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Labow v. U.S. Department of Justice

United States District Court, D. Columbia.

September 4, 2014

JEFFREY LABOW, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant

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For JEFFREY LABOW, Plaintiff: Jeffrey Louis Light, LAW OFFICES OF JEFFREY LIGHT, Washington, DC.

For DEPARTMENT OF JUSTICE, Defendant: John G. Interrante, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

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MEMORANDUM OPINION AND ORDER

BARBARA J. ROTHSTEIN, UNITED STATES DISTRICT JUDGE.

This matter is before the Court on a motion for summary judgment by Defendant United States Department of Justice (" DOJ" ). Plaintiff Jeffrey Labow claims that Defendant violated the Freedom of Information Act (" FOIA" ) in processing his requests for information. See Complaint, Dkt. # 1; Am. Compl., Dkt. #22. DOJ argues that it has satisfied the statutory requirements by conducting a reasonable search, producing all responsive documents covered by the statute, and properly withholding certain documents under statutory exemptions. Def.'s Mem. of P. & A. in Support of Def.'s Mot. for Summary Judgment (" Def.'s Mem." ), Dkt. # 32, at 1. Having reviewed the parties' briefs together with all relevant materials, the Court grants Defendant's motion for summary judgment.

I. BACKGROUND

In March 2011, Labow requested a copy of " any records pertaining to him" from the FBI. Compl. ¶ 7. The FBI responded in April 2011 that " no responsive records could be found." Id. ¶ 9. After filing an administrative appeal in May 2011, Labow brought suit against the DOJ in July 2011. Id. The DOJ then " located 159 responsive records and released to Plaintiff 60 pages in part or in whole." Am. Compl. ¶ 12. In June 2012, Labow submitted another FOIA request, this time " requesting a copy of records referring or relating to a Mr. Kuhn." Id. ¶ 24. This request " included a privacy waiver signed by Mr. Kuhn authorizing disclosure of responsive records to Plaintiff." Id. Labow then filed an amended complaint, alleging that " [t]he FBI improperly redacted a significant amount of information in the released pages and improperly withheld many pages of information," id. ¶ 13, and " the FBI's search for records was inadequate," id. ¶ 14. Labow also alleged that the DOJ improperly withheld records pursuant to 5 U.S.C. § 552(c)(1), and that the DOJ's policy to inform a plaintiff that no responsive documents were found when an exclusion to FOIA has been applied allows the DOJ to " mislead the requester about the existence of responsive documents." Compl. ¶ 17; Am. Compl. ¶ 17.

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The DOJ has now moved for summary judgment, arguing that that no material facts are in dispute and that it has fulfilled its obligation under the FOIA. The DOJ asserts that it has conducted an adequate search for responsive records, and that it disclosed documents and information not otherwise excluded from production. It further argues that is permitted to withhold information and documents under FOIA Exemptions 1, 3, 6, and 7, and that it has provided a sufficiently detailed affidavit explaining the applicability of those exemptions. In particular, DOJ explains that many of the documents requested by Labow relate to " the vandalism of the Four Seasons Hotel," which was perpetrated by " sixteen individuals wearing masks, black hooded jackets, and sunglasses" who " threw firecrackers and smoke generating pyrotechnic devices in the hotel lobby . . . and paint-filled balloons at sculptures and statues in the lobby" at 2 a.m. 2d Hardy Decl. ¶ 9. The perpetrators also " shattered a large glass window in the hotel" and caused " over $200,000 in damages." Id. The DOJ further explains that this incident was investigated as a " Domestic Terrorism investigation[]" and " as anarchist extremism," and that other documents that Labow requests involved " an investigation into an individual (not plaintiff or Kuhn) suspected of animal rights extremism crimes." 3d Hardy Decl. ¶ 5.

In his opposition, Labow contends that the government failed to justify several FOIA exemptions, and that it had inappropriately applied an exclusion to the FOIA. After the briefing on the motion for summary judgment concluded, the DOJ moved for permission to submit an ex parte, in camera declaration to address whether an exclusion has been applied, and, if so, whether it was properly applied. Def.'s Mot. for Leave to Submit an Ex Parte, In Camera Decl. & Mem. in Supp. Thereof at 1. Permission was granted on June 24, 2014. The DOJ then submitted an ex parte, in camera declaration addressing whether an exclusion was applied and, if so, whether it was applied properly. See Notice of Compliance with Court's June 24, 2014 Order, Dkt. #47. This was the third declaration submitted by David M. Hardy, the Section Chief of the Record/Information Dissemination Section (" RIDS" ), Records Management Division of the FBI, and was submitted in redacted form on the public docket.[1]

II. ANALYSIS

The FOIA provides " a statutory right of public access to documents and records held by agencies of the federal government." Pratt v. Webster, 673 F.2d 408, 413, 218 U.S.App.D.C. 17 (D.C. Cir. 1982); see also 5 U.S.C. § 552. The statute provides for disclosure of agency records, upon a proper request, unless the information sought falls within any of the nine exemptions. See 5 U.S.C. § § 552(a)(3), (b). Additionally, the FOIA excludes certain categories of information from disclosure. 5 U.S.C. § 552(c); see also Memorandum Order, Dkt. # 46.

Most FOIA cases can be resolved on summary judgment. See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527, 395 U.S.App.D.C. 155 (D.C. Cir. 2011). Summary judgment is granted when 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In a FOIA case, an agency is entitled to summary judgment if it can

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demonstrate that there are no material facts in dispute as to the adequacy of its search for or production of responsive records. Nat'l Whistleblower Ctr. v. U.S. Dep't of Health & Human Servs., 849 F.Supp.2d 13, 21-22 (D.D.C. 2012).

Where a plaintiff challenges the adequacy of a search, " [w]hat the agency must show beyond material doubt is that it has conducted a search reasonably calculated to uncover all relevant documents." Id. To meet this burden, the agency may submit affidavits or declarations that are " relatively detailed and nonconclusory and . . . submitted in good faith." Perry v. Block, 684 F.2d 121, 126, 221 U.S.App.D.C. 347 (D.C. Cir. 1982) (internal quotation marks omitted). Such agency affidavits " are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." SafeCard Servs. Inc. v. SEC, 926 F.2d 1197, 1200, 288 U.S.App.D.C. 324 (D.C. Cir. 1991) (internal quotation marks and citation omitted). " If, however, the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper." Truitt v. Dep't of State, 897 F.2d 540, 542, 283 U.S.App.D.C. 86 (D.C. Cir. 1990).

Where a plaintiff challenges a withholding under 5 U.S.C. § 552(b), an agency must show that any responsive information it has withheld was either exempt from disclosure under one of the exemptions enumerated in 5 U.S.C. § 552(b), or else " inextricably intertwined with" exempt information. Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 260, 184 U.S.App.D.C. 350 (D.C. Cir. 1977). " Because FOIA challenges necessary involve situations in which one party (the government) has sole access to the relevant information, and that same party bears the burden of justifying its disclosure decisions, the courts . . . require the government to provide as detailed a description as possible--without, of course, disclosing the privileged material itself--of the material it refuses to disclose." Oglesby v. U.S. Dep't of Army, 79 F.3d 1172, 1178, 316 U.S.App.D.C. 372 (D.C. Cir. 1996). This justification is typically contained in a declaration or affidavit. An agency's affidavits or declarations are presumed to be submitted in good faith. See SafeCard Servs., Inc., 926 F.2d at 1200.

An agency is permitted to assert the applicability of a FOIA exemption on a categorical basis where the " claimed FOIA exemption consists of a generic exclusion, dependent upon the category of records rather than the subject matter which each individual record contains." Church of Scientology of Cal. v. IRS, 792 F.2d 146, 152, 253 U.S.App.D.C. 78 (D.C. Cir. 1986). Rather, " [w]here, as here, an agency has not described each chunk of redacted text individually but instead has grouped it into a descriptive category, the agency satisfies its obligations under the FOIA only if the context of the redacted material suffices to show that the information withheld falls within the relevant category and hence is truly exempt from disclosure." Clemente v. FBI, 741 F.Supp.2d 64, 81 (D.D.C. 2010) (citing Schoenman v. FBI, 604 F.Supp.2d 174, 197-198 (D.D.C. 2009)). Here, because the agency has made extensive withholdings, it has prepared a coded " Vaughn index" -- after the case of Vaughn v. Rosen, 484 F.2d 820, 157 U.S.App.D.C. 340 (D.C. Cir. 1973)--that assigns each redaction or withholding a code, and then justifies each code, rather than each individual withholding or redaction. The government has also provided a " summary of justification categories" explaining its coding system. 1st Hardy Decl. at 15-16. Under several of the exemptions, the government further subcategorized the applicable exemption. For example, Exemption 3, which allows the government to exempt information otherwise protected by another statute, is denoted as (b)(3). Id.

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at 15. Exemption 3 is then subdivided into " (b)(3)-1," which deals specifically with the Pen Register statute, " (b)(3)-2," which deals with Federal Rule of Criminal Procedure 6(e), and " (b)(3)-3," which deals with the National Security Act of 1947. These codes were placed next to each redaction or withholding, and in several places, multiple exemptions were applied.

In the case where a plaintiff fails to raise an objection to the application of an exemption, a court may " deem any challenges to documents withheld pursuant to those exemptions to be forfeited." Sennett v. Dep't of Justice, 962 F.Supp.2d 270, 281 (D.D.C. 2013) (citing Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C. 2003), aff'd 98 Fed. App'x 8 (D.C. Cir. 2004)). Here, Labow fails to raise an objection in his opposition to the adequacy of the FBI's search, or to withholdings under Exemptions 6, 7(C), or 7(F), as well as several subcategories of Exemptions 7(D) and 7(E).[2] See Pl.'s Mem. of P. & A. in Opp'n to Def.'s Mot. for Summ. J. (" Pl.'s Mem." ); Reply Mem. in Further Support of Def.'s Mot. for Summ. J. (" Reply" ) at 2. Accordingly, because Labow has not raised specific objections to those exemptions, those arguments with respect to the FBI's search and its withholdings under Exemptions 6, 7(C), and 7(F) will be treated as conceded. Similarly, the Court need not consider the applicability of the challenged exemptions for the documents that have been withheld under multiple exemptions, one of which includes Exemptions 6, 7(C), and 7(F) or the unchallenged portions of Exemption 7(D) or 7(E). E.g., Sennett, 962 F.Supp.2d at 282 (" Plaintiff does not separately challenge whether the documents were properly redacted or withheld pursuant to Exemption 7(E). Because there is an independent, unchallenged exemption upon which these few documents could be withheld, the Court will not consider the Exemption 1 challenge." ).

A. Exemption 1

Under Exemption 1, records that are " (A) specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order" are exempt from production. 5 U.S.C. § 552(b)(1). In turn, the FBI

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references Executive Order 13526, 3 C.F.R. 298 (2010), reprinted in 5 U.S.C. § 3161 app., which " governs the classification and protection of information that affects the national security," 1st Hardy Decl. ¶ 39. Under Executive Order 13526, if " unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order, and it pertains to[,]" as relevant here, " (b) foreign government information; (c) intelligence activities (including covert action), intelligence sources or methods, or cryptology; [or] (d) foreign relations or foreign activities of the United States, including confidential sources[,]" then the information may be properly classified. Exec. Order 13526 § 1.1(a)(4). An agency may only reclassify information after receiving an information request " if such classification meets the requirements of this order and is accomplished on a document-by-document basis with the personal participation or under the direction of the agency head, the deputy agency head, or the senior agency official designated under section 5.4 of this order." Exec. Order 13526 § 1.7(d).

Declarations--such as the Hardy Declaration presented here--are afforded " substantial weight" " so long as it describes the justifications for withholding the information with specific detail, demonstrates that information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith[.]" Judicial Watch, Inc. v. U.S. Dep't of Defense, 715 F.3d 937, 940-41, 404 U.S.App.D.C. 462 (D.C. Cir. 2013) (per curiam) (internal quotation marks omitted). While " any affidavit or other agency statement of threatened harm to national security will always be speculative to some extent," " [u]ltimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Am. Civil Liberties Union v. U.S. Dep't of Defense, 628 F.3d 612, 619, 393 U.S.App.D.C. 384 (D.C. Cir. 2011) (internal quotation marks omitted).

a. The Hardy Declaration establishes that classification was done in accordance with Executive Order 13526's procedural requirements.

There are two sets of documents relevant here. The first set of documents was created before Labow's FOIA request. The second set was created, and subsequently classified, after Labow's FOIA request. 2d Hardy Decl. ¶ 7(b). Labow argues that both sets of documents--Labow 200-04, 328-35, 441-45, and 1444-50--were classified after his initial request for documents, and thus the government was required to " establish[] that the individual or individuals who classified these documents had the authority to do so under § 1.7(d) of Exec. Order No. 13,526." Pl.'s Mem. at 3-4. The government disputes that the dates the plaintiff identifies as the classification dates on the first set of documents were in fact " notations made by RIDS as part of its review in the course of processing Plaintiff's FOIA requests." Reply at 4 (citing 2d Hardy Decl. ¶ 7). In particular, the Hardy Declaration notes that Labow 441-45 was classified in 2001 and Labow 200-04 was classified 2008, both before Labow's FOIA request. 2d Hardy Decl. ¶ 7(a); see Judicial Watch, Inc., 715 F.3d at 943 (rejecting Judicial Watch's claim ...


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