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Tipograph v. Department of Justice

United States District Court, D. Columbia.

March 18, 2015


For Susan v. Tipograph, Plaintiff: Jeffrey Louis Light, LAW OFFICES OF JEFFREY LIGHT, Washington, DC USA.

For United States Department of Justice, Defendant: Andrea McBarnette, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC USA.


CHRISTOPHER R. COOPER, United States District Judge.

Susan Tipograph, a New York attorney, lodged a Freedom of Information Act (" FOIA" ) request with the Federal Bureau of Information (" FBI" ) seeking records about Marie Mason, her incarcerated client. The FBI initially withheld all responsive records in Mason's investigative file under FOIA Exemption 7(A), covering law enforcement records. After Tipograph filed suit in this Court, the FBI released a number of public documents from the file. Both parties have now moved for summary judgment. Tipograph contends that the FBI has not justified withholding the remaining records in Mason's investigative file under Exemption 7(A), or under two other exemptions: Exemption 5, concerning the deliberative process privilege, and Exemption 7(D), concerning implied assurances of confidentiality. She also contends that the FBI failed to conduct the record-level review required under Exemption 7(A) when it first received her request. Because the Court finds that the FBI has adequately justified its withholding of records under Exemption 7(A), it need not address Tipograph's other objections. The Court will, however, remind the FBI of its obligation to conduct record-level reviews at the administrative level before refusing to produce records contained in its investigative files.

I. Background

Marie Mason, a member of the Earth Liberation Front (" ELF" ), pled guilty to arson against a research facility at Michigan State University. First Decl. of David M. Hardy, July 22, 2014 (" Hardy Decl." ) ¶ ¶ 7--9. An expert declaration submitted by the plaintiff describes members of the ELF and similar groups as loosely-affiliated activists who engage in civil disobedience and occasional acts of relatively harmless property destruction to raise awareness about environmental protection and animal rights. First Declaration of Ryan Noah Shapiro (" Shapiro Decl." ) ¶ ¶ 11--14. The FBI begs to differ, calling them " extremists [who] present one of the most serious domestic terrorism threats in the United States today." Public Decl. of John Giacalone, July 14, 2014 (" Giacalone Decl." ) ¶ 5. Mason is currently serving a twenty-year sentence. Hardy Decl. ¶ 9.

In December 2011 Mason's attorney, Susan Tipograph, submitted a FOIA request to the FBI for documents related to her client. Compl. ¶ 9. She requested copies of " any records that were prepared, received, transmitted, collected and/or maintained by the FBI relating to Marie Mason" for the period between January 26, 1962 and November 7, 2011. Id. After conducting a search of its database, the FBI informed Tipograph that information responsive to her request was located " in an investigative file" and was therefore exempt from disclosure pursuant to FOIA Exemption 7(A). Hardy Decl. ¶ 12 & Ex. C. Tipograph appealed this determination, which the FBI affirmed. Id. ¶ ¶ 13, 15 & Exs. D, F. The FBI later released 199 pages of public source information in whole or in part. Id. ¶ ¶ 17, 18, 21. After a hearing before Judge Wilkins, who previously presided over this matter, the FBI also released duplicate pages and pages that were no longer subject to a court sealing order. Second Decl. of David M. Hardy, July 22, 2014 (" Second Hardy Decl." ), ¶ ¶ 5, 14.

As for the remaining responsive documents, the FBI argues that any further disclosure " would interfere with potential law enforcement proceedings." Hardy Decl. ¶ 39. The FBI also asserts the right to withhold those same records on the grounds that they are classified, statutorily exempt, privileged, confidential, and contain information on investigative technique and procedures. Id. ¶ ¶ 32, 35 & Ex. G. The government has not disclosed how many records it is withholding, arguing that that " information would reveal the scope and extent of the FBI's investigations, which would interfere with such ongoing proceedings." Id. ¶ 39.

II. Standard of Review

Congress passed FOIA " to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Am. Civil Liberties Union v. Dep't of Justice, 655 F.3d 1, 5, 398 U.S.App.D.C. 1 (D.C. Cir. 2011) (quoting Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)). " The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). The act, however, contains a set of exemptions to the general obligation to provide government records to the public. 5 U.S.C. § 552(b). These exemptions are intended " to balance the public's interest in governmental transparency against the 'legitimate governmental and private interests [that] could be harmed by release of certain types of information.'" United Techs. Corp. v. Dep't of Defense, 601 F.3d 557, 559, 390 U.S.App.D.C. 136 (D.C. Cir. 2010) (quoting Critical Mass. Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872, 298 U.S.App.D.C. 8 (D.C. Cir. 1992) ( en banc) ). Because FOIA " mandates a strong presumption in favor of disclosure," its " statutory exemptions, which are exclusive, are to be narrowly construed." Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32, 353 U.S.App.D.C. 374 (D.C. Cir. 2002) (quotations omitted).

Like most FOIA cases, this suit comes to the Court on cross motions for summary judgment. Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). In deciding a motion for summary judgment, the Court assumes the truth of the non-movant's evidence and draws all reasonable inferences in the non-movant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The government bears the burden to establish that its claimed exemptions apply to each document for which they are invoked. Am. Civil Liberties Union, 628 F.3d at 619. It may satisfy this burden through declarations that describe the justifications for its withholdings in " specific detail, demonstrate[ing] that the information withheld logically falls within the claimed exemption." Id. The government cannot satisfy its burden with affidavits that are vague or conclusory, or merely parrot the statutory standard. Consumer Fed'n of Am. v. Dep't of Agric., 455 F.3d 283, 287, 372 U.S.App.D.C. 198 (D.C. Cir. 2006). The Court affords an agency affidavit substantial weight so long as it " is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith." Judicial Watch, Inc. v. Dep't of Defense, 715 F.3d 937, 940-41, 404 U.S.App.D.C. 462 (D.C. Cir. 2013) (quotation omitted).

III. Analysis

Tipograph does not dispute the adequacy of the FBI's search for responsive records. Pl.'s Resp. Def.'s Statement of Material Facts ΒΆ 5. She objects, rather, to three of the eight exemptions the government asserts. Tipograph contends that the government's descriptions of the categories of records it withheld pursuant to Exemption 7(A) do not functionally link those categories to any rational investigative purpose. She further alleges that the government has not provided enough detail to justify its withholding of the same records under Exemption 5, which protects the deliberative process privilege, or Exemption 7(D), which shields from disclosure information given under an implied grant of confidentiality. Finally, Tipograph argues that the FBI has a practice of not conducting a document-by-document review--as required to invoke Exemption 7(A)--until after a requester files a lawsuit, and thus seeks a declaratory ...

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