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Muslim Advocates v. United States Department of Justice

November 10, 2011

MUSLIM ADVOCATES, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, DEFENDANT.



The opinion of the court was delivered by: Signed: Emmet G. Sullivan United States District Court Judge

MEMORANDUM OPINION

Plaintiff Muslim Advocates brings this action under the Freedom of Information Act ("FOIA"), seeking the complete and unredacted final version of certain chapters of the Domestic Investigations and Operations Guide (the "DIOG") of the Federal Bureau of Investigation ("FBI"), which were previously shown to plaintiff and other civil rights and civil liberties groups during two meetings at FBI headquarters in November 2008 (the "November 2008 meetings").*fn1 Plaintiff principally argues that the FBI waived its right to withhold those chapters of the DIOG after it allowed representatives of Muslim Advocates and other organizations to review and take notes on the materials during the November 2008 meetings. Defendant, the Department of Justice (the "government" or the "agency"), disputes plaintiff's allegation of waiver, and argues that it properly withheld the material pursuant to FOIA Exemption 7(E), 5 U.S.C. § !552(b)(7)(E), because production of the requested material would result in disclosure of specific internal investigatory techniques and procedures that are used by the FBI and would present a risk that "criminals, terrorists and foreign intelligence operatives would be assisted in or emboldened to violate the law and circumvent the FBI's enforcement efforts."*fn2

Def.'s Combined Opp'n & Reply at 2-3.

Pending before the Court are the parties' cross-motions for summary judgment. Upon careful consideration of the motions, the responses and replies thereto, the parties' supplemental filings, the applicable law, and the entire record, including the agency's affidavits and the relevant chapters of the DIOG, the Court hereby GRANTS IN PART AND DENIES IN PART defendant's motion for summary judgment and DENIES plaintiff's cross-motion for summary judgment.

I. Background

A. The DIOG

As noted above, plaintiff seeks release of certain chapters of the FBI's Domestic Investigations and Operations Guide. The DIOG was written to consolidate policy pursuant to the Attorney General's Guidelines for Domestic FBI Operations, which was signed by Attorney General Michael Mukasey on September 29, 2008. Pl.'s SMF ¶ 1. In the preamble of the DIOG, FBI Director Robert S. Mueller, III describes the purpose of the DIOG as follows:

While investigating crime, terrorism, and threats to the national security, and collecting foreign intelligence, the FBI must fully comply with all laws and regulations, including those designed to protect civil liberties and privacy. . . . To assist the FBI in its mission, the Attorney General signed The Attorney General's Guidelines for Domestic FBI Operations (AGG-Dom) on September 29, 2008. The primary purpose of the AGG-Dom and the Domestic Investigations and Operations Guide (DIOG) is to standardize policy so that criminal, national security, and foreign intelligence investigative activities are accomplished in a consistent manner, whenever possible (e.g., same approval, notification, and reporting requirements). . . . The changes implemented by the DIOG should better equip [the FBI] to protect the people of the United States against crime and threat to national security and to collect foreign intelligence.

Docket No. 12-1, DIOG-11. Implemented in December 2008, the DIOG is a "'comprehensive 270-page collection of procedures, standards, approval levels, and explanations[,]'" that contains information "ranging from general principles to chapters detailing the FBI's procedures for conducting clandestine operations." Def.'s Mot. at 2 (internal citations omitted).

B. The November 2008 Meetings & the December 2008 Implementation of the DIOG

Prior to implementing the DIOG, however, the FBI held two meetings with civil rights and civil liberties groups in November 2008.*fn3 Specifically, by emails dated November 12, 2008 and November 17, 2008, the FBI invited various organizations to attend two separate meetings as part of an outreach program to obtain input on the civil liberty, privacy and civil rights concerns on the DIOG. Pl.'s SMF ¶ 7. The invitation received by Muslim Advocates provided as follows:

The FBI Office of General Counsel (OGC) would like to invite you to participate in a discussion of respectively, civil liberty/privacy and civil rights protections in the FBI's new Domestic Investigative Operational Guidelines (which will implement the new AGG) on Wednesday November 19th at 1:00 pm at FBI headquarters. OGC will provide pertinent sections for you to read. The manual has not been finalized. Your input and suggestions will be well received and appreciated. Please RSVP by November 14, 2008.

Ex. A to the Declaration of Brenda Abdelall ("Abdelall Decl."),

Docket No. 16-3

During the November 2008 meetings, a representative of the FBI gave an introductory presentation about the DIOG. Pl.'s SMF ¶ 12. All of the attendees were provided with a copy of the presentation, which they were required to return at the end of the presentation. Pl.'s SMF ¶ 12.

Attendees were also provided with Chapters 4, 5, 10, and 16 of the DIOG (the "disputed chapters"). Pl.'s SMF ¶ 13. These chapters discuss: (i) "Privacy and Civil Liberties, and Least Intrusive Methods" (Chapter 4); (ii) "Assessments" (Chapter 5);

(iii) "Sensitive Investigative Matter / Academic Nexis" (Chapter 10); and (iv) "Undisclosed Participation" (Chapter 16). See Docket No. 12-1, DIOG-3 -- DIOG-9. The version of the disputed chapters disclosed at the November 2008 meetings totaled approximately 100 pages in length and did not contain any redactions. See Pl.'s SMF ¶ 15; Abdelall Decl. ¶ 10.*fn4

After the introductory presentation concluded, attendees were given time to review and take notes on the disputed chapters. Pl.'s SMF ¶ 16. FBI Deputy General Counsel Dave Larson remained in the room while the attendees reviewed the materials and "told them that they could take their time reviewing the documents." Pl.'s SMF ¶ 19. Mr. Larson also "welcomed participant commentary and took notes on the commentary." Pl.'s SMF ¶ 19.

At the conclusion of the meetings, which lasted approximately two hours, attendees were required to return the disputed chapters and were thanked for their help and feedback. See Pl.'s SMF ¶ 20; Abdelall Decl. ¶¶ 20-21. Attendees were permitted, however, to take their notes on the DIOG with them and were never asked to return them. Pl.'s SMF ¶ 17. In addition, attendees were not told that the material reviewed at the meeting was confidential or that they could not share the information with their respective groups, communities, or the general public; nor were participants required to sign any documents affirming that they would keep this information confidential. Pl.'s SMF ¶ 18; see also Pl.'s SMF ¶ 8.

The day after the second meeting, on November 26, 2008, Muslim Advocates and several other organizations that had attended the November 2008 meetings wrote a letter to Director Mueller "reiterating their concerns over the civil liberties and civil rights implications of the DIOG, as well as expressing concerns with the lack of meaningful review of the DIOG and again calling for the public release." Pl.'s SMF ΒΆ 21; see also Ex. H to Declaration of Farhana Khera ("Khera Decl."), Docket No. 16-15 (requesting an opportunity for "meaningful review" of the DIOG in advance of its scheduled implementation; explaining that "no copies [of the DIOG] have been released to date, ad [sic] participants in the briefings were not allowed to examine the 100-page document except during the live sessions, neither of which afforded sufficient time for ...


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