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Electronic Privacy Information Center v. Department of Justice Criminal Division

United States District Court, D. Columbia.

March 4, 2015

ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,
v.
DEPARTMENT OF JUSTICE CRIMINAL DIVISION, et al., Defendants

For ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff: Marc Rotenberg, Washington, DC.

For U.S. DEPARTMENT OF JUSTICE, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE, NATIONAL SECURITY DIVISION, FEDERAL BUREAU OF INVESTIGATION, Defendants: Lisa Zeidner Marcus, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division / Federal Programs Branch, Washington, DC.

MEMORANDUM OPINION

BARBARA J. ROTHSTEIN, UNITED STATES DISTRICT JUDGE.

Granting in part & Denying in Part Defendants' Motion for Summary Judgment; Granting in part & Denying in Part Plaintiff's Motion for Summary Judgment

I. INTRODUCTION

This matter is before the Court on the parties' cross-motions for summary judgment and Plaintiff's motion for in camera review of the Defendants' withheld records. Dkt. Nos. 12, 15, 17, 34. Plaintiff Electronic Privacy Information Center (" EPIC" ) submitted a Freedom of Information Act (" FOIA" ) request seeking documents related to the Government's investigation into WikiLeaks, an " Internet-based media organization" famous for releasing classified information to the public. EPIC now brings suit against the Federal Bureau of Investigations (" FBI" ), the Department of Justice's National Security Division (" NSD" ), and the Department of Justice's Criminal Division (" CRM" ) (collectively, " Defendants," " the agencies," or " the Government" ). The Court grants summary judgment in favor of FBI and CRM because these agencies have demonstrated that they conducted adequate searches and properly withheld any responsive documents pursuant to FOIA Exemption 7. However, because NSD fails to demonstrate that its search was adequate, the Court denies NSD's motion for summary judgment and grants Plaintiff's Cross-Motion in this regard.

II. BACKGROUND

On November 28, 2010, WikiLeaks published numerous classified United States government documents that had been provided to it by Private Bradley Manning. The Department of Justice immediately initiated an investigation into the possible unauthorized released of classified information. Compl. ¶ ¶ 15-16; Defs.' Mot. at.

As part of its investigation, the Government sought and obtained a court order compelling the social networking website, Twitter, to disclose customer account information for five individuals, including Manning, WikiLeaks spokesperson, Jacob Appelbaum, and WikiLeak's founder, Julian Assange. See United States v. Appelbaum, 707 F.3d 283, 287 (4th Cir. 2013). Plaintiff suspects that other online services were served with similar court orders requesting information on WikiLeaks supporters. Def.'s Mot., Ex. 1A at 3. Plaintiff also claims that " the government began to target members, supporters, and associates of WikiLeaks and WikiLeaks' sources." In support for this claim, Plaintiff points to news articles on the FBI's questioning of Abbelbaum and David House, the creator of a website that supports Manning. Pl.'s Opp'n at 4.

On June 23, 2011, EPIC filed FOIA requests with each of the Defendants, seeking records related to the Government's investigation into WikiLeaks. Pl.'s Cross-Mot., Dkt. 15 at 5; Compl., Dkt. 1 at ¶ ¶ 30-32. Specifically, EPIC's requested four categories of records:

1. All records regarding any individuals targeted for surveillance for support for or interest in WikiLeaks;
2. All records regarding lists of names of individuals who have demonstrated support for or interest in WikiLeaks;
3. All records of any agency communications with Internet and social media companies including, but not limited to Facebook and Google, regarding lists of individuals who have demonstrated, through advocacy or other means, support for or interest in WikiLeaks; and
4. All records of any agency communications with financial services companies including, but not limited to Visa, MasterCard, and PayPal, regarding lists of individuals who have demonstrated, through monetary donations or other means, support or interest in WikiLeaks.

Defs.' Mot., Exs. 1A, 3-1, 5-1.

Each of the agencies responded to EPIC's FOIA requests separately. CRM requested more specification on the subject matter and time frame of desired records. Defs.' Mot. Summ. J. Ex 5, App. 2. After receiving clarification, CRM responded that it had not yet conducted a search but that any responsive records would not be disclosed pursuant to Exemptions 6 and 7(c). Id., Ex. 5, App. 4. Meanwhile, NSD responded that it was withholding responsive records pursuant to Exemption 7(a). Id., Ex. 3-2.

Lastly, FBI stated that it had searched " the indices to [its] Central Records System" using the term WikiLeaks and was " unable to identify responsive main file records." Id., Ex. 1B (internal quotation marks omitted). In a subsequent search of its Central Records System (" CRS" ), the FBI identified " investigative files that likely contain information responsive to [P]laintiff's FOIA request." Id., Ex. 1 (" 1st Hardy Decl." ) ¶ 19.[1] The FBI withheld these potentially responsive records pursuant to Exemption 7(A). Id. ¶ 20.

Unsatisfied with the agencies' responses, EPIC filed this lawsuit, seeking review of the adequacy of the FBI and NSD's searches and each of the agency's decision to withhold the responsive documents. See generally Compl. The parties filed cross-motions for summary judgment. Dkt. Nos. 12, 15. In support of its motion, Defendants filed public and ex parte affidavits from each of the relevant agencies. See Order (July 29, 2014) (granting Defendant's motion for leave to file ex parte declarations).

At this juncture, Defendants maintain that all of the responsive documents are protected from disclosure by Exemption 7(A), although additional exemptions may also apply.[2] Defs' Mot. at 1; Defs' Supp'l at 14. Plaintiff insists that Exemption 7(A) cannot apply because it is " not generally seeking records about individuals who may be the target of criminal investigations, [but rather] it is seeking records about individuals who are exercising their Constitution rights," by supporting WikiLeaks. Pl.'s Cross-Mot. at 1. Plaintiff has also moved for in camera review of the withheld records. Dkt. No. 17.

After this case was transferred to the undersigned, the Court instructed the parties to file supplemental briefing to shed light on any relevant events that had transpired since the filing of the parties' cross-motions for summary judgment. The Defendants report that on July 2013 Manning was convicted in the military court and his appeal is pending. Defs' Supp'l at 8. Defendants note that Manning's prosecution is separate and distinct from the Department of Justice and FBI's multi-subject investigation into the unauthorized disclosure of classified information published on WikiLeaks, which is " still active and ongoing" and remains in the investigative stage. Defs' Supp'l Br. at 8.

The Court turns now to consider the parties' specific arguments and the ...


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