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Shapiro v. United States Department of Justice

United States District Court, District of Columbia

March 6, 2017

RYAN NOAH SHAPIRO, et al. Plaintiffs,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS United States District Judge.

         This is the fourth in a series of opinions addressing the extent to which the Freedom of Information Act (“FOIA”) requires the Federal Bureau of Investigations (“FBI”) to disclose records relating to the FBI's review and response to prior FOIA requests. Plaintiffs are nonprofit organizations, advocates, and journalists who filed several FOIA requests seeking processing documents associated with almost a hundred FOIA requests that they or others had previously submitted to the FBI. In an earlier opinion, the Court rejected two categorical non-disclosure policies adopted by the FBI; resolved the parties' disputes regarding several case-specific withholdings; concluded that a handful of the exemptions invoked by the FBI were not adequately supported by the existing record; and granted both parties leave to renew their respective cross-motions for summary judgment as to those exemptions. See Shapiro v. United States Dep't of Justice, 153 F.Supp.3d 253 (D.D.C. 2016) (“Shapiro I”).

         Of the many issues raised in this litigation, the FBI is particularly-and understandably- concerned about its policy of withholding “search slips” and “processing notes” generated in response to prior FOIA requests. As the FBI explains, disclosure of these records “might allow a savvy FOIA requester to identify the rare” occasions when “the FBI has exercised its discretion to issue a [‘No Records'] 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.” Id. at 256-57. As originally formulated, the relevant FBI policy required the withholding of all FOIA processing records generated within the last twenty-five years in responding to FOIA requests for investigative files or records. See Dkt. 31-1 at 9 (Second Hardy Decl. ¶ 20). Although the Court has rejected that sweeping policy as inconsistent with FOIA, Shapiro I, 153 F.Supp.3d at 270-76, the FBI's conundrum regarding how to protect information relating to its “No Records” responses while complying with FOIA remains at the core of this case.

         In its current motion and opposition to Plaintiffs' cross-motion, the FBI asserts a “targeted” theory of non-disclosure of its “No Records” responses, which it contends is “tailored to the specific and unique facts of this case, ” Dkt. 57-3 at 56 (Fifth Hardy Decl. ¶ 116), and it defends its withholding of other records and information based on an array of FOIA exemptions. Plaintiffs, in turn, do not challenge many of the FBI's withholdings, [1] but they do challenge the FBI's continued withholding of (1) search slips and processing notes relating to those “parent [FOIA] request[s] [that] resulted in . . . ‘No Records' response[s], ” Dkt. 57-3 at 56 (Fifth Hardy Decl. ¶ 117); (2) certain case file and sub-file numbers, see Dkt. 68 at 8-15; (3) search slips and processing notes relating to the murder of Hyram Kitchen, see Id. at 15-17; (4) information that Plaintiffs contend is not properly treated as classified or subject to the National Security Act, 50 U.S.C. § 3024(i)(1), see Dkt. 67 at 16-18; (5) certain information purportedly subject to the attorney-work-product and deliberative-process privileges, see id. at 18-19; and (6) segregable portions of search slips and processing notes that the FBI claims reflect protected personal information but that have been discussed in publicly available declarations, Dkt. 67 at 19-20. In addition, the FBI seeks leave to submit an ex parte, in camera declaration in support of its motion for summary judgment and its opposition to Plaintiffs' cross-motion for summary judgment. Dkt. 75. Plaintiffs both oppose that motion, Dkt. 79, and move to strike the ex parte, in camera declaration or to make portions of it public, Dkt. 81.[2]

         As explained below, the Court will grant the FBI's motion for leave to file an ex parte, in camera declaration and deny Plaintiffs' motion to strike or make public portions of the FBI's in camera declarations; will grant in part and deny in part the FBI's renewed motion for summary judgment; and will grant Plaintiffs' cross-motion for summary judgment with respect to the application of Exemption 7(A) to records relating to the murder of Dr. Hyram Kitchen, and will otherwise deny that motion. The Court will allow further briefing on the remaining issues in the case.

         I. BACKGROUND

         Much of the administrative and procedural history of this case is set forth in Shapiro I, 153 F.Supp.3d at 257-68, and the Court will not repeat that background here. The more recent procedural history, however, requires some explication.

         A. Shapiro I

         In Shapiro I, the Court first rejected two categorical policies adopted by the FBI-a policy of withholding all search slips and processing notes generated in the past twenty-five years in responding to “parent” FOIA requests for investigative files or records, id. at 276, and a policy of withholding all “case evaluation forms” used to track and evaluate the performance of FBI FOIA analysts in processing FOIA and Privacy Act requests, id. at 282. The Court also evaluated the adequacy of the FBI's search for certain records and evaluated a number of case-specific withholdings. Based on that request-by-request review, the Court required the release of certain records, sustained the FBI's withholding of others, and concluded that it needed additional information or argument to evaluate yet other withholdings.

         Three case-specific withholdings, in particular, required further factual and legal development. As to the first, Plaintiffs sought records created by the FBI when it processed twelve FOIA requests submitted by other FOIA requesters. Shapiro I, 153 F.Supp.3d at 284. The FBI released certain records, but declined to release others on the ground that those records contained information about private parties (other than the Plaintiffs) and were thus exempt from disclosure under Exemption 7(C). Id. at 284-85; see also id. at 286 n.11 (addressing Exemption 6). Plaintiffs did not dispute the premise of this argument, but they argued that the FBI had already placed the relevant information in the public domain, and thereby waived the relevant exemptions. Id. at 285. The Court agreed with the FBI that at least some of information sought was protected by Exemption 7(C) but noted that neither party had addressed the issue of segregability. Id. at 286-87. The Court, accordingly, granted the FBI leave to file a renewed motion for summary judgment addressing segregability. Id. at 287.

         The second and third case-specific withholdings requiring further development both involved application of FOIA Exemption 5, which permits an agency to withhold records that “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). As to one set of records, the FBI asserted the attorney-work-product privilege, arguing that the requested records were prepared in connection with another FOIA lawsuit, namely McGehee v. U.S. Dep't of Justice, 800 F.Supp.2d 220 (D.D.C. 2011). Shapiro I, 154 F.Supp.3d at 289. In response, Plaintiffs maintained that the records at issue were “substantially similar” to the search slips that the FBI would have prepared in the absence of the McGehee litigation. Id. at 290. The Court concluded that the dispute between the parties “expose[d] vacuums both in the record and in the governing precedent, ” id., and granted the FBI leave “to file an additional evidentiary submission regarding the nature of the withheld documents, ” id. at 291. With respect to the second set of records, the FBI asserted the deliberative-process privilege, arguing that processing notes prepared by FBI analysts in responding to a FOIA request for records about Hesham Abu Zubaydah, the brother of a Guantanamo detainee, were deliberative materials prepared in the course of responding to the FOIA request. Id. at 292-93. Noting that the FBI had withdrawn its contention that all processing notes are protected by the deliberative process privilege, the Court concluded that the FBI had failed to offer any non-conclusory factual support for its contention that the Zubaydah notes-in particular-were protected. The Court, accordingly, granted the FBI leave to file a renewed motion for summary judgment along with a supplemental factual submission further addressing that issue. Id. at 293.

         B. Shapiro II

         After issuing its decision in Shapiro I, the Court convened a status conference to address next steps in the litigation. At the status conference, the Court directed that the parties meet and confer and submit a joint report to the Court proposing a schedule (1) for the production of the records that the Court had, to date, ordered the FBI to release and (2) for further briefing and evidentiary submissions on the handful of questions left unresolved in Shapiro I. The parties were unable to reach agreement, but set forth their respective positions in their joint report. See Dkt. 51.

         The FBI, for its part, argued that-in light of the Court's conclusion that its categorical “No Records” policy was inconsistent with FOIA-it should be permitted to assert an array of additional FOIA exemptions not presented in its original motion or in opposition to Plaintiffs' cross-motion. Dkt. 51 at 2-3; see also Dkt 21-3 at 25 (First Hardy Decl. ¶ 75 n.20) (asserting that “[i]nformation in the documents responsive to [P]laintiffs' requests may also be exempt pursuant to Exemptions 1, 3, 5, 6, 7(A), 7(C), 7(D) and/or 7(F)”). The FBI asserted, moreover, that this was “a prudent opportunity to inform the Court that” it had, in fact, abandoned its twenty-five-year categorical “No Records” policy almost ten months earlier-before the Court had issued its decision on the legality of that policy and, indeed, before oral argument on the parties' cross-motions for summary judgment.[3] Dkt. 51-1 at 2-3 (Fourth Hardy Decl. ¶ 5). Under its new policy, the FBI explained, it only withholds responses seeking FOIA processing records where the “parent” FOIA request resulted in either a “No Records” or Glomar response-that is, where either no records were found or the FBI neither admitted nor denied that any records were found. The FBI, accordingly, sought leave “to submit further briefing [to] address[] its new targeted treatment” of “No Records” responses. Dkt. 51 at 3.

         Plaintiffs disagreed. In their view, the FBI had a full and fair opportunity to raise any and all applicable FOIA exemptions. It did not “reserve” the opportunity to raise additional exemptions should its categorical defenses fail, and, indeed, it “was cognizant enough about the nature of the proceedings to have invoked Exemption 6 with respect to the names of third parties in search records.” Id. at 6. As Plaintiffs argued, permitting an agency “to play cat and mouse” by raising new FOIA defenses each time it fails to persuade the Court on the merits of its previously asserted defense risks interposing the type of delay that FOIA was designed to avoid. Id. (citation omitted). Plaintiffs, accordingly, urged the Court to limit further briefing and evidentiary submissions to the specific issues left open in Shapiro I.

         In considering the parties' respective positions, the Court applied the standard set forth by the D.C. Circuit in Maydak v. U.S. Department of Justice, 218 F.3d 760 (D.C. Cir. 2000), a case that dealt with the related question whether the Court of Appeals should grant an agency's motion to remand a FOIA case in order to permit the agency to assert a new FOIA exemption “based on changed circumstances.” 218 F.3d at 764. Under Maydak, the D.C. Circuit will permit a remand for the purposes of asserting a new FOIA exemption (1) based on “a substantial change” in the facts or “an interim development in the applicable law, ” or (2) “where, from pure human error, the government failed to invoke the correct exemption and will have to release information compromising national security or sensitive, personal, private information unless the court allows it to make an untimely exemption claim.” Id. at 767. In the Court's view, neither Maydak exception was applicable. As to the first, the FBI did not contend that any change in law or fact justified the post-summary judgment assertion of new defenses; indeed, the FBI changed its policy months before the Court issued its decision. And, as to the second, the Court concluded that the FBI's failure to bring its change in policy to the Court's attention was more than “a simple mistake.” Shapiro v. U.S. Dep't of Justice, 177 F.Supp.3d 467, 471 (D.D.C. 2016) (“Shapiro II”).

         In light of the significant security and privacy issues raised in this case, however, the Court did not strictly apply the Maydak standard and agreed that the FBI could submit further “briefing on whether specific records sought by the plaintiffs should be withheld under a FOIA exemption or exclusion because their disclosure would ‘compromis[e] national security or sensitive, personal, private information.'” Id. at 471 (citation omitted). But the Court made clear that this additional bite at the apple was a limited one and did not open the door for the FBI to litigate, more generally, the merits of its new categorical “No Records” policy. Id. at 473. The Court also rejected the FBI's contention that it had somehow “reserved” the right to raise a series of new document-by-document exemptions. Id. at 472. The Court, nonetheless, permitted the FBI to raise new defenses to the extent necessary to protect “‘national security or sensitive, personal, private information.'” Id. at 472-73 (citation omitted).

         C. Shapiro III

         The FBI moved for reconsideration, arguing that Maydak does not apply to cases still pending in the district court but, rather, applies only to cases pending on appeal. Dkt. 55. The Court agreed that neither Maydak nor any other D.C. Circuit precedent directly addresses when a district court should consider late-asserted defenses in a FOIA action. Shapiro v. U.S. Dep't of Justice, 13-cv-555, 2016 WL 3023980, at *3 (D.D.C. May 25, 2016) (“Shapiro III”). Rather, the case law recognizes that the district courts retain substantial discretion to determine whether an untimely FOIA defense has been forfeited. Id. As the Court further explained, however, that discretion must be guided by the Court's balancing of “principles of fairness, efficiency, and finality, ” along with due respect for “FOIA's ‘statutory goals [of] efficient, prompt, and full disclosure of information.'” Id. at *4 (quoting August v. FBI, 328 F.3d 697, 699 (D.C. Cir. 2003)).

         The parties agreed that, in light of the Court's holding in Shapiro II, the FBI would be allowed to assert new defenses based on FOIA Exemptions 1, 3, 6, 7(C), and 7(D), and the FBI agreed, in light of Shapiro II, to “specifically tailor[ ]” its “No Records” defense to “the unique facts and circumstances of this case.” Id. Over Plaintiffs' objection, moreover, the Court permitted the FBI to raise new defenses under FOIA Exemptions 7(A) and 7(E) and to assert the attorney-client and attorney-work-product privileges under FOIA Exemption 5. Id. at *5. With respect to the FBI's request that it be allowed to argue that all substantive material contained in search slips and processing notes is protected by the deliberative-process privilege, however, the Court concluded that the equities tipped in favor of Plaintiffs. Id. As the Court explained, the FBI had not simply neglected to make this argument prior to the Court's summary judgment decision, but had explicitly waived the same-or substantially the same-argument in its reply brief in Shapiro I. Id. at *6. And, finally, the Court held that, even if the FBI did not intend to assert the deliberative-process privilege with respect to all of the search materials, opening the door to this late-asserted defense posed “a substantial risk of expanding the scope and duration of the present litigation, ” without good cause and to the unfair detriment of Plaintiffs. Id. at *7.

         Taken together, the Court's decisions in Shapiro II and Shapiro III foreclosed the FBI from raising defenses based on its new, categorical “No Records” policy or on previously unasserted (or waived) claims that the search slips or processing notes are protected by the deliberative-process privilege. But the Court permitted the FBI to assert a “targeted” version of its “No Records” defense, to assert FOIA Exemptions 1, 3, 6, 7(A), 7(C), 7(D), and 7(E), and to assert the attorney-client and attorney-work-product privileges under Exemption 5. Id. at *9. In light of these decisions, the parties have now filed a second set of cross-motions for summary judgment, along with a number of related motions.

         II. ANALYSIS

         A. Motion For Leave To File Ex Parte, In Camera Declaration

         As an initial matter, the FBI moves for leave to submit a further declaration of David M. Hardy-his eighth so far in this case-in camera and ex parte in support of its renewed motion for summary judgment. Dkt. 75. Plaintiffs oppose that motion and have also cross-moved to strike or to make public portions of the declaration. Dkt. 81. They also seek to unseal portions of Hardy's third and sixth declarations. Id. Plaintiffs contend that Hardy's eighth declaration is “highly likely” to “include[] inadmissible legal argument, ” based on what they view as “blatant legal conclusions” in Hardy's previous declarations. Id. at 3.

         Although FOIA expressly contemplates in camera review of records “to determine whether” they may be withheld in whole or in part, 5 U.S.C. § 552(a)(4)(B), “the use of in camera affidavits has generally been disfavored” in the D.C. Circuit, Armstrong v. Exec. Office of the President, 97 F.3d 575, 580 (D.C. Cir. 1996). This is because in camera filings are at odds with the “strong presumption in favor of public access to judicial proceedings, ” Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991), and because ex parte proceedings deprive the Court of the “benefit of criticism and illumination” that comes with the arguments of opposing counsel, Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976). To be sure, in camera, ex parte filings are at times necessary to permit the Court to perform its role of ensuring that the agency has appropriately invoked a FOIA exemption without requiring the agency publicly to disclose the very records or information it seeks to protect. See, e.g., Barnard v. Dep't of Homeland Sec., 598 F.Supp.2d 1, 16 (D.D.C. 2009). But before accepting such a filing, the Court “must both make its reasons for doing so clear and make as much as possible of the in camera submission available to the opposing party, ” Armstrong, 97 F.3d at 580, and to the public, see Mobley v. U.S. Dep't of Justice, 870 F.Supp.2d 61, 68-69 (D.D.C. 2012).

         The Court has reviewed the proposed eighth Hardy declaration, and concludes that it contains sensitive information not appropriate for disclosure and which is necessary for the Court to make a decision on the agency's renewed motion for summary judgment, and that it does not contain impermissible legal argument. Accordingly, the Court concludes that it is appropriate to permit the government to file the declaration ex parte and in camera. See Light v. Dep't of Justice, 968 F.Supp.2d 11, 29-30 (D.D.C. 2013). Plaintiffs also move to make public portions of Hardy's third and sixth declarations, which were submitted in camera and in redacted public versions. See Dkt. 31-1 at 14-18 (Third Hardy Decl.); Dkt. 90-1 (Sixth Hardy Decl.). The Court has reviewed the redacted portions of those declarations, and concludes that they contain sensitive material that cannot be made public without thereby disclosing the very information that the agency withheld in the underlying FOIA requests.

         Accordingly, the Court will GRANT the government's motion to file the eighth Hardy declaration in camera and ex parte, and will DENY Plaintiffs' cross-motion to strike or make public portions of the third, sixth, and eighth Hardy declarations.

         B.No Records” Responses

         The challenge that the FBI faces in responding to FOIA requests seeking FOIA processing records relating to “No Records” responses remains at the core of this case. As explained in Shapiro I, 153 F.Supp.3d at 258, FOIA permits the FBI to treat certain particularly sensitive “records as not subject to the requirements of” FOIA, 5 U.S.C. § 552(c), and thus permits it to issue a “No Records” or “None Found” response to a request for any such records, see ACLU of Mich. v. FBI, 734 F.3d 460, 469-72 (6th Cir. 2013). This technique proves useful because the explicit assertion of a FOIA exemption might permit a FOIA requester or other member of the public to infer the precise information that the FOIA exclusion is intended to secure. To take one hypothetical, a FOIA exclusion permits a criminal law enforcement agency, like the FBI, to maintain the secrecy of the name or identity of a confidential informant. See 5 U.S.C. ยง 552(c)(2). Imagine, then, that a FOIA requester sought to confirm rumors that John Adams was a confidential informant, and thus submitted a FOIA request seeking all FBI investigative records including any reference to John Adams. If the FBI were to respond that it had responsive records that were subject to a FOIA exemption-such as Exemption 7(A) or 7(C)-John Adams' ...


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