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Shapiro v. Department of Justice

United States District Court, District of Columbia

April 20, 2017

RYAN NOAH SHAPIRO, Plaintiff,
v.
DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION

          PAUL L. FRIEDMAN United States District Judge.

         This is a Freedom of Information Act (“FOIA”) case brought by plaintiff Ryan Noah Shapiro against the United States Department of Justice. Shapiro has requested information from the FBI about Aaron Swartz, a deceased computer programmer, activist, and doctoral candidate at MIT. It is alleged that Swartz committed suicide after becoming the subject of an intensive federal investigation. After holding the parties' cross-motions for summary judgment partially in abeyance twice, this matter is now before the Court for a third time. Upon consideration of the parties' papers and the relevant legal authorities, the Court will grant summary judgment in favor of the defendant and deny the plaintiff's cross-motion for summary judgment.[1]

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Shapiro has sought information relating or referring to Aaron Swartz, who was an academic involved in political organizing and internet activism. Compl. ¶¶ 8, 11-20. In 2013, Swartz committed suicide after becoming the subject of a federal criminal investigation relating to his online activities. Id. ¶ 8. Shapiro alleges that this FBI investigation was connected to Swartz's death because of its “intensive” and “grossly disproportionate” nature. Id. ¶¶ 8-10.[2]

After the first round of document production, both parties moved for summary judgment. See Shapiro v. Dep't of Justice, 34 F.Supp.3d 89, 92 (D.D.C. 2014). On March 31, 2014, this Court held the parties' cross-motions for summary judgment in abeyance in part pending further briefing and the FBI's processing of additional records, if necessary. See id. at 100. In supplementing its response, the government ultimately identified an additional 68 pages of documents not previously processed and released to Shapiro. Of these 68 pages, the government produced 35 of them in full, and withheld 9 pages in full and 23 pages in part, invoking FOIA Exemptions 3, 6, 7(C), 7(E), and 7(F). Third Hardy Decl. ¶ 7 n.1; see Shapiro v. Dep't of Justice, 2016 WL 4687156, at *2. On September 7, 2016, the Court granted summary judgment to the defendant regarding the adequacy of the search, but concluded that the government's justifications as to FOIA Exemptions 3 and 7(E) were “insufficient information for the Court to determine whether disclosure of these database search results would ‘increase the risks that a law will be violated or that past violators will escape legal consequences.'” Shapiro v. Dep't of Justice, --- F.Supp.3d ----, 2016 WL 4687156, at *4 (D.D.C. Sept. 7, 2016) (citing Mayer v. Brown, 562 F.3d 1190, 1193 (D.C. Cir. 2009)). The Court again held the parties' cross-motions in abeyance in part pending further explanation as to the government's justifications for withholding documents pursuant to FOIA Exemptions 3 and 7(E). See id. at *4-5.

         The FBI now has provided supplemental information for invoking FOIA Exemptions 3 and 7(E) and a fourth declaration by David M. Hardy. See generally Def.'s Second Supp. Br.; Fourth Hardy Decl. Shapiro no longer challenges the government's justification under FOIA Exemption 3, but argues that the government's justification under FOIA Exemption 7(E) remains inadequate. Pl.'s Resp. at 1 n.1. Shapiro challenges the redaction of the name of a law enforcement database on one document (Swartz-91), and the FBI's withholding in full of seven pages generated by that database (Swartz-83-89). Pl.'s Resp. at 1. He asks that the Court “order disclosure of all information being withheld pursuant to Exemption 7(E)-1.” Id. at 3.

         II. LEGAL STANDARD

          “FOIA cases typically and appropriately are decided on motions for summary judgment.” Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). The Court grants summary judgment if the movant shows that there is no genuine dispute as to any material fact and that he or she is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In a FOIA action to compel production of agency records, the agency “is entitled to summary judgment if no material facts are in dispute and it demonstrates ‘that each document that falls within the class requested either has been produced . . . or is wholly exempt from the [FOIA's] inspection requirements.'” Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)).

         An agency can satisfy its burden with supporting affidavits or declarations if they are “relatively detailed and non-conclusory, ” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation omitted), and “describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 514 (D.C. Cir. 2011). “Such affidavits or declarations are accorded ‘a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.'” Lasko v. U.S. Dep't of Justice, 684 F.Supp.2d 120, 127 (D.D.C. 2010) (quoting SafeCard Servs., Inc. v. SEC, 926 F.2d at 1200).

         III. DISCUSSION

         Shapiro now challenges only the government's justification for withholding information under FOIA Exception 7(E). Pl.'s Resp. at 1 & n.1.[3] “Exemption 7(E) protects from disclosure law enforcement records ‘to the extent that such . . . information would disclose techniques and procedures for law enforcement investigation or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.'” Skinner v. U.S. Dep't of Justice, 893 F.Supp.2d 109, 112 (D.D.C. 2012) (quoting 5 U.S.C. § 552(b)(7)(E)). The government has established, and Shapiro does not dispute, that the FBI is a law enforcement agency, and that the records were compiled for the law enforcement purpose of “investigating a computer intrusion of the public access system of the federal courts of the United States.” Def.'s Second Supp. Br. at 4-5; see Fourth Hardy Decl. ¶ 9. The government therefore meets the threshold requirements under FOIA Exemption 7. See 5 U.S.C. § 552(b)(7).

         The government asserts that the first prong of FOIA Exemption 7(E) - which allows the government to withhold “techniques and procedures for law enforcement investigation” - is a categorical bar, and it need not show how disclosure of records containing techniques and procedures could reasonably be expected to risk circumvention of the law. Def.'s Second Supp. Br. at 5-6. The D.C. Circuit does not agree. It has noted that it “has applied the ‘risk circumvention of the law' requirement both to records containing guidelines and records containing technique and procedures.” Pub. Emp. For Envtl. Responsibility v. Int'l Boundary & Water Comm'n, 740 F.3d 195, 204 n.4 (D.C. Cir. 2014). The Circuit has also concluded, however, that “Exemption 7(E) sets a relatively low bar for the agency to justify withholding.” Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). “Rather than requiring a highly specific burden of showing how the law will be circumvented, exemption 7(E) only requires that the [agency] demonstrate logically how the release of the requested information might create a risk of circumvention of the law.” Id. (quoting Mayer Brown LLP v. IRS, 562 F.3d at 1194).

         A. Redaction of Name of Database (Swartz-91)

         The government asserts that the partial redaction of Swartz-91 covers the name of a database, “not well-known to the public, ” that the FBI uses “in order to develop investigative leads.” Def.'s Second Supp. Br. at 6; see Fourth Hardy Decl. ¶ 10. Although the government and its declarant spend considerable time discussing why disclosure of the name of the database “could jeopardize the FBI's investigative mission by revealing exactly where the FBI is obtaining certain types of investigative data, ” Def.'s Second Supp. Br. at 6-7; Fourth Hardy Decl. ¶ 10, the name of that database was already released in a previous copy of the document, in which the name “Accurint” was not redacted. Compare Third Hardy Decl., Ex. B at Swartz-91 [Dkt. 33-2], with Fourth ...


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