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Stein v. U.S. Department of Justice

United States District Court, District of Columbia

July 18, 2016

JEFFREY STEIN, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN UNITED STATES DISTRICT JUDGE

         This action concerns six unrelated Freedom of Information Act (“FOIA”) requests that Plaintiff Jeffrey Stein made to the Federal Bureau of Investigation (the “FBI”), the Civil Division of the United States Department of Justice, and the Executive Office for United States Attorneys, all of which are components of the United States Department of Justice (“DOJ” or “Defendant”).

         Defendant has previously filed two motions for summary judgment. This court issued a Memorandum Opinion and Order on those motions in September 2015. See generally Stein v. U.S. Dep’t of Justice, 134 F.Supp.3d 457 (D.D.C. 2015).

         Presently before the court are Defendant’s renewed motions for summary judgment on Counts V and VI of Plaintiff’s Complaint, both of which pertain to FBI records requested by Plaintiff. Plaintiff has also cross-moved for summary judgment on Count VI.

         Upon consideration of the parties’ motions and briefs, and for the reasons set forth below, Defendant’s renewed motion for summary judgment on Count V is hereby GRANTED, Defendant’s renewed motion for summary judgment on Count VI is hereby DENIED and Plaintiff’s cross-motion for summary judgment on Count VI is hereby GRANTED.

         I. BACKGROUND AND PROCEDURAL HISTORY

         a. Count V (FBI Records Regarding Christopher Hitchens)

         On January 9, 2012, Plaintiff submitted a FOIA request to the FBI for all records, including cross-references, regarding the late Christopher Hitchens, the noted British author and journalist. (Fourth Decl. of David M. Hardy, dated May 15, 2014 (“Fourth Hardy Decl.”), Ex. A; Compl. ¶ 45).

         In March 2012, the FBI released to Plaintiff 19 pages of material previously processed for another requester, with certain information redacted pursuant to FOIA exemptions. (Fourth Hardy Decl. ¶ 8 (citing Ex. C thereto); Compl. ¶ 47). Plaintiff appealed the adequacy of the search and the FBI’s assertion of exemptions to DOJ’s Office of Information Policy (“OIP”). (Fourth Hardy Decl. Ex. D; Compl. ¶ 48). OIP remanded Plaintiff’s request for additional searches, but otherwise affirmed the FBI’s determination, including the assertion of all exemptions. (Fourth Hardy Decl. Ex. F; Compl. ¶¶ 49-50). After conducting additional searches, the FBI reviewed 65 pages of records and released 42 of those pages to Plaintiff in full or in part, with certain information again redacted. (Fourth Hardy Decl. ¶ 13).

         The first round of summary judgment briefing on Count V concerned Plaintiff’s challenge to the FBI’s assertion of FOIA exemption (b)(7)(D). In its September 2015 Memorandum Opinion and Order, the court found that while the FBI had properly withheld information pursuant to exemption (b)(7)(D) on the one page for which it had asserted an express assurance of confidentiality, it had not met its burden of establishing that it properly withheld information pursuant to exemption (b)(7)(D) on the 28 pages of records for which it had asserted an implied assurance of confidentiality. See Stein, 134 F.Supp.3d at 483-87. Accordingly, the court ordered Defendant to provide a sufficient explanation for its assertion that an implied assurance of confidentiality permitted the withholding of information on these 28 pages. See Id. at 487.

         The declaration accompanying Defendant’s renewed motion for summary judgment on Count V avers as follows:

The FBI’s conclusion that the foreign government agency at issue here expected confidentiality in its dealings with the FBI and with regard to the information it provided to the FBI is based on the Foreign Government Information Classification Guide #1 (the “G-1 Guide”). . . . The G-1 Guide governs classification of foreign government information that foreign governments have asked the FBI to protect over the course of time. The FBI uses the G-1 Guide to determine the level and duration of derivative classification of foreign government information. . . .
While ostensibly a classification document, the G-1 Guide also provides for confidentiality in non-national security areas. Specifically, it provides that the relationships between certain foreign law enforcement entities and the FBI will not be disclosed and will remain confidential, at the request of those foreign entities.
As relevant here, according to the G-1 Guide, the foreign agency referenced in the records at issue here requested its relationship with the FBI be classified. . . . [T]he fact that the foreign intelligence agency referenced in the responsive records here specifically requested its relationship with the FBI be classified evidences that it expected and expects confidentiality in its interactions with the FBI and with regard to the information it provided to the FBI for law enforcement/national security purposes under applicable information sharing agreements.

(Sixth Decl. of David M. Hardy, dated Jan. 11, 2016 (“Sixth Hardy Decl.”), ¶¶ 7-9). In his response brief, Plaintiff concedes that, based on this new evidence, the court must find that the information at issue in Count V was provided under an implicit assurance of confidentiality. (Pl.’s Count V Resp. at 1).

         b. Count VI (FBI Records ...


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