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Citizens for Responsibility and Ethics in Washington v. United States Department of Justice

United States District Court, District of Columbia

February 9, 2016

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE Defendant.

MEMORANDUM OPINION

Gladys Kessler United States District Judge

Plaintiff Citizens for Responsibility and Ethics in Washington ("Plaintiff" or "CREW") brings this action against the Federal Bureau of Investigation ("FBI"), a component of the United States Department of Justice ("Defendant" or "DOJ"), under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. This matter is currently before the Court on the Parties' Cross-Motions for Summary Judgment.

CREW seeks records concerning drone and Unmanned Aerial Vehicle ("UAV") use by the FBI from January 1, 2009, onward. The FBI conducted a search for records responsive to CREW's FOIA request, produced documents to CREW, and provided a Vaughn index for all documents that were withheld in full or in part under one of FOIA's several exemptions. CREW challenges the FBI's application of FOIA Exemptions 1, 3, 4, 5, and 7(E) to withhold certain responsive information. CREW also alleges that the FBI failed to segregate and release all non-exempt information responsive to CREW'S FOIA request.

Upon consideration of Defendant's Motion for Summary Judgment ("Def.'s Mot.") [Dkt. No. 17], Plaintiff's Cross-Motion for Summary Judgment ("PL's Mot.") [Dkt. No. 19], Defendant's Opposition and Reply ("Def.'s Opp'n") [Dkt. No. 23]; Plaintiff's Reply ("PL's Reply") [Dkt. No. 25], supplemental memoranda, and the entire record herein, and for the reasons stated below, Plaintiffs' Motion for Summary Judgment shall be denied and Defendant's Motion for Summary Judgment shall be granted.

I. BACKGROUND

A. FOIA

FOIA was enacted by Congress "to ensure an informed citizenry, vital to the functioning of a democratic society." Critical Mass. Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) ("Critical Mass. III"), cert, denied, 507 U.S. 984 (1993) (citing FBI v. Abramson, 456 U.S. 615, 621 (1982)). "In enacting FOIA, Congress struck the balance it thought right--generally favoring disclosure, subject only to a handful of specified exemptions--and did so across the length and breadth of the Federal Government." Milner v. Dep't of the Navy, 562 U.S. 562, 571 n.5 (2011). FOIA's "basic purpose reflect[s] a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." Dep't of the Air Force v. Rose, 425 U.S. 352, 360-361 (1976) (internal citations and quotation marks omitted).

When an agency receives a request for records, the agency must conduct a sufficient search within the scope of the request. 5 U.S.C. § 552(a)(3). The agency then must furnish the information in a timely manner, unless the information is precluded from disclosure by one Of FOIA's nine exemptions. Id. § 552(b). FOIA's "goal is 'broad disclosure'" and thus "the exemptions must be 'given a narrow compass.'" Milner, 562 U.S. at 563 (citing U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989)). The Government always bears the burden of proving that exemptions apply to any responsive information that it withholds. 5 U.S.C. § 552(a) (4) (B) .

B. Factual Background

1. CREW'S FOIA Request

On June 26, 2013, CREW submitted a FOIA request for documents ("FOIA Request"), Def.'s Ex. A [Dkt. No. 17-2], to the FBI. CREW'S request sought four categories of documents:

1. Records sufficient to show the source or sources of all drones used by the FBI from January 1, 2 009, to the present;
2 . Records sufficient to show the funding source for all drones used by the FBI from January 1, 2009, to the present, including specific appropriations and non-appropriated sources of funds used for this purpose;
3. Records sufficient to show who provided the FBI with any-training to enable the FBI to use drones; and
4. Records reflecting or discussing any policy concerning the FBI's use of drones for any purpose, including but not limited to the legal justification for such use, and any memos of understanding between the FBI or DOJ and any other government agency or entity.

FOIA Request at 1.

CREW also requested that the FBI expedite the processing of CREW'S request pursuant to 5 U.S.C. § 552(a) (6) (E) (i) and 28 C.F.R. §§ 16.5(d)(1)(ii), (iv). FOIA Request at 4-5. CREW explained that there was particular urgency to inform the public about the FBI's use of drones to conduct domestic surveillance and that it was a matter of widespread and exceptional media interest. Id. The FBI denied CREW's request for expedition by letter on July 3, 2013. See Def.'s Ex. D [Dkt. No. 17-2].

Plaintiff filed its Complaint ("Compl.") in this matter on July 30, 2013 [Dkt. No. 1]. On February 4, 2014, the Court ordered that the FBI process at least 1, 500 pages of responsive records per month [Dkt. Nck 12] . Between November 2T, 2013, and May 30, 2014, the FBI made six interim releases and one supplemental release of records. See Defendant's Statement of Material Facts ("Def.'s Statement of Facts") ¶4 [Dkt. No. 17].

On June 16, 2 014, the parties filed a Joint Status Report in which the FBI informed the Court that it had finished processing CREW's FOIA request. See Joint Status Report, 2 [Dkt. No. 14]. In total, the FBI identified 6, 720 non-duplicative pages of responsive documents, of which it released 1, 970 in whole or in part. The rest were withheld in their entirety as exempt under several of FOIA's exemptions. Id.; see also 5 U.S.C. § 552(b).

C. Procedural Background

On October 15, 2014, DOJ filed its Motion for Summary Judgment ("Def.'s Mot.") [Dkt. No. 17]. On January 5, 2015, CREW filed its Opposition and Cross-Motion for Summary Judgment ("Pis.' Mot.") [Dkt. No. 19]. On February 13, 2015, DOJ filed its Opposition and Reply ("Def.'s Opp'n") [Dkt. No. 23]. On March 23, 2015, CREW filed its Reply ("PL's Reply") [Dkt. No. 25] . CREW filed a Supplemental Memorandum ("Supp. Mem.") [Dkt. No. 26] on March 31, 2015, and DOJ filed a Response on April 14, 2015 ("Supp. Response") [Dkt. No. 27] .

Defendant contends that the FBI released all responsive records to CREW's FOIA request and properly withheld information pursuant to FOIA exemptions 1, 2, 3, 4, 5, 6, 7 (C), and 7 (E) . CREW challenges the FBI's application of FOIA Exemptions 1, 3, 4, 5, and 7(E) only. It does not challenge withholdings under Exemptions 6 or 7(C). CREW also alleges that the FBI failed to segregate and release non-exempt information responsive to CREW's FOIA request.

II. STANDARD OF REVIEW

A. Summary Judgment

Summary judgment should be granted only if the moving party has shown that there is no genuine dispute of material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002) . "A fact is material if it might affect the outcome of the suit under the governing law, ' and a dispute about a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "FOIA cases typically and appropriately are decided on motions for summary judgment." Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009) .

"To prevail on summary judgment [against a FOIA challenge], the defending 'agency must show beyond material doubt [] that it has conducted a search reasonably calculated to uncover all relevant documents. '" Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983)). "Summary judgment may be based on affidavit, if the declaration sets forth sufficiently detailed information 'for a court to determine if the search was adequate.'" Students Against Genocide v. Dep't of State, 257 F.3d 828, 838 (D.C. Cir. 2001) (quoting Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)).

If an agency denies disclosure of responsive records, either in whole or in part, based upon FOIA exemptions, it then "bears the burden of proving the applicability of claimed exemptions." Am. Civil Liberties Union v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011) . "The government may satisfy its burden ... by submitting appropriate declarations and, where necessary, an index of the information withheld [(known as a "Vaughn index")]." Am. Immigration Lawyers Ass'n v. U.S. Dep't of Homeland Sec., 852 F.Supp.2d 66, 72 (D.D.C. 2012) (citing Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973)).

There is no set formula for a Vaughn index or declarations, but they must "provide[] a relatively detailed justification [for any nondisclosure], specifically identif[y] the reasons why a particular exemption is relevant and correlat[e] those claims with the particular part of a withheld document to which they apply." Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 146 (D.C. Cir. 2006) (quoting Mead Data Cent., Inc. v. Dep't of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). But, "exemptions from disclosure must be narrowly construed and conclusory and generalized allegations of exemptions are unacceptable." Morley, 508 F.3d at 1114-15 (internal quotation marks and citations omitted).

III. ANALYSIS

A. Sufficiency of the Search for Responsive Records

As mentioned above, to prevail in a summary judgment motion, an agency "must demonstrate that it has conducted a search reasonably calculated to uncover all relevant documents." See Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg, 745 F.2d at 1485).

DOJ has detailed the steps the FBI took in conducting the search, the databases searched, and additional measures taken. See Def.'s Mot. at 4-5. The Declaration of David M. Hardy ("Hardy Decl.") [Dkt. No. 17-1] provides additional details regarding the steps the FBI undertook in conducting its search for documents. CREW does not challenge the reasonableness of the FBI's search for responsive documents and the Court concludes that the FBI's search was reasonable and adequate.

B. FOIA Exemptions

CREW argues that DHS improperly withheld and redacted documents under various FOIA exemptions. The Court will consider each exemption in turn. For all of FOIA's exemptions, the burden of proof lies with DOJ to show proper application of the Exemption. 5 U.S.C. § 552(a)(4)(B). The Court makes a presumption of good faith on behalf of agency affidavits purporting to meet DOJ's burden. Negley v. FBI, 169 Fed.Appx. 591, 594 (D.C. Cir. 2006) . "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears 'logical' or 'plausible.'" Am. Civil Liberties Union, 628 F.3d at 619 (quoting Larson v. Pep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). Thus, "summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980) 1. FOIA Exemption

1 FOIA Exemption 1 precludes disclosure of documents 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." 5 U.S.C. § 552(b)(1).

It is undisputed that the requirements for classifying information relevant to this request are contained in Executive Order 13, 526 ("E.O. 13, 526"). See Def.'s Mot, at 7-8 (citing Exec. Order No. 13, 526, 75 FR 707 (Dec. 29, 2009) (codified at 32 C.F.R. Parts 2001 and 2003)); PL's Mot. at 13. Executive Order 13, 526 provides that information may be classified if:

(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the control of the United States Government;
(3) the information falls within one or more of the categories of information listed in section ...

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