United States District Court, District of Columbia
CHRISTOPHER R. COOPER United States District Judge.
student Ryan Shapiro wants to know if the United States
government was complicit in Nelson Mandela's arrest and
imprisonment by South Africa's apartheid-era regime. To
that end, Shapiro filed Freedom of Information Act requests
with the Central Intelligence Agency, the National Security
Agency, the Department of Defense's Defense Intelligence
Agency, and the Federal Bureau of Investigation seeking
virtually every document in their sprawling files that
mentions or references Mandela. After refusing to narrow his
request in any meaningful way, Shapiro has filed suit
challenging each agency's response. The Court has
previously ruled on motions filed by the CIA and NSA, and
they, along with the DIA, continue to review and release
responsive records. Now before the Court is a motion to
dismiss or, alternatively, for summary judgment filed by the
FBI, and a cross-motion for summary judgment filed by
raises a laundry list of objections to the FBI's search
and non-disclosure of responsive material under a variety of
FOIA exemptions. For the reasons explained below, the Court
will uphold the large majority of the challenged
withholdings, but will reserve judgment in part and deny
judgment in part to each side with respect to several
withholdings whose appropriateness remains in dispute.
Shapiro describes himself as a student of “the
political functioning of national security and the policing
of dissent.” Pl.'s First Am. Compl.
(“Compl.”) ¶ 2. A serial FOIA requester,
Shapiro submitted FOIA requests to the CIA, NSA, DIA, and FBI
in December 2013, soon after Nelson Mandela's death.
Id. at ¶ 21. In the FBI request, he sought
“disclosure of any and all records that were prepared,
received, transmitted, collected and/or maintained by the
FBI, the Terrorist Screening Center, the National Joint
Terrorism Task Force, or any Joint Terrorism Task Force
relating or referring to deceased individual Rolihlahla
Mandela, (aka Nelson Mandela, aka Madiba, aka Tata).”
Compl., Ex. 2 (“FOIA Request”) at 1. Of
particular interest to Shapiro were the 27 years Mandela
spent in prison at the hands of South Africa's apartheid
government and the surrounding rumors that the CIA was
somehow involved in the arrest that led to his incarceration.
Id. at 2. Shapiro requested that the FBI search
“all electronic and paper/manual indices, filing
systems, and locations, ” including “all of its
directorates” and at least thirty enumerated
“filing systems, indices, and locations” for
responsive records. Id. at 4-5. The request also
encompassed emails and publicly available records.
Id. at 2, 6. The FBI granted Shapiro's request
for expedited processing on December 19, 2013. Compl. ¶
FBI-including its headquarters, field offices, and
attaché offices abroad-uses the aptly named Central
Records System to house the records it compiles and maintains
in the “course of fulfilling its integrated . . .
functions as a law enforcement, counterterrorism, and
intelligence agency[.]” Def.'s Mem. Supp. Mot.
Summ. J. (“MSJ”), Decl. of David M. Hardy
(“First Hardy Decl.”) ¶ 19. Many of the
records relevant here are contained in the FBI's case
files. When a case file is opened, it is assigned a Universal
Case File Number (“UCFN”), comprised of three
components: the Central Record System's file
classification number, an abbreviation for the office that
created it, and the assigned individual case file number for
that subject matter. Id. at ¶ 20. The FBI also
maintains a Universal Index that allows records to be quickly
retrieved via index searching. Id. at ¶ 24. The
FBI conducted index searches to comb through multiple
case-management systems for responsive records. Id.
at ¶¶ 30-34. Since May 2014, the FBI has processed
1, 519 responsive pages and made 18 rolling releases to
Shapiro. Def.'s Statement of Material Facts
(“SMF”) ¶ 2. These pages were located in 11
“main” files (i.e., files names with
corresponding to the requested subject matter) and 177
“cross-references” (i.e., files concerning other,
unrelated subjects but that contain records referencing the
requested subject matter). Id. at ¶¶ 6, 8.
Of the pages processed, the FBI released 1, 244, in full or
in part, and withheld 272 pages in full. Id. The FBI
relied on the following FOIA exemptions when redacting
information or withholding pages from release: 1, classified
information; 3, information protected by another statute; 5,
privileged information; 6 and 7(C), personal privacy; 7(A),
pending law enforcement proceedings; 7(D), confidential
source information; 7(E), law enforcement investigative
techniques and procedures; and 7(F), personal safety of
individuals involved in law enforcement
activities.See First Hardy Decl. ¶ 38.
The application of these exemptions will be discussed in
greater detail below. With production complete as of summer
2016, the FBI now moves to dismiss Shapiro's complaint,
and alternatively, for summary judgment. It maintains that
its search was adequate and that it has sufficiently
justified its withholdings under the relevant FOIA
exemptions. Shapiro also moves for summary judgment,
challenging the FBI's withholdings and its responsiveness
determinations. Pl.'s Mem. Supp. Cross-Mot. Summ. J.
cases typically and appropriately are decided on motions for
summary judgment.” Defenders of Wildlife v. U.S.
Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). In
deciding a motion for summary judgment, the Court assumes the
truth of the non-movant's evidence and draws all
reasonable inferences in the non-movant's favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). “It is well settled in Freedom of Information
Act cases as in any others that summary judgment may be
granted only if the moving party proves that no substantial
and material facts are in dispute and that he is entitled to
judgment as a matter of law.” Lamb v. Millennium
Challenge Corp., 2017 WL 74690, at *4 (D.D.C. Jan. 6,
2017) (internal quotation omitted); see also Fed. R.
Civ. P. 56(a).
created FOIA “to pierce the veil of administrative
secrecy and to open agency action to the light of public
scrutiny.” ACLU v. DOJ, 655 F.3d 1, 5 (D.C.
Cir. 2011) (quoting U.S. Dep't of the Air Force v.
Rose, 425 U.S. 352, 361 (1976)). Despite this broad
mandate, FOIA contains a set of exceptions to the general
obligation to provide government records to the public.
See 5 U.S.C. § 552(b). These exemptions are in
place “to balance the public's interest in
governmental transparency against the ‘legitimate
governmental and private interests [that] could be harmed by
release of certain types of information.'”
United Techs. Corp. v. U.S. Dep't of Defense,
601 F.3d 557, 559 (D.C. Cir. 2010) (quoting Critical
Mass. Energy Project v. Nuclear Reg. Comm'n, 975
F.2d 871, 872 (D.C. Cir. 1992) (en banc)). FOIA
“mandates a strong presumption in favor of disclosure,
” and its “statutory exemptions, which are
exclusive, are to be ‘narrowly construed.'”
Nat'l Ass'n of Home Builders v. Norton, 309
F.3d 26, 32 (D.C. Cir. 2002) (quoting Rose, 425 U.S.
government therefore bears the burden to establish that the
claimed FOIA exemptions apply to each document for which they
are invoked. ACLU v. U.S. Dep't of Defense, 628
F.3d 612, 619 (D.C. Cir. 2011). It may satisfy this burden
through declarations that describe the justifications for its
withholdings in “specific detail, demonstrat[ing] that
the information withheld logically falls within the claimed
exemption[.]” Id. But agency affidavits will
not warrant summary judgment if the plaintiff puts forth
contrary evidence or demonstrates the agency's bad faith.
Court will address Shapiro's objections to the FBI's
claimed exemptions in sequential order, and will then turn to
his responsiveness challenge.
Exemptions 1 and 3 Generally
Exemption 1 protects classified information. Records are
protected if “specifically authorized under criteria
established by an Executive order to be kept secret in the
interest of national defense or foreign policy and . . . [if
they are] properly classified pursuant to such Executive
order.” 5 U.S.C. § 522(b)(1). Exemption 3 protects
records that are exempted from disclosure by statute if that
(A)(i) requires that the matters be withheld
from the public in such a manner as to leave no discretion on
the issue; or
(ii) establishes particular criteria for
withholding or refers to particular types of matters to be
(B) if enacted after the date of enactment
of the OPEN FOIA Act of 2009, specifically cites to this
5 U.S.C. § 522(b)(3). In evaluating an agency's
reliance on Exemption 1, “substantial weight” is
given to “an agency's affidavit concerning the
details of the classified status of the disputed
record.” Military Audit Project v. Casey, 656
F.2d 724, 738 (D.C. Cir. 1981). Thus, “little proof or
explanation is required beyond a plausible assertion that
information is properly classified[.]” Shapiro v.
DOJ, 2017 WL 908179, at *13 (D.D.C. Mar. 6, 2017)
(quoting Morley v. CIA, 508 F.3d 1108, 1124 (D.C.
Cir. 2007)). Exemption 3, by contrast, “differs from
other FOIA exemptions in that its applicability depends less
on the detailed factual contents of specific documents;
[rather] the sole issue for decision is the existence of a
relevant statute and the inclusion of withheld material
within that statute's coverage.” Goland v.
CIA, 607 F.2d 339, 350 (D.C. Cir. 1978). Courts will
thus require an agency to demonstrate the exemption's
applicability by providing “the kind of detailed,
scrupulous description of the withheld documents that enables
[them] to perform a searching de novo review.”
Shapiro, 2017 WL 908179 at *14 (quoting Church
of Scientology of Ca., Inc. v. Turner, 662 F.2d 784, 786
(D.C. Cir. 1980)).
applied both these exemptions, often in combination with one
another, when withholding information in response to
Shapiro's FOIA request. See First Hardy Decl.
¶ 38. Its use of Exemption 1 relies on Executive Order
13, 526, which governs the classification and protection of
information affecting national security-such as intelligence
activities, sources and methods, cryptology, and foreign
relations or foreign activities. Id. at ¶¶
40, 46-52. Similarly, the FBI invoked Exemption 3 pursuant to
the National Security Act of 1947, 50 U.S.C. §
3024(i)(1). Id. The NSA was enacted before 2009 and
leaves no discretion to agencies regarding non-disclosure of
“all sources of intelligence that provide, or are
engaged to provide, information the Agency needs to perform
its statutory duties with respect to foreign
intelligence.” CIA v. Sims, 471 U.S. 159, 169-
70 (1985). Therefore, if the FBI were to establish that the
information withheld here pertains to intelligence sources
and methods covered by the NSA, Exemption 3 would be properly
support of both exemptions' applicability, the FBI offers
a series of declarations from Record and Information
Dissemination Section Chief David M. Hardy and ex
parte, in camera submissions regarding the
classification process, the classification status of the
withheld material, and the content contained therein. With
respect to Exemption 1's classification requirement,
Hardy avows personal familiarity with the records at issue,
and, in his role as an original classification authority, was
responsible for determining “that the information
withheld pursuant to Exemption  is under the control of
the United States Government, is classified and requires a
classification marking at the ‘Secret' level since
the unauthorized disclosure of the information reasonably
could be expected to cause serious damage to national
security.” First Hardy Decl. ¶ 42. Additionally,
he confirms that the “procedural requirements of E.O.
13526 [were] followed” in classifying the documents.
Id. In his opposition to the FBI's motion,
Shapiro questioned the classification of documents over 25
years old, prompting the FBI to “re-review the
approximately 100 pages citing Exemption 1.” Def.'s
Reply MSJ (“Reply”); Third Decl. of David M.
Hardy (“Third Hardy Decl.”) ¶ 6. On the
basis of this additional review, the agency determined that
declassification was warranted for four pages, which it
subsequently released, and that the remaining pages still
qualified for “Secret”-level classification.
Id. The Court is therefore satisfied with the
FBI's “plausible assertion that information [was]
properly classified[.]” Shapiro, 2017 WL
908179 at *13.
to Exemption 3, the FBI applied this exemption to redact
information that would either “reveal classified
intelligence sources and methods [also] protected by
Exemption 1 . . . [or] unclassified intelligence sources and
methods [that] were employed as law enforcement techniques,
procedures or guidelines[.]” First Hardy Decl. ¶
57; see Sims, 471 U.S. at 176 (holding that the NSA
covers unclassified information regarding intelligence
sources and methods). Reacting to the FBI's somewhat
conclusory declarations regarding intelligence sources and
methods, Shapiro questions whether the content of the
information is actually protected by the NSA. Having now
carefully examined the FBI's submissions (both public and
in camera), the Court is assured that the withheld
information falls well within E.O. 13, 526 and the National
Security Act's scope of protection, and was, therefore,
properly excluded from the released records.