United States District Court, District of Columbia
L. FRIEDMAN United States District Judge.
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
FACTUAL AND PROCEDURAL BACKGROUND
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. ¶¶
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.
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.
“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)).
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).
now challenges only the government's justification for
withholding information under FOIA Exception 7(E). Pl.'s
Resp. at 1 & n.1. “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).
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).
Redaction of Name of Database (Swartz-91)
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 ...