United States District Court, D. Columbia.
RYAN NOAH SHAPIRO; JEFFREY STEIN; NATIONAL SECURITY COUNSELORS; TRUTHOUT, Plaintiffs,
U.S. DEPARTMENT OF JUSTICE, Defendant
RYAN NOAH SHAPIRO, Plaintiff: Jeffrey Louis Light, LEAD
ATTORNEY, LAW OFFICES OF JEFFREY LIGHT, Washington, DC; Kelly
Brian McClanahan, NATIONAL SECURITY COUNSELORS, Rockville,
JEFFREY STEIN, NATIONAL SECURITY COUNSELORS, TRUTHOUT,
Plaintiffs: Kelly Brian McClanahan, NATIONAL SECURITY
COUNSELORS, Rockville, MD.
DEPARTMENT OF JUSTICE, Defendant: Kenneth A. Adebonojo, LEAD
ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF
COLUMBIA, Washington, DC.
D. MOSS, United States District Judge.
Freedom of Information Act (" FOIA" or the "
Act" ), 5 U.S.C. § 552 et seq., was
enacted to promote transparency and accountability in how the
federal government discharges its numerous and far-ranging
responsibilities. This case raises a variety of questions
relating to how FOIA applies to the Federal Bureau of
Investigation's (" FBI" ) discharge of one of
those duties--its responsibility to comply with FOIA itself.
This is, in short, a case about how the FBI applies FOIA to
are several nonprofit organizations and journalists who filed
multiple FOIA requests with the FBI seeking the processing
documents associated with dozens of prior FOIA requests that
they or others had submitted. The FBI produced some
responsive documents, but redacted or withheld pages from
those documents, and issued categorical denials in response
to many of the plaintiffs' requests, refusing to produce
any responsive documents at all. Most broadly, the agency
declined to produce any of the processing records
routinely generated in responding to FOIA requests submitted
in the last 25 years for material contained in investigative
files. The FBI explained that producing these records might
allow a savvy FOIA requester to identify the rare cases where
the FBI has exercised its discretion to issue a "
none-found" response to a FOIA request for records that
are " excludable" under FOIA, and thus would risk
the implicit disclosure of highly sensitive information
relating to ongoing investigations, confidential informants,
and classified national security matters. See 5
U.S.C. § 552(b)(7)(E), (c). The agency also broadly
declined to provide any " case evaluation
forms," which are forms used to track and evaluate the
performance of FBI employees engaged in processing FOIA
requests. In the FBI's view, these forms are exempt from
disclosure because they relate " solely to the internal
personnel rules and practices of [the] agency."
Id. § 552(b)(2). In addition to these
categorical denials, the FBI declined to produce a number of
records responsive to individual requests, relying on a host
of other, more specific grounds.
plaintiffs filed this action to compel the FBI to produce the
withheld material. They challenge the adequacy of the
FBI's searches and many, although not all, of the grounds
asserted by the agency to withhold responsive records. They
also bring a facial challenge to the FBI's policy of
declining to provide any processing records for FOIA requests
made within the last 25 years that sought material from FBI
investigative files. The FBI has now moved for summary
judgment, and the plaintiffs have cross-moved for partial
summary judgment. For the reasons detailed below, the Court
will GRANT the plaintiffs' motion for partial summary
judgment in part and DENY it in part; it will, for the same
reasons, GRANT the FBI's motion for summary judgment in
part and DENY it in part.
Freedom of Information Act is premised on the notion that an
informed citizenry is " 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 embodies
" a general philosophy of full agency disclosure."
U.S. Dep't of Defense v. FLRA, 510 U.S. 487, 494
(1994), 114 S.Ct. 1006, 127 L.Ed.2d 325 (quoting
Dep't of Air Force v. Rose, 425 U.S. 352,
360-61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)). It thus
mandates that an agency disclose records upon request, unless
they fall within one of nine exemptions. " These
exemptions are 'explicitly made exclusive' and must
be 'narrowly construed.'" Milner v.
Dep't of Navy, 562 U.S. 562, 565, 131 S.Ct. 1259,
179 L.Ed.2d 268 (2011) (quoting EPA v. Mink, 410
U.S. 73, 79, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), and FBI
v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72
L.Ed.2d 376 (1982)).
issue here are four of the nine exemptions. Exemption 2
" shields from compelled disclosure documents
'related solely to the internal personnel rules and
practices of an agency.'" Id. (quoting 5
U.S.C. § 552(b)(2)). Exemption 5 protects "
inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency
in litigation with the agency." 5 U.S.C. §
552(b)(5). It exempts " those documents, and only those
documents, normally privileged in the civil discovery
context." NLRB v. Sears, Roebuck & Co., 421
U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975)).
Exemption 6 protects information about individuals in "
personnel and medical files and similar files" when its
disclosure " would constitute a clearly unwarranted
invasion of personal privacy." 5 U.S.C. §
552(b)(6). Finally, Exemption 7 shields from disclosure
" records or information compiled for law enforcement
purposes, but only to the extent that" release of the
records would disclose one of six kinds of sensitive
information. Id. § 552(b)(7). Two of the six
are relevant here: Exemption 7(C), which applies whenever
disclosure " could reasonably be expected to constitute
an unwarranted invasion of personal privacy,"
id. § 552(b)(7)(C), and Exemption 7(E), which
applies whenever release of the information " would
disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines
for law enforcement investigations or prosecutions if such
disclosure could reasonably be expected to risk circumvention
of the law," id. § 552(b)(7)(E).
issue here are FOIA's three " exclusions."
These statutory provisions authorize law enforcement
agencies, under unusual circumstances, to " treat
[responsive] records as not subject to the requirements of
[FOIA]," see id. § 552(c)(1)--(3), and
accordingly to deny that any such records exist. See
ACLU of Michigan v. FBI, 734 F.3d 460, 469-72 (6th
Cir. 2013). A law enforcement agency may rely on
an exclusion only if a request is made for records that (1)
implicate an ongoing criminal investigation if " there
is reason (i) to believe that the subject of the
investigation . . . is not aware of its pendency, and (ii)
disclosure of the existence of the records could reasonably
be expected to interfere with enforcement proceedings,"
5 U.S.C. § 552(c)(1); (2) concern an undisclosed
informant, id. § 552(c)(2); or (3) "
pertain to foreign intelligence or counterintelligence, or
international terrorism," if the records are maintained
by the FBI and are classified, id. § 552(c)(3).
FBI FOIA Procedures
case concerns various documents that the FBI creates while
processing FOIA requests. The division of the FBI that is
responsible for processing FOIA requests is known as the
Record/Information Dissemination Section (" RIDS"
). See Dkt. 21-3 at 1-2 (Hardy Decl. ¶ ¶
1-3). According to a declaration submitted by the director of
RIDS, David M. Hardy, RIDS analysts primarily rely on two
database systems to conduct searches of records that might be
responsive to FOIA requests. Id. at 14-16 (Hardy
Decl. ¶ ¶ 53-57). The FBI's Freedom of
Information and Privacy Act Document Processing System
(" FDPS" ) is the primary database. Id. at
14 (Hardy Decl. ¶ 53). FDPS is a " request
management system" that RIDS employees use to "
track FOIA/Privacy Act requests, referrals, appeals, and
litigations." Id. (Hardy Decl. ¶ 54).
" Within FDPS, an electronic file is created for each
FOIA/Privacy Act request" that contains " copies of
pertinent correspondence," including the request and the
FBI's response letter; " processing-related
documents," including search slips; and " multiple
versions" (i.e., the original version and a redacted
version) " of the records processed in response to"
the FOIA request. Id. at 14-15 (Hardy Decl. ¶
55). " FDPS also includes a 'notes' section in
which additional processing-related information may be
second database is the FBI's Central Records System
(" CRS" ). Id. at 15 (Hardy Decl. ¶
56). The CRS contains " administrative, applicant,
criminal, personnel, and other files compiled for law
enforcement purposes." Id. According to Hardy,
" [a]lthough the CRS is primarily designed to serve as
an investigative tool, the FBI searches the CRS for documents
that are potentially responsive to FOIA/Privacy Act
requests when it determines that responsive records are
likely to be maintained in the CRS." Id. In
other words, RIDS employees search the CRS for records that
may be responsive to FOIA requests; they document the results
of those searches, and other efforts, in FDPS.
described below, Plaintiffs submitted various FOIA requests
to obtain documents that the FBI had previously
created in processing earlier FOIA requests--some
submitted by Plaintiffs themselves and some submitted by
other requesters. Although Plaintiffs stated generally that
they sought " all records" that documented the
FBI's efforts to respond to the prior FOIA requests,
see, e.g., Dkt. 21-4 at 3 (Hardy Decl., Ex. A), this
case centers on three types of processing records: search
slips, case processing notes, and case evaluation forms.
Search slips are records that document the efforts
of RIDS analysts to search for files responsive to FOIA
requests. Plaintiffs have provided the following example of a
search slip, which they presumably obtained before the FBI
adopted its categorical policy of denying access to these
Dkt. 27-13 at 44 (Pls.' Mot. Summ. J., Ex. M). Although
the exact format of the search slips the FBI creates has
varied over time, most search slips contain, at the very
least, cross-references to the CRS files searched by the RIDS
analysts, see Dkt. 21-3 at 21-22 (Hardy Decl. ¶
70), and the dates on which those files were searched.
FDPS case processing notes also document the efforts
of RIDS analysts to process FOIA requests. The plaintiffs
have provided the following example of a page of case
Dkt. 27-5 at 26 (Pls.' Mot. Summ. J., Ex. E). The primary
difference between the FDPS case processing notes and the
search slips is that the notes contain "
employee-generated notations . . . [that] may contain the
same information as . . . search slips but are often far more
detailed." Dkt. 21-3 at 23 (Hardy Decl. ¶ 72). That
is, while the search slips that correspond to a given FOIA
request may contain cross-references to the relevant CRS
files, the processing notes may explain why a particular
record contained in those files could not be located, or why
it could not be provided to a requester. See id.
(Hardy Decl. ¶ ¶ 72-73).
case evaluation forms are records that are "
maintained in RIDS administrative personnel files for
purposes of tracking and evaluating the performance of
employees who process FOIA and Privacy Act requests."
Id. at 19 (Hardy Decl. ¶ 66). The plaintiffs
have provided the following example of both sides of a case
evaluation form, which, again, they presumably obtained
before the FBI adopted its current policy:
Dkt. 27-6 at 1-2 (Pls.' Mot. Summ. J., Ex. F). The case
evaluation forms contain some information about the databases
that the RIDS analyst tasked with processing a particular
FOIA request relied on in processing it, see
id. at 2, but the forms focus on the performance of
the analyst rather than the substance of the request.
Plaintiffs' FOIA Requests
action arises from the denial of several different FOIA
requests brought by several different plaintiffs. For the
sake of clarity, the Court sets out the administrative
history of each request, or set of requests, separately.
NSC's First Request (No.
National Security Counselors (" NSC" ) is a
nonprofit organization incorporated in Virginia. Dkt. 1 at 2
(Compl. ¶ 5); see also Nat'l Sec.
Counselors v. CIA, No. 14-5171, 811 F.3d 22, 2016 WL
191904, at *2-3 (D.C. Cir. Jan. 15, 2016). On October 26,
2010, NSC submitted a FOIA request to the FBI via e-mail
seeking " all [FBI] records" regarding seven
previous FOIA requests " that contain remarks, comments,
notes, explanations, etc.[,] made by FBI personnel or
contractors about the processing of these requests."
Dkt. 21-4 at 3 (Hardy Decl., Ex. A). NSC specified that it
any analysts' notes made during the processing of the
requests, any standard worksheets (including Work Process
Unit Case Evaluation Forms) completed by FBI personnel or
contractors, any justifications for exemption invocations or
other supporting documentation provided to the Appeals
Authority, and any correspondence referencing the requests,
including tasking orders, emails, referral memos, and
Id. The FBI replied on December 6, 2010. Dkt. 21-4
at 8 (Hardy Decl., Ex. B). It indicated that it had reviewed
eight pages of records and released all eight, withholding
some information on the basis of Exemptions 2, 6, and 7(C).
Id. The pages the FBI released were "
printout[s] of the 'Notes' field of the FBI
processing database for each of the requests in
question." See id. at 12 (Hardy Decl.,
appealed the adequacy of the FBI's search. Id.
It stated that it believed the FBI's response had been
incomplete, given that the documents released " did not
reflect the complete histories of six of the requests."
Id. NSC specified that it " did not receive
any of the Work Processing Unit's Case
Evaluation Forms that are typically completed for FOIA
requests." Id. at 13 (emphasis in original).
The Justice Department's Office of Information Policy
(" OIP" ), which adjudicates appeals regarding FOIA
requests submitted to Justice Department components, "
remand[ed] [NSC's] request for a further search for
records" on June 24, 2011. Id. at 17 (Hardy
Decl., Ex. E). On remand, the FBI released " the exact
same records" for six of the seven case files, this time
withholding information only on the basis of Exemption 6.
Id. at 32 (Hardy Decl., Ex. G); see also
id. at 19-30 (Hardy Decl., Ex. F). The FBI did not
release any records for the seventh case file, and NSC does
not challenge its failure to do so in this action.
November 4, 2011, NSC again appealed the adequacy of the
FBI's search. Id. at 32 (Hardy Decl., Ex. G).
NSC's executive director, Kel McClanahan, wrote:
I can point directly to the documents that are missing. When
the [Records and Management Division] performs a search, it
fills out an " FBI RMD FOIPA Search Slip," and the
person doing the search writes a memo back . . . . However,
no such documents were released in this request, despite the
fact that they would be clearly responsive.
Id. On January 20, 2012, OIP again remanded the
request for further review. Id. at 41 (Hardy Decl.,
Ex. I). But it simultaneously " affirm[ed], on modified
grounds, the FBI's action." Id.
Specifically, OIP wrote:
To the extent that you are seeking search slips associated
with the processing of the above-referenced requests, please
be advised that this information is protected from disclosure
under the FOIA pursuant to [Exemption 7(E)]. This provision
concerns records or information compiled for law enforcement
purposes the release of which would disclose techniques and
procedures for law enforcement investigations or
prosecutions. Because any such records responsive to your
request would be categorically exempt from disclosure, the
FBI properly asserted Exemption 7(E) and was not required to
conduct a search for such records.
NSC's Second Request (No. 1174832-000)
October 5, 2011, while it was appealing the FBI's second
production of records in its first request, NSC submitted
another FOIA request to the FBI. Dkt. 21-4 at 44 (Hardy
Decl., Ex. J). NSC sought " all [FBI] records"
relating to twelve previous FOIA requests " that contain
remarks, comments, notes, explanations, etc.[,] made by FBI
personnel or contractors about the processing of these
requests." Id. at 45. Specifically, NSC
explained that it sought " [a]ny and all" of the
following documents: " analysts' notes made during
the processing of the requests," " pages and fields
from [the FBI]'s case tracking system," "
records pertaining to the searches performed," "
worksheets (including Work Process Unit Case Evaluation
Forms) completed by FBI personnel or contractors," and
" correspondence referencing the requests."
Id. None of the twelve previous FOIA requests had
been submitted by NSC; each request had been submitted by
someone else and had ultimately been the subject of FOIA
litigation. See Id. at 58 (Hardy Decl., Ex.
replied on October 31, 2011. Id. at 52 (Hardy Decl.,
Ex. L). It released six partially redacted pages, all
documenting the FBI's processing of one of the twelve
previous FOIA requests. Id. at 53. The FBI indicated
that the other eleven FOIA requests " pertain[ed] to
third parties" and therefore " c[ould ]not be
released absent express authorization and consent of the
third parties, proof that the subjects . . . [we]re deceased,
or a clear demonstration that the public interest in
disclosure outweighs the personal privacy interest."
Id. The subject of the one FOIA request for which
the FBI did provide processing records was deceased.
Id. The FBI explained that disclosure of the
records--absent consent, proof of death, or proof that
disclosure would be in the public interest--" would be
in violation of the Privacy Act." Id. The FBI
added that the records " may also b[e] exempt from
disclosure pursuant to" Exemptions 6 and 7(C).
appealed. Id. at 56 (Hardy Decl., Ex. M). It argued
that the Privacy Act did not apply to a FOIA request, and
that the requested records were not exempt under Exemption 6,
because " [t]he information in these records is publicly
available in the [FBI's declarations] in the court cases
which arose from these requests." Id. at 58.
NSC's request, it explained, was simply " a request
for the raw material used in the crafting of those
declarations." Id. In response, OIP "
affirm[ed], on partly modified grounds, the FBI's action
on [NSC's] request." Id. at 62 (Hardy
Decl., Ex. O). It explained that the requested documents were
properly withheld because they were exempt under Exemptions
6, 7(C), and 7(E). Id.
Stein's First Request (No. 1174507-000)
Jeff Stein is an " investigative reporter of long
standing, specializing in U.S. intelligence, defense, and
foreign policy." Dkt. 21-4 at 67 (Hardy Decl., Ex. P).
Represented by NSC, he submitted a FOIA request to the FBI on
September 28, 2011, seeking " all information pertaining
to the searches conducted by the [FBI] which were used,
referenced, or relied upon" in the declarations
submitted by the FBI in six FOIA actions. Id. at 66.
The FBI replied on October 4, 2011. Id. at 72 (Hardy
Decl., Ex. Q). It released no records, relying on the same
ground it had cited in denying NSC's similar request for
third-party records. Id. It stated that, because the
original FOIA requests for which Stein had requested
processing documents " pertain[ed] to third
parties," they " c[ould ]not be released absent
express authorization and consent of the third parties, proof
that the subjects . . . [we]re deceased, or a clear
demonstration that the public interest in disclosure
outweighs the personal privacy interest." Id.
appealed on October 6, 2011. Id. at 76 (Hardy Decl.,
Ex. R). As it had in adjudicating NSC's appeal, OIP
" affirm[ed], on modified grounds, the FBI's
action." Id. at 80 (Hardy Decl., Ex. T). It
explained that " [t]he FBI properly withheld this
information in full because it is protected from
disclosure" under Exemption 7(E). Id.
Stein's Second Request (No. 1182250-000)
November 10, 2011, Stein (again represented by NSC) submitted
a second FOIA request to the FBI. Dkt. 21-4 at 83 (Hardy
Decl., Ex. U). He requested " all information pertaining
to the searches conducted by the [FBI] which was used,
referenced, or relied upon" in the declarations
submitted by the FBI in two additional FOIA
actions. Id. The FBI assigned Stein
two " request numbers," one corresponding to each
action for which Stein had requested documents. See
id. at 88-89 (Hardy Decl., Ex. V). On May 31, 2012,
the FBI responded to the first of the two requests (No.
1182250-000). Id. at 91 (Hardy Decl., Ex. W). It
stated that it had reviewed 194 pages of documents and
released 33 pages with withholdings. Id. It
justified its withholdings on the basis of Exemptions 1, 6,
7(C), and 7(E). Id. Because the cost of producing
the documents fell beneath the FBI's regulatory threshold
for assessing fees, the FBI provided the documents at no
cost. Id. at 92.
appealed " all of the FBI's withholdings."
Id. at 98 (Hardy Decl., Ex. Y). On September 27,
2012, OIP " affirm[ed] the FBI's action." Dkt.
21-5 at 6 (Hardy Decl., Ex. CC). It explained that the
FBI's withholdings were appropriate because the
information was protected from disclosure under Exemptions 1,
6, 7(C), and 7(E). Id. at 6-7.
Stein's Third Request (No. 1182251-000)
March 27, 2012, the FBI responded to what it had treated as
the second of Stein's two November 2011 requests (No.
1182251-000). Dkt. 21-5 at 11 (Hardy Decl., Ex. EE). It
stated that it had located 694 pages potentially responsive
to Stein's request. Id. But it notified him that
he would be required to be a processing fee of either $59.40,
for the cost of duplicating the records, or $20, for the cost
of producing two CDs with the records. Id. Stein
appealed. Dkt. 21-5 at 13 (Hardy Decl., Ex. FF). He argued
that the $20 estimate was driven solely by the FBI's
" blanket policy of placing only 500 pages on a CD
(since he is entitled to one CD free of charge)."
Id. at 14. In response, OIP affirmed the FBI's
action, concluding that the fee estimate was reasonable in