United States District Court, District of Columbia
D.BATES United States District Judge
case arises from identical Freedom of Information Act
("FOIA") requests that Judicial Watch submitted to
the Department of State and the Federal Bureau of
Investigation, seeking any records concerning Anwar Aulaqi,
American-born Muslim cleric who was killed by a drone strike
in Yemen in September 2011. After several years of document
productions and ongoing negotiations, the parties have
narrowed their remaining disputes to two issues: whether the
FBI properly withheld in full seven surveillance videos under
FOIA Exemption 7(E), and whether the State Department
conducted an adequate search for records under FOIA. Now
before the Court are the parties' cross-motions for
summary judgment. The Court will grant summary judgment to
the FBI and deny Judicial Watch's cross-motion for
summary judgment on the question whether the FBI properly
withheld the surveillance videos. The Court is not able to
grant either the State Department's or Judicial
Watch's respective motions for summary judgment regarding
whether the State Department conducted an adequate search,
and therefore will deny both motions. However, the State
Department may file a renewed motion that supplements the
record and addresses the concerns raised by the Court below.
Aulaqi was a U.S. citizen born in New Mexico in 1971.
PL's Stmt, of Undisputed Facts [ECF No. 54] ¶ 6.
Aulaqi grew up in Yemen and later studied at universities in
the United States. See Nat'l Comm'n on
Terrorist Attacks Upon the U.S., The 9/11 Comm'n Report
at 221 (2004), available
athttps://9-llcommission.gov/ ("9/11 Comm'n
Report"). The FBI investigated Aulaqi in 1999 and
2000 after learning that he may have been contacted by an
associate of Osama Bin Laden. See PL's Stmt, of
Undisputed Facts ¶ 8 (citing 9/11 Comm'n Report at
517). The FBI also investigated Aulaqi's contacts with
two of the 9/11 hijackers at mosques in San Diego and
Virginia. Id. (citing 9/11 Commission Report at 221,
517). After the 9/11 terrorist attacks, the FBI conducted
video and photographic surveillance of Aulaqi between at
least September 27, 2001 and March 29, 2002, at various
locations in and around Washington, D.C. Id¶ 19.
Thereafter, Aulaqi left the United States and returned to
Yemen. He was killed by a drone strike in Yemen on September
30, 2011. Id¶ 6.
same day that Aulaqi was killed, Judicial Watch submitted
identical FOIA requests to the State Department and the FBI
[A]ny and all records concerning, regarding or related to a
deceased individual named Anwar al-Awlaki, a/k/a Anwar
Aulaqi. This individual was born on April 22, 1971 in Las
Cruces, New Mexico and died on or about September 30, 2011.
As proof of death, [Judicial Watch has] enclosed a copy of
the New York Times obituary of the individual.
Compl. [ECF No. 1] ¶¶ 6, 9; see also
Answer [ECF No. 10] ¶¶ 6, 9.
letter dated October 6, 2011, the FBI acknowledged receipt of
Judicial Watch's FOIA request, assigned it a request
number, and advised that the FBI was searching the indices to
the Central Records System for responsive information. Compl.
¶ 10; Answer ¶ 10; Hardy 1st Decl. [ECF No. 51-4]
¶ 6. By letter dated October 20, 2011, the State
Department acknowledged receipt of the FOIA request and
assigned it a case control number. The State Department
indicated that it would notify Judicial Watch "as soon
as responsive material has been retrieved and reviewed."
Compl. ¶ 7; see also Answer ¶ 7.
defendant agency provided a substantive response before
Judicial Watch filed this lawsuit on June 4, 2012.
See Answer ¶ 12. On August 30, 2012, the Court
issued a scheduling order under which the State Department
and FBI were to provide monthly productions of any non-exempt
responsive records. See Aug. 30, 2012 Scheduling
Order [ECF No. 15] at 1. Thereafter, the defendant agencies
conducted their respective searches and produced records
responsive to the FOIA request. The FBI ultimately released
more than 4, 400 pages of non-exempt, responsive records, in
full orpart, between December 21, 2012 and September 30,
2014. Hardy 1st Decl. ¶ 8. The State Department released
448 non-exempt, responsive records, in full or part, from
nine departmental records systems between September 28, 2012
and June 19, 2015. Fischer Decl. [ECF No. 51-5] ¶¶
December 18, 2014, the State Department and the FBI informed
the Court that they had "finished the primary processing
of responsive materials, " with the exception of certain
records referred to non-defendant agencies for processing.
See Dec. 18, 2014 Joint Status Report [ECF No. 27]
at 1. On June 19, 2015, the State Department and the FBI
provided Judicial Watch with draft Vaughn indices
addressing all documents withheld pursuant to an applicable
FOIA exemption. See July 24, 2015 Joint Status
Report [ECF No. 28] at 1-2. The State Department also
conducted supplemental searches of additional records,
including: retired electronic files used by employees in the
Office of the Secretary during former Secretary Clinton's
tenure; unclassified and classified state.gov emails of six
individuals who served under Secretary Clinton; tens of
thousands of pages of documents provided to the State
Department by four individuals who served under Secretary
Clinton; and approximately 30, 000 emails (comprising
approximately 55, 000 pages) provided to the State Department
by Secretary Clinton. See Feb. 12, 2016 Joint Status
Report [ECF No. 40] at 2-3; Fischer Decl. ¶¶ 70-78.
The State Department released more than 1, 700 records, in
full or part, from these supplemental searches. Fischer Decl.
8, 2016, the State Department sent a letter to then-FBI
Director James Comey requesting that the FBI provide any
additional work-related emails of Secretary Clinton. Fischer
Decl. ¶ 79. The FBI transferred this information to the
State Department on July 21 and August 5, 2016. Id.
A search of these emails yielded two responsive records.
Id¶81. The parties have continued to cooperatively
engage in ongoing negotiations in an effort to narrow the
issues in dispute. See Jan. 12, 2017 Joint Status
Report [ECF No. 50] ¶2. As a result, the parties
proposed a briefing schedule and identified five remaining
disputed issues. See Id. The parties then
filed cross-motions for summary judgment, which further
narrowed the remaining issues to two: (1) whether the FBI can
withhold in full seven surveillance videos under FOIA
Exemption 7(E); and (2) whether the State Department
conducted an adequate search for responsive records. The
Court addresses these issues below.
judgment is appropriate where "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). Evidence is construed in the light most
favorable to the non-moving party; however, factual
assertions made in the moving party's declarations may be
accepted as true unless the opposing party submits
affidavits, declarations, or documentary evidence to the
contrary. See, e.g., Sample v. Bureau of
Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006); Neal
v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).
cases typically and appropriately are decided on motions for
summary judgment." Georgacarakos v. FBI, 908
F.Supp.2d 176, 180 (D.D.C. 2012) (internal quotation marks
omitted) (quoting Defenders of Wildlife v. U.S. Border
Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009)). FOIA
provides a '"statutory right of public access to
documents and records' held by federal agencies."
Citizens for Responsibility & Ethics in Wash, v. U.S.
Dep't of Justice, 602 F.Supp.2d 121, 123 (D.D.C.
2009) (quoting Pratt v. Webster, 673 F.2d 408, 413
(D.C. Cir. 1982)). As the Supreme Court has explained, FOIA
is "a means for citizens to know what their Government
is up to." Nat'l Archives & Records Admin,
v. Favish, 541 U.S. 157, 171 (2004) (internal quotation
marks omitted). Thus, FOIA requires federal agencies to make
their records available to the public upon request, unless
the requested information falls under one of nine statutory
exemptions to disclosure. See 5 U.S.C. § 552(b).
courts review denovo an agency's decision to withhold
requested documents under a statutory exemption, and the
agency "bears the burden of proving the applicability of
claimed exemptions." Am. Civ. Liberties Union (ACLU)
v. U.S. Dep't of Defense, 628 F.3d 612, 619 (D.C.
Cir. 2011); 5 U.S.C. § 552(a)(4)(B). To satisfy its
burden, the agency may submit supporting declarations of
responsible agency officials. See ACLU, 628 F.3d at
619. "If an agency's affidavit describes the
justifications for withholding the information with specific
detail, demonstrates that the withheld information logically
falls within the claimed exemption, and is not contradicted
by contrary evidence in the record or by evidence of the
agency's bad faith, then summary judgment is warranted on
the basis of the affidavit alone." Id. Agency
declarations are afforded "a presumption of good faith,
which cannot be rebutted by purely speculative claims about
the existence and discoverability of other documents."
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991) (internal quotation marks omitted).
"Ultimately, an agency's justification for invoking
a FOIA exemption is sufficient if it appears
'logical' or 'plausible.'"
ACLU, 628 F.3d at 619 (some internal quotation marks
omitted) (quoting Larson v. U.S. Dep't of State,
565 F.3d 857, 862 (D.C. Cir. 2009)). In cases like this one,
which implicate national security concerns, courts must
"accord substantial weight to agency affidavits."
Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)
(internal quotation marks omitted); Ctr. for Nat. Sec.
Studies v. U.S. Dep't of Justice, 331 F.3d 918,
926-27 (D.C. Cir. 2003) ("[B]oth the Supreme Court and
this Court have expressly recognized the propriety of
deference to the executive in the context of FOIA claims
which implicate national security.").
FBI Surveillance Videos
withheld seven surveillance videos in full under FOIA
Exemption 7(E). Judicial Watch argues that the FBI has not
sustained its burden of showing that the videos may be
withheld in full and, at a minimum, the FBI should be
required to release segregable portions of the videos. The
Court disagrees and finds the FBI properly withheld the
videos and thus is entitled to summary judgment.
exemption 7(E) exempts from disclosure "records or
information compiled for law enforcement purposes, " the
production of which "would disclose techniques and
procedures for law enforcement investigations 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." 5 U.S.C. § 552(b)(7)(E). The D.C. Circuit has
recognized 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).
The agency need only demonstrate "logically how the
release of the requested information might create a risk of
circumvention of the ...