of data ‘may aid in piecing together bits of

other information even when the individual piece is not of obvious importance in itself.’” CIA v.

Sims, 471 U.S. 159, 178 (1985) (quoting Halperin v. CIA, 629 F.2d 144, 150 (D.C. Cir. 1980)).

As a result, in cases implicating national security, courts have permitted the government to rely

on the mosaic theory to justify withholding agency records that form only a small piece of a

larger puzzle. See, e.g., Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 928–29

18

(D.C. Cir. 2003). The courts have provided little guidance to date, however, about how the

mosaic theory applies in particular contexts.

At one level, there is little or no limit to the scope of the mosaic theory—almost anything

a law enforcement agency does could form at least a miniscule piece of a massive mosaic that

might reveal confidential information. In Shapiro I, the Court faced a variant of this scenario.

There, the FBI argued that every search slip and processing note generated in response to a FOIA

request for investigative records over the past twenty-five years was subject to protection

because “the only way for [the FBI] to protect information that is excludable is to deny access

to” all FOIA processing records generated in responding to “parent” FOIA requests for

investigative records or files. Dkt. 21-3 at 25 (First Hardy Decl. ¶ 75). As the Court explained

in Shapiro I, that claim of protection was far too broad—rather than seeking to protect “bits and

pieces of data” that, when pieced together, formed a mosaic, the FBI simply sought “to amass a

haystack in which to hide” the rare use of § 552(c). 153 F. Supp. 3d at 275; see also id. at 272

(noting that “[i]n the most recent fiscal year, the Justice Department invoked an exclusion 145

times—or in 0.23% of the over 60,000 requests that it processed”). If the mosaic theory were

applicable in that context, it would be difficult to discern what, if any, limits might apply.

As reframed in the FBI’s renewed motion for summary judgment, however, the mosaic

theory admits of reasonable limits and is well supported by the FBI’s declarations and the record.

As noted above, the FBI has limited its assertion of Exemption 7(E) to search processing records

relating to the forty-two “parent” FOIA requests as to which the FBI provided Shapiro with “No

Records” responses. Dkt. 57-3 at 59 (Fifth Hardy Decl. ¶ 121). And, importantly, the FBI has

explained how these requests fit “within the holistic context of Shapiro’s universe of inter-related

domestic terrorism requests.” Id. (Fifth Hardy Decl. ¶ 122). Among other things, eleven of the

19

“parent” requests are subject to ongoing litigation in a case in which Shapiro has sought to

compel further responses to eighty-one requests relating to domestic terrorism. Id. Those

requests, in turn, “refer to ‘64 inter-related individuals, organizations, incidents, and/or

publications related to animal rights extremism,’” and, because the “requests all relate to one of

the FBI’s domestic terrorism priorities, . . . the hundreds of thousands of pages of records

requested by [Shapiro] . . . must [themselves] be reviewed for any possible ‘mosaic effect’”

before they can be released. Shapiro v. U.S. Dep’t of Justice, Civ. No. 12-313 (BAH), Dkt. 61 at

1–2. On top of this, Shapiro has also filed an additional 260 FOIA requests related to animal

rights extremism. Dkt. 57-3 at 60 (Fifth Hardy Decl. ¶ 124). As explained by a senior official in

the FBI’s Counterterrorism Division, the release of at least some of the information sought by

Shapiro in his “parent” FOIA requests would have “significant deleterious effects . . . on the

FBI’s on-going efforts to investigate and combat domestic terrorism in the United States.” Dkt.

57-4 at 5. As the FBI points out, however, the mosaic concern does not turn on the fact that

Shapiro is the requester in this case; his extensive history of FOIA requests happens to have

created the background of public information against which the risk of disclosing the information

at issue here must be assessed, but that analysis would be the same regardless of who requested

the records. Dkt. 74 at 24.

In short, the search slips at issue are part of a complex mosaic relating to on-going FBI

operations, involving one of the FBI’s domestic terrorism priorities, which has been the subject

of a staggering number of FOIA requests seeking information about many specific individuals

and organizations. In this context, the Court concludes that the FBI has met its modest burden of

showing “logically how the release of [the processing records] might create a risk of

20

circumvention of the law.” PHE, Inc. v. U.S. Dep’t of Justice, 983 F.2d 248, 251 (D.C. Cir.

1993).

C. File Numbers

The government also seeks to withhold “sensitive case file numbers or sub-files,” on the

theory that the “release of [the] file numbering convention [would] identif[y] the investigative

interest or priority given to such matters.” Dkt. 57-3 at 63 (Fifth Hardy Decl. ¶ 130). As the

FBI’s Record Management Manual explains, “[a] typical case file number consists of a three-

digit classification number, a one- or two-digit alpha designation for subdivisions under that

subject, a two-letter designation for the O[riginating] O[ffice], and then a case number assigned

sequentially by the system.” Dkt. 67-3 at 16. A typical file number, for example, takes the

following form: 91B-BA-124576. Id. In that example, at least according to Plaintiffs, “91” is

the classification number, and refers to various types of bank robbery or bank extortion, id. at 25;

“B” is the alpha designation, which further narrows the classification to “burglary, larceny,

$10,000 and over,” id.; BA indicates the Originating Office, id. at 16, which is Baltimore in the

example; and 124576 is the case number, id. Although Plaintiffs point to various public sources

that define the FBI’s classification codes, Hardy attests that these “lists of FBI classification

codes are neither current nor complete;” that the “classifications can and do change over the

years;” and that “[t]he full list is,” in fact, “itself a classified documents because many

classification codes are classified.” Dkt. 74-2 at 7 (Seventh Hardy Decl. ¶ 14).

The FBI’s case for withholding “sensitive” file numbers again rests on the mosaic theory.

Specifically, the FBI contends that the release of the file numbers “would allow criminals and

other nefarious persons to determine where and what types of investigation the FBI is conducting

or what types of activities by particular people may be or have been under FBI scrutiny, and thus

21

change their patterns of behavior accordingly to avoid FBI scrutiny.” Dkt. 74 at 27–28. File

numbers, the FBI adds, “can show that a particular type of investigation . . . occurs more

regularly with respect to a particular Office of Origin,” allowing those subject to investigation to

create a “‘heat map’ of areas . . . where engaging in anarchist extremism is more or less risky

from a law enforcement standpoint.” Id. at 28. For this reason, the FBI contends, the file

numbers were properly withheld under Exemption 7(E).

Plaintiffs disagree, arguing that the FBI’s theory fails at every step of the Exemption 7(E)

analysis: the file numbers, they argue, were not “compiled for law enforcement purposes;” if

they were compiled for law enforcement purposes, they do not reveal “techniques or procedures

for law enforcement;” and, in any event, their disclosure would not risk circumvention of the

law. Dkt. 68 at 11 & n.10, 12. In addition, Plaintiffs argue that any risk of circumvention can

easily be resolved by segregating the “originating office” designation, leaving the classification

number, alpha designation, and case number. Dkt. 84 at 22–24. As explained below, the Court

agrees with the FBI’s reading of Exemption 7(E) and is persuaded that the exemption can

apply—at least in theory—to relevant portions of sensitive file numbers. The Court cannot

determine on the present record, however, whether all or some portion of the 122 pages of

materials at issue pose the type of risk that the FBI posits.

Plaintiffs first argue that FBI file numbers are not “compiled for law enforcement

purposes,” but rather are created “solely for the purpose of tracking and organizing documents

and other ministerial functions.” Dkt. 84 at 17. To “compile,” Plaintiffs insist, is to “[p]roduce

(something, especially a list, report, or book) by assembling information collected from other

sources” or to “[c]ollect (information) in order to produce something.” Dkt. 68 at 11 n.10; see

also John Doe Agency v. John Doe Corp., 493 U.S. 146, 153 (1989). Applying this definition,

22

they argue that FBI file numbers are not “compiled” but, instead, are simply “created or

generated . . . using a standardized naming convention, much as one would use to create Bates

numbers.” Dkt. 84 at 17. And, even if “the FBI could be said to have ‘compiled’ the file

numbers,” Plaintiffs further argue, “they were not complied for ‘law enforcement purposes;’”

rather, FBI file numbers “exist solely for the purpose of tracking and organizing documents and

other ministerial functions.” Id.

The Court is unconvinced. Although Plaintiffs are correct that file numbers serve an

administrative purpose—permitting the FBI to track and organize documents—they ignore the

fact that the tracking system is based on information collected for law enforcement purposes.

The relevant file numbers are not generated at random but, rather, incorporate information

compiled in the course of enforcing the criminal laws. A file number may show—or at least

suggest—for example, that the Baltimore field office of the FBI has opened a bank robbery

investigation and that over $10,000 was stolen from the bank. As relevant here, moreover, a

collection or “mosaic” of FBI file numbers might show—or at least suggestion—whether the

FBI devotes a small amount of attention, or a great deal of attention, to animal rights extremism

in each relevant region of the country. That information is, as a matter of ordinary usage,

“compiled” in the FBI filing system—that is, it is “collected and assembled from various sources

or other documents.” John Doe Agency, 493 U.S. at 153. It is not difficult to conclude,

moreover, that a “rational nexus” exists between the compilation of this information and “one of

the agency’s law enforcement duties.” Pratt v. Webster, 673 F.2d 408, 419 (D.C. Cir. 1982); see

also Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998).

Plaintiffs’ second argument—that disclosure of the file numbers would not reveal a

“technique or procedure”—fares no better. Plaintiffs appear to concede that the FBI’s

23

“investigative priorities” qualify as “techniques . . . for law enforcement” for purposes of

Exemption 7(E), see Dkt. 68 at 12, but argue that disclosure of the file numbers would not, in

fact, reveal the agency’s investigative priorities, Dkt. 84 at 6–9. The Court agrees, as have other

judges in this district, that file numbers can, at least at times, reveal law enforcement “techniques

or procedures.”5 Rather than challenge that premise, Plaintiffs contend that a host of

“confounding factors reduce the possibility that any information about a field office[’s]

prioritization can be discerned from the file numbers” at issue here. Id. at 8. Disclosure of

records showing that more “insider trading investigations” originated in the New York field

office than the Anchorage field office would not, according to Plaintiffs, signal a “higher priority

on investigating insider trading in” New York than in Alaska, but would more likely reflect

differences in staffing levels, population and “frequency with which the crime is actually being

committed or reported in these jurisdictions.” Id. In addition, Plaintiffs assert, “[f]ield offices’

priorities change over time, as do the number of case files being opened;” “[a] field office may

also create a file number at the behest of another agency or field office;” and the aggregate

number of files bearing the relevant designation do not reflect “the duration, complexity,

importance, or allocation of resources to an investigation.” Id.

None of this, however, undercuts the FBI’s contention—at least in theory—that the

particular information Plaintiffs seek could create a “heat map” of the areas of the Country

5

See Thelen v. U.S. Dep’t of Justice, 169 F. Supp. 3d 128, 142 (D.D.C. 2016) (Bureau of

Alcohol, Tobacco, Firearms, and Explosives file numbers); Shapiro v. U.S. Dep’t of Justice, 78

F. Supp. 3d 508, 520 (D.D.C. 2015) (FBI file numbers); Ortiz v. U.S. Dep’t of Justice, 67 F.

Supp. 3d 109, 123 (D.D.C. 2014) (Drug Enforcement Administration and Immigration and

Customs Enforcement codes); Adionser v. Dep’t of Justice, 33 F. Supp. 3d 23, 25–26 (D.D.C.

2014) (Drug Enforcement Administration Geographic Drug Enforcement Program codes); Miller

v. U.S. Dep’t of Justice, 872 F. Supp. 2d 12, 28–29 (D.D.C. 2012) (Drug Enforcement

Administration file numbers).

24

“where engaging in anarchist extremism is more or less risky from a law enforcement

standpoint.” Dkt. 74-2 at 8 (Seventh Hardy Decl. ¶ 15). As a matter of common sense, one

might assume that more insider trading cases are investigated and brought in the FBI’s New

York field office than in its Anchorage office. It is less obvious that a similar assumption applies

to animal rights extremism. Moreover, as the FBI observes, although a single file number may

be unilluminating, Plaintiffs’ request must be construed as part of a larger mosaic. Understood

in that manner, aggregate information about the number of files or documents that bear a

designation for domestic terrorism/animal rights extremism may shed considerable light on the

overall resources that a particular office of the FBI has devoted, or is devoting, to investigating

related crimes. The conclusion that the disclosure of FBI file numbers can—in theory—reveal

sensitive law enforcement techniques, however, does not answer the question whether disclosure

of the file numbers at issue here would, in fact, do so. That question, moreover, is closely related

to Plaintiffs’ third contention—that disclosure of the file numbers could not reasonably be

expected to “risk circumvention of the law.” Dkt. 68 at 12.

Turning to Plaintiffs’ third contention, the parties dispute the threshold question whether

the “risk of circumvention” requirement applies to records that disclose either “guidelines” or

“techniques and procedures,” as Plaintiffs contend, Dkt. 84 at 10, or only to records that disclose

“guidelines,” as the FBI asserts, Dkt. 74-2 at 9–10 (Seventh Hardy Decl. ¶ 19).6 Although this is

6

As Plaintiffs correctly observe, the FBI’s multiple declarations contain extensive legal

argument, much of which does not appear in the agency’s briefs. Because Plaintiffs have fully

responded to those arguments, the Court will consider them and will not accept Plaintiffs’

invitation to strike the Seventh Hardy Declaration on that ground. See Dkt. 84 at 10 n.3. The

FBI should ensure in the future, however, that it includes any legal argument that it wants the

Court to consider in its briefs.

25

an issue that has divided the circuits, Plaintiffs are correct that the D.C. Circuit applies the “risk

of circumvention” requirement “both to records containing guidelines and to records containing

techniques and procedures.” Pub. Employees for Envt’l Resp. v. U.S. Section, Int’l Boundary &

Water Comm’n, 740 F.3d 195, 204 n.4 (D.C. Cir. 2014) (emphasis added). The proper resolution

of the factual question whether disclosure of the file numbers would reveal a law enforcement

technique that a “nefarious” person might then exploit to circumvent the law is, however, far less

clear.

As Hardy explains, the FBI has not adopted a blanket policy of exempting all file

numbers, but has limited its application of the exemption to certain “sensitive” file numbers.

Dkt. 74-2 at 7 (Seventh Hardy Decl. ¶ 14). In particular, he attests that, in the present context,

“where broad requests seek information about a large number of cases, releasing file numbers

can show that a particular type of investigation—for instance, [d]omestic [t]errorism and/or

anarchist extremism—occurs more regularly with respect to a particular [o]ffice of [o]rigin.” Id.

at 8 (Seventh Hardy Decl. ¶ 15). “That information,” in turn, “would allow anarchist extremists

to focus their attentions [on] other geographical areas where the FBI is not devoting the same

resources to that type of criminal activity.” Id. In other words, according to Hardy, when

considered in the aggregate, the file numbers could be used to create “a ‘heat map’” that

“[a]narchist extremists could then use . . . to circumvent the law by committing criminal acts in

the areas where they determine, based on the released FBI file numbers[,] [that] there is less of

an FBI investigative focus.” Id.

26

Plaintiffs, in response, ask the Court to infer from the fact that the FBI has not invoked

Exemption 7(A) that the relevant file numbers do not relate to any ongoing investigations.7 Dkt.

68 at 13. That inference may or may not be correct, and, even if it is correct, it is far from clear

that the risk of disclosure of purely historical law enforcement priorities would be insufficient to

meet the “relatively low bar” under Exemption 7(E) for “withholding” records that reveal law

enforcement techniques. Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). But, even though

Exemption 7(E) does not impose “a highly specific burden of showing how the law will be

circumvented,” it does “require[] that [the agency] ‘demonstrate[] logically how the release of

[the requested] information might create a risk of circumvention of the law.’” Mayer Brown LLP

v. IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009) (alterations in original) (quoting PHE, Inc. v. U.S.

Dep’t of Justice, 983 F.2d 248, 251 (D.C. Cir. 1993)). Applying this standard, the Court is not

convinced that the mere fact that investigation is closed severs the “logical” link between release

of the information and the risk of circumvention; knowing that the FBI has historically focused

its enforcement efforts in a particular region, for example, might aid a criminal in circumventing

the law. But, at the same time, the Court cannot discern from the existing record whether the

7

Plaintiffs contend that the FBI’s limitation of its non-disclosure policy to certain “sensitive”

file numbers is improper because, where case-by-case analysis is required, the utility of adopting

a “workable,” categorical rule “evaporates,” Dkt. 84 at 13, and because the case-by-case standard

accords the FBI “complete discretion over which file numbers will be released,” id. at 14. That

contention, however, is at odds with the core notion that FOIA encourages the release of more,

rather than less, information, and it mistakenly treats “workability” as an all or nothing concept.

There is no reason, for example, that the FBI could not reasonably conclude that releasing file

numbers showing that most insider trading cases are staffed out of the FBI’s New York field

office—where the largest U.S. stock exchanges are located—would not pose a risk of

circumvention, while also concluding that the principle locus of its domestic counterterrorism

efforts should be kept confidential. Under the prevailing D.C. Circuit law, that is precisely the

type of risk assessment to which the courts should ordinarily defer. See, e.g., Blackwell v. FBI,

646 F.3d 37, 42 (D.C. Cir. 2011).

27

relevant investigations are open, whether they closed in the past few years, or whether they

closed decades ago.

The Court does know, however, that three of the relevant documents relate to the FBI’s

search for records about the murder of Hyram Kitchen, discussed below, and Plaintiffs contend

that the FBI closed its investigation of Kitchen murder “over 25 years ago.” Dkt. 68 at 16. If

that is true, the FBI needs to do more to explain how its disclosure of information revealing the

originating office for that investigation, or any other information, poses a present day threat of

circumvention of the law. And, more generally, given the lack of evidence about if, and when,

the underlying investigations at issue were closed, the Court cannot grant the FBI’s motion for

summary judgment without additional evidence and explanation regarding the specific risk posed

by disclosure of the file numbers in the 122 documents at issue.

Finally, Plaintiffs contend that the FBI has released many of the file numbers at issue in

response to other FOIA requests and thus, under the “official-acknowledgment” doctrine, see

ACLU v. CIA, 710 F.3d 422, 426 (D.C. Cir. 2013), it has waived any otherwise applicable FOIA

exemptions. Dkt. 84 at 22. Because Plaintiffs did not raise this contention until they filed their

final reply brief, the Court would ordinarily conclude that Plaintiffs had waived the argument.

See, e.g., Consol. Edison Co. of N.Y. Inc. v. FERC, 347 F.3d 964, 970 (D.C. Cir. 2003) (finding

an argument waived when its proponent “failed to develop it fully until its reply brief”). The

concern that the FBI has not had an opportunity to respond to this argument, however, is

obviated by the fact that parties will, in any event, need to submit additional briefs addressing

whether the age of any or all of the underlying files at issue undercuts the FBI’s reliance on

Exemption 7(E). The Court, accordingly, will direct that the parties meet and confer regarding

Plaintiffs’ official acknowledgment argument and, if they are unable to reach agreement, the FBI

28

may address the issue in its renewed motion for summary judgment. Finally, the parties should

meet and confer regarding the Plaintiffs’ contention that the FBI’s concern about circumvention

can be addressed by simply redacting the originating office designation from the relevant file

numbers, and, if necessary, should brief that issue as well.

The Court, accordingly, will deny both the FBI’s and Plaintiffs’ cross-motions for

summary judgment with respect to the FBI’s withholding of the file numbers included in records

described in footnote 54 of the fifth Hardy declaration. Dkt. 57-3 at 63 n.54.

D. Records Relating to the Murder of Hyram Kitchen

FOIA Exemption 7(A) permits a law enforcement agency to withhold “records or

information compiled for law enforcement purposes” to the extent those records or that

information “could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C.

§ 552(b)(7)(A). In response to Plaintiffs’ requests, the FBI relies on Exemption 7(A) “in a

limited fashion to protect the names of targets of pending investigations and also file numbers

associated with pending investigations.” Dkt. 57-1 at 21. In response, Plaintiffs challenge only

one application of Exemption 7(A) to their FOIA requests—the FBI’s withholding of “case notes

and [a] search slip connected with [Shapiro’s] request for records [relating to] the murder of

Hyram Kitchen.” Dkt. 68 at 15. In particular, Plaintiffs contend that “the FBI ceased conducting

its investigation into the murder of Dr. Kitchen over 25 years ago.” Id. at 16. The FBI, in turn,

agrees that the investigation of Dr. Kitchen’s murder “is closed” and that “Exemption 7(A) is not

applicable.” Dkt. 74-2 at 11 (Seventh Hardy Decl. ¶ 22). The FBI further explains, however,

that it had separately withheld the file number associated with the murder investigation pursuant

to Exemption 7(E) and that it continues to assert that exemption. Id. Presumably accepting the

FBI’s concession, Plaintiffs did not further address the applicability of Exemption 7(A).

29

In light of this background, the Court will grant summary judgment in favor of Plaintiffs

with respect to the FBI’s assertion of Exemption 7(A) as to the FOIA processing records

associated with the “parent” FOIA request for records relating to the murder of Dr. Kitchen. To

the extent the FBI seeks to withhold the file numbers referenced in documents 596–97 and 600,

the Court will deny both the FBI’s and Plaintiffs’ cross-motions for summary judgment for the

reasons set forth in section C above.

E. Classified Records

1. Exemption I

The FBI asserts FOIA Exemption 1 to protect documents classified at the “SECRET”

level. That exemption provides that an agency may withhold records that are:

(A) specifically authorized under criteria established by an Executive order to be

kept secret in the interest of national defense or foreign policy and (B) are in fact

properly classified pursuant to such Executive order.

5 U.S.C. § 552(b)(1). Executive Order 13,526, in turn, provides that “[i]nformation may be

originally classified” if four conditions are satisfied: (1) an original classification authority must

classify the information; (2) the information must be “owned, produced by or for, or . . . under

the control of the United States Government;” (3) the information must fall within one of several

categories specified in the Executive Order; and (4) the original classification authority must

determine that the unauthorized disclosure of the information “reasonably could be expected to

result in damage to the national security.” 75 Fed. Reg. 707 (Dec. 29, 2009). The Court must

afford “substantial weight to an agency’s affidavit concerning the details of the classified status

of the disputed record,” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981), and

“little proof or explanation is required beyond a plausible assertion that information is properly

classified,” Morley v. CIA, 508 F.3d 1108, 1124 (D.C. Cir. 2007).

30

In his fifth declaration, Hardy attests that the records at issue were properly classified

under the Executive Order. See Dkt. 57-3 at 20 (Fifth Hardy Decl. ¶¶ 37–38). Plaintiffs, in turn,

raise only one argument, asserting that the redacted documents released to them appear to have

been classified in January 2016, after the FOIA request for those documents was submitted. See

Dkt. 67 at 17 (citing Dkt. 67-4 at 86–87, 97–98, 149–51). In such cases, Executive Order 13,526

provides a heightened standard for classifying documents, allowing previously undisclosed

documents that are subject to a FOIA request to be classified “only if such classification meets

the requirements of th[e] [Executive] [O]rder and is accomplished on a document-by-document

basis with the personal participation or under the direction of the agency head, the deputy agency

head, or the senior agency official designated under . . . this order.” 75 Fed. Reg. at 711

(emphasis added). Plaintiffs argue that Hardy does not attest that the classifications in this case

met that heightened standard.

In his seventh declaration, however, Hardy attests that Plaintiffs have misinterpreted

certain markings on the documents and that the relevant records have, in fact, been classified

since at least 2007 and were never subsequently declassified. See Dkt. 74-2 at 12 (Seventh

Hardy Decl. ¶ 24). Hardy explains that, when the FBI locates classified records that are

responsive to a FOIA request, the Record/Information Dissemination Section (“RIDS”) . . .

independently reviews the documents to determine whether they remain properly classified and

whether it is possible to segregate classified from unclassified information. Id. at 12–13

(Seventh Hardy Decl. ¶ 25). During that review process, RIDS redacts the segragable classified

portions of the requested documents and processes the remainder of the document for other

FOIA exemptions. Id. According to Hardy, “[t]he markings on the documents to which

Plaintiffs refer . . . were placed there by RIDS as part of its review;” they “do not demonstrate

31

that these documents were classified or reclassified after receipt of Plaintiffs’ FOIA requests;”

and, in fact, the “documents were classified years before Plaintiffs submitted their FOIA

requests.” Id.

The Court concludes that the FBI has provided ample evidence that the information in

question was properly classified before Plaintiffs’ FOIA requests, and will, accordingly, grant

the FBI’s renewed motion for summary judgment as it relates to information exempted under

FOIA Exemption 1.

2. Exemption 3

Exemption 3 applies to information “specifically exempted from disclosure by statute . . .

if that statute—(A)(i) requires that the matters be withheld from the public in such manner as to

leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to

particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3)(A). In this case, the FBI asserts

Exemption 3 in connection with documents it asserts are protected by the National Security Act

of 1947 (“NSA”), which requires the Director of National Intelligence to “protect intelligence

sources and methods from unauthorized disclosure.” 50 U.S.C. § 3024(i)(1). There is no dispute

that the NSA qualifies as a withholding statute under the terms of Exemption 3. See, e.g., CIA v.

Sims, 471 U.S. 159, 169 (1985); Kirkorian v. Dep’t of State, 984 F.2d 461, 465 (D.C. Cir. 1993);

Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978).

The Supreme Court has construed the relevant language of the NSA to protect “all

sources of intelligence that provide, or are engaged to provide, information the [a]gency needs to

perform its statutory duties with respect to foreign intelligence.” Sims, 471 U.S. at 169–70. As

the D.C. Circuit has explained, moreover, “Exemption 3 differs from other FOIA exemptions in

that its applicability depends less on the detailed factual contents of specific documents; the sole

32

issue for decision is the existence of a relevant statute and the inclusion of withheld material

within that statute’s coverage.” Goland, 607 F.2d at 350. Nevertheless, an agency invoking

Exemption 3 must demonstrate its applicability “in a nonconclusory and detailed fashion,” id. at

351, and must provide “the kind of detailed, scrupulous description [of the withheld documents]

that enables a District Court judge to perform a searching de novo review,” Church of

Scientology of Ca., Inc. v. Turner, 662 F.2d 784, 786 (D.C. Cir. 1980).

Here, the FBI relies on portions of Hardy’s fifth and seventh declarations to support its

invocation of the NSA as the relevant withholding statute. In his fifth declaration, Hardy attests

that “the FBI has determined that intelligence sources and methods would be revealed if any of

the withheld information is disclosed to plaintiffs,” Dkt. 57-3 at 31 (Fifith Hardy Decl. ¶ 63), and

that “disclosure of this information presents a bona fide opportunity for individuals to develop

and implement countermeasures, resulting in the loss of significant intelligence information,

sources, and methods relied upon by national policymakers and the I[ntelligence] C[ommunity]

to safeguard national security,” id. at 31 n.32. And in his seventh declaration, Hardy elaborates

that “[t]he FBI cited Exemption 3 . . . to protect information related to . . . the National

Intelligence Program (“NIP”),” which “consists of all programs, projects, and activities of the

Intelligence Community, as well as any other programs of the Intelligence Community

designated jointly by the Director and the head of a United States department or agency or by the

President.” Dkt 74-2 at 13 (Seventh Hardy Decl. ¶ 26). “The activities of the Intelligence

Community,” he further explains, “include the strategic use of various sources to obtain

intelligence related information and are through a myriad of available methods of intelligence

gathering, not all of which are known to the public.” Id. at 13–14.

33

Although the FBI’s reliance on the NSA is entitled to substantial deference, the

declarations it has provided to date are simply too broad and conclusory to allow the Court to

perform the type of “searching de novo review” required by the governing precedent. Church of

Scientology, 662 F.2d at 786. As a result, the Court will deny both the FBI’s and Plaintiffs’

cross-motions for summary judgment as to Exemption 3. The FBI may file a renewed motion

for summary judgment, along with a supplemental declaration providing nonconclusory details

in support of its assertion of Exemption 3, and Plaintiffs may renew their cross-motion in

response.

F. Attorney Work Product and Deliberative Records

Exemption 5 applies to “inter-agency or intra-agency memorandums or letters that would

not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C.

§ 552(b)(5). To qualify for this exemption, a document must “satisfy two conditions: its source

must be a Government agency, and it must fall within the ambit of a privilege against discovery

under judicial standards that would govern litigation against the agency that holds it.” Dep’t of

Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). The FBI asserts the

deliberative-process and work-product privileges in response to requests from plaintiffs Truthout

and Stein. That privilege protects documents prepared by, or at the direction of, an attorney in

anticipation of litigation. See, e.g., FTC v. Boehringer Ingelheim Pharm., Inc., 778 F.3d 142,

149 (D.C. Cir. 2015). To determine whether a document was prepared “in anticipation of

litigation,” courts in this circuit inquire “whether, in light of the nature of the document and the

factual situation in the particular case, the document can fairly be said to have been prepared or

obtained because of the prospect of litigation.” United States v. Deloitte LLP, 610 F.3d 129, 137

(D.C. Cir. 2010).

34

With respect to “Truthout’s single FOIA request for processing notes created by FBI

analysts in responding to a request about Hesham Abu Zubaydah, the brother of a Guantanamo

detainee,” Shapiro I, 153 F. Supp. 3d at 292, the FBI initially asserted the deliberative-process

privilege, along with other defenses. In Shapiro I, the Court concluded that the FBI had

explicitly waived its initial contention that all of the agency’s FOIA processing notes are

protected by the privilege, and that it had failed to offer any “non-conclusory support” for

application of the privilege to the “processing notes compiled in processing Truthout’s [specific]

request.” Id. at 293. The Court granted the FBI, however, the opportunity to file a renewed

motion, supported by a supplemental declaration explaining why the privilege applies. Id.

The FBI responded to this invitation with two lines of factual support, both contained in

the fifth Hardy declaration. Under the first line of support, Hardy attests that FOIA

“[p]rocessing notes and search slips by their very nature are considered working papers . . . and

recommendations.” Dkt. 57-3 at 35 (Fifth Hardy Decl. ¶ 74) (emphasis added). Nothing in this

factual proffer, however, addresses the specific records that Truthout has requested, and, as

explained in Shapiro I, the Court has already held that the FBI has waived the (implausible)

contention that all FOIA search records are by their very nature protected by the deliberative

process privilege. 153 F. Supp. 3d at 293; Dkt. 65 at 16. Under the second line of support,

however, Hardy attests that at least some of the records at issue were “prepared in responding to

other FOIA lawsuits filed by [P]laintiffs,” and that those records “reflect[] deliberations” about

the cases and the FBI’s “litigation strategy and defense.” Id. at 36 (Fifth Hardy Decl. ¶ 76). The

Court, accordingly, will grant the FBI’s motions for summary judgment with respect to its

reliance on the deliberative-process privilege to withhold records in response to the Truthout

FOIA request, but only to the extent those records fall within the second factual justification.

35

Moreover, even as to those records, the FBI is obligated to segregate factual material from

deliberative material, see EPA v. Mink, 410 U.S. 73, 91 (1973); Montrose Chem. Corp. v. Train,

491 F.2d 63, 66 (D.C. Cir. 1974), unless the records are also subject to the attorney-client

privilege.

With respect to Stein’s FOIA request, the FBI withheld several documents relating to the

McGehee v. Department of Justice litigation, see 800 F. Supp. 2d 220 (D.D.C. 2011), based on

the deliberative-process privileged. As the Court explained in Shapiro I, 153 F. Supp. 3d at 290,

a document that “would have been created ‘in substantially similar form’ regardless of the

litigation” is not protected by the privilege, Boehringer, 778 F.3d at 149 (quoting Deloitte, 610

F.3d at 138), but the privilege does shield a document “even though it serves multiple purposes,

so long as [it] was prepared because of the prospect of litigation,” Deloitte, 610 F.3d at 138.

Here, Stein’s contention is not that the search slips he has requested would have been created

absent the McGehee litigation, but rather that they should have been. See Shapiro I, 153 F. Supp.

3d at 290. In Shapiro I, the Court noted that Stein’s argument raised a “novel question of law,”

but added that the argument was seemingly at odds with the need to permit lawyers to “work[]

with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their

counsel.” Id. at 291 (quoting Hickman v. Taylor, 329 U.S. 495, 510 (1947)). But, given the lack

of detail in the second Hardy declaration, and the absence of any controlling legal precedent, the

Court denied the FBI’s motion for summary judgment in order to permit more complete

development of the record. Id.

Hardy’s fifth declaration resolves the question. As Plaintiffs stress, Dkt. 67 at 18–19,

Hardy avers that the “records created by the litigation paralegal are similar on their faces to the

types of records that a FOIA processor would create when processing” a FOIA request. Dkt. 57-

36

3 at 7 (Fifth Hardy Decl. ¶ 11) (footnote omitted). But Hardy also identifies significant ways in

which the litigation paralegal’s search and accompanying records differed from that of an

ordinary FOIA processor:

These printouts [of searches performed by the paralegal] represent a more

expansive search than actually required by the FOIA and include information later

eliminated as not responsive or outside the scope of the request. Handwritten notes

appear on several of the pages reflecting a joint analysis between litigation counsel

and the litigation paralegal of each and every search “hit” and the basis for

including or eliminating the item from the potentially responsive materials. Notes

on the page reflect comparisons between the FOIA processor’s search and the

paralegal’s searches. The paralegal’s search was conducted in response to the

litigation attorney’s request for specific facts for use in the development of

litigation strategy, negotiations, and litigation risk assessment. The results of the

paralegal’s search were reviewed by both she and the litigation attorney for the

above-described purposes.

Id. at 9 (Fifth Hardy Decl. ¶ 18). Similarly, Hardy attests that printouts from the FBI’s File

Automated Control System “and analytical notes taken on them were . . . created and compiled

by the litigation paralegal at the direction of the litigation attorney, and were relied up on by the

attorney to refine litigation and negotiation strategy and responses.” Id. at 10 (Fifth Hardy Decl.

¶ 20).

Plaintiffs “concede[] that there may be some information in these records which would

not have been created but for the litigation,” but they argue that “the FBI has given the Court no

way to separate that wheat from the chaff of the entire file.” Dkt. 67 at 19. That is precisely the

concern the Court flagged for the parties in Shapiro I. As Court explained, “[o]ne reason for

observing the bright-line rule that any records created ‘because of’ litigation are protected—no

matter how similar they look to records that should otherwise have been created during the

ordinary course of business—is that, once litigation is brought, such records are in fact unlikely

to be compiled in precisely the same manner as they might have been before litigation was

contemplated.” Shapiro I, 153 F. Supp. 3d at 291. That is, the prospect of litigation “can

37

introduce strategic considerations into the compilation of even the most mundane records—

strategic considerations that might be revealed to one’s adversary were such records to be made

public through discovery, or, as here, through the operation of FOIA.” Id. In short, the difficulty

in separating the “wheat from the chaff” is not a product of the FBI’s lack of diligence, but the

inherent difficulty in determining whether and how records prepared because of litigation differ

from records that might have been created in the absence of litigation.

Given that the records at issue were created “because of” the McGehee litigation; the

evidence that those records differ in at least certain material respects from the records that would

have been generated in the absence of the litigation; and the inherent difficulty in determining

how the pendency of the litigation affected each specific entry, the Court will grant the FBI’s

motion for summary judgment as to the records requested by plaintiff Stein relating to the

McGehee litigation.

G. Official-Acknowledgment Doctrine

The parties also dispute one final issue left unresolved in Shapiro I. In particular,

plaintiffs National Security Counselors (“NSC”) and Stein sought records created by the FBI in

processing twelve FOIA requests submitted by other people. Shapiro I, 153 F. Supp. 3d at 284.

The FBI released six redacted pages but otherwise denied the requests pursuant to FOIA

Exemptions 6 and 7(C). According to the FBI, the FOIA requests sought records about third

parties—the original requesters—and that information could not be released without the express

consent of those third parties, evidence that the third parties were deceased, “or a clear

demonstration that the public interest in disclosure outweigh[ed] the personal privacy interest[s]”

at stake. Id. at 284–85. Plaintiffs did not, at least in general, dispute the applicability of

Exemptions 6 and 7(C), but instead argued that the FBI had waived any protection when it

38

disclosed the content of the records at issue in “sworn declarations” submitted in litigation

relating to the FBI’s responses to the “parent” FOIA requests. Id. at 285. Applying the “official-

acknowledgment” doctrine, the Court concluded that the FBI “properly withheld some material

under Exemption 7(C),” because the declarations filed in these earlier cases were “neither as

specific nor as detailed as the underlying search slips and processing notes.” Id. at 286. But that

did not resolve the issue because it is settled law in this circuit that an agency must disclose any

“non-exempt portions of a document . . . unless they are inextricably intertwined with exempt

portions,” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (citation

omitted), and “[n]either party . . . ha[d] addressed the segregability question.” Shapiro I, 153 F.

Supp. 3d at 286. The Court, accordingly, denied the parties’ cross-motion, but granted the FBI

leave to supplement the record with a further declaration addressing segregability. Id. at 287.

Hardy now represents that the FBI has “conducted a detailed segregability review of the

processing notes and search slips withheld in full in response to the” relevant NSC and Stein

requests. Dkt. 57-3 at 5 (Fifth Hardy Decl. ¶ 8). Based on this review, he attests “that the

information contained in the processing notes and search slips was more detailed and specific

than the summaries of such information included in the declarations;” “that any similar non-

exempt information in the processing notes and search slips was so inextricably intertwined with

exempt material not reproduced in the relevant declarations that no information could reasonably

be segregated for release without invading the third parties’ privacy interests;” and that “[a]ny

attempt to segregate this intertwined material would only produce disjointed words, phrases, or

sentences that taken separately or together would have minimal or no informational content.” Id.

Plaintiffs, in turn, respond that the FBI could easily segregate and turn over information in the

underlying search slips corresponding to information contained in the publicly available

39

declarations. They argue that if, for example, a declaration reveals that a search located three file

numbers, there would be no additional privacy problem with turning over the search slips

identifying the file numbers or the office in which they were located. Dkt. 67 at 20. And, they

assert that “it strains the imagination to envision a set of notes or search slips which can be

written about in significant detail in a sworn declaration but in which every single piece of

information in that declaration is ‘inextricably’ intertwined with other exempt information,” and

that the FBI “could easily just unredact the actual words used in the declaration.” Id.

The FBI’s most recent submission goes a long way toward addressing the Court’s

question regarding segregability. The Court agrees that, to the extent the redacted records would

reveal no more than “disjointed words, phrases, or even sentences which taken separately or

together have minimal or no information[al] content,” the FBI need not “commit significant time

and resources to” redacting the protected information. Mead Data Cent. v. U.S. Dep’t of the Air

Force, 566 F.2d 242, 261 n.55 (D.C. Cir. 1977). But, in light of Plaintiffs’ colorable contention

that the declarations submitted in the prior litigation revealed significant details about the

searches and that the FBI has waived any right to object to the disclosure of that information, and

given the potential value to Plaintiffs and the public of an ability to look behind the types of

agency declarations that typically dominate FOIA litigation, the Court will require the FBI to file

copies of the search slips from one randomly selected FOIA request, from which only the non-

public information has been redacted. To avoid any dispute between the parties regarding the

selection of this sample, the Court has randomly selected FOIA request number 1146761, one of

the twelve cases NSC sought records from in FOIA request number 1174832-000. See Dkt. 21-4

at 45.

40

The Court will, accordingly, deny the parties’ cross-motions for summary judgment

relating to the segregability of non-public information contained in the records responsive to the

NSC’s second FOIA request and Stein’s first FOIA request. After the FBI submits the sample,

redacted records described above, the parties may renew their respective motions for summary

judgment regarding this issue.

41

CONCLUSION

For the reasons stated above, the FBI’s motion for leave to file Hardy’s eighth declaration

ex parte and in camera is hereby GRANTED; Plaintiffs’ motion to strike the eighth Hardy

declaration and to make public portions of the third and sixth Hardy declarations is hereby

DENIED. The FBI’s motion for summary judgment is hereby GRANTED as to the application

of Exemption 7(E) to the search processing records relating to the forty-two “parent” FOIA

requests for which Shapiro received “No Records” responses; as to the application of FOIA

Exemption 1; and as to the application of Exemption 5 to the McGehee litigation documents, and

to the Zubaydah documents to the extent that they reflect deliberations about the FBI’s litigation

strategy and defense; and the motion is otherwise DENIED. Plaintiffs’ cross-motion for

summary judgment is hereby GRANTED as to the application of Exemption 7(A) to records

relating to the murder of Dr. Hyram Kitchen, and the motion is otherwise DENIED.

The parties are hereby ORDERED to appear for a status conference at 10:00 a.m. on

April 5, 2017, in Courtroom 21.

SO ORDERED.

/s/ Randolph D. Moss

RANDOLPH D. MOSS

United States District Judge

Date: March 6, 2017

42