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Shapiro v. U.S. Department of Justice

United States District Court, D. Columbia.

January 22, 2016

RYAN NOAH SHAPIRO; JEFFREY STEIN; NATIONAL SECURITY COUNSELORS; TRUTHOUT, Plaintiffs,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant

          For RYAN NOAH SHAPIRO, Plaintiff: Jeffrey Louis Light, LEAD ATTORNEY, LAW OFFICES OF JEFFREY LIGHT, Washington, DC; Kelly Brian McClanahan, NATIONAL SECURITY COUNSELORS, Rockville, MD.

         For JEFFREY STEIN, NATIONAL SECURITY COUNSELORS, TRUTHOUT, Plaintiffs: Kelly Brian McClanahan, NATIONAL SECURITY COUNSELORS, Rockville, MD.

         For DEPARTMENT OF JUSTICE, Defendant: Kenneth A. Adebonojo, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC.

         MEMORANDUM OPINION

         RANDOLPH D. MOSS, United States District Judge.

         The 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 FOIA.

         Plaintiffs 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.

         The 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.

         I. BACKGROUND

         A. Statutory Framework

          The 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)).

         At 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).

         Also at 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).[1] 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).

         B. FBI FOIA Procedures

         This 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 included." Id.

         The 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.

         As 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 records:

(Image Omitted.)

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 processing notes:

(Image Omitted.)

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).

         Finally, 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:

(Image Omitted.)

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.

         C. Plaintiffs' FOIA Requests

         This 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.

         1. NSC's First Request (No. 1156218-000)[2]

         Plaintiff 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 was seeking

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 coordination documentation.

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., Ex. C).

         NSC 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.

         On 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.

Id.

         2. NSC's Second Request (No. 1174832-000)

         On 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. M).

         The FBI 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). Id.

         NSC 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.

         3. Stein's First Request (No. 1174507-000)

         Plaintiff 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.[3] 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.

         Stein 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.

         4. Stein's Second Request (No. 1182250-000)

         On 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.[4] 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.

         Stein 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.

         5. Stein's Third Request (No. 1182251-000)

         On 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 ...


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