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American Civil Liberties Union v. Federal Bureau of Investigation

May 2, 2006

AMERICAN CIVIL LIBERTIES UNION, ET AL., PLAINTIFFS,
v.
FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

The American Civil Liberties Union, along with several other organizations ("ACLU" or "plaintiffs"), brought this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking documents from the Federal Bureau of Investigation ("FBI" or "defendant") related to the FBI's surveillance of certain domestic political and religious organizations.*fn1

(Compl. ¶ 2.) The FBI produced numerous documents to plaintiffs and now moves for partial summary judgment. The only issue before the Court is whether the FBI properly invoked various statutory exemptions under FOIA in withholding certain responsive documents.

BACKGROUND

The following facts are not in dispute. The ACLU filed two FOIA requests with the FBI on December 2, 2004. The first sought "documents created from January 1, 2000 to the present regarding . . . the creation, purpose, composition and policies" of the National Joint Terrorism Task Force ("NJTTF") from FBI headquarters. (Def.'s Statement of Facts as to Which There is No Genuine Issue ("Def.'s Facts") ¶ 1.) The second sought "documents related to the monitoring, surveillance, and investigation" by a Joint Terrorism Task Force of the ACLU, the ACLU Foundation, the American-Arab Anti-Discrimination Committee ("ADC"), Code Pink, Greenpeace, People for the Ethical Treatment of Animals ("PETA"), the Muslim Public Affairs Council ("MPAC"), and United for Peace and Justice ("UFPJ"), from FBI headquarters and several regional field offices. (Def.'s Facts ¶ 1.) Plaintiffs filed their Complaint on May 18, 2005, seeking an order from the Court instructing defendant to process its requests immediately and to produce any responsive documents to plaintiffs.*fn2 (Compl. at 13.)

Negotiations between the ACLU and the FBI regarding the scope of plaintiffs' FOIA request occurred after the complaint was filed, and thereafter, the parties filed a Joint Status Report that set a deadline of October 1, 2005, for the production of documents regarding the organizations named in the Complaint ("organizational requests"), and a January 6, 2006 deadline for any documents relating to the NJTTF's policies, practices or procedures. (Def.'s Facts ¶ 10.) All other documents regarding the NJTTF were to be produced by March 1, 2006. (Def.'s Facts ¶ 10.) See supra note 1. The Court approved the proposed schedule in an Order dated August 29, 2006. (Def.'s Facts ¶ 10.)

Pursuant to the Court's Order, the FBI processed 3,310 pages related to the ACLU's organizational requests and produced 2,407 of those pages on September 30 and October 1, 2005.

(Def.'s Facts ¶ 11.) The remaining pages were either withheld in full or redacted pursuant to FOIA Exemptions 1, 2, 3, 5, 6, 7(A), and 7(C) - 7(F). (Def.'s Facts ¶ 11.) The number of contested documents was reduced to approximately 650 pages by plaintiffs' decision not to contest certain categories of withholdings and redactions and to exclude from litigation a limited number of documents that had been withheld in full. (Def.'s Facts ¶ 14.)

After having reached an impasse regarding the remaining disputed documents, defendant filed a Partial Motion for Summary Judgment ("Def.'s Mot.") on February 24, 2006, with respect to the ACLU's organizational requests. The ACLU filed a Memorandum in Opposition to Defendant's Motion ("Pls.' Opp."), advocating that the Court conduct an in camera review of the disputed documents to ensure the propriety of the FBI's withholdings and redactions. (Pls.' Opp. at 6-23.) In addition to the ACLU's argument that in camera review is necessary to protect its interests under FOIA, plaintiffs raise a limited number of specific concerns regarding defendant's Vaughn index with respect to redactions and withholdings under FOIA Exemptions 5, 6 and 7(C). (Pls.' Opp. at 17-24.) Although the decision to conduct in camera review is left to "the broad discretion of the trial judge," Ctr. for Auto Safety v. E.P.A., 731 F.2d 16, 20 (D.C. Cir. 1984), at a status conference held March 31, 2006, the Court concluded, given the importance of the issues raised by this case, that it would undertake an in camera review of a representative sample of the disputed documents. See Allen v. C.I.A., 636 F.2d 1287, 1299 (D.C. Cir. 1980) (in camera inspection particularly appropriate in matters of "strong public interest") (overruled on other grounds in Founding Church of Scientology of Washington, D.C. v. Smith, 721 F.2d 828 (D.C. Cir. 1983)); see also Spirko v. U.S. Postal Serv., 147 F.3d 992, 996 (D.C. Cir. 1998) (in camera review appropriate when needed "to make a responsible . . . determination on the claims of exemption" (internal quotation marks omitted)). Having now reviewed some two hundred pages, the Court finds that, with two exceptions, the FBI has properly invoked the contested FOIA exemptions, and therefore it grants defendant's motion for partial summary judgment.

ANALYSIS

I. FOIA: General Principles and Standard of Review

FOIA was enacted in 1966 to implement a "general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." Dep't of the Air Force v. Rose, 425 U.S. 352, 360-61 (1976) (quoting S. Rep. No. 89-813 (1965)). Thus, an agency must promptly make available any records requested by members of the public, unless the agency can establish that the information is properly withheld under one or more of the nine exemptions set forth in the statute. See 5 U.S.C. § 552(b). These exemptions are exclusive and should be narrowly construed. Rose, 425 U.S. at 361. When a challenge is made to an agency's decision to withhold information, the burden of proof rests on the agency to sustain its decision, and the reviewing court is directed to "determine the matter de novo." 5 U.S.C. § 552(a)(4)(B).

At the same time, of course, it must be recognized that FOIA represents a carefully considered balance between the right of the public to know what their government is up to and the often compelling interest that the government has in keeping certain information private, whether to protect particular individuals or the national interest as a whole. See John Doe Agency v. John Doe Corp., 493 U.S. 146, 152-53 (1989) ("The Act's broad provisions favoring disclosure, coupled with the specific exemptions, reveal and present the 'balance' Congress has struck.") As such, the exemptions must be given "meaningful reach and application." Id. at 152.

In a FOIA case, the agency generally meets its burden by providing affidavits describing the material withheld and the reasons that it fits within one or more of the exemptions. And, especially when considering claims under Exemption 1 where national security concerns are at issue, the reviewing court must give "substantial weight" to such affidavits. King v. Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). In such cases, summary judgment may be granted based on an agency's affidavits if they contain "reasonable specificity of detail rather than merely conclusory statements, and if they are not ...


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