The opinion of the court was delivered by: John D. Bates United States District Judge
This is a suit under the Freedom of Information Act ("FOIA") filed by the plaintiffs in Civ. A. No. 01-2244 (JDB), who are victims and relatives of victims of terrorist attacks perpetrated against two United States embassies in Africa in 1998. These plaintiffs sought, both via a motion to compel in their civil suit and via a separate FOIA request, documentary materials that the Federal Bureau of Investigation ("FBI") and other government agencies (collectively "defendants") had compiled during the investigation of the terrorist attacks and that would have been subject to discovery in the criminal prosecution of terrorist suspects in the Southern District of New York. This Court denied plaintiffs' motion to compel on May 4, 2004. Owens v. Republic of Sudan, Civ. A. No. 01-2244, dkt. #77 (Order). The next day, the FBI denied their FOIA request. Plaintiffs' challenge to the FBI's action was assigned to this Court as a related case pursuant to Local Civ. R. 40.5(c). Presently before the Court are the parties' cross-motions for summary judgment. For the reasons that follow, the Court will defer resolution of both motions and order defendants to file supplemental materials in accordance with this opinion.
The facts underlying plaintiffs' claims in Civ. A. No. 01-2244, Owens v. Republic of Sudan, are fully described in this Court's opinions reported at 412 F. Supp. 2d 99, 102-03 (D.D.C. 2006), and 374 F. Supp. 2d 1, 4-7 (D.D.C. 2005), and will not be repeated here. This section will instead be limited to presenting the factual and procedural background of plaintiffs' FOIA request.*fn1 In order to establish the liability of the foreign state defendants in their civil suit, plaintiffs intend to show that the technique and materials used by the terrorists in the Tanzania and Kenya bombings were the same ones developed by Iranian agents in the 1980's and used to attack a U.S. Marine Corps barracks in Beirut, Lebanon in 1983. Compl. ¶¶ 3, 9; Pls.' Exh. B (1/12/2004 Letter). On November 13, 2003, plaintiffs filed a FOIA request accompanied by a subpoena. Compl. at ¶ 4; Pls.' Exh. A. The request sought "items already provided by the United States in the course of discovery, or subject to discovery," in the criminal prosecution of suspected terrorists in federal court in New York. Id. Plaintiffs requested the following materials:
- Any and all FD-302s regarding the conduct of the physical crime scene searches of each of the Kenya and Tanzania Embassy bombing sites.
- Any and all photographs [including from all responding Evidence Response Teams (ERTs)] of each of the Kenya and Tanzania Embassy bombing sites.
- Any and all activity and investigative logs, including sketches, created by both the ERTs and Bomb Technicians of each of the Kenya and Tanzania Embassy bombing sites.
- Any and all Evidence Logs and/or Inventory Logs of each of the Kenya and Tanzania Embassy bombing sites.
- Any and all Laboratory Reports, and ancillary photographs, taken each of the bombing sites and during forensic laboratory analysis of evidence and reports of forensic results of examination taken from each of the Kenya and Tanzania Bombings.
- Any and all interviews of individuals during the on-site investigations and physical crime scene searches of each Kenya and Tanzania Embassy bombing sites.
- Any and all pertinent information taken from any search and seizure taken from Wadi El Hage's computer while living in Dar el Salam or Nairobi.
Id.; Defs.' Stmt. ¶ 1. A document attached to the subpoena and the FOIA request also indicated that the requested items were "further identified in FBI files under file references 'Tanbom' and 'Kenbom.'" Pls.' Exh. A (Attachment). The FBI acknowledged receipt of the FOIA request on December 17, 2003. Defs.' Stmt. ¶ 2.
In response to the FBI's concerns about dissemination of the requested materials, plaintiffs' counsel sent a letter, along with a copy of the amended complaint in Civ. A. No. 01-2244, explaining the use to which plaintiffs would put the materials. Defs.' Exh. 1, Part B (1/12/2004 Letter). Plaintiffs' January 12 submission also included privacy waivers and certifications-of-identity forms signed by many of the plaintiffs. Counsel's letter assured the FBI that the information obtained would not "be spread upon the public record," but would instead be provided only to two retired FBI agents who plaintiffs had hired as experts and to the Court for in camera review. Id. Those two agents, counsel noted, "held top security clearances at the time of their retirements." Id. Plaintiffs pressed a similar point the following month in their motion to compel production of the requested documents. Owens v. Republic of Sudan, Civ. A. No. 01-2244, dkt. #41 (D.D.C. Feb. 3, 2004). The Court denied their motion on May 4, 2004, ruling that plaintiffs had not demonstrated their compliance with the regulations under which the FBI requires a requesting party to provide certain information before a third-party subpoena is honored. Id. dkt. #77 (Order).
Just one day after this Court denied plaintiffs' motion to compel, the FBI denied their FOIA request. Defs.' Exh. 1, Part D (5/5/2004 Letter). The letter of denial stated that the materials requested by plaintiffs were "located in an investigative file which is exempt from disclosure pursuant to [5 U.S.C. § 552](b)(7)," id., a provision that allows agencies to withhold "records and information compiled for law enforcement purposes" where, among other things, the release of those records "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). At the same time, the FBI reserved the right to invoke additional statutory exemptions if the investigative file was again reviewed under FOIA or the Privacy Act. Defs.' Exh. 1, Part D; Defs.' Stmt. ¶ 4. The letter also informed plaintiffs of their right to an administrative appeal, which they promptly filed. ...