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Levinthal v. Federal Election Commission

United States District Court, District of Columbia

November 23, 2016

Dave Levinthal, et al., Plaintiffs,
Federal Election Commission, Defendant.


          Amit P. Mehta United States District Judge


         Plaintiffs Dave Levinthal and the Center for Public Integrity bring this suit under the Freedom of Information Act (“FOIA”). On July 6, 2015, Plaintiffs submitted a FOIA request to Defendant Federal Election Commission seeking: (1) a copy of a study that assesses vulnerabilities in the Commission's information technology (“IT”) systems and makes recommendations to address those vulnerabilities; and (2) any emails and documents related to the study. Defendant produced non-exempt materials related to the study, but withheld the study itself. Plaintiffs brought this suit claiming that Defendant violated FOIA by failing to produce the study.

         Upon consideration of the parties' submissions and the record evidence, the court grants Defendant's Motion for Summary Judgment and denies Plaintiffs' Cross-Motion for Summary Judgment.


         As required by Local Civil Rule 7(h)(1), Defendant Federal Election Commission (“Commission” or “Defendant”) submitted a detailed statement of undisputed material facts. See Def.'s Mot. for Summ. J., ECF No. 13 [hereinafter Def.'s Mot.], Def.'s Stmt. of Material Facts, ECF No. 13-1 [hereinafter Def.'s Stmt.]. Plaintiffs, for their part, responded with a bare-boned counter-statement that did not dispute Defendant's factual assertions. Pls.' Cross-Mot. for Summ. J., ECF No. 14 [hereinafter Pls.' Mot.], Pls.' Stmt. of Material Facts, ECF No. 14-1 [hereinafter Pls.' Stmt.].[1] Accordingly, the court treats Defendant's proffered facts, recited below, as conceded by Plaintiffs. See SEC v. Banner Fund Int'l, 211 F.3d 602, 616 (D.C. Cir. 2000) (“If the party opposing the motion fails to comply with [the] local rule, then ‘the district court is under no obligation to sift through the record' and should ‘[i]nstead . . . deem as admitted the moving party's facts that are uncontroverted by the nonmoving party's Rule [LCvR 7.1(h)] statement.'” (alterations in original) (quoting Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 154 (D.D.C. 1996)).

         A. Factual Background

         In Fiscal Year 2014, the Commission hired an outside contractor, S.D. Solutions, LLC, to determine whether there were vulnerabilities in the Commission's IT systems and, if there were, to provide remedial recommendations. Def.'s Stmt. ¶ 5; Def.'s Mot., Decl. of Alec Palmer, ECF No. 13-2 [hereinafter Palmer Decl.], ¶ 7. The Commission ordered the study to assist it in deciding whether to implement newly developed information security guidelines published by the U.S. Department of Commerce's National Institute of Standards and Technology (“NIST”). Def.'s Stmt. ¶ 6; Palmer Decl. ¶ 7. In preparing its report, S.D. Solutions examined the Commission's “physical and virtual information technology assets” and recommended measures for the Commission to protect its infrastructure from “wrongful interference, circumvention, or unlawful action by unauthorized persons.” Palmer Decl. ¶ 8. Furthermore, it assessed the “vulnerabilities to unlawful breach present in the Commission's technological infrastructure, describing sensitive Commission systems and recommending specific security measures to address the vulnerabilities.” Id. The Commission refers to S.D. Solutions' final report and its related documents, collectively, as the “NIST Study.” Def.'s Stmt. ¶ 8; Palmer Decl. ¶ 18.

         The NIST Study consists of two parts. The first part is an overview memorandum prepared by the Commission's Office of the Chief Information Officer. The overview memorandum lists measures the Office has used in the past to address IT vulnerabilities, summarizes S.D. Solutions' final report, and discusses “the practicalities of implementing the [NIST] guidelines should the Commission adopt the recommendations in the Final Report.” Def.'s Stmt. ¶ 10; Palmer Decl. ¶¶ 2, 9, 10. The overview memorandum includes two appendices: (1) an abridged version of the full final report, and (2) a summary of both the recommendations in the report and the personnel and financial resources that would be required to satisfy each recommendation. Id. ¶¶ 10, 11.

         The second part of the NIST Study is the final report itself. As discussed, the report describes the Commission's IT network, assesses the security of each system and identifies the vulnerabilities therein, and contains recommendations for security measures to address the identified vulnerabilities. Id. ¶¶ 12, 14.

         B. Procedural Background

         Plaintiff Dave Levinthal is an investigative journalist employed by Plaintiff the Center for Public Integrity. See Pls.' Mot. at 1; Def.'s Mot. at 3; Def.'s Stmt. ¶ 4. On July 6, 2015, Plaintiffs submitted a FOIA request to the Commission, seeking: (1) “a copy of the 2015 National Institute of Standards and Technology Report-also known as the NIST study-pertaining to the Federal Election Commission's operations, ” and (2) “any FEC emails, memoranda, correspondence or other documents that, in any form or fashion, mention or refer to this National Institute of Standards and Technology report, by name or otherwise.” Def.'s Stmt. ¶ 38; Def.'s Mot., Decl. of Robert M. Kahn, ECF No. 13-3 [hereinafter Kahn Decl.], ¶ 6 & Ex. A [hereinafter FOIA Request].

         On August 18, 2015, the Commission denied Plaintiffs' request for a copy of the NIST Study, but granted their request for documents that mention or refer to the study, subject to applicable FOIA exemptions. Kahn Decl. ¶ 7 & Ex. C (Email from Robert M. Kahn to Dave Levinthal (Aug. 18, 2015)). The Commission eventually produced more than 1, 450 pages of non-exempt records, and non-exempt portions of records, that mentioned or referred to the NIST Study. Jt. Status Rep., ECF No. 11.

         Plaintiffs filed an administrative appeal challenging the decision to withhold the NIST Study, asserting that it “is likely to contain information that directly benefits the public's understanding of Federal Election Commission capabilities and operations during a high-profile election season.” Kahn Decl. ¶ 8 & Ex. C. In September 2015, the Commission denied ...

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