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Shapiro v. Central Intelligence Agency

United States District Court, District of Columbia

March 31, 2017



          CHRISTOPHER R. COOPER United States District Judge.

         Doctoral 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 Shapiro.

         Shapiro 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.

         I. Background

         Ryan 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. ¶ 35.

         The 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.[1]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. (“Cross-MSJ”) 1.

         II. Legal Standard

         “FOIA 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).

         Congress 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. at 361).

         The 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. Id.

         III. Discussion

         The Court will address Shapiro's objections to the FBI's claimed exemptions in sequential order, and will then turn to his responsiveness challenge.

         A. Exemptions 1 and 3 Generally

         FOIA 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 statute:

(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 withheld; and
(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph.

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)).

         The FBI 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 applied.

         In 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 [1] 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.

         Turning 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.

         B. ...

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