Shapiro v. Department of Justice

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

RYAN NOAH SHAPIRO,

Plaintiff,

Civil Action No. 12-cv-313 (BAH)

v.

Chief Judge Beryl A. Howell

DEPARTMENT OF JUSTICE,

Defendant.

MEMORANDUM OPINION

Plaintiff, “a longtime animal rights activist” and “Ph.D. candidate”1 whose research

“focuses on disputes over animals and national security from the late nineteenth century to the

present,” First Amended Compl. (“FAC”) ¶ 2, ECF No. 13, challenges the Federal Bureau of

Investigation’s (“FBI”) and the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ (“ATF”)

responses to 83 requests for records he made under the Freedom of Information Act (“FOIA”), 5

U.S.C. §§ 552 et seq., and the Privacy Act (“PA”), id. § 552a. Def.’s Mem. Supp. Mot. Summ.

J. (“Def.’s Mem.”) at 1, ECF No. 97-1; FAC ¶ 518. Over the lengthy course of this litigation,

the Department of Justice (“DOJ”), of which both the FBI and ATF are components, has released

thousands of pages of records responsive to those requests. DOJ now believes its obligations

under both the FOIA and PA are met and seeks summary judgment. Def.’s Mot. Summ. J., ECF

No. 97. Plaintiff has requested time to conduct discovery to defend against DOJ’s motion, Pl.’s

Request for Discovery Pursuant to Rule 56(d) (“Pl.’s 56(d) Mot.”), ECF No. 102, while

1

It appears that plaintiff may have, during the pendency of this action, successfully attained his Ph.D. as

some of his papers now refer to him as “Dr. Shapiro.” See, e.g., Pl.’s Reply Supp. Cross-Mot. Summ. J. at 1, ECF

No. 125.

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simultaneously filing his own motion for summary judgment, Pl.’s Cross-Mot. Summ. J. (“Pl.’s

Summ. J. Mot.”), ECF No. 105. For the reasons set forth below, plaintiff’s motions for

discovery and summary judgment are denied, and DOJ’s motion for summary judgment is

granted in part and denied in part.

I. BACKGROUND

As this Court has previously pointed out, “[t]he plaintiff . . . is among the most prolific

requesters of materials from [DOJ].” Shapiro v. United States Dep’t of Justice, Civ. Action No.

12-313 (BAH), 2014 WL 12912625, *1 (D.D.C. Dec. 8, 2014). As relevant to the instant

litigation, plaintiff seeks information about what he calls the “Green Scare,” which he describes

as “the ongoing disproportionate, heavy-handed government crackdown on the animal rights and

environmental movements.” FAC ¶ 3 (citation and internal quotation marks omitted).

Beginning in 2005, as part of his doctoral research, plaintiff began submitting numerous FOIA

requests to the FBI and ATF. Id. ¶ 261. Over the next seven years, plaintiff submitted close to

500 such requests seeking records concerning individuals, organizations, books and other

publications, and events related to animal rights activism. See 2d Decl. of David M. Hardy (“2d

Hardy Decl.”) at 3 n.1, ECF No. 17-1.

At issue in this litigation are a fraction of those requests regarding 69 separate topics

covered in 83 requests that plaintiff submitted to the FBI and ATF between 2005 and 2012.2

These requests sought records from these two DOJ components regarding 42 named individuals,

2

A complete chronological listing of plaintiff’s requests is provided in the appendix attached to this

Memorandum Opinion.

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including the plaintiff himself,3 21 organizations,4 and 6 events or publications purportedly

concerning animal rights.5

3

As described in the FAC, the individuals are: (1) plaintiff, FAC ¶¶ 62–72; (2) Joseph Buddenberg, a

“leading animal rights activist,” id. ¶¶ 16, 133–37; (3) Julie Elizabeth Lewin, “a longtime leading animal rights

activist,” id. ¶¶ 18, 149–53; (4) Nathan Donald Runkle, “a longtime leading animal rights activist” and founder of

the animal rights organization known as “Mercy for Animals,” id. ¶¶ 20, 159–65; (5) Rodney Adam Coronado, “a

longtime leading animal rights activist,” id. ¶¶ 21, 166–70; (6) Steven Paul Best, “co-founder of the North American

Animal Liberation Press Office,” id. ¶¶ 22, 171–75; (7) Sean Diener, co-founder of the “Utah Animal Rights

Coalition” and the “United Animal Rights Coalition,” id. ¶¶ 24, 181–85; (8) Lauren Beth Gazzola, “a longtime

leading animal rights activist,” id. ¶¶ 25, 186–93; (9) Michael A. Budkie, founder of “Stop Animal Exploitation

Now,” id. ¶¶ 26, 194–98; (10) Peter Daniel Young, “a longtime leading animal rights activist,” id. ¶¶ 27, 199–203;

(11) Rick A. Bogle, “a longtime leading animal rights activist,” id. ¶¶ 28, 204–08; (12) Stephen Omar Hindi, “a

longtime leading animal rights activist,” id. ¶¶ 29, 209–13; (13) Alliston Helene Lance Watson, “a longtime leading

animal rights activist,” id. ¶¶ 30, 214–18; (14) Dallas Rachael Rising, a “longtime leading animal rights activist,” id.

¶¶ 32, 224–29; (15) Iver R. Johnson III, “a longtime leading animal rights activist,” id. ¶¶ 33, 230–34; (16) Kevin

Rich Olliff, id. ¶¶ 34, 235–39; (17) Kelly Ann Higgins, “a longtime animal rights activist,” id. ¶¶ 39, 269–73; (18)

Chris DeRose, “a leading activist[],” id. ¶¶ 45, 293–98; (19) Jack D. Carone, “a leading activist[],” id. ¶¶ 45, 299–

304; (20) Linda T. Tannenbaum, “a leading activist[],” id. ¶¶ 45, 305–10; (21) Crescent Vellucci, “a leading

activist[],” id. ¶¶ 45, 311–16; (22) Jonathan Christopher Mark Paul, id. ¶¶ 45, 317–22; (23) Leslie Stewart, “a

leading activist[],” id. ¶¶ 45, 323–28; (24) Sheila Laracy, “a leading activist[],” id. ¶¶ 45, 329–34; (25) Henry

Hutto, “a leading activist[],” id. ¶¶ 45, 335–40; (26) Aaron Glenn Leider, “a leading activist[],” id. ¶¶ 45, 341–45;

(27) Lindsay Parme, a “leading activist[],” id. ¶¶ 49, 370–82; (28) Kimberly Ann Berardi, a “leading activist[],” id.

¶¶ 49, 383–88; (29) Freeman Wicklund, a “leading activist[],” id. ¶¶ 49, 389–94; (30) Patrick Kwan, a “leading

activist[],” id. ¶¶ 49, 395–99; (31) Peter George Schnell, a “leading activist[],” id. ¶¶ 49, 400–04; (32) Adam

Weissman, a “leading activist[],” id. ¶¶ 49, 405–09; (33) Andrea Joan Lindsay, a “leading activist[],” id. ¶¶ 49,

410–14; (34) Josh Trenter, a “leading activist[],” id. ¶¶ 49, 415–19; (35) Joseph W. Bateman, a “leading activist[],”

id. ¶¶ 49, 420–24; (36) David Patrick Hayden, a “leading activist[],” id. ¶¶ 49, 425–29; (37) Miyun Park, a “leading

activist[],” id. ¶¶ 49, 430–52; (38) Gina Lynn, a “leading activist[],” id. ¶¶ 49, 453–58; (39) Sarah Jane Blum, a

“leading activist[],” id. ¶¶ 49, 459–65; (40) William Edward Potter, author of Green Is the New Red, id. ¶¶ 50–51,

474–478; (41) Camille Marino, “one of the most controversial animal rights activists in the United States today,” id.

¶¶ 61, 511–16; and (42) Screaming Wolf “the pseudonymous name adopted by the unknown author” of a 1991

publication titled “A Declaration of War: Killing People to Save Animals and the Environment,” (“A Declaration of

War”), id. ¶¶ 52, 479–86.

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As described in the FAC, the organizations are: (1) Compassion Over Killing (“COK”), “a leading animal

rights organization,” FAC ¶¶ 10, 73–87; (2) The Foundation for Biomedical Research (“FBR”), which plaintiff calls

a “leading professional opponent[] of the animal rights movement,” id. ¶¶ 11, 88–92; (3) The National Association

for Biomedical Research (“NABR”), also called a “leading professional opponent[] of the animal rights movement”

by plaintiff, id. ¶¶ 11, 93–97; (4) Americans for Medical Progress (“AMP”), also called a “leading professional

opponent[] of the animal rights movement” by plaintiff, id. ¶¶ 11, 98–102; (5) The Centers for Consumer Freedom

(“CCF”), another “opponent[] of the animal rights movement,” id. ¶¶ 12, 108–12; (6) The National Animal Interest

Alliance (“NAIA”), yet another “opponent[] of the animal rights movement,” id. ¶¶ 12, 113–17; (7) The Fur

Information Council of America (“FICA”), “a leading professional advocate of the fur trade,” id. ¶¶ 13, 118–22; (8)

Perceptions International (“PI”), “a corporate intelligence and security firm,” id. ¶¶ 14, 123–27; (9) The United

States Surgical Corporation (“USSC”), “a manufacturer of surgical staplers” and “a longtime target of animal rights

protests,” id. ¶¶ 15, 128–32; (10) Friends of Animals (“FOA”), “a longtime leading animal rights organization,” id.

¶¶ 17, 138–48; (11) Mercy for Animals (“MFA”), “a leading animal rights organization,” id. ¶¶ 19, 154–58; (12)

Utah Animal Rights Coalition (“UARC”) and United Animal Rights Coalition (“UARC”), “leading Utah-based

animal rights organizations,” id. ¶¶ 23, 176–80; (13) The Fund for Animals (“FFA”), “a leading animal rights

organization,” id. ¶¶ 31, 219–23; (14) The American Anti-Vivisection Society (“AAVS”), “the oldest organization

opposing animal experimentation in the United States,” id. ¶¶ 36, 245–53; (15) The New England Anti-Vivisection

Society (“NEAVS”), “one of the oldest organizations opposing animal experimentation in the United States,” id.

¶¶ 37, 254–60; (16) The National Anti-Vivisection Society (“NAVS”), another of “the oldest organizations

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DOJ ’s response to this deluge of requests, however, was not as quick as plaintiff hoped,

and on October 18, 2011, he initiated this lawsuit, alleging the agency’s failure to produce

records in response to his requests regarding himself and COK violated FOIA. Complaint,

Shapiro v. United States Dep’t of Justice, Civ. Case No. 11-1835 (BAH) (D.D.C. Oct. 18, 2011).

On February 21, 2012, the parties agreed that DOJ would disclose records responsive to those

requests by May 15, 2012, with a schedule for any necessary dispositive motions. Min. Order

(Feb. 21, 2012), Shapiro v. United States Dep’t of Justice, Civ. Case No. 11-1835 (BAH)

(D.D.C. Feb. 21, 2012).

Six days later, however, plaintiff filed three additional lawsuits alleging that DOJ’s

failure to produce records in response to a number of his other requests also constituted

violations of FOIA.6 This Court directed the parties to show cause why all four cases should not

be consolidated. Min. Order (Mar. 1, 2012). Plaintiff agreed to consolidation of only three of

opposing animal experimentation in the United States,” id. ¶¶ 38, 261–68; (17) The Animal Liberation Front, “an

underground direct action animal rights organization,” id. ¶¶ 40, 274–79; (18) The Animal Liberation Front

Supporters Group, id. ¶¶ 46, 346–53; (19) Animal Defense League (“ADL”), “a militant, grassroots animal rights

organization,” id. ¶¶ 47–49, 354–60; (20) No Compromise, “a leading militant, grassroots animal rights magazine,”

id. ¶¶ 48, 361–69; and (21) Last Chance for Animals (“LCA”), “a seminal American animal rights organization,” id.

¶¶ 44–46, 286–92.

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As described in the FAC, the seven events or publications purportedly concerning animal rights are: (1)

The Animal Liberation Front Conference, a 1994 FBI conference, FAC ¶¶ 35, 240–44; (2) the publication A

Declaration of War, id. ¶¶ 52–56, 487–93; (3) the 1990 murder of Hyram Kitchen, the former Dean of the College

of Veterinary Medicine at the University of Tennessee, id. ¶¶ 57–60, 494–510; (4) a 1990 “alert issued by the FBI’s

National Crime Information Center (NCIC) regarding the possibility of violence against unknown veterinary school

deans by unknown animal rights activists,” id. ¶ 505; (5) Green Is the New Red, a book and blog authored by Will

potter focusing on “eco-terrorism, the animal rights and environmental movements, and civil liberties in the post-

9/11 era,” id. ¶¶ 50–51, 466–73 (internal quotation marks omitted); and (6) the 1988 attempted bombing of the

USSC, id. ¶¶ 41–43, 280–85.

6

The first case concerned plaintiff’s requests regarding ADL, No Compromise, Lindsay Parme, Kimberly

Ann Berardi, Freeman Wicklund, Patrick Kwan, Peter George Schnell, Adam Weissman, Andrea Joan Lindsay, Josh

Trenter, Joseph W. Bateman, David Patrick Hayden, Miyun Park, Gina Lynn, and Sarah Jane Blum. Compl. at 1–

24, ECF No. 1. The second suit concerned plaintiff’s requests for records regarding LCA, Chris DeRose, Jack D.

Carone, Linda T. Tannenbaum, Crescent Vellucci, Jonathan Christopher Mark Paul, Leslie Stewart, Sheila Laracy,

Henry Hutto, Aaron Glenn Leider, and the ALFSG. Complaint at 1–15, Shapiro v. United States Dep’t of Justice,

Civ. No. 12-315-BAH (D.D.C. Feb. 27, 2020). The final suit covered plaintiff’s requests for records regarding ALF

and the USSC attempted bombing. Complaint at 1–8, Shapiro v. United States Dep’t of Justice, Civ. No. 12-318-

BAH (D.D.C. Feb. 27, 2020).

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the four cases, as the parties had already made some progress in the earliest filed case, see Pl.’s

1st Mot. for Leave to File FAC at 1, ECF No. 6, while DOJ wanted all four cases consolidated,

see Def.’s Opp’n to Pl.’s Mot. for Leave to File FAC at 1, ECF No. 9. The Court ordered all

four cases to be consolidated, Mem. Op. & Order (Jun. 12, 2020) at 3, ECF No. 11, and

subsequently granted plaintiff leave to file a first amended complaint, which was filed on June

19, 2012, setting forth all of the claims asserted in the four separate actions “together with

several additional claims against the same defendant.” Pl.’s 2d Mot. for Leave to File FAC at 1,

ECF No. 12.

The parties then set out to determine how DOJ would respond to this omnibus action.

DOJ was ordered to produce records responsive to plaintiff’s COK request by July 20, 2012, and

plaintiff was directed to submit a “priority list” of his requests in order for the FBI and ATF to

determine a schedule for subsequent disclosures. Min. Order (Jul. 11, 2012). After plaintiff

submitted his priority list, DOJ moved to stay the case until September 30, 2019. Def.’s Mot. for

Open America Stay (“Def.’s Stay Mot.”) at 1, ECF No. 17. Litigation over the stay motion then

took center stage until, on December 8, 2014, DOJ’s motion was granted, in part, with litigation

stayed until September 30, 2017, owing to the “unusually voluminous, complicated, and

interconnected” nature of plaintiff’s requests. Mem. Opinion and Order (Dec. 8, 2014) (“Stay

Order”) at 2, ECF No. 61.

To address plaintiff’s record requests, DOJ divided plaintiff’s priority list into five tiers,

2d Hardy Decl. ¶ 38, and over the following three years, set about searching for, reviewing,

processing, and releasing records responsive to plaintiff’s requests. For “Tier 1” requests, DOJ

reviewed 56,581 responsive pages and released 17,727 pages in part or in full, 5th Decl. of David

M. Hardy ¶ 5, ECF No. 67-1, and also reviewed 29 pieces of non-documentary media (i.e., CDs

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and DVDs) and released 23, 6th Decl. of David M. Hardy ¶ 5, ECF No. 70-1. For “Tier 2”

requests, out of 41,028 pages reviewed, 1,851 pages were released, 7th Decl. of David M. Hardy

¶ 5, ECF 71-1, and out of 14 CDs/DVDs reviewed, 1 was released, 8th Decl. of David M. Hardy

¶ 5, ECF 72-1. For “Tier 3” requests, out of 39,125 pages reviewed, 12,186 pages were released,

9th Decl. of David M. Hardy ¶ 5, ECF No. 73-1, and out of 64 CDs/DVDs reviewed, 3 were

released, 10th Decl. of David M. Hardy ¶ 5,7 ECF No. 74-1. For “Tier 4” requests, out of 12,862

pages reviewed, 5,391 pages were released, 11th Decl. of David M. Hardy ¶ 5, ECF No. 76-1,

and all 13 CDs/DVDs responsive to those requests were withheld, 12th Decl. of David M. Hardy

¶ 5, ECF No. 77-1. Finally, for “Tier 5” requests, out of 1,774 pages reviewed, 904 pages were

released, 13th Decl. of David M. Hardy ¶ 5, ECF No. 78-1, and out of 37 CDs/DVDs, 1 was

released, 14th Decl. of David M. Hardy ¶ 5, ECF No. 79-1. In preparing these “tiered” releases,

the FBI also reviewed and withheld “approximately 460,054 pages” related to then-pending

investigations. 15th Declaration of David M. Hardy (“15th Hardy Decl.”) ¶ 47, ECF No. 97-3.

In all, then, the FBI reviewed over 614,000 pages of records and nearly 160 CDs/DVDs

responsive to plaintiff’s requests and released approximately 38,788 pages and 28 CDs/DVDs to

plaintiff.

Some of the requests plaintiff sent to the FBI turned up records that belonged to the ATF.

Decl. of Peter J. Chisholm (“Chisholm Decl.”) ¶ 3, ECF No. 97-11. When that would happen,

the FBI would refer the documents to the ATF for determination of whether any of the

documents could be released. The ATF thus processed 509 pages of records pursuant to the

FBI’s referrals or requests for consultation, 17 of which were withheld in full and the remainder

of which were released in full or in part. See generally, Chisholm Decl.; Chisholm Decl., Ex. A

7

This document was mistitled the “Eighth Declaration of David M. Hardy.” It was, in fact, the 10th

declaration filed by the FBI’s declarant.

6

(“ATF Vaughn Index”), ECF No. 97-12. Plaintiff also sent a single FOIA request directly to the

ATF. Chisholm Decl. ¶ 10. That request led to the partial disclosure to the plaintiff of a single

4-page document. Id. ¶ 25; ATF Vaughn Index at 23.

After DOJ completed its disclosures, the parties agreed on a “sample” briefing method.

Joint Status Report (“JSR”) (Oct. 20, 2017), ECF No. 86. Under this sampling method,

explained below in greater detail, the parties selected a small sample of the records responsive to

plaintiff’s requests to use in testing the propriety of FBI’s withholdings. Id. The parties adopted

a more traditional briefing method to test the validity of the ATF’s withholdings. DOJ relies on

FOIA Exemptions 1, 3, 4, 5, 6, 7(A), 7(C), 7(D), and 7(E) to justify its withholdings as set out in

the FBI’s and ATF’s Vaughn Indexes, see 15th Hardy Decl., Ex. A (“FBI Vaughn Index”), ECF

No. 97-4; ATF Vaughn Index, and further explained in two declarations from David M. Hardy,

Section Chief of the FBI’s Record/Information Dissemination Section (“RIDS”), see 15th Hardy

Decl.; 16th Decl. of David M. Hardy (“16th Hardy Decl.”), ECF No. 113-1, and the declaration

of Peter J. Chisholm, Chief of the Disclosure Division at the ATF, see Chisholm Decl. Plaintiff

objects to the invocation of each FOIA exemption. See generally Pl.’s Mem. Supp. Cross-Mot.

Summ. J. & Opp’n Def.’s Mot. Summ. J. (“Pl.’s Opp’n”), ECF No. 105-1.

Based on the sample of processed records and the accompanying government filings, the

parties have cross-moved for summary judgment. Def.’s Summ. J. Mot., ECF No. 97; Pl.’s

Summ. J. Mot. Plaintiff also contends that he cannot adequately defend against DOJ’s summary

judgment motion with respect to the adequacy of the FBI’s search for responsive records and has

thus requested time to undertake discovery on that issue. Pl.’s 56(d) Mot. Over a year after the

filing of DOJ’s initial motion for summary judgment, including the submission of three briefs,

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four declarations, and 386 pages of exhibits by DOJ and four briefs, one declaration, and 379

pages of exhibits by plaintiff, the pending motions became ripe for resolution at the end of 2019.

II. LEGAL STANDARDS

A. Rule 56(a)

Under Federal Rule of Civil Procedure 56, summary judgment shall be granted “if the

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). “In FOIA cases, summary judgment may

be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather

than merely conclusory statements, and if they are not called into question by contradictory

evidence in the record or by evidence of agency bad faith.” Aguiar v. DEA, 865 F.3d 730, 734–

35 (D.C. Cir. 2017) (internal quotation marks omitted) (quoting Judicial Watch, Inc. v. United

States Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013)); see also Students Against Genocide v.

Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (“[A]n agency is entitled to summary

judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls

within the class requested either has been produced . . . or is wholly exempt from the Act’s

inspection requirements.’” (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978))). Most

FOIA cases will be resolved on summary judgment. Brayton v. Office of the U.S. Trade

Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).

FOIA was enacted “to promote the ‘broad disclosure of Government records’ by

generally requiring federal agencies to make their records available to the public on request.”

DiBacco v. United States Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (quoting United States Dep’t

of Justice v. Julian, 486 U.S. 1, 8 (1988)). To balance the public’s interest in governmental

transparency and “legitimate governmental and private interests [that] could be harmed by

release of certain types of information,” Judicial Watch, Inc. v. United States Dep’t of Defense,

8

913 F.3d 1106, 1108 (D.C. Cir. 2019) (internal quotation marks omitted) (quoting FBI v.

Abramson, 456 U.S. 615, 621 (1982)), FOIA has nine exemptions, set forth in 5 U.S.C. § 552(b),

which “are ‘explicitly made exclusive’ and must be ‘narrowly construed,’” Milner v. Dep’t of the

Navy, 562 U.S. 562, 565 (2011) (citations omitted) (first quoting EPA v. Mink, 410 U.S. 73, 79

(1973); and then quoting Abramson, 456 U.S. at 630). “[T]hese limited exemptions do not

obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.”

Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976).

FOIA authorizes federal courts to “enjoin the agency from withholding agency records

and to order the production of any agency records improperly withheld from the complainant.” 5

U.S.C. § 552(a)(4)(B). District courts must “determine de novo whether non-disclosure was

permissible.” Elec. Privacy Info. Ctr. v. United States Dep’t of Homeland Sec., 777 F.3d 518,

522 (D.C. Cir. 2015). “FOIA places the burden ‘on the agency to sustain its action,’ and the

agency therefore bears the burden of proving that it has not ‘improperly’ withheld the requested

records.” Citizens for Responsibility & Ethics in Wash. v. United States Dep’t of Justice, 922

F.3d 480, 487 (D.C. Cir. 2019) (citations omitted) (first quoting 5 U.S.C. § 552(a)(4)(B) and then

quoting United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989)); see also

United States Dep’t of Justice v. Landano, 508 U.S. 165, 171 (1993) (noting that “[t]he

Government bears the burden of establishing that the exemption applies”). This burden does not

shift even when the requester files a cross-motion for summary judgment because “the

Government ‘ultimately [has] the onus of proving that the [documents] are exempt from

disclosure,’” while the “burden upon the requester is merely ‘to establish the absence of material

factual issues before a summary disposition of the case could permissibly occur.’” Pub. Citizen

9

Health Research Grp. v. FDA, 185 F.3d 898, 904–05 (D.C. Cir. 1999) (alterations in original)

(quoting Nat’l Ass’n of Gov’t Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)).

B. Rule 56(d)

Federal Rule of Civil Procedure 56(d) provides that a court “may deny a motion for

summary judgment or order a continuance to permit discovery if the party opposing the motion

adequately explains why, at that timepoint, it cannot present by affidavit facts needed to defeat

the motion.” Strang v. United States Arms Control and Disarmament Agency, 864 F.2d 859, 861

(D.C. Cir. 1989) (emphasis in original). The party requesting relief bears the burden of

“show[ing] what facts he intend[s] to discover that would create a triable issue and why he could

not produce them in opposition to” the motion for summary judgment. Byrd v. EPA, 174 F.3d

239, 248 n.8 (D.C. Cir. 1999). That burden, however, cannot be satisfied by “conclusionary

assertion[s] without any supporting facts,” id., and the party seeking discovery must identify

“with sufficient particularity why additional discovery is necessary,” United States ex rel.

Folliard v. Gov’t Acquisitions, Inc., 764 F.3d 19, 26 (D.C. Cir. 2014) (quoting Convertino v.

United States Dep’t of Justice, 684 F.3d 93, 99 (D.C. Cir. 2012)). “District Courts,” however,

“are afforded discretion in ruling on requests for additional discovery pursuant to” Rule 56(d).

Stella v. Mineta, 284 F.3d 135, 147 (D.C. Cir. 2002). Indeed, given that discovery management

entails the kind of supervision of “the to-and-fro of district court litigation” that “falls within the

expertise . . . of district courts,” Watts v. SEC, 482 F.3d 501, 507 (D.C. Cir. 2007), that discretion

“is at its zenith,” Folliard, 764 F.3d at 26 (citing Gaujacq v. EDF, Inc., 601 F.3d 565, 580 (D.C.

Cir. 2010)).

III. DISCUSSION

Before analyzing the parties’ cross-motions for summary judgment, determining whether

that analysis would be premature is appropriate. Plaintiff’s motion under Rule 56(d) is thus

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discussed first. As plaintiff fails to show that the requested discovery is necessary, consideration

of the parties’ cross-motions for summary judgment follows.

A. PLAINTIFF FAILS TO DEMONSTRATE A NEED FOR DISCOVERY

Plaintiff claims that he cannot yet properly oppose DOJ’s motion for summary judgment

with respect to the adequacy of the FBI’s search for responsive records. Consequently, he

requests an opportunity, pursuant to Federal Rule of Civil Procedure 56(d), to undertake

discovery on that issue. Rule 56(d) provides that, if a party opposing summary judgment “shows

by affidavit or declaration that, for specified reasons, [he] cannot present facts essential to justify

[his] opposition, the court may” do one of the following: “(1) defer considering the motion [for

summary judgment] or deny it; (2) allow time to obtain affidavits or declarations or to take

discovery; or (3) issue any other appropriate order.” FED. R. CIV. P. 56(d). “Convertino [v.

United States Department of Justice, 684 F.3d 93 (D.C. Cir. 2012)], established the applicable

standard” for deciding whether consideration of a motion for summary judgment must be

delayed. Haynes v. Dist. of Columbia Water and Sewer Auth., 924 F.3d 519, 532 (D.C. Cir.

2019). In order to secure the postponement he seeks, plaintiff must “(1) outline the particular

facts [he] intends to discover and describe why those facts are necessary to the litigation;

(2) explain why [he] could not produce the facts in opposition to the motion for summary

judgment; and (3) show the information is in fact discoverable.” Id. at 530 (quotation marks and

alterations omitted) (quoting Convertino, 684 F.3d at 99–100). Whether the nonmovant has

“diligently pursued discovery of the evidence” he seeks is also relevant. Folliard, 764 F.3d at 26

& n.5 (internal quotation marks omitted) (quoting Convertino, 684 F.3d at 99). “This inquiry

must be resolved through ‘application of the Convertino criteria to the specific facts and

circumstances presented in the request,’ rather than on the basis of presumptions about a given

stage of litigation.” Haynes, 924 F.3d at 530 (quoting Folliard, 764 F.3d at 27).

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That plaintiff’s request for discovery is made in the FOIA context makes this an uphill

challenge for him since the law is well settled that “discovery is generally ‘disfavored’ in mine-

run FOIA cases.” Am. Ctr. for Law and Justice v. United States Dep’t of State, 289 F. Supp. 3d

81, 92 (D.D.C. 2018) (quoting Justice v. IRS, 798 F. Supp. 2d 43, 47 (D.D.C. 2011)). Instead, so

long as an agency “establish[es] the adequacy of its search by submitting reasonably detailed,

nonconclusory affidavits describing its efforts . . . the district court ha[s] discretion to forgo

discovery and award summary judgment on the basis of affidavits.” Freedom Watch, Inc. v.

Nat’l Sec. Agency, 783 F.3d 1340, 1345 (D.C. Cir. 2015) (internal quotation marks and citation

omitted) (quoting Baker & Hostetler LLP v. United States Dep’t of Commerce, 473 F.3d 312,

318 (D.C. Cir. 2006) and Goland, 607 F.2d at 352). Those affidavits or declarations must, of

course, be “submitted in good faith,” Goland, 607 F.2d at 352, but agency affidavits are

generally accorded “a presumption of good faith, which cannot be rebutted by purely speculative

claims.” Bartko v. United States Dep’t of Justice, 898 F.3d 51, 74 (D.C. Cir. 2018) (internal

quotation marks omitted) (quoting SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C.

Cir. 1991)). Discovery is therefore the exception in FOIA cases and, so long as the agency’s

affidavit passes muster and is “submitted in good faith,” discovery requests should be denied.

Baker & Hostetler, 473 F.3d at 318 (D.C. Cir. 2006) (quoting Schrecker v. Dep’t of Justice, 217

F. Supp. 2d 29, 35 (D.D.C. 2002)).

This FOIA-specific aversion to discovery does not change the standard announced in

Convertino for determining whether to pause summary judgment proceedings under Rule 56(d).

It does, however, color the first Convertino factor. Specifically, to show that the requested

discovery is “necessary to the litigation,” Convertino, 684 F.3d at 99, plaintiff must explain why

the FBI’s affidavits describing its search methods are not submitted in good faith such that

12

discovery is warranted. Baker & Hostetler, 473 F.3d at 318. A brief description of the relevant

affidavits submitted by the FBI is thus in order.

The FBI first described its search methods on August 1, 2012, during its successful

attempt to secure a multi-year-long stay of this case. In a declaration by the agency’s Section

Chief of the Record/Information Dissemination Section (“RIDS”), the FBI explained how its

records are organized. To begin, the FBI maintains a “Central Records System (‘CRS’),” which

contains “all information that it has acquired in the course of fulfilling its mandated law

enforcement responsibilities.” 2d Hardy Decl. ¶ 10. These CRS records are organized by

“General Indices,” which represent “various subject matters” and can be searched “manually or

through . . . automated indices.” Id. ¶ 11. To complete such a search, the FBI uses a case

management system known as the Automated Case Support (“ACS”) system. Id. ¶ 13. More

specifically, the “Universal Index (‘UNI’),” an application within ACS, allows FBI personnel to

search “a complete subject/case index to all investigative and administrative cases.” Id. ¶ 13(c).

Apart from CRS, the FBI maintains the “Electronic Surveillance (‘ELSUR’) Indices.” Id.

¶ 15. ELSUR indices are “used to maintain information on subjects whose electronic and/or

voice communications have been intercepted” by the FBI since 1960. Id. In its 2012

declaration, the FBI did not explain how, precisely, the ELSUR indices are searched except to

say that agency personnel “access[]” ELSUR records “electronically.” Id. The FBI has since

made clear that, when ACS was implemented in 1995, “prior ELSUR indices” interfaced with

that system, meaning that “ELSUR indexed data could be searched through ACS/UNI.” 16th

Hardy Decl. ¶ 115.

As for the searches in response to plaintiff’s FOIA requests referenced in plaintiff’s First

Amended Complaint, the FBI explained that RIDS “quer[ied] CRS using the name of the

13

individual or organization identified by plaintiff in his request, and/or by using key words

derived from plaintiff’s requests where the request was not about a specific individual or

organization.” 2d Hardy Decl. ¶ 19. Using ACS, the FBI also searched CRS by breaking down

the search terms phonetically. Id. When it had additional identifying information for the subject

of a request, e.g., “dates of birth, places of birth, and/or social security numbers,” RIDS would

use it to “ensure search results pertained to the correct individual at issue in plaintiff’s requests.”

Id. The searches encompassed both “main files,” which are records corresponding to the subject

of a request itself, and “reference entries,” records which contain “only a mere mention or

reference” to the subject of a request. Id. ¶¶ 11, 20.

With respect to ELSUR records requested by the plaintiff, “RIDS . . . completed searches

of those indices for the subjects plaintiff identified in his requests.” Id. ¶ 21. The FBI’s 2012

declaration does not go into much detail about how RIDS “completed” those searches of the

ELSUR indices. Subsequent declarations, however, clarified how the FBI searched for ELSUR

records in this case. Prior to 2015, when the searches for plaintiff’s requested records would

have been conducted, if RIDS received a request for ELSUR records, it would “contact[] the FBI

personnel that manage the ELSUR database” to conduct a search of the ELSUR indices and

report the results back to RIDS. 16th Hardy Decl. ¶ 115. ELSUR personnel, it turns out,

searched the ELSUR indices using the exact same method RIDS used to look for records, i.e. a

“search[] of ACS/UNI.” Id.

In his attempt to meet the first Convertino factor, plaintiff questions whether the

declarations submitted by the FBI relevant to the adequacy of its search for ELSUR records were

submitted in good faith. Plaintiff, through his attorney’s declaration, points to a hodgepodge of

documents obtained in separate FOIA litigation brought by plaintiff and others that purportedly

14

“paint[] a picture of a complex series of FBI systems for the storage, retrieval, indexing, and

searching” of and for ELSUR materials. Decl. of Jeffrey Light (“Light Decl.”) ¶ 11, ECF No.

102-2; see also generally Pl.’s 56(d) Mot., Exs. 1–8, ECF 102-1. According to plaintiff, the

documents also contain numerous “conflicting statements about FBI searches for ELSUR

material in response to FOIA and Privacy Act requests.” Light Decl. ¶ 11. Plaintiff argues that

these alleged inconsistencies and inaccuracies create a specter of “bad faith,” Pl.’s 56(d) Mot. at

3, and thus entitle him to far-reaching discovery into, inter alia, the manner in which ELSUR

records are stored, the search capabilities of various FBI programs, and the policies and practices

of RIDS with respect to searches for ELSUR materials. Light Decl. ¶ 18.

Plaintiff’s presentation of certain documents that he claims suggest the FBI submitted its

declarations in bad faith is simply not persuasive. Some of those documents long pre-date the

searches in this case, some relate to searches in other cases, some do not relate to FOIA searches

at all, and those that do relate to the FOIA requests at issue in this case are at least consistent

with, and even helpful to, the FBI’s description of the ELSUR searches it conducted. To begin,

plaintiff points to a declaration filed in a different case by the same FBI official who authored the

relevant declarations in this case. Pl.’s 56(d) Mot. at 2. In it, the FBI declarant explains that

prior to February 2015, he and his team understood that to search for ELSUR records, they

needed to forward requests to ELSUR personnel, as they did in this case. In 2015, however,

RIDS discovered that, because the ELSUR indices had interfaced with the ACS/UNI case

management system, those records were accessible through that application. In fact, it became

clear that when RIDS forwarded a request to ELSUR personnel, those agents were running the

exact same search that RIDS was conducting itself. Pl.’s 56(d) Mot. at 2; 16th Hardy Decl.

15

¶ 115. This revelation, which post-dates the searches in this case, serves only to show that, to the

extent RIDS forwarded plaintiff’s requests to ELSUR personnel, it did so needlessly.8

Plaintiff attempts to muddy the waters by pointing to a 1998 internal FBI memorandum

sent to FOIA personnel instructing agents to limit ELSUR searches “to only retrieving [ELSUR]

information on those individuals considered as a target of the investigation and listed as a

‘principal’ for the electronic surveillance.” Pl.’s 56(d) Mot., Ex. 5 at 1. The memorandum

explains that “principal” means “the target” of the electronic surveillance, id. at 2, noting that an

ELSUR search may turn up two other kinds of references: “overhear[s],” which are

conversations of someone other than a principal that have been recorded, and “mention[s],”

which indicate that a participant in a recorded conversation mentioned the name of a third party,

id. Plaintiff admits that, because this memorandum was circulated 13 years before this litigation

commenced, he does not know whether the policies it describes “were still in effect at the time

the FBI conducted searches in this case.” Light Decl. ¶ 6. Absent more, plaintiff’s assertion that

the FBI improperly limited the scope of the search for ELSUR records is thus “purely

speculative,” and cannot overcome the presumption of good faith the FBI’s declaration must be

afforded. Bartko, 898 F.3d at 74 (quoting SafeCard Servs., Inc., 926 F.2d at 1200).9

The same conclusion applies to plaintiff’s reliance on an FBI training PowerPoint

obtained via an unrelated FOIA request. That PowerPoint describes “[f]our separate [ELSUR]

record categories,” including “principal records,” “proprietary interest records,” “intercept

8

Plaintiff also points to the FBI’s declarant’s deposition testimony taken in another case regarding RIDS’s

search procedures that “[i]f it looks like there could be ELSUR documents, then we’ll do an ELSUR search.” Light

Decl. ¶ 9; Pl.’s 56(d) Mot., Ex. 8 at 45. This deposition was taken on October 22, 2009, at least five years before the

FBI’s declarant says he realized a separate ELSUR search was unnecessary. His testimony in that case is therefore

consistent with his declarations in this case.

9

To the extent that plaintiff argues the documents he has produced call into question the adequacy of the

FBI’s search, that is a different question, discussed supra in Part III.B.1. To require discovery, however, plaintiff

must do more than suggest the agency’s search was inadequate by producing some evidence that calls into question

the agency’s good faith.

16

records,” and “reference records.” Pl.’s 56(d) Mot., Ex. 6 at 5 (capitalization altered). As

plaintiff’s declarant concedes, however, “the training material does not indicate which of these

separate record categories are to be searched.” Light Decl. ¶ 7. The training material sheds no

light on whether the FBI’s description of its ELSUR searches was made in good faith and

therefore does not bear on whether discovery is warranted in this action.

Nor does plaintiff’s discussion of three systems related to the management of ELSUR

records present any evidence of bad faith on the part of the FBI. Plaintiff has submitted a

description of something called the ELSUR Data Management System (“EDMS”). Pl.’s 56(d)

Mot., Ex. 2.10 He also submits a 2013 FBI memorandum regarding certain whistleblower

allegations. In determining that the allegations were unfounded, the memorandum described the

FBI’s replacement, in 2012, of the ELSUR Records System (“ERS”), which was an

“alphanumeric and numeric index” of ELSUR records, with the ELSUR Data Application

(“EDA”), a new ELSUR index with improved search functionality and ease of use. Pl.’s 56(d)

Mot., Ex. 1 at 4 n.1, 7. Finally, plaintiff submits two documents, obtained in response to his

FOIA request for documents related to how the FBI processed the FOIA requests at issue in this

case (what he calls a “FOIA about FOIA”), indicating that both the ERS and EDA were

searched. Pl.’s 56(d) Reply, Exs. 1–2, ECF 123-1. That the FBI maintains other applications

related to ELSUR records does nothing to call into question the FBI declarant’s statement that, in

1995, “the ELSUR indices interfaced with ACS/UNI, and ELSUR indexed data could be

searched through ACS/UNI.” 16th Hardy Decl. ¶ 115. Plaintiff’s own submission describes the

ERS as an “index,” and it is safe to assume that its replacement, the EDA, is also an index of

ELSUR records. Pl.’s 56(d) Mot., Ex. 1 at 4 n.1. Plaintiff’s submission is thus entirely

10

The description appears to be contained in a request for funds to improve EDMS in fiscal year 2008,

though its origin is neither clear nor explained.

17

consistent with the FBI’s declaration—the ERS and the later-implemented EDA are indices of

ELSUR records that “interfaced with ACS/UNI” and could be searched via that application. At

best, the documents plaintiff obtained in his “FOIA about FOIA” request show that ELSUR

personnel may have searched the ERS and EDA directly, and do nothing to suggest that the

FBI’s declarations were not “submitted in good faith.” Goland, 607 F.2d at 352.

Over the eight years this case has been pending, some change in records management and

search processes on the part of the FBI is hardly surprising. Plaintiff’s attempt to use that natural

development of agency procedures as evidence of agency bad faith is insufficient. He has thus

failed to show why discovery, eschewed in FOIA litigation absent a showing of agency bad faith,

is “necessary” in this case. Convertino, 684 F.3d at 99.

Accordingly, plaintiff’s motion for discovery under Rule 56(d) is denied.

B. FBI AND ATF SEARCHES WERE ADEQUATE

Plaintiff contends that “[i]n the event that the Court denies [his 56(d)] motion,” as it has,

“the FBI’s Motion for Summary Judgment” should be denied “as to the adequacy of the search”

performed for the records he requested. Pl.’s Opp’n at 1. Plaintiff focuses his complaints

regarding search adequacy on the search performed by the FBI and does not point to any

deficiencies in the search performed by the ATF. Nevertheless, both the FBI and ATF have

requested summary judgment as to the adequacy of each agency’s search, and it is their “burden

. . . to sustain [their] action[s].” 5 U.S.C. § 552(a)(4)(B); see also Citizens for Responsibility and

Ethics in Washington v. United States Dep’t of Justice, 922 F.3d 480, 487 (D.C. Cir. 2019). The

legal standard for determining whether an agency has met that burden is discussed first, followed

by examination of the adequacy of the searches performed by the FBI and the ATF.

18

1. Legal Standard

To obtain summary judgment with respect to the adequacy of its search, an agency must

“demonstrate beyond material doubt that its search was reasonably calculated to uncover all

relevant documents.” Inst. for Justice v. IRS, 941 F.3d 567, 569–70 (D.C. Cir. 2019) (internal

quotation marks omitted) (quoting Ancient Coin Collectors Guild v. United States Dep’t of State,

641 F.3d 504, 514 (D.C. Cir. 2011)). The agency need not demonstrate that it has uncovered all

records possibly responsive to a request, but rather that its “search for those documents was

adequate.” Weisberg v. United States Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)

(emphasis omitted). In crafting that adequate search, the agency “has a duty to construe a FOIA

request liberally,” Nation Magazine v. United States Customs Serv., 71 F.3d 885, 890 (D.C. Cir.

1995), but “is not obliged to look beyond [its] four corners,” Aguiar v. DEA, 865 F.3d 730, 740

n.1 (D.C. Cir. 2017) (quoting Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996)).

In other words, the agency need not “divine a requester’s intent,” Landmark Legal Found. v.

EPA, 272 F. Supp. 2d 59, 64 (D.D.C. 2003), but it must show that it followed the request where

it could reasonably lead.

An agency can meet its burden “by submitting a reasonably detailed affidavit, setting

forth the search terms and the type of search performed, and averring that all files likely to

contain responsive materials (if such records exist) were searched.” Evans v. Fed. Bureau of

Prisons, 951 F.3d 578, 584 (D.C. Cir. 2020) (internal quotation marks and alterations omitted)

(quoting Reporters Comm. for Freedom of Press v. FBI, 877 F.3d 399, 402 (D.C. Cir. 2017)).

Such affidavits “are accorded a presumption of good faith,” id. (internal quotation marks

omitted) (quoting SafeCard Servs., Inc., 926 F.2d at 1200), which can be overcome only if the

requester “raises substantial doubt, particularly in view of well defined requests and positive

19

indications of overlooked materials,” DiBacco v. United States Army, 795 F.3d 178, 188 (D.C.

Cir. 2015) (internal quotation marks omitted) (quoting Valencia-Lucena, 180 F.3d 321, 326

(D.C. Cir. 1999)). If after a review of the record, however, such doubt remains, an agency’s

request for summary judgment must be denied. Id.

2. Adequacy of FBI Search

Plaintiff raises four potential issues with the FBI’s search in an attempt to manufacture

the requisite doubt about the adequacy of the search: (1) he claims the FBI improperly limited

the search performed to so-called “main files” and to animal rights subjects, Pl.’s Opp’n at 1;

(2) documents known as “search slips” obtained by plaintiff in separate litigation purportedly

indicate that records held at certain field offices were “unsearchable due to being boxed up for

automation,” id. at 2; (3) one search slip contains a note stating the search was “[l]imited to

locality when going thru (sic) search,” id. at 3; and (4) in e-mail correspondence the FBI

indicated that “public source” documents contained within files responsive to plaintiff’s requests

had not been produced, id. These challenges are addressed seriatim.

First, to bolster his contention that the search conducted was improperly constrained,

plaintiff points to an internal RIDS newsletter, dated September 2011, containing a section titled

with his name, “Shapiro.” Pl.’s Opp’n, Ex. 1 at 1, ECF No. 105-2.11 The newsletter instructs

RIDS personnel who “have a request that was made on or after 7/11 for cross references related

to animal rights” to consider “only cross references from file classifications 266, 100, and 336.”

Id. The newsletter further instructs, for “requests from on or after 7/11 [that] request[] all

references not limited to animal rights, no cross references will be searched.” Id. Plaintiff

11

Plaintiff compiled each of the exhibits related to the adequacy of the FBI’s search into a single document.

For ease of reference the pagination assigned by the Court’s Case Management/Electronic Case Files system

(CM/ECF) will be used.

20

claims “[t]hese limitations on the scope of the FBI’s search are unreasonable” and render the

search “inadequate.” Pl.’s Opp’n at 2. According to FBI’s declarant, however, those

instructions “only appl[ied] to [the] administrative” phase of plaintiff’s requests and “[t]he FBI

conducts de novo reviews in all [FOIA] cases subject to litigation.” 16th Hardy Decl. ¶ 7. That

declaration confirming de novo reviews, presumably made in good faith, renders any concern

raised by the newsletter insignificant.12

The same can be said of plaintiff’s other complaints about the FBI’s search. The search

slip he obtained containing the note, dated March 10, 2011, that a certain FBI field office was

“[u]nsearchable due to being boxed up for automation,” Pl.’s Opp’n, Ex. 4 at 10, pertains to

FOIA search #1162667, which is not a subject of this litigation, 16th Hardy Decl. ¶ 9.

Moreover, “the FBI completed all necessary manual indices searches, including those field

offices which were unavailable at some point during the processing of Plaintiff’s FOIA

requests.” Id.13 Another search slip that worries plaintiff notes that a particular search was

“limited to locality when going thru [sic] search,” Pl.’s Opp’n, Ex. 5 at 16, but it too pertains to a

request not at issue in this suit, compare id. (noting request at issue was “FOIPA #1173350-

001”) with 2d Hardy Decl., Ex. A (listing searches at issue and nowhere mentioning request

number 1173350-001). Finally, while a third search slip, containing a RIDS employee’s

12

In any event, to the extent the searches were limited during the administrative processing of plaintiff’s

requests, this was at his direction. On July 6, 2011, the plaintiff informed RIDS personnel of his decision to “limit

cross-reference searches for all of [his] FOIPA requests submitted since 1 January 2011 to information pertaining in

any way to animal protection/rights and environmental protection/rights issues/organizations/individuals/events/

investigations/etc.” Pl.’s Opp’n, Ex. 2 at 5. Five years later, after the searches for his records had been completed

and the responsive documents were being processed, plaintiff rescinded that agreement. Pl.’s Opp’n, Ex. 3 at 7.

Even if the FBI’s subsequent declaration that it performed a “de novo review” of his requests once this case entered

litigation did not settle the matter, the plaintiff cannot now complain about limitations on those administrative

searches he himself sought.

13

Just to gild the lily, the very search slip on which plaintiff relies also contains a note, dated November 30,

2011, indicating that FBI personnel “completed manual indices search” of the field office in question. Pl.’s Opp’n,

Ex. 4 at 14.

21

comment that the FBI doesn’t “usually pull public source” documents, does refer to a search at

issue in this case, the FBI’s most recent declaration makes clear that the comment “does not

depict the full history” of that request and that “the FBI processed all responsive records . . .

including public source information.” 16th Hardy Decl. ¶ 11.

In sum, plaintiff’s cherry-picked phrases from documents obtained outside this litigation,

many of which relate to searches for records responsive to requests not at issue in this case, do

not call the adequacy of the FBI’s search into question. Even if they did, those doubts are more

than allayed by the FBI’s most recent declaration. Perhaps in recognition of this fact, plaintiff

makes no mention of search adequacy in his reply. See generally Pl.’s Reply Supp. Cross-Mot.

Summ. J. (“Pl.’s Summ. J. Reply”), ECF No. 125.

While plaintiff has mounted an attack on the FBI’s declarations by marshaling outside

sources, a focus on the FBI’s submissions in this case demonstrates that the agency has carried

its burden. The description of the agency’s search appears in twelve paragraphs of a declaration

submitted in support of the FBI’s bid to secure the years-long stay of this case to process

properly the records identified in searches. 2d Hardy Decl. ¶¶ 10–22; see also 15th Hardy Decl.

¶ 6 (explaining that the “[p]aragraphs 10-22 of the Second Hardy Declaration describe[d] . . . the

FBI’s search for records responsive to Plaintiff’s requests”). Those paragraphs provide a general

description of how the FBI stores and searches for records, 2d Hardy Decl. ¶¶ 10–18, as updated

throughout this litigation and already described, see supra, Part III.A. Detail about how the FBI

searched for records related to the plaintiff’s requests in this particular case are also provided.

See 2d Hardy Decl. ¶¶ 19–22. Those paragraphs explain that, as of July 31, 2012, the FBI had

“completed . . . searches for records potentially responsive to all” the plaintiff’s requests at issue

in this case. Id. ¶ 19. It did so by searching both main files and cross-references located in its

22

CRS, which, again, contains “all information that [the FBI] has acquired in the course of

fulfilling its mandated law enforcement responsibilities.” Id. ¶¶ 10, 20. The FBI also

“completed searches of [ELSUR] indices for the subjects plaintiff identified in his requests.” Id.

¶ 21.

To complete those searches the FBI appropriately derived search terms from the requests

at issue in this case. Searches for requests about a specific individual or organization were

conducted of the FBI’s Central Records System “using the name of the individual or

organization” and “a phonetic breakdown” of the same. Id. ¶ 19. According to the FBI’s

declarant, that phonetic breakdown “facilitates location of records using the phonetic sounds of

the terms, and for names, would return results for the initials of the first and middle names.” Id.

Additional information, if available, “including but not limited to dates of birth, places of birth,

and/or social security numbers,” would be used to ensure the search was accurate. Id. Searches

for requests that were “not about a specific individual or organization,” e.g., plaintiff’s request

for information regarding the Hyram Kitchen murder, see 2d Hardy Decl., Ex. A at 5, would

“us[e] key words derived from plaintiff’s requests” and phonetic breakdowns of the same, 2d

Hardy Decl. ¶ 19. The FBI has thus submitted “a reasonably detailed affidavit, setting forth the

search terms and the type of search performed, and averring that all files likely to contain

responsive materials (if such records exist) were searched.” Evans, 951 F.3d at 584 (internal

quotation marks and alteration omitted). It has met its burden and DOJ is entitled to summary

judgment as to the adequacy of the FBI’s search.

3. Adequacy of ATF Search

ATF’s involvement in this case was, for the most part, processing records forwarded to it

by the FBI. Plaintiff filed only a single request with ATF directly, see Chisholm Decl. ¶ 10;

23

FAC ¶ 280, and he raises no issue with the search performed in response to that request, Pl.’s

Summ. J. Mot. at 1–3, 51–53. Indeed, ATF’s declaration provides sufficient detail about its

search for plaintiff’s requested records. Plaintiff’s request to ATF was for “any and all records

that were prepared, received, transmitted, collected and/or maintained by” ATF, “the Domestic

Terrorism Task Force (DTTF), the National Joint Terrorism Task Force, or any Joint Terrorism

Task Force referring or relating to . . . [t]he 11 November 1988 attempted bombing at that

Norwalk, Connecticut U.S. Surgical Corporation (USSC).” Chisholm Decl., Ex. H at 1, ECF

No. 97-13; FAC ¶ 280. ATF’s declarant explains that “[b]etween September 13, 2011 and

September 20, 2011, ATF conducted a search” for the requested information “using the name

‘United States Surgical Corp.’” as its search term. Chisholm Decl. ¶ 12. ATF searched the

“Treasury Enforcement Communications System (TECS),” which “was ATF’s primary case

management system during the 1980’s [sic] and most of the 1990’s [sic].” Chisholm Decl.

¶¶ 42, 46. That database is “a comprehensive ATF law enforcement database that contains ATF

investigative records.” Id. ¶ 46. ATF’s declarant averred that “because the TECS database

contains the cases ATF has investigated, TECS was the place most likely to contain responsive

records,” id. ¶ 47, and this initial search of the database failed to locate any responsive records,

id. ¶ 48. ATF also sent plaintiff’s request to its Boston Field Division to search for a case file

related to the USSC bombing, but that office was also unable to locate responsive records. Id.

¶ 12.

Plaintiff’s complaint in this case included additional information that allowed ATF to

perform a more complete and accurate search. In particular, plaintiff alleged that the records he

sought related to a specific ATF case file number. Id. ¶ 22; FAC ¶ 282. With this case number

in hand, ATF re-searched TECS and found “an ATF investigation from 1989 instead of 1988.”

24

Chisholm Decl. ¶ 23. The Boston Field Division searched the investigative file but found no

responsive records, likely due to the fact that ATF’s policy is to destroy investigative records

after twenty years, meaning the records in question, had any existed, would have been destroyed

in 2009. Id. ¶ 24. Plaintiff was provided with one responsive record: a printout of the “hit” in

the TECS search. Id. ¶ 52. ATF’s declarant avers that, given the foregoing, the agency

“conducted a complete and adequate search of all records pertaining to the attempted bombing at

the USSC in Norwalk, Connecticut, and limited responsive information was found and disclosed

with the appropriate redactions.” Id.

In short, ATF has submitted “a reasonably detailed affidavit, setting forth the search

terms and the type of search performed, and averring that all files likely to contain responsive

materials (if such records exist) were searched.” Evans v. Fed. Bureau of Prisons, 951 F.3d at

584 (internal quotation marks and alteration omitted). ATF has therefore established the

adequacy of its search.

C. PROPRIETY OF THE FBI’S WITHHOLDINGS

Having dispatched with the threshold issue of the adequacy of the search performed, the

processing of the records produced can now be discussed. Since the FBI received the vast

majority of the requests at issue and processed the vast majority of records, this agency’s

responses are addressed first. Owing to the voluminous responsive records in this case, however,

the parties have agreed to test the FBI’s records processing using only a sample of the records

produced. See JSR (Oct. 20, 2017); Min. Order (Oct. 23, 2017) (approving use of sampling

method). The standards guiding analysis of a FOIA action using a sampling method and how

that method affects the reach of this opinion are explained first before analyzing whether the

records were properly withheld in full or in part.

25

1. Principles of Sampling in FOIA Litigation

At the summary judgment stage of a FOIA action, a court would typically be required to

examine “each and every” challenged redaction or withholding. Weisberg, 745 F.2d at 1490.

When, however, the number of documents is so large that it “would not realistically be possible

to review each and every one,” courts have permitted the parties to limit their dispute to a

representative sample of processed records. Id. This sampling method is essential for FOIA

actions implicating a large number of responsive records, but is relatively undertheorized. A

brief discussion of the principles underlying the sampling method and the possible ramifications

for this case is thus helpful.

a. Sampling Basics

In broad strokes, after the agency has processed all of the records responsive to the

requests at issue, released those records that are not exempt from disclosure, and identified the

exemptions used to withhold any records, the sampling method should work as follows: (1) the

parties select a representative sample of documents from the withheld records; (2) the agency

creates a Vaughn index for that sample and/or submits the sample for in camera inspection;

(3) the parties brief the propriety of the redactions or withholdings made within that sample;

(4) the Court examines the justifications for those redactions and withholdings, determines

whether any redactions or withholdings were made in error, and orders the agency to release any

materials that were unjustifiably withheld within the sample, Hunton & Williams LLP v. U.S.

Env’tl Protection Agency (“Hunton”), 346 F. Supp. 3d 61, 87–88 (D.D.C. 2018); and finally

(5) the Court determines the “error rate” within the sample by counting up the “unjustified

26

withholdings” and dividing that number by the “total withholdings” made in the sample, Bonner

v. United States Dep’t of State, 928 F.2d 1148, 1154 n.3 (D.C. Cir. 1991).14

The fifth step is what differentiates the sampling method from run-of-the-mill FOIA

litigation. On the theory that, so long as “the sample is well-chosen, a court can, with some

confidence, ‘extrapolate its conclusions from the representative sample to the larger group of

withheld materials,’” Bonner, 928 F.2d at 1151 (quoting Fensterwald v. United States Central

Intelligence Agency, 443 F. Supp. 667, 669 (D.D.C. 1977)), the error rate is used as a rough

measure of whether responsive records not included in the sample were properly withheld. If

that rate is “negligible,” that ends the matter and summary judgment for the agency with respect

to application of exemptions to the remaining withheld documents is appropriate. Hunton, 346

F. Supp. 3d at 87. If, however, the error rate is “unacceptably high,” Meeropol v. Meese, 790

F.2d 942, 960 (D.C. Cir. 1986), the court may order the more drastic step of “requir[ing]

agencies to reprocess all responsive records” that were withheld in full or in part. Hunton, 346

F. Supp. 3d at 87 (emphasis added). The sampling method’s tolerance of negligible error rates

recognizes that there is “a trade-off between the high degree of confidence that comes from

examining every item for which exemption is claimed, and the limitations of time and resources

that constrain agencies, courts, and FOIA requesters alike.” Bonner, 928 F.2d at 1151. For

FOIA actions involving a massive volume of responsive records, like this one, however, the

gains in efficiency the method produces are essential. Weisberg, 745 F.2d at 1489–90 (“Given

14

Parties and courts have, on occasion, selected samples from the entire universe of responsive records,

including those released in full. This method, however, risks producing a sample with an insufficient number of

documents containing withholdings. See Weisberg, 745 F.2d at 1483 (explaining that, after a district court ordered a

Vaughn index “of every two hundredth” responsive document, it needed to “order[] a supplemental Vaughn index

when the first index produced a large number of pages containing no excisions”). Selecting a sample from only

documents that have been withheld in full or in part thus better aligns with a court’s task in FOIA actions, which is

to determine whether documents have been “improperly withheld,” not whether documents were properly released.

5 U.S.C. § 552(a)(4)(B).

27

[the] magnitude of disclosure, the District Court clearly could not have undertaken a review of

each of the documents from which the Department, pursuant to FOIA’s exemptions, excised

material.”)

b. Possible Pitfalls

While the basic structure of the sampling method is well-accepted, some nuances in

implementation have yet to be conclusively ironed-out and are the subject of plaintiff’s

challenges to the sampling undertaken in this case, as discussed further below.

(i) Maintaining Representativeness and the Proper Response

to Tainted Samples

In Bonner v. United States Department of State, the D.C. Circuit stressed that courts must

strive “to preserve the representative character of the sample.” 928 F.2d at 1152. After all, the

sampling “technique will yield satisfactory results only if the sample employed is sufficiently

representative, and if the documents in the sample are treated in a consistent manner.” Id. at

1151. One way to taint a sample’s representative character is to treat the sample differently than

the entire universe of processed records. A simple example helps explain why. Imagine an

agency locates 100,000 documents responsive to a particular request. During processing, the

agency employs one of the FOIA exemptions to redact the name of “Individual A” throughout all

100,000 documents. The parties then select a sample of 500 documents that they intend to use to

test the agency’s exemptions. Before briefing begins, however, the agency re-reviews the

sample records, determines that Individual A’s name need no longer be redacted, and unredacts

that name within the sample documents, but makes no adjustment to that redaction within the

remaining 99,500 processed records. Clearly the sample would no longer be representative of

the whole.

28

Bonner addressed just such post-selection tweaks to sample documents. In that case, the

parties disputed the propriety of the State Department’s partial withholding of 1,033 documents.

Bonner, 928 F.2d at 1149. The parties agreed “to test State’s FOIA exemption claims through a

sampling procedure.” Id. The plaintiff selected 63 of those documents and the agency agreed to

prepare a Vaughn index describing information withheld in those 63 documents. The index,

however, “covered only 44 of the 63 sample documents.” Id. Apparently, in the course of

preparing the index the “State Department determined that 19 of the documents could be released

in full.” Id. The Circuit thus faced the question of whether “release of the 19 documents in full,

with no accounting for the original withholding, undermined the confidence one can have that

the Department correctly invoked FOIA to shield information contained” in the documents that

were not a part of the sample. Id. at 1151. Answering that question in the affirmative, the

Circuit explained that because the sample records “count not simply for themselves, but for

presumably similar non-sample documents still withheld,” the district court “should have ruled

on the propriety of the initial deletions from the 19 documents.” Id. at 1152.

Bonner settles several issues. First, an agency’s burden in a sampling case is to “justify

its initial withholdings” and the agency “is not relieved of that burden by a later turnover of

sample documents.” Id. at 1154. Indeed, when sampling is employed, the agency’s Vaughn

index should explain not only those withholdings the agency continues to defend, but also

“explain why [any] once withheld portions [of the sample] were excised at the time of the

agency’s initial review.” Id. at 1153.

Moreover, Bonner holds that the calculation of the error rate must be made based on the

agency’s initial withholdings. Id. at 1154 n.13. This heightens the importance of requiring that

the agency justify those initial withholdings, for while the choice to disclose information by an

29

agency may be an admission that the initial withholding was improper, this choice may also

reflect the exercise of the agency’s discretion to release information that may nonetheless be

exempt. 5 U.S.C. § 552(d); see also Chrysler Corp. v. Brown, 441 U.S. 281, 293 (1979)

(“Congress did not design the FOIA exemptions to be mandatory bars to disclosure.”). A post-

selection release of sample records “does not, by itself, indicate any agency lapse,” but does cast

“doubt . . . on the agency’s original exemption claim.” Bonner, 928 F.2d at 1152–53.

Finally, Bonner makes clear that, at least in sampling cases, “court review properly

focuses on the time the determination to withhold is made” and thus courts should be chary of

requests to consider the effect of events that post-date the agency’s response to the requests at

issue. Id. at 1152. In other words, “[r]epresentative sampling tests the propriety of the agency’s

FOIA processing,” not whether the records would be released if they were processed today. Id.

at 1153. Courts should not lightly “require an agency to adjust or modify its FOIA responses

based on post-response occurrences” or else they risk creating “an endless cycle of judicially

mandated reprocessing.” Id. at 1152; see also Am. Civil Liberties Union v. United States Dep’t

of Justice, 640 Fed. App’x 9, 13 (D.C. Cir. 2016) (same). After all, “the whole purpose of

representative sampling is to reduce the administrative burden of large FOIA requests, and not to

compound it.” Bonner, 928 F.2d at 1153.

Bonner’s teaching is instructive for this case in several ways. First, the FBI has done

itself no favors by giving the selected samples exactly the kind of special treatment Bonner

warns against. As evident from the FBI’s declaration, the Bureau re-reviewed the samples

selected by the parties and altered its withholdings. See 15th Hardy Decl. ¶ 149.15 That re-

review resulted in, by the Court’s count, release of previously withheld information on 94

15

The FBI’s altered withholdings are described in footnotes 3, 22, 24, 26, 31, 33, 34, 35, 37, 38, 39, 40, 42,

and 43 and in paragraphs 43 and 149 of the 15th Hardy Declaration.

30

individual pages of the sample and may have entailed removal of more than one redaction on

each of those pages. The FBI’s re-review also resulted in the application of new or different

FOIA exemptions to information on 95 sample pages. The re-review thus casts doubt on the

utility of the sample in this case. Moreover, in addition to those changes, the FBI decided, while

briefing in this action was ongoing, no longer to defend the application of certain exemptions and

released still more material previously withheld. See, e.g., 16th Hardy Decl. ¶ 28 (describing

how “[a]fter further review, the FBI” decided it would no longer assert Exemption 4 and would

release the withheld “pages to the Plaintiff in full”). DOJ wrongly asserts that disputes over

sample documents withheld at the time the sample was chosen but released to plaintiff as

briefing was ongoing, are now “moot.” Def.’s Reply Supp. Mot. Summ. J. & Opp’n Pl.’s Cross

Mot. Summ. J. (“Def.’s Reply”) at 14, ECF No. 113. As plaintiff correctly notes, this argument

disregards “the central holding in Bonner.” Pl.’s Reply at 15. The question of whether now-

disclosed sample documents must be ordered released is indeed moot. Yet, for all the reasons

described above, the agency must justify its initial withholdings and is not relieved of that burden

by subsequent release of documents.

Where possible, the Court has endeavored to rectify this problem. For instance, when the

later-released records were made part of the summary judgment record and subject to review

directly, determination of whether the initial withholdings were in fact proper could occasionally

be made. Nevertheless, with respect to certain exemptions challenged by plaintiff, the record is

insufficient to determine whether the agency’s initial justifications were lawful, resulting in an

inability on this record to conclude whether the initial withholdings should be counted as an error

in calculating the error rate.

31

Bonner’s teachings have implications for plaintiff as well. He argues that certain

exemptions initially applied by the FBI have, with the passage of time, expired. This argument,

however, runs counter to another central holding of Bonner, namely that “court review” of

agency withholdings “properly focuses on the time the determination to withhold is made.”

Bonner, 928 F.2d at 1152. As explained in more detail where relevant, DOJ will not be required

“to follow an endlessly moving target,” id. at 1153 (internal quotation marks omitted) (quoting

Meeropol, 790 F.2d at 959), and this Court’s review is constrained to determining the propriety

of the agency’s withholdings at the time they were made.

(ii) What Counts As An Error?

Another nuance of the sampling method is defining what counts as an error. Plaintiff

seems to suggest that any time an exemption is misapplied, that constitutes an error. Circuit

caselaw, however, suggests that an error is an “unjustified withholding[].” Bonner, 928 F.2d at

1154 n.13. To be sure, the improper application of an exemption and an unjustified withholding

are often one and the same, but not always. Commonly, a single redaction may be justified by

more than one FOIA exemption. If, for example, a name has been redacted under both

Exemption 3 and Exemption 7(C), a determination that only Exemption 3 was applied in error

does not change the fact that the name is still properly withheld under another exemption. Under

Circuit caselaw, this should not be counted as an error. Bonner, 928 F.2d at 1154 n.13;

Meeropol, 790 F.2d at 960 (focusing on the number of documents “improperly withheld” rather

than the number of exemptions improperly applied in calculating the error rate). This conclusion

aligns with the Court’s authority in FOIA actions. FOIA grants courts jurisdiction only to

“enjoin [an] agency from withholding records and to order the production of any agency records

32

improperly withheld.” 5 U.S.C. § 552(a)(4)(B). Only when all or part of a document has been

“improperly withheld” will agency error be found.

(iii) Identifying The Tipping Point

Finally, the parties dispute the exact point at which an error rate moves from acceptable

to “unacceptably high.” Meeropol, 790 F.2d at 960. In Meeropol v. Meese, the Circuit held that

an “error rate of 25% . . . coupled with [a] finding by the district court that the [agency] had been

‘intransigent’” warranted complete reprocessing of withheld records. Id. Similarly, in Bonner,

the Circuit suggested that improper withholding of 19 documents out of a 63-document sample

(or an error rate of just over 30%) may be unacceptably high with or without agency

intransigence, but ultimately left that question to the district court. Bonner, 928 F.2d at 1154.

While an error rate above 25% may thus more confidently be said to warrant full reprocessing of

withheld records, see Clemente v. F.B.I., 854 F. Supp. 2d 49, 59 (D.D.C. 2012) (holding that a

26.5% error rate required complete reprocessing), the Circuit has provided little guidance on

where to set the threshold below that, see, e.g., Schoenman v. FBI, 763 F. Supp. 2d 173, 188

(D.D.C. 2011) (finding “no authority within this Circuit . . . providing that a 12.9% error rate”

warrants complete reprocessing); Hunton, 346 F. Supp. 3d at 87 (refusing to order complete

reprocessing after locating a “miniscule” error rate of just under two percent); Citizens for

Responsibility & Ethics in Washington v. United States Dep’t of Justice, 48 F. Supp. 3d 40, 52

(D.D.C. 2014) (refusing to order complete reprocessing after locating an “error rate of just over

one percent”). That the Circuit in the past has not only considered the raw error rate, but also the

good or bad faith of the agency at issue, means this may be another area of law that calls for

“th’ol’ ‘totality of the circumstances’ test.” United States v. Mead Corp., 533 U.S. 218, 241

(2001) (Scalia, J. dissenting). Although such tests may be “feared by litigants who want to know

33

what to expect,” id., given the innumerable variables that might come into play when courts

condone a sampling approach—sample size, level of confidence the sample is representative of

the whole, number of exemptions claimed per document, the conduct of the litigants and

complexity of the requests, to name a few—a hard and fast rule seems particularly ill-suited to

serve FOIA’s aims. The Circuit has chosen not to draw a precise line, and until it does so, that

choice will be treated as deliberate.

***

Having settled these disputes, the sampling used in this case is now discussed in detail.

To prepare this case for the sampling analysis described above, the parties agreed to divide the

sample into two parts. JSR (Oct. 20, 2017). Those parts are discussed in order.

2. Part I of Sample

Part I of the sample is designed to test the agencies’ application of FOIA exemption 7(A),

which exempts from disclosure “records or information compiled for law enforcement purposes

. . . to the extent that the production of such law enforcement records or information . . . could

reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A).

As plaintiff’s requests began to flow into the FBI, the Domestic Terrorism Unit (“DTU”) of the

agency’s Counterterrorism Unit took notice. 15th Hardy Decl. ¶ 40. Owing to the number and

interrelatedness of plaintiff’s requests, the FBI took the prudent step of having DTU coordinate

potential records releases. Id. Although this was not “standard protocol,” this step allowed DTU

to ensure that “operational techniques, confidential human sources, . . . and ongoing

investigations were protected throughout all investigations implicated by Plaintiff’s requests.”

Id. As part of this special protocol, DTU was responsible for reviewing all responsive records to

determine “whether FOIA exemption [7(A)] was applicable.” Id. ¶ 41. As a result of this

34

review, the FBI withheld in full approximately 460,054 pages of responsive records under 7(A)

“because they related to pending investigations.” Id. ¶ 47. Since this exemption was invoked to

justify the withholding of a large number of records, the parties agreed to create a special sample

to test the validity of its application. For the sample, plaintiff selected five of his requests that

turned up documents withheld in full under Exemption 7(A), and the parties decided to brief

whether its applications “were proper at the time they were made as opposed to at the time of

briefing.” JSR (Oct. 20, 2017) ¶ 1 (emphasis in original). Specifically, plaintiff selected his

requests for information pertaining to himself (FOIA Request No. 1167292-000), the

organization known as Compassion Over Killing (“COK”) (FOIA Request No. 1143759-000),

the murder of Hyram Kitchen (FOIA Requests Nos. 1159897-000 and 1159897-001), William

Edward Potter (FOIA Request No. 1179996-000), and Lindsay Parme (FOIA Request No.

1156661-000). 15th Hardy Decl. ¶ 7.

a. Categorical Application of 7A Exemption

FOIA exempts from disclosure “records or information compiled for law enforcement

purposes, but only to the extent that the production of such law enforcement records or

information (A) could reasonably be expected to interfere with enforcement proceedings.” 5

U.S.C. § 552(b)(7)(A). Exemption 7(A) “reflects the Congress’s recognition that law

enforcement agencies have legitimate needs to keep certain records confidential, lest the

agencies be hindered in their investigations or placed at a disadvantage when it comes time to

present their case.” Citizens for Responsibility and Ethics in Washington v. United States Dep’t

of Justice (“CREW”), 746 F.3d 1082, 1096 (D.C. Cir. 2014) (internal quotation marks and

alterations omitted) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978)).

Plaintiff does not contest that the records at issue were “compiled for law enforcement

35

purposes.” 5 U.S.C. § 552(b)(7).16 To justify its withholdings under Exemption 7(A), “DOJ

must therefore demonstrate that disclosure (1) could reasonably be expected to interfere with

(2) enforcement proceedings that are (3) pending or reasonably anticipated.” CREW, 746 F.3d at

1096 (internal quotation marks omitted) (quoting Mapother v. Dep’t of Justice, 3 F.3d 1533,

1540 (D.C. Cir 1993)). Records compiled as part of “[a]n ongoing criminal investigation” thus

clearly “trigger[] Exemption 7(A)” so long as that “investigation continues to gather evidence for

a possible future criminal case, and that case would be jeopardized by the premature release of

that evidence.” Id. at 1098 (quoting Juarez v. Dep’t of Justice, 518 F.3d 54, 59 (D.C. Cir.

2008)).

An agency may “satisfy its burden of proof” under Exemption 7(A) “by grouping

documents in categories and offering generic reasons for withholding documents in each

category.” Id. at 1098 (internal quotation marks omitted) (quoting Maydak v. United States Dep’t

of Justice, 218 F.3d 760, 765 (D.C. Cir. 2000)). An agency opting for such “[c]ategorical

withholding . . . has a three-fold task.” Id. (quoting Bevis v. Dep’t of State, 801 F.2d 1386,

1389–90 (D.C. Cir. 1986)). The agency (1) “must define its categories functionally”; (2) “must

conduct a document-by-document review in order to assign documents to the proper category”;

and (3) “must explain to the court how the release of each category would interfere with

enforcement proceedings.” Id. A category is functional if “it allows the court to trace a rational

16

To show that the records at issue were compiled for law enforcement purposes, “the FBI need only

establish a rational nexus between the investigation and one of the agency’s law enforcement duties and a

connection between an individual or incident and a possible security risk or violation of federal law.” Blackwell v.

FBI, 646 F.3d 37, 40 (D.C. Cir. 2011) (internal quotation marks omitted). The FBI asserts that “[t]he investigative

files at issue[] were compiled during the FBI’s criminal investigation into Plaintiff and other third parties’ crimes

involving potential terrorism activities related to animal rights and ecological extremism,” 15th Hardy Decl. ¶ 51,

and that assertion is “entitled to deference,” Blackwell, 646 F.3d at 40. The records that make up Part I of the

sample thus clear the Exemption 7 threshold.

36

link between the nature of the document and the alleged likely interference.” Bevis, 801 F.2d at

1389.

The FBI’s declaration explains the categorical withholdings under Exemption 7(A) here

in detail. First, to satisfy its burden of showing that the withheld documents relate to

“enforcement proceedings that are . . . pending or reasonably anticipated,” CREW, 746 F.3d at

1096 (quoting Mapother, 3 F.3d at 1540), the declarant notes that all of the documents withheld

in the Part I sample “were compiled during the FBI’s criminal investigation into Plaintiff and

other third parties’ crimes involving potential terrorism activities related to animal rights and

ecological extremism.” 15th Hardy Decl. ¶ 51. As explained above, “[d]ue to the large amount

of responsive records involved and the interrelatedness of the material,” the FBI coordinated its

review of the responsive records across the agency. 16th Hardy Decl. ¶ 48. Those “coordinated

efforts [were] critical in this particular case” because the FBI feared that release of certain pieces

of information “without considering the context and connection of those pieces of information to

other ongoing efforts” could “allow Plaintiff to . . . gain access to a large portion of information

regarding ongoing investigative efforts.” Id. The potentially threatened investigative efforts

included investigations “in the animal rights activist arena” that were pending at the time the FBI

applied Exemption 7(A). Id. While the withheld documents may not have all come from active

investigative files, “the FBI exempted information pursuant to Exemption 7(A) only when a

particular Field Office or [DTU] advised release of the information could reasonably be expected

to interfere with ongoing enforcement proceedings against some of the subjects at issue in [this]

litigation, or other subjects, including individuals or organizations.” Id.

In other words, the FBI reviewed all documents with an eye toward the so-called

“mosaic” effect. Id. The D.C. Circuit and the Supreme Court have recognized that an

37

“individual piece of intelligence information, much like a piece of jigsaw puzzle, may aid in

piecing together other bits of information even when the individual piece is not of obvious

importance in itself.” Halperin v. CIA, 629 F.2d 144, 150 (D.C. Cir. 1980); see also CIA v. Sims,

471 U.S. 159, 178 (1985); Ctr. for Nat’l Sec. Studies v. United States Dep’t of Justice, 331 F.3d

918, 928 (D.C. Cir. 2003). The potential for such a mosaic effect and the need to guard against

such inadvertent leakage of otherwise exempt information is especially present in a case like this

one, in which a great number of requests are made that all touch on or very near a single topic of

investigative interest for the FBI.17

Plaintiff recognizes that the investigations potentially put at risk of improper disclosure

by release of information in the Part I sample “were not necessarily on one of the five subjects

challenged by Plaintiff.” Pl.’s Summ. J. Reply at 18 (quoting 16th Hardy Decl. ¶ 48). He

complains, however, that the FBI’s description of those investigations is “vague.” Id. Of course,

“[t]he FBI need not submit declarations that reveal the exact nature and purpose of its

investigations in order to satisfy FOIA—Exemption 7(A) exists precisely to shield that sort of

revelation.” Blackwell v. FBI, 680 F. Supp. 2d 79, 94 (D.D.C. 2010) (citing Swan v. SEC, 96

F.3d 498, 500 (D.C. Cir. 1996)). By describing the pending investigations that might be

impacted by disclosure as “investigative efforts . . . in the animal rights activist arena,” 16th

Hardy Decl. ¶ 48, and noting that Part I records were related to “the FBI’s investigation of

potential terrorist acts related to animal rights and ecological extremism,” 15th Hardy Decl. ¶ 46,

the FBI has met its burden to show that the records relate to “enforcement proceedings that are

. . . pending or reasonably anticipated,” CREW, 746 F.3d at 1096.

17

Indeed, the need for the FBI to address this very concern led to the multi-year stay of this action. Stay

Order at 2.

38

Showing that the records relate to pending or anticipated enforcement actions, however,

is not enough. The agency must also show that release of the records “could reasonably be

expected to interfere” with those investigations. 5 U.S.C. § 552(b)(7)(A). As noted above, the

FBI has attempted to do so by invoking the “categorical” method of withholding. Step one in

that method requires the FBI to define “functionally” the categories of records it withheld.

CREW, 746 F.3d at 1098. Broadly, the FBI divides the records withheld under Exemption 7(A)

into two categories: (1) Evidentiary/Investigative Materials and (2) Administrative Materials,

and then subdivided each of those categories into three subcategories. 15th Hardy Decl. ¶ 56.

With respect to evidentiary/investigative materials, the FBI withheld: (1) exchanges of

information between the FBI and other local, state, and federal law enforcement agencies that

“would disclose evidence, investigative information, and criminal intelligence” developed by

those agencies, id. ¶ 59; (2) information concerning physical or documentary evidence that was

“gathered during the pendency” of various investigations, id. ¶ 60; (3) statements of confidential

sources and witnesses, id ¶ 61. As for administrative materials, the FBI withheld: (1) reporting

communications that “permit an agency to monitor the progress of an investigation and to

facilitate its conduct,” id. ¶ 63; (2) miscellaneous administrative documents that “were used

throughout” investigations, but contain information and are organized in such a way that would

“reveal[] information of investigative value,” id. ¶ 64; and (3) administrative instructions that

“would disclose specific investigative procedures” like which FBI field offices have been

assigned which investigative tasks, id. ¶ 65.

Step two requires the FBI to “conduct a document-by-document review in order to assign

documents to the proper category.” CREW, 746 F.3d at 1098. The FBI avers that “providing a

document-by-document description or listing of the records responsive to Plaintiff’s request[s]

39

. . . would . . . undermine[] the very interests that the FBI [seeks] to protect” by invoking

Exemption 7(A), and thus the declarant instead “described the types of responsive records” that

were being withheld because they were contained in “pending investigative files.” 15th Hardy

Decl. ¶ 54. These records included FD-1057s, known as Electronic Communications (“ECs”),

which are used to “communicate within the FBI” and to “record and disseminate

intelligence/investigative information and for general investigation administration purposes.” Id.

¶ 54(a). Other records withheld were FD-302s, which are “internal FBI forms in which evidence

is often documented, usually as a result of FBI interviews.” Id. ¶ 54(b). The FBI also withheld a

variety of other types of records, including: “Letterhead/Memorand[a],” which provide

“investigative updates . . . and typically accompany[y] an EC, id. ¶ 54(c); FD-36s, which are

“utilized to report investigative details from” FBI field offices to FBI headquarters, id. ¶ 54(d);

“Fingerprint Cards,” which are retained by the FBI “in connection with arrests, federal

employment, naturalization or military service,” id. ¶ 54(e); “State and Local Law Enforcement

Documents,” id. ¶ 54(f); “Other Investigative Documents Utilized for Investigative Purposes,”

which include “various types of documents reflecting information and evidence gathered during

an FBI investigation,” id. ¶ 54(g); “Non-Public Court Documents,” id. ¶ 54(h); FD-340

Envelopes, which “are used to organize and store documents” and “usually contain handwritten

notes of interviews, photographs, and other various evidentiary documents,” id. ¶ 54(i);

“Handwritten Interview Notes,” id. ¶ 54(j); photographs “used to identify subjects of

investigations,” id. ¶ 54(k); “Intelligence Write-ups,” which are used to “document/disseminate

relevant intelligence information,” id. ¶ 54(l); FD-448s, which are “used to identify information

sent via facsimile to individuals within or outside the FBI,” id. ¶ 54(m); “FD-515[s], 542[s],

[and] Accomplishment Report[s],” which are used to report investigative accomplishments such

40

as “arrest[s], conviction[s], sentencing[s], asset seizure[s],” etc., id. ¶ 54(n); “News Articles,”

which were “located and printed from public websites, id. ¶ 54(o); FD-525s, which are forms

used to “request[] development, scanning and/or printing of any film or digital media,” id.

¶ 54(p); FD-7s, which are “utilized to submit complainant information collected during a phone

call received after normal business hours,” id. ¶ 54(q); emails “discussing the direction or focus

of an investigation, id. ¶ 54(r); and “Documents Implementing Sensitive Investigative

Techniques,” which cannot be described in detail because to do so “would reveal [sensitive]

technique[s] or sensitive data concerning [those] technique[s],” id. ¶ 54(s). Each of these

categorically withheld documents falls into one or both of the “two categories” functionally

defined above. Id. ¶ 56–57.

The final step in the categorical method is for the agency to “explain to the court how the

release of each category would interfere with enforcement proceedings.” CREW, 746 F.3d at

1098. The FBI does so. As to exchanges between the FBI and other law enforcement agencies,

the agency believes that their release “would have identified the FBI’s investigative interest[s,]

. . . revealed the scope and focus” of FBI investigations, “tipped off individuals who were of

interest to law enforcement” and finally given suspects or targets “the opportunity to destroy

evidence” or otherwise avoid detection. 15th Hardy Decl. ¶ 59. Similar concerns animated the

FBI’s withholding of information concerning physical or documentary evidence. Id. ¶ 60. As

the FBI notes, “[o]nce subjects become aware of the FBI’s interest in their activities, they could

. . . take[] actions to conceal their activities, evade detection, and/or suppress or fabricate

evidence.” Id. As to confidential witness and source statements, the FBI expresses concern that

release could result in “retaliation” against those cooperating sources. Id. ¶ 61. With respect to

the “administrative materials” withheld, the FBI justifies withholding reporting communications

41

by noting that their release “would have revealed the nature and scope of” ongoing investigations

by revealing “the investigative steps taken to obtain witness and source interviews; techniques

and investigative methods used to compile and/or solicit information from various sources; and

any potential or perceived challenges in the investigations.” Id. ¶ 63. The FBI similarly

withheld miscellaneous administrative documents to avoid disclosing “information of

investigative value” that “could have undermined . . . pending and prospective prosecutions.” Id.

¶ 64. Finally, the FBI notes that releasing “administrative instructions” would have “permitted

subjects or individuals of investigative interest to anticipate law enforcement actions and to alter,

destroy, or fabricate evidence.” Id. ¶ 65

Plaintiff, relying principally on Citizens for Responsibility & Ethics in Washington v.

United States Department of Justice (“CREW”), 746 F.3d 1082 (D.C. Cir. 2014), takes issue with

what he asserts is the FBI’s failure to “provide any specific information linking” the subjects of

his Part I requests with “other pending or prospective law enforcement proceedings.” Pl.’s

Opp’n at 22–23. Plaintiff’s reliance is misplaced. In CREW, the FOIA request at issue sought

information about an investigation of former Speaker of the House, Tom DeLay, that had been

one part of a “wide-ranging public corruption investigation.” 746 F.3d at 1087. The request

came after DeLay had publicly announced information he received that he would not be charged.

Id. Despite the fact the investigation into DeLay was closed, DOJ invoked Exemption 7(A) to

withhold categorically all records, arguing their release would hamper “all related criminal

investigations” underway as part of the public-corruption dragnet. Id. at 1097. The D.C. Circuit,

however, found reason to doubt whether those investigations remained ongoing: “more than

two-and-a-half years had passed since the FBI filed its initial declaration in the district court; the

DOJ provided only ‘vague’ mention in the declaration that investigations were ongoing; DOJ

42

counsel failed to cite any ongoing proceedings when questioned about them at oral argument;”

and DeLay’s various associates known to have been under investigation had been convicted and

sentenced since DOJ filed its declaration. Manning v. United States Dep’t of Justice, 234 F.

Supp. 3d 26, 35 (D.D.C. 2017) (citing CREW, 746 F.3d at 1096–99). In light of these doubts, the

Circuit held that “without more information about the degree of overlap” between the DeLay

investigation and the purported pending investigations into others, it could not say that the

“circumstances characteristically support an inference that disclosure would interfere with any

pending enforcement proceeding.” CREW, 746 F.3d at 1099 (internal quotation marks omitted)

(quoting Nation Magazine, 71 F.3d at 893 (D.C. Cir. 1995)).

No such doubts exist in this case. The FBI has consistently asserted that, at the time the

records were processed—the time at which, by the parties’ agreement, the propriety of the

exemption must be tested, see JSR (Oct. 20, 2017)—investigations were ongoing into “potential

terrorism activities related to animal rights and ecological extremism.” 15th Hardy Decl. ¶ 51.

The FBI has also detailed how the determination was made that the Part I records “overlap[ped]”

with those ongoing efforts, CREW, 746 F.3d at 1099, explaining that “the FBI exempted

information pursuant to Exemption 7(A) only when a particular Field Office or [DTU] advised

release of the information could reasonably be expected to interfere with ongoing enforcement

proceedings against some of the subjects at issue in [this] litigation, or other subjects, including

individuals or organizations.” 16th Hardy Decl. ¶ 48. Moreover, the overlap is self-evident

given the singular focus of plaintiff’s requests on animal rights organizations and activists that

have been affiliated with events known to have been under investigation by the FBI. Pl.’s Opp’n

at 24. Indeed, the FBI avers that one subject of a Part I request, the Hyram Kitchen murder, is

still under active investigation by another agency. 16th Hardy Decl. ¶ 55 & n.10. The FBI’s

43

detailed description of the categories of records it withheld and the logical link between the

subjects at issue and the ongoing investigations into “potential terrorism activities related to

animal rights and ecological extremism,” 15th Hardy Decl. ¶ 51, combine to “characteristically

support an inference that disclosure would interfere with . . . pending enforcement

proceeding[s].” CREW, 746 F.3d at 1099 (internal quotation marks omitted) (quoting Nation

Magazine, 71 F.3d at 893). DOJ is thus awarded summary judgment with respect to the

propriety of withholding Part I of the sample under FOIA Exemption 7(A).

b. Expiration of Exemption 7(A)

Although plaintiff concedes that “[t]he purpose of the sampling procedure is to evaluate

the accuracy of the agency’s withholdings at the time they were made,” he claims that “[i]f an

investigation is no longer prospective or pending at the time of the Court’s decision,

withholdings under Exemption 7(A) cannot be accepted.” Pl.’s Opp’n at 28. He thus requests

“that the Court . . . order the FBI to re-review the pending status of each investigation,” the

pendency of which prevented disclosure of Part I documents. Id. at 29.

His argument highlights a disconnect in legal principles governing application of

Exemption 7(A) versus those in the sampling context. True, the Circuit has held that

“Exemption 7(A) is temporal in nature,” and has explained that the relevant law enforcement

proceeding “must remain pending at the time of [the court’s] decision, not only at the time of the

initial FOIA request.” CREW, 746 F.3d at 1097. The Circuit has also stressed, however, that in

order serve the “purpose of representative sampling,” i.e. “reduc[ing] the administrative burden

of large FOIA requests,” an agency action “ordinarily should be upheld” if the Court “uncovers

no excisions or withholding improper when made.” Bonner, 928 F.2d at 1153.

44

This tension between two Circuit opinions, however, is less troubling on closer

inspection. In a typical FOIA action, the result is often court-ordered reprocessing of all

responsive records upon a finding that an exemption has been misapplied. Where, however, the

number of responsive records is massive enough to warrant a sampling procedure, courts have

shown special solicitude to the need to “reduce a voluminous FOIA exemption case to a

manageable number of items.” Bonner, 928 F.2d at 1151. That sensitivity is proper since the

time necessary to process tens or hundreds of thousands of documents makes such actions

particularly susceptible to being thrown into “an endless cycle of judicially mandated

reprocessing” if courts order agencies to update their disclosures to account for post-response

events. Id. at 1152. This case is a perfect example—DOJ sought and was awarded a three-year

stay to give the relevant agencies the opportunity to process the mountain of records they had

found. To demand that DOJ undertake the Sisyphean task of checking that any exemptions

properly applied during that three-year stay remain valid now would run counter to both Circuit

caselaw and common sense. Should plaintiff wish to determine whether any investigations

pending at the time of the FBI’s responses have since expired, clearing the way for further

disclosures by the Bureau, he may of course file a new FOIA request, “but if he does, he will

stand in line behind other FOIA requesters.” Bonner, 928 F.2d at 1153. This Court will not

indulge his request to be “place[d] . . . at the head of the current [FBI] FOIA queue.” Id.

c. Error Rate for Part I

Given the conclusion that Exemption 7(A) was properly applied to all documents

responsive to the requests selected as part of the Part I sample, calculation of the error rate

should be easy enough. Nevertheless, the FBI’s re-review of the Part I sample and subsequent

release of “an additional 208 pages,” in full or in part, somewhat complicates matters. 15th

45

Hardy Decl. ¶ 149. In the end, however, this later release does nothing to undermine the

propriety of the FBI’s initial withholdings. For one, the FBI asserts that “[a]t the time the FBI

completed its review of these records, release of any of [them] would have risked disruption of

ongoing enforcement proceedings.” Id. Thus, the FBI has asserted that its justifications for

withholding all other Part I records, which the Court has determined were valid, apply with equal

force to the records the agency determined could later be released. Given that the agency’s

burden in a sampling case is to “justify its initial withholdings,” Bonner, 928 F.2d at 1154, the

FBI has done so.18 DOJ is therefore awarded summary judgment as to the entire universe of

records withheld categorically pursuant to Exemption 7(A).19

3. Part II of the Sample

Part II of the sample was designed to test the remaining exemptions asserted by the FBI.

Plaintiff selected 401 individual pages that had been released to him in part while the FBI

selected a random sample of 100 pages that had been withheld in full under various FOIA

exemptions. JSR (Oct. 20, 2017) at 2. The FBI asserted exemptions 1, 3, 4, 5, 6, 7(A), 7(C),

18

In any event, even counting all 208 pages as errors would likely be insufficient to create an “unacceptably

high” error rate. Meeropol, 790 F.2d at 960. The denominator for calculation of the Part I error rate is quite large.

For the two requests about plaintiff and Compassion Over Killing, the FBI has averred that 1,816 pages were

categorically withheld under Exemption 7(A), 15th Hardy Decl. ¶¶ 12, 17, and that an additional 4,694 pages were

withheld under Exemption 7(A) for the request about Lindsay Parme plus twelve others, 15th Hardy Decl., Ex. DD

at 3, ECF No. 97-9, without specifying the number, if any, responsive to the Lindsay Parme request. With respect to

the Hyram Kitchen Murder and William Edward Potter requests, the FBI does not attempt to explain how many

responsive pages were withheld under Exemption 7(A). Id. ¶¶ 18–29. The bare minimum number of pages

withheld from the Part I requests is thus 1,816, though the total may be larger if the record were clearer as to the

number of withheld records for the Lindsay Parme, Hyram Kitchen Murder and William Edward Potter requests.

Yet, even in the worst-case scenario—accepting that the total number of Part I records was the bare minimum 1,816

and further accepting that every one of the 208 later-released pages were initially improperly withheld—the error

rate would be just shy of 11.5%. This would be insufficient to warrant complete reprocessing of withheld Part I

records. See Schoenman, 763 F. Supp. 2d at 187–88 (finding “no authority within this Circuit . . . providing that a

12.9% error rate” warrants complete reprocessing).

19

In an attempt to preserve any alternative exemption claims, the FBI looked through the documents withheld

pursuant to its categorical application of Exemption 7(A) and asserted several other exemptions. 15th Hardy Decl.

¶ 68; see Maydak, 218 F.3d at 764 (“[A]s a general rule, [DOJ ] must assert all exemptions at the same time, in the

original district court proceedings.”). The determination that exemption 7(A) was properly applied obviates any

need to determine the propriety of those additional claimed exemptions.

46

7(D), and 7(E) to justify its withholdings in the sample. Although FOIA “mandates that an

agency disclose records on request, unless they fall within one of nine exemptions,” Milner, 562

U.S. at 565, plaintiff believes the FBI may have nonetheless withheld responsive records in the

absence of a justifying exemption by “blackballing” files or improperly excluding them. These

contentions are discussed first before turning to the FBI’s withholdings under FOIA’s

exemptions.

a. Blackballed Files

Plaintiff first complains that the FBI may have “blackballed” certain files responsive to

his requests. Plaintiff cites an article allegedly quoting an FBI spokesman, who describes

“blackballing” as a term generally used “to describe a file (not a request) that initially looked

responsive but upon review” turned out not to be. Pl.’s Opp’n at 3; see also Pl.’s Opp’n, Ex. 7,

ECF No. 105-2. He also submits a printout of a PowerPoint that apparently instructs FBI

officials on what files should be blackballed. Pl.’s Opp’n, Ex. 8, ECF No. 105-2. He points to

two additional documents, processing notes for two of his FOIA requests, that mention the term

“blackballed” in attempt to show the method was used by the FBI in this case. Pl.’s Opp’n, Exs.

9, 10, ECF No. 105-2. Plaintiff states that he “has no way of knowing the full extent of the FBI’s

blackballing files in this case and therefore cannot make a discrete challenge for each file” that

may have been unlawfully withheld. Pl.’s Opp’n at 4.

This argument suffers from several flaws. First, the documents to which plaintiff points

to establish that the FBI “blackballed” files in this case relate to searches not at issue in this

litigation. 16th Hardy Decl. ¶ 13. Second, as the FBI explains, “[t]he term ‘blackball’ was used

colloquially within RIDS years ago to reference files that were not being considered for

processing” because they “were ultimately found to be not responsive due to a variety of

47

reasons.” Id. The FBI is under no obligation to inform the plaintiff that it considered but did not

release non-responsive records. Wilson v. United States Dep’t of Transp., 730 F. Supp. 2d 140,

156 (D.D.C. 2010). Third, the training material plaintiff submitted contains “obsolete

information.” 16th Hardy Decl. ¶ 13. Finally, and most importantly, the FBI avers that in this

case it “only redacted information pursuant to [FOIA] exemptions.” 16th Hardy Decl. ¶ 13.

Plaintiff presents nothing that calls that assertion into question, and his request to order the FBI

“to either deem each blackballed file as responsive or else provide sufficient justification as to

why the decision to blackball the file was proper,” is denied. Pl.’s Opp’n at 4.

b. Exclusions

Section 552(c) of the FOIA permits agencies to “treat . . . records as not subject to the

requirements” of the FOIA when, inter alia, a request involves access to “records or information

compiled for law enforcement purposes” the disclosure of which “could reasonably be expected

to interfere with enforcement proceedings” to the extent that (1) “the investigation or proceeding

involves a possible violation of criminal law,” (2) “there is reason to believe” that “the subject of

the investigation or proceeding is not aware of its pendency,” and (3) “disclosure of the existence

of the records could reasonably be expected to interfere with enforcement proceedings.” See 5

U.S.C. §§ 552(b)(7)(A), 552(c)(1) (emphasis added). Section 552(c) likewise permits agencies

to “treat . . . records as not subject to the requirements” of FOIA whenever someone requests

“informant records maintained by a criminal law enforcement agency.” Id. § 552(c)(2). Finally,

§ 552(c) permits the FBI to issue a so-called “Glomar” response, in which it refuses “to confirm

or deny the existence of any responsive records,” Am. Civil Liberties Union v. CIA, 710 F.3d

422, 425–26 (D.C.Cir.2013), to any request for records “pertaining to foreign intelligence or

48

counterintelligence, or international terrorism” as long as “the existence of the records remains

classified information,” 5 U.S.C. § 552(c)(3).

Plaintiff speculates that the FBI invoked one or more of these exclusions based on search

slips he obtained via FOIA requests not at issue in this litigation. Those search slips note that

certain documents had been “excluded.” See Pl.’s Opp’n, Ex. 11, ECF No. 105-3. The FBI

explains that it used the term “excluded” on those search slips not to refer to exclusion under

Section 552(c), but “to account for the number of pages that were not processed because they are

exact copies of documents already processed.” 16th Hardy Decl. ¶ 15. Nevertheless, because

plaintiff raised the specter of the application of one or more of the Section 552(c) exclusions,

pursuant to the FBI’s standard policies, the FBI has submitted ex parte, in camera a declaration

“to respond to this portion of Plaintiff’s challenges.” Id. ¶ 14. The Court has conducted a full

review of that declaration and, if such an exclusion in fact were employed, it was and continues

to remain, amply justified.

c. Exemption 1

FOIA exempts from disclosure “matters 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). The FBI invoked this exemption to withhold information contained on one page of

the Part II sample, FBI Vaughn Index at 45, that was classified under Executive Order (“E.O.”)

No. 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009), which controlled classification of national

security information at the time the records were produced, 15th Hardy Decl. ¶ 74. In order to

show that the redacted information has been “properly classified” and is thus exempt from

disclosure, 5 U.S.C. § 552(b)(1), DOJ must describe how it meets both the “substantive and

49

procedural criteria for classification” laid out by the E.O., Judicial Watch, Inc. v. United States

Dep’t of Defense, 715 F.3d 937, 941 (D.C. Cir. 2013); see also E.O. No. 13,526.

The FBI’s declarant “made certain that all procedural requirements of E.O. 13526 were

followed.” 15th Hardy Decl. ¶ 76. He also described how he “personally and independently

examined the FBI information withheld pursuant to Exemption 1” and determined that it met the

substantive requirements “to warrant classification at the ‘Secret’ level” pursuant to the E.O. Id.

¶ 77. In particular, he determined that the classified information pertained to “intelligence

activities (including covert action), intelligence sources or methods, or cryptology.” Id.; see also

E.O. 13,526 § 1.4(c). The FBI declarant explained that release of the information protected by

Exemption 1 “would reveal intelligence activities and methods used by the FBI against targets”

of investigations, or would “disclose the intelligence gathering capabilities of the activities or

methods directed at targets.” 15th Hardy Decl. ¶ 80. The declarant went into further detail in his

subsequent declaration, explaining that “the FBI withheld information pursuant to Exemption 1

to protect intelligence methods utilized by the FBI for gathering intelligence data,” disclosure of

which “would reveal actual intelligence activities and methods used by the FBI against specific

targets of foreign counterintelligence investigations; identify a target of a foreign

counterintelligence investigation; and/or disclose the intelligence gathering capabilities of the

activities or methods directed at specific targets.” 16th Hardy Decl. ¶ 18.

Plaintiff contends that “[t]he FBI’s declaration is inadequate as to Exemption 1 because

it” is too conclusory, and requests that the record purportedly subject to Exemption 1 be

examined by the Court ex parte in camera. Pl.’s Opp’n at 8. Plaintiff is wrong as to the

adequacy of the FBI’s declaration. For Exemption 1, “[i]f an agency's statements supporting

[this] exemption contain reasonable specificity of detail as to demonstrate that the withheld

50

information logically falls within the claimed exemption and evidence in the record does not

suggest otherwise, . . . the court should not conduct a more detailed inquiry to test the agency's

judgment and expertise or to evaluate whether the court agrees with the agency's opinions.”

Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009). “Indeed” courts in this Circuit

“have consistently deferred to executive affidavits predicting harm to national security, and have

found it unwise to undertake searching judicial review.” DiBacco v. Dep’t of the Army, 926 F.3d

827, 835 (D.C. Cir. 2019) (internal quotation marks omitted) (quoting Ctr. for Nat’l Sec. Studies,

331 F.3d at 927). DOJ ’s detailed affidavits, which clearly explain both how and why the

information was properly classified, have carried its “light” burden in this context. Am. Civil

Liberties Union, 628 F.3d 612, 624 (D.C. Cir. 2011).

Moreover, while in camera review is an option, FOIA “does not compel the exercise of

that option” and the decision whether to undertake such review is committed to the district

court’s “broad discretion.” Id. at 626 (internal quotation marks omitted) (quoting Ctr. for Auto

Safety v. EPA, 731 F.2d 16, 20 (D.C. Cir. 1984)). Courts must be particularly loath to invoke

that discretion “in national security situations like this case” and “should not resort to” in camera

inspection of Exemption 1 documents “routinely on the theory that ‘it can’t hurt.’” Id. (quoting

Larson, 565 F.3d at 870 (D.C. Cir. 2009)). Given the adequacy of the FBI’s declarations, the

plaintiff’s invitation to second-guess the FBI’s prediction of harm to the national security is

rejected. DOJ is entitled to summary judgment as to the FBI’s application of Exemption 1.

d. Exemption 3

FOIA Exemption 3 covers records “specifically exempted from disclosure by [a] statute”

other than FOIA, “if that statute” either “requires that the matters be withheld from the public in

such a manner as to leave no discretion on the issue[] or . . . establishes particular criteria for

51

withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3).

Exemption 3 is not like FOIA’s other exemptions “because ‘its applicability depends less on the

detailed factual contents of specific documents.’” DiBacco, 926 F.3d at 835 (quoting Morley v.

CIA, 508 F.3d 1108, 1126 (D.C. Cir. 2007)). The task for the Court in analyzing an agency’s

Exemption 3 claims is relatively simple: determine whether the statute in question “is one of

exemption as contemplated by Exemption 3” and then determine whether “the withheld material

falls within the statute.” Larson, 565 F.3d at 865. The FBI relies on four statutes as exempting

records, in part or in full, within Part II of the sample. These statutes are discussed in turn.

(i) Title III

First, the FBI relies on Title III of the Omnibus Crime Control and Safe Streets Act of

1968 (“Title III”), 18 U.S.C. §§ 2510 et seq., to withhold information on 19 pages of the Part II

sample. Title III governs the procedure for law enforcement interception of “wire, oral, or

electronic communications.” 18 U.S.C. § 2516. The law is well settled that “Title III falls

squarely within” Exemption 3’s ambit. Lam Lek Chong v. United States Drug Enforcement

Agency, 929 F.2d 729, 733 (D.C. Cir. 1991). The question is thus whether the withheld material

“falls within the statute.” Larson, 565 F.3d at 865. The FBI withheld information under the

statute “to protect the target” of Title III wiretaps and “analysis” of communications intercepted

under Title III. 15th Hardy Decl. ¶ 84. More specifically, “the withheld information includes

targets, types and dates of intercepts, numbers of intercepts on a particular target, types of

information and information obtained via lawfully authorized Title III” interceptions. 16th

Hardy Decl. ¶ 21.

This information falls within Title III. Except in limited circumstances in which the

Judge who authorized a Title III intercept may disclose the contents of the interception to the

52

“parties overheard, see 18 U.S.C. § 2518(8)(d), 10(a), use and disclosure” of those contents “is

governed by section 2517 of the statute.” Lam Lek Chong, 929 F.2d at 732. Section 2517 in turn

strictly constrains the circumstances in which the contents of an interception may be disclosed.

18 U.S.C. § 2517(1)–(8). Moreover, Title III not only protects the contents of court-authorized

wiretaps, but also the applications for and orders granting such authorization. Id. § 2518(8)(b);

see also Wright v. U.S. Dep’t of Justice, 121 F. Supp. 3d 171, 181 (D.D.C. 2015) (“The plain

language of the statute requires Courts to seal Title III applications and orders through the

mandatory verb ‘shall,’ and permits disclosure ‘only upon a showing of good cause before a

judge of competent jurisdiction.’”). The FBI adequately explains that the redacted information

related to both the fact of, and information gleaned from, particular Title III intercepts. 16th

Hardy Decl. ¶ 21. Title III strictly limits the ways in which such information may be disclosed

and, therefore, exempts it from FOIA disclosure.

The FBI initially applied a small number of redactions, pursuant to Title III, on four

pages of the sample but, upon re-review, released the information. 15th Hardy Decl. at 38 n.22

(explaining that “Exemption (b)(3)-1 is no longer applicable” as to “page[] Shapiro-179308);

16th Hardy Decl. ¶ 21 (“[U]pon further review, the FBI re-processed Bates pages Shapiro-48862,

139196, [and] 179471 to release additional information” previously withheld under Title III).

The FBI does not attempt to justify its initial withholdings and analysis of three of the four

unredacted pages released to plaintiff available in the record shows those initial withholdings

were improper. See 16th Hardy Decl., Ex. A at 15, 24, 26.20 Those pages reference intercepts,

but do not reveal their targets or their content. Id. Absent further explanation of the propriety of

the initial withholding, the Court concludes that information on those pages was improperly

20

The fourth page on which information was initially redacted pursuant to Title III but later released has not

been submitted by either party.

53

withheld. As the information has already been released, there is no need to order its disclosure.

Nevertheless, the four errors will be counted in determining the error rate within Part II of the

sample.

(ii) Grand Jury

Second, the FBI initially relied on Federal Rule of Criminal Procedure 6(e) to withhold in

part or in full 57 pages of the Part II sample. See FBI Vaughn Index. Now, “[a]fter further

review, the FBI is no longer asserting Exemption [3] pursuant to Rules of Criminal Procedure

Rule 6(e) on the sample pages.” 16th Hardy Decl. ¶ 22. Following this re-review, the FBI

released additional information on twelve of the sample pages but does not explain why

information from all 57 pages was not released. 16th Hardy Decl. at 10 n.3. Plaintiff complains

that DOJ “has not provided any further justification as to why its prior withholding[s] were

justified.” Pl.’s Reply at 10. As alluded to above, questions thus remain. See Part III.C.1.b.i.,

supra. Does DOJ believe its initial assertion of the exemption in this context was valid? This

seems unlikely in this context given that Federal Rule of Criminal Procedure 6(e) requires that

“matter[s] occurring before the grand jury” remain confidential except in very limited

circumstances. Fed. R. Crim. P. 6(e)(2)(B); see also McKeever v. Barr, 920 F.3d 842, 844 (D.C.

Cir. 2019) (“Federal Rule of Criminal Procedure 6(e) ‘makes quite clear that disclosure of

matters occurring before the grand jury is the exception and not the rule’ and ‘sets forth in

precise terms to whom, under what circumstances and on what conditions grand jury information

may be disclosed.’” (quoting Fund of Constitutional Gov’t v. Nat’l Archives & Records Serv.,

656 F.2d 856, 868 (D.C. Cir. 1981))). This leads to the logical conclusion that the FBI erred in

its initial application of the Exemption 3 predicated on Rule 6(e) to the twelve pages from which

additional information has been released. 16th Hardy Decl. at 10 n.3. The FBI, however, does

54

not explain why information has not been released from the other 45 pages which contained

redactions pursuant to Exemption 3 and Rule 6(e). Perhaps, as discussed above, see Part

III.C.1.b.ii, supra, the information redacted on those pages was subject to other Exemptions as

well, and although the information on those 45 pages is no longer withheld pursuant Exemption

3, it remains properly withheld under some other exemption. Nonetheless, given the FBI’s

failure to explain why it failed to release information from those 45 pages, DOJ possibly

committed an additional 45 errors by withholding information pursuant to Exemption 3 and Rule

6(e).

(iii) National Security Act

Third, the FBI relies on Section 102A(i)(1) of the National Security Act, 50 U.S.C.

§ 3024(i)(1), to withhold information on 5 pages of the Part II sample. See FBI Vaughn Index;

16th Hardy Decl. ¶ 23. That provision states that “[t]he Director of National Intelligence

[(“DNI”)] shall protect intelligence sources and methods from unauthorized disclosure.” 50

U.S.C. § 3024(i)(1). The statute empowers the DNI to “establish and implement guidelines for

the intelligence community,” id. § 3024(i)(2), of which the FBI is a part.

Plaintiff wisely does not quibble with the notion that the Act is an exemption statute as

contemplated by Exemption 3. See DiBacco, 926 F.3d at 834 (noting that the D.C. Circuit has

held that the National Security Act “may be used to withhold information under Exemption 3”).

Instead, he argues that “the FBI’s declaration is inadequate . . . because the agency ‘merely

recite[s] the statutory standards’” for exemption under the National Security Act and fails to

explain “how disclosure of the withheld material would reveal intelligence sources and

methods.” Pl.’s Opp’n at 12 (quoting Carter v. United States Dep’t of Commerce, 830 F.2d 388,

393 (D.C. Cir. 1987)).

55

In response to this challenge, the FBI provided further detail. In particular, the FBI

explained that it has invoked the Act to “protect a file number assigned to a specific intelligence

matter.” 16th Hardy Decl. ¶ 23. Such file numbers “contain a geographical prefix identifying

the originating office,” and a case number “which includes the file classification identifying type

of investigation.” Id. The FBI fears that release of this information “would lead to exposure of

the particular intelligence activity and method at issue” by allowing “an adversary to attribute

any information released from the document to the particular file.” Id. Although linking the file

number to the information in the documents at issue would not lead directly to the revelation of

intelligence “sources [or] methods,” 50 U.S.C. § 3024(i)(1), the FBI is concerned that, “as more

information is identified with the particular file,” the plaintiff or others could begin to construct a

“mosaic” leading ultimately to “exposure of actual intelligence activities or methods,” 16th

Hardy Decl. ¶ 23. Such disclosures “present[] the potential for individuals to develop and

implement countermeasures, which would result in the loss of significant

intelligence/information relied upon by national policymakers and the” Intelligence Community.

15th Hardy Decl. ¶ 87.

Notwithstanding this more fulsome explanation, plaintiff demands more specificity. In

particular, he seeks a better explanation of how disclosure of the file number would reveal

intelligence sources or methods, and an explanation of “why these file numbers in particular are

so sensitive as to warrant application of the National Security Act.” Pl.’s Reply at 10. No

further specificity is warranted. The Supreme Court has held that, under the National Security

Act, members of the Intelligence Community have the “power to withhold superficially

innocuous information on the ground that it might enable an observer to discover the identity of

an intelligence source.” Sims, 471 U.S. at 178. For that reason, so long as the information

56

“could reasonably be expected to lead to unauthorized disclosure of intelligence sources and

methods,” Halperin, 629 F.2d at 147, even if only by using it to construct a mosaic, withholding

is proper. Especially in light of the “substantial weight” that must be afforded agency affidavits

“in the context of national security,” the FBI’s concerns about disclosing the file numbers in

question clearly surpass that low bar. Larson, 565 F.3d at 867.

(iv) Pen Register Act

Fourth, the FBI relies on the Pen Register Act, 18 U.S.C. § 3123, to withhold information

on two pages of the sample: Bates Nos. Shapiro-10065 and Shapiro-224651. FBI Vaughn Index

at 7; 16th Hardy Decl. ¶ 24–26.21 That Act “is a qualifying statute under Exemption 3.” Labow

v. United States Dep’t of Justice, 831 F.3d 523, 528 (D.C. Cir. 2016). As the Pen Register Act

requires “order[s] authorizing or approving the installation and use of a pen register,” a device

that allows law enforcement to record telephone conversations, “be sealed until otherwise

ordered by the court,” Exemption 3 applies to such orders and the information they contain. 18

U.S.C. § 3123(d)(1). Whether Exemption 3, by way of the Pen Register Acts, applies to

“information found in other . . . documents . . . [that] also contain[] the same information” is, as

the Circuit recently noted “far less clear.” Labow, 831 F.3d at 529.

The reach of Exemption 3 beyond the pen register orders themselves is directly in issue

in this case as the FBI is not seeking to withhold a sealed pen register order. 16th Hardy Decl.

21

Initially the FBI also asserted that the Pen Register Act rendered exempt information on an additional page,

Bates No. Shapiro-93317, but “[a]fter further review, the FBI is no longer asserting Exemption 3” on that page.

16th Hardy Decl. ¶ 24. The FBI is not releasing that information, however, because it remains “exempt pursuant to

other FOIA exemptions,” including Exemptions 6, 7(C), and 7(E). Id.; Pl.’s Opp’n, Ex. 14 at 2, ECF No. 105-3. As

the Court concludes those exemptions were properly applied, see Parts III.C.3.g and III.C.3.j. infra, this potentially

improper application of Exemption 3 will not be counted as an error, see Part III.C.1.b.ii., supra. The FBI has also

noted that, as briefing was ongoing, the agency realized that information on another page, Bates No. Shapiro-

224651, was “inadvertently” represented as withheld under Exemption 3 pursuant to Title III, when it should have

been marked as exempt pursuant to the Pen Register Act. 16th Hardy Decl. ¶ 26. This appears to have been nothing

more than a clerical error and as redaction on that page was made for the “same reason[s]” as the redactions made on

Bates No. Shapiro-10065, the analysis in this section applies to both pages.

57

¶ 25. On the one hand, the Pen Register Act obviously does not give agencies carte blanche to

withhold any piece of information that coincidentally also appears in a pen register order. On the

other, as the district court on remand from Labow put it, Exemption 3 does allow “an agency to

withhold information” when “Congress has recognized a danger associated with its disclosure.”

Labow v. United States Dep’t of Justice, 278 F. Supp. 3d 431, 441 (D.D.C. 2017) (citing Am.

Jewish Cong. v. Kreps, 574 F.2d 624, 628–29 (D.C. Cir. 1978)). In other words, if disclosure of

the information “would necessarily compromise the [pen register] order,” its release would run

afoul Congress’s intent in calling for those orders to be sealed in the first place. Id.; see also,

e.g., Sennett v. Dep’t of Justice, 962 F. Supp. 2d 270, 283 (D.D.C. 2013) (withholding

“information that would reveal the identities and phone numbers of the individuals subject to pen

registers” (internal quotation marks omitted)); Brown v. FBI, 873 F. Supp. 2d 388, 401 (D.D.C.

2012) (withholding “information regarding the target of pen registers, and reports generated as

the result of the pen registers”). This Court agrees that if disclosure of the information would be

tantamount to revealing the order itself, the information is properly withheld under Exemption 3.

The information withheld here is just such information. The FBI explained, at first, that

information was withheld because disclosure “would reveal the existence or use of a pen register

or trap and trace device, or reveal the existence of an investigation involving a pen register or

trap and trace device.” 15th Hardy Decl. ¶ 88. In its subsequent declaration, the FBI says, in

somewhat circular language, that the withheld information under the Pen Register Act “is the

same information that would be contained in [a pen register] order” and that in the particular

context “in which it was presented in the responsive document[s], making direct reference to the

subject of a pen register, disclosure would reveal the specific information that the pen register

statute requires be included in a pen register order, which in turn such information must be

58

sealed.” 16th Hardy Decl. ¶ 25. Although this may not be the most pellucid language, the

Bureau makes clear that the information was withheld “to prevent the target of [a pen register]

order from knowing that he/she has been targeted.” Id. Put differently, the agency has sought to

withhold information disclosure of which “would necessarily compromise the order.” Labow,

278 F. Supp. 3d at 441. This information is properly withheld.22

e. Exemption 4

FOIA Exemption 4 protects from disclosure “trade secrets and commercial or financial

information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). The

FBI initially asserted this exemption with respect to two pages “from a book titled ‘A Poor

Man’s James Bond’ copyrighted in 1972 by Kurt Saxon.” 15th Hardy Decl. ¶ 91. The FBI has

since decided to “release[] these pages to the Plaintiff in full.” 16th Hardy Decl. ¶ 28. Again,

the FBI has not clarified whether this was a discretionary choice or an admission of error. The

Court will thus endeavor to determine whether the agency’s initial justification, described in

some detail the FBI’s fifteenth declaration, was valid.

The FBI did not contend that the book was a “trade secret[],” 5 U.S.C. § 552(b)(4),

instead asserting the book pages are “commercial information,” 15th Hardy Decl. ¶ 91.

Moreover, the FBI suggests that the pages were “confidential.” Id. In doing so, the FBI’s

declarant echoed language from National Parks and Conservation Association v. Morton, 498

F.2d 765 (D.C. Cir. 1974), which held that commercial information is confidential “if disclosure

of the information is likely to have either of the following effects: (1) to impair the

22

The FBI also relied on Exemption 3 by way of the Juvenile Justice and Delinquency Act, 18 U.S.C.

§§ 5031 et seq., and in particular 18 U.S.C. § 5038, in its attempts to preserve any exemption claims for documents

also categorically withheld under Exemption 7(A). See Note 19, supra. The determination that the FBI’s

categorical application of Exemption 7(A) was proper obviates the need to address any additional exemptions

applied to such documents.

59

Government’s ability to obtain necessary information in the future; or (2) to cause substantial

harm to the competitive position of the person from whom the information was obtained.” Id. at

770 (footnote omitted); see also Critical Mass Energy Project v. Nuclear Regulatory Comm’n,

975 F.2d 871, 879 (D.C. Cir. 1992) (en banc) (restricting the applicability of the National Parks

test to circumstances in which an agency had received the commercial information by

compulsion). The FBI’s theory is that, because the pages were copyrighted, their disclosure

might cause substantial harm to the copyright holder’s competitive position. 15th Hardy Decl.

¶ 93.

Finding the National Parks standard out of step with the “ordinary, contemporary,

common meaning” of the word “confidential,” the Supreme Court did away with this standard as

briefing for this case was ongoing. Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356,

2362 (2019); see also Ctr. for Investigative Reporting v. United States Customs and Border

Protection, 2019 WL 7372663, *10–14 (D.D.C. Dec. 31, 2019) (“grappl[ing] with the

ramifications of Food Marketing [Institute]” for D.C. Circuit precedents). In its place, the

Supreme Court erected a new standard: “At least where commercial or financial information is

[1] both customarily and actually treated as private by its owner and [2] provided to the

government under an assurance of privacy, the information is ‘confidential’ within the meaning

of Exemption 4.” Id. at 2366. That first requirement had long been the rule in this Circuit with

respect to information provided to agencies voluntarily, see Critical Mass Energy Project, 975

F.2d at 879–80, but Food Marketing Institute stretched its application to all commercial

information provided to agencies whether voluntarily or otherwise. Although the Supreme Court

did not “need to resolve” whether the second condition it announced was necessary in every

case, whether the agency provided an “assurance of privacy” is undoubtedly relevant to

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determining whether commercial information possessed by DOJ is “confidential.” Food

Marketing Institute, 139 S. Ct. at 2363; see also Ctr. for Investigative Reporting, 2019 WL

7372663 at *13–14.

As DOJ ’s memorandum was submitted before Food Marketing Institute was decided, it

does not address these factors.23 Nevertheless, applying the standard from Food Marketing

Institute to the FBI’s initial justification for withholding the pages in question, the Court holds

that they were withheld in error. First, the book is not “actually treated as private by its owner.”

Food Marketing Institute, 139 S. Ct. 2366. Although the copyright for the book in question once

belonged to Kurt Saxon, he seems to have transferred that copyright to another individual who

subsequently “release[ed] it to the public domain.” Saxon v. Blann, 968 F.2d 676, 678 (8th Cir.

1992). Moreover, nothing indicates that the pages in question were “provided to the government

under an assurance of privacy.” Food Marketing Institute, 139 S. Ct. at 2366. Although the

pages are evidently already in plaintiff’s possession, the two improperly withheld pages will be

counted as errors.

f. Exemption 5

FOIA Exemption 5 protects from disclosure “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). This exemption “incorporates the privileges that the

Government may claim when litigating against a private party, including the governmental

attorney-client and attorney work product privileges, the presidential communications privilege,

the state secrets privilege, and the deliberative process privilege.” Abtew v. United States Dep’t

23

DOJ’s opposition to plaintiff’s cross-motion was submitted after the relevant holding had been announced,

but by then the FBI had withdrawn its application of Exemption 4 and was evidently operating under the mistaken

belief that this relieved the agency of its burden to justify its initial withholdings, so Food Marketing Institute’s new

standard again went unmentioned.

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of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015). Here, DOJ invokes the deliberative

process privilege, which permits an agency to withhold “documents reflecting advisory opinions,

recommendations and deliberations comprising part of a process by which governmental

decisions and policies are formulated,” Dep’t of the Interior v. Klamath Water Users Protective

Ass’n, 532 U.S. 1, 8 (2001) (internal quotation marks omitted) (quoting NLRB v. Sears, Roebuck

& Co., 421 U.S. 132, 150 (1975)), in order that agencies may “craft better rules when their

employees can spell out in writing the pitfalls as well as strengths of policy options, coupled with

the understanding that employees would be chilled from such rigorous deliberation if they feared

it might become public,” Judicial Watch, Inc. v. United States Dep’t of Defense, 847 F.3d 735,

739 (D.C. Cir. 2017).24

“To qualify for the deliberative process privilege, an intra-agency memorandum must be

both pre-decisional and deliberative.” Abtew, 808 F.3d at 898 (citing Coastal States Gas Corp. v.

Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). “A document is ‘predecisional’ if it

precedes, in temporal sequence, the ‘decision’ to which it relates,” id. (internal quotation marks

omitted) (quoting Senate of the Commonwealth of Puerto Rico v. United States Dep’t of Justice

(“Senate of P.R.”), 823 F.2d 574, 585 (D.C. Cir. 1987)), or was “‘prepared in order to assist an

agency decisionmaker in arriving at his decision,’ rather than to support a decision already

made,” Petroleum Info. Corp. v. United States Dep’t of the Interior, 976 F.2d 1429, 1434 (D.C.

Cir. 1992) (quoting Renegotiation Bd. v. Grumman Aircraft, 421 U.S. 168, 184 (1975)).

Deliberative, in this context, means the record is “a part of the agency give-and-take—of the

24

As briefing was ongoing, DOJ also decided to invoke the attorney-client privilege as to one document

already withheld under Exemption 5. 16th Hardy Decl. ¶ 36. The Court holds that the document was properly

withheld under the deliberative process privilege and so need not address whether another privilege may apply.

62

deliberative process—by which the decision itself is made.” Abtew, 808 F.3d at 899 (internal

quotation marks omitted) (quoting Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975)).

To gauge whether the deliberative-process privilege has been asserted appropriately, DOJ

must explain, for each withheld record, at least, “(1) ‘what deliberative process is involved,’

(2) ‘the role played by the documents in issue in the course of that process,’ and (3) ‘the nature

of the decisionmaking authority vested in the office or person issuing the disputed document[s],

and the positions in the chain of command of the parties to the documents.’” Ctr. for Biological

Diversity v. EPA, 279 F. Supp. 3d 121, 147 (D.D.C. 2017) (citations omitted) (first quoting

Senate of P.R., 823 F.2d at 585–86; then quoting id.; and then quoting Elec. Frontier Found. v.

United States Dep’t of Justice, 826 F. Supp. 2d 157, 168 (D.D.C. 2011)). DOJ, not the requester,

must identify the deliberative process to which any record relates. 100Reporters LLC v. United

States Dep’t of Justice, 248 F. Supp. 3d 115, 152 (D.D.C. 2017) (citing Coastal States, 617 F.2d

at 868).

Here the FBI has asserted the deliberative process privilege to protect three documents

totaling eight pages. The first document is described as “a memorandum documenting a meeting

between two FBI Special Agents and an Assistant United States Attorney . . . discussing a

prospective prosecution.” 16th Hardy Decl. ¶ 30 (explaining the document was assigned Bates

Nos. Shapiro-3014–15). The document was intended to “memorialize[] the back and forth

discussion between the two agents and the prosecutor assigned to the case about potential

investigative avenues, investigative steps, purpose and advantage of certain investigative

techniques, as well as legal procedures being explored.” Id. This discussion “precede[d] and

[led] to [a] final decision in preparation for the future prosecution.” Id. The FBI has thus

adequately stated what deliberative process is involved—“FBI and DOJ’s deliberations,” id.,

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regarding the direction of a prospective investigation—the role the document played—

memorializing a discussion of possible investigative avenues and techniques—and the nature of

the decisionmaking authority of the author of the document—the FBI agents and DOJ prosecutor

were assigned to the case and responsible for guiding the prospective investigation and

prosecution. This document was properly withheld.

Next the FBI asserts the privilege with respect to an electronic communication

“documenting several FBI[] Special Agents’ attendance to a conference on animal

rights/terrorism.” Id. ¶ 31 (explaining the document was assigned Bates Nos. Shapiro-138769–

70). The portions of the document withheld pursuant to Exemption 5 detailed “a discussion . . .

between an AUSA and the conference’s attendees” that “contemplate[ed] investigative efforts to

pursue a prospective prosecution.” Id. Again, the FBI asserts this communication “precede[d]

and [led] to [a] final decision in preparation for future prosecution.” Id. Much the same analysis

thus applies to this document. The deliberative process involved is the discussion of possible

investigative avenues to aid in a prospective prosecution, the document memorializes early

discussions about those efforts, and the individuals involved are investigating Special Agents.

Id.

Plaintiff focuses his complaints with respect to this document on his contention that the

FBI waived the deliberative process privilege. Pl.’s Reply at 13–14. The document in question

“memorializ[es] a meeting attended by the Executive Director of the Fur Commission.” Id. at

13. According to plaintiff, the presence of this third party destroyed the privilege. Plaintiff’s

argument misses the mark for two reasons. First, the FBI clarifies that the Fur Commission was

not “participating in the discussions about the prospective prosecution” reflected in the

documents at issue. 16th Hardy Decl. ¶ 31. Second, to the extent the Executive Director was, as

64

plaintiff suggests, “present during the discussions about the prospective prosecutions,” this

matters little as the privilege is asserted to exempt an Electronic Communication memorializing

the discussion and nothing suggests that the document in question was ever shared with a third-

party. Cf. In re Sealed Case, 121 F.3d 729, 741–42 (explaining that an agency waives the

deliberative process privilege as to “specific documents” when it “reveal[s] [them] to third

parties” outside the agency).

Finally, the FBI asserts the deliberative process privilege to an Electronic

Communication “prepared to notify FBI Field Offices of recommendations regarding retention

of evidence.” 16th Hardy Decl. ¶ 32 (explaining the document was assigned Bates Nos. Shapiro-

202953–56). Specifically, while the FBI “released the portion of the records reflecting the final

determination and advice given to the Field Offices,” it withheld “those portions of the document

containing the analysis of potential scenarios, legal considerations, ideas and vulnerabilities.” Id.

This description fails to establish the applicability of the deliberative process privilege. For one,

if a document is to qualify for the deliberative process privilege, it must “precede[], in temporal

sequence, the ‘decision’ to which it relates.” Abtew, 808 F.3d at 898. The FBI asserts that the

information withheld was redacted from the same document which contained the final decision.

Information is not predecisional if it appears simultaneously with the final decision. Moreover,

the agency’s explanation makes clear that the withheld information is more akin to analysis of

the ramifications of a final decision not discussions as part of the “give-and-take . . . by which

the decision itself is made.” Id. at 899. The agency has failed to meet its burden with respect to

this four-page document and it will thus be ordered to remove any redactions on the document

made pursuant to Exemption 5 or provide further justification for those withholdings. In the

65

meantime, another four errors stemming from the four redactions made in this document will be

added to the numerator of the error rate calculation.

g. Exemptions 6 and 7(C)

FOIA Exemption 6 shields from disclosure “personnel and medical files and similar files

the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5

U.S.C. § 552(b)(6). Similarly, Exemption 7(C) protects “records or information compiled for

law enforcement purposes, but only to the extent that the production” of those records “could

reasonably be expected to constitute an unwarranted invasion of personal privacy.” Id.

§ 552(b)(7)(C). Both exemptions “seek to protect the privacy of individuals identified in certain

agency records.” Am. Civil Liberties Union v. United States Dep’t of Justice, 655 F.3d 1, 6 (D.C.

Cir. 2011). Textual differences between the two exemptions, however, mean that “Exemption

7(C) is more protective of privacy than Exemption 6 and thus establishes a lower bar for

withholding material.” Id. (internal quotation marks omitted) (quoting United States Dep’t of

Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 496 n.6 (1994)); compare 5 U.S.C. § 552(b)(6)

(exempting only records “disclosure of which would constitute a clearly unwarranted” privacy

invasion (emphasis added)) with id. § 552(b)(7)(C) (exempting records that “could reasonably be

expected to constitute an unwarranted invasion” (emphasis added)). Although the FBI has

asserted the two in conjunction, 15th Hardy Decl. ¶¶ 102–04, because plaintiff does not take

issue with the FBI’s contention that the records in question were “compiled for law enforcement

purposes,” 5 U.S.C. § 552(b)(7), only the FBI’s application of Exemption 7(C)’s broader

protection need be considered, see Am. Civil Liberties Union, 655 F.3d at 6 (analyzing only

Exemption 7(C) when the “plaintiffs concede[d] that the requested records [were] . . . compiled

for law enforcement purposes” (internal quotation marks omitted)).

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Determining whether disclosure of the withheld information “could reasonably be

expected to constitute an unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C),

requires courts “to balance the” asserted “privacy interest against the public interest in

disclosure.” Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 171 (2004) (citing

United States Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 762

(1989)). “[T]he only public interest relevant for purposes of Exemption 7(C) is one that focuses

on the citizens’ right to be informed about what their government is up to.” Davis v. United

States Dep’t of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 1992) (internal quotation marks omitted)

(quoting Reporters Comm., 489 U.S. at 773). As for the relevant privacy interests, the D.C.

Circuit has consistently held that “third parties, witnesses, and informants mentioned in

investigatory files maintain a privacy interest in keeping secret the fact that they were subjects of

a law enforcement investigation.” Bartko, 898 F.3d at 71 (internal quotation marks omitted)

(quoting Nation Magazine, 71 F.3d at 894). The strength of that privacy interest is such that “the

FBI is permitted ‘to withhold information identifying private citizens mentioned in law

enforcement records, unless disclosure is “necessary in order to confirm or refute compelling

evidence that the agency is engaged in illegal activity.”’” Id. (quoting Schrecker v. United States

Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003) (itself quoting SafeCard, Servs., Inc., 926

F.2d at 1206)). The burden is on the requester to “produce evidence that would warrant a belief

by a reasonable person that . . . Government impropriety might have occurred.” Favish, 541

U.S. at 174.

The FBI undertook the balancing act required by Exemption 7(C). To do so, the agency

first split its invocation of Exemption 7(C) into eight categories, explaining that the exemption

was used to withhold the following: (1) names and/or identifying information of FBI Special

67

Agents (“SAs”) and support personnel, 15th Hardy Decl. ¶¶ 105–06; (2) names and/or

identifying data of third parties of investigative interest, id. ¶ 107; (3) names and/or identifying

information of non-FBI federal government employees, id. ¶¶ 108–10; (4) names and/or

identifying information of state and local law enforcement, id. ¶ 111; (5) names and/or

identifying information of third parties merely mentioned, id. ¶ 112; (6) names and/or identifying

data regarding third party victims, id. ¶ 113; (7) names and/or identifying information of third

parties who provided information to the FBI, id. ¶ 114; and (8) names and/or identifying data of

third parties with criminal records/rap sheets, id. ¶ 115. For each category, the FBI then

identified the privacy interests at stake and balanced them against the public’s interest in

disclosure. See, e.g., id. ¶ 114 (explaining that disclosure of an informant’s identifying

information could subject the informant to “reprisal, possible physical harm, or even death,” and

determining that there was “no public interest in . . . disclosure” because it would not “shed light

on or significantly increase the public’s understanding of the operations and activities of the

FBI”).

Plaintiff neither challenges the categories defined by the FBI nor the privacy interests

asserted to support those categories. Moreover, he fails to even mention the public’s interest in

disclosure, let alone “produce evidence” that disclosure is necessary to uncover some

government malfeasance. Favish, 541 U.S. at 174. Instead, through a series of ad hoc

arguments, plaintiff takes aim at the existence vel non of a privacy interest in the first place.

First, plaintiff asserts that “at the time he submitted his FOIA requests, [he] included privacy

waivers or obituaries from scores of individuals.” Pl.’s Opp’n at 17. Although plaintiff

identifies 24 pages on which he alleges the FBI improperly redacted the names or identifying

information of those individuals, he does not explain which redactions are improper because he

68

submitted a privacy waiver from a living individual and which are improper because he

submitted an obituary.25 His failure to adequately distinguish between the two makes it difficult

for the Court to measure properly the privacy interests at stake. The Circuit has recognized that

“[t]he fact of death, . . . while not requiring the release of information, is a relevant factor to be

taken into account in the balancing decision whether to release information.” Schrecker, 349

F.3d at 661 (internal quotation marks omitted). Nevertheless, “although death may diminish the

relevant privacy interests, it by no means extinguishes them because one’s own and one’s

relations’ interests in privacy ordinarily extend beyond death.” Am. Civil Liberties Union v.

United States Dep’t of Justice, 750 F.3d 927, 936 (D.C. Cir. 2014) (internal quotation marks

omitted). The mere submission of an obituary, therefore, would not ineluctably lead to the

conclusion that withholding the deceased’s identifying information is improper. Moreover,

plaintiff’s submissions do not make clear that his privacy waivers were sufficient to require

removal of the challenged redactions. First, he does not explain how he knows that the

challenged redactions related to individuals for whom he submitted privacy waivers. Pl.’s Opp’n

at 17–18. Second, he has not attached the privacy waivers in question to his cross-motion for

summary judgment, so whether the waiver extended to the information redacted is unclear.

25

Plaintiff asserts that he submitted “a privacy waiver or obituary” for any individual whose name or

identifying information was redacted from numerous pages in the sample, as detailed in an “Addendum” to his

opposition. Pl.’s Opp’n Ass., ECF No. 105-7. The Addendum is a chart listing sample pages to which Exemption

7(C) was applied and notating the reasons why that application was improper. Id. Two such reasons identified in

that chart are “waiver submitted” and “deceased.” Id. (capitalization altered). Although this presumably would

delineate between individuals for whom a privacy waiver was submitted and individuals for whom an obituary was

submitted, the FBI notes that plaintiff did not submit an obituary for any of the individuals listed in the “deceased”

column. Compare id. (mentioning “Ferguson,” “Mead,” “Rancourt,” and “LaRossa”) with 16th Hardy Decl. ¶ 44

(noting that “with regards to William Ian Ferguson, Marcus Mead, James Rancourt, and James Larossa . . .

[p]laintiff . . . did not provide either a privacy waiver or death record for any of the four individuals he mentions in

his Opposition”). As plaintiff is adamant that his Addendum “lists numerous instances” when the FBI “redacted the

names of individuals for whom” he had “submitted a privacy waiver or obituary,” Pl.’s Opp’n at 17–18, some

question thus remains as to whether the redactions identified in the “waiver submitted” column are only withholding

identifying information of individuals for whom plaintiff says he submitted a privacy waiver, or if he used that

column to identify potential redactions of identifying information of both individuals for whom he submitted a

privacy waiver and for whom he submitted an obituary.

69

Apparently at least some conditions are attached to those waivers as, according to plaintiff, the

waivers he obtained extend only “to the release of information to [him], not the general public.”

Pl.’s Opp’n at 3 n.2. Similar to the effect of an obituary then, the privacy waivers may do

nothing more than “diminish” the individual’s privacy interests, and without more, plaintiff’s

alleged submissions cannot overcome the individuals’ strong and presumptive privacy interest.

See CREW, 746 F.3d at 1096 (“[N]ames and identifying information of third parties contained in

. . . investigative files are presumptively exempt.”).

Plaintiff’s failure to establish the complete absence of privacy interests on the part of

individuals for whom he submitted privacy waivers and obituaries combined with his failure to

produce evidence that disclosure is necessary to ferret out FBI misdeeds means he cannot show

Exemption 7(C) was improperly invoked to hide their identifying information. Pub. Citizen

Health Research Grp. v. United States Dep’t of Labor, 591 F.2d 808, 809 (D.C. Cir. 1978)

(“[A]ny invasion of privacy can prevail, so long as the public interest balanced against it is

sufficiently weaker.”).

Second, plaintiff contends that “the FBI has improperly withheld information about

individuals referenced only in their capacities as representatives of a business.” Pl.’s Opp’n at

18. He gives three examples: (1) the redaction of the name Leon Hirsch from records identifying

him as Chairman of the Board of the United States Surgical Corporation (“U.S.S.C.”); (2) the

redaction of an individual identified as CEO of Proctor & Gamble; and (3) the redaction of the

name of the President of PETA and several celebrities from a single document. In support of his

contention that such redactions are categorically improper, plaintiff relies on another case in

which he was a plaintiff, Property of People v. United States Department of Justice, 310 F. Supp.

3d 57 (D.D.C. 2018). There, in analyzing the propriety of the FBI’s response that it could

70

neither confirm nor deny whether it had “law-enforcement records” that “mention[] or refer[] to

the living person Donald John Trump,” another Court in this District discussed how, because

Exemption 7(C) “does not extend to corporations,” individuals mentioned in investigative files

in their “official capacit[ies]” might not enjoy a privacy interest protected by that exemption. Id.

at 62–63, 71 (emphasis in original

This text is long and has been trimmed here. Open the source document for the complete record.