United States District Court, District of Columbia
S. CHUTKAN United States District Judge.
the court are cross motions for summary judgment in this case
brought under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. In 2016,
Plaintiffs Associated Press, Gannett Satellite Information
Network d/b/a USA Today, and Vice Media, LLC
(“Plaintiffs”), each filed FOIA requests to the
Federal Bureau of Investigation (“FBI”) for
records relating to an agreement with a technology vendor who
assisted the FBI in unlocking the iPhone of a suspected
terrorist. As part of the parties' joint agreement in
this litigation, the FBI has produced 100 of 123 responsive
pages in full or in part, with certain material withheld
pursuant to FOIA Exemptions 1, 3, 4, 6, 7(C), and 7(E).
Plaintiffs have narrowed their FOIA request on summary
judgment to two specific pieces of information-the identity
of the vendor, and the price paid to the vendor-such that
only Exemptions 1, 3, 4, and 7(E) remain disputed. The FBI
claims that Exemptions 1, 3, and 7(E) apply independently to
the identity of the vendor and the purchase price, and that
Exemption 4 also applies independently to the purchase price.
have also moved to supplement the record with then-FBI
Director James Comey's May 3, 2017, Senate testimony. The
court will GRANT Plaintiffs' motion to supplement the
record and consider the testimony as part of Plaintiffs'
consideration of the parties' filings, the court
concludes that Exemptions 1, 3, and 7(E) independently apply
to the requested information, and that Exemption 4 does not.
Accordingly, as set forth below, the FBI's motion for
summary judgment is GRANTED, and Plaintiffs' cross-motion
for summary judgment is DENIED.
December 2015, Syed Rizwan Farook and Tashfeen Malik killed
fourteen people and injured twenty-two others in an attack on
the Inland Regional Center in San Bernardino, California.
See Government's Motion to Compel Apple Inc. to
Comply, No. 5:16-cm-10-SP (C.D. Cal.) at 1 ECF No. 1. The FBI
led the federal investigation into the attack, and during the
course of that investigation, discovered an employer-owned
iPhone issued to Farook that was password-protected. See
Id. at 1, 5. The phone was equipped with an auto-erase
function that would result in the permanent destruction of
the information in the phone after 10 failed attempts at
entering the passcode. Id. at 5. Thus, the FBI was
unable to access the phone without risking the loss of its
contents. Id. at 10-11. After initially commencing
legal action against the phone's manufacturer, Apple, to
compel its assistance in accessing the phone, id. at
6, the FBI moved to stay the proceedings in March 2016 when
an “outside party demonstrated to the FBI a possible
method for unlocking Farook's iPhone.”
Government's Ex Parte Application for a
Continuance, No. 5:16-cm-10 (C.D. Cal.) at 3 ECF No. 191.
than allow competitive bidding, the FBI sought a waiver to
solicit a single source for the contract to unlock the phone.
(Declaration of Jay Ward Brown (“Brown Decl.”)
Ex. J, at AP-19-AP-23). None of the vendors who inquired with
the agency about unlocking the phone had demonstrated that
they could produce a solution quickly enough to meet the
FBI's investigative requirements, and in fact, none of
them had begun to develop or test a solution at the time of
the inquiries. (Id. at AP-22). At the end of March
2016, the FBI reported that it had “successfully
accessed the data stored on Farook's iPhone and therefore
no longer require[d] the assistance from Apple Inc.”
Government's Status Report, No. 5:16-cm-10 (C.D. Cal.) at
1 ECF No. 209.
this revelation, then-FBI Director James Comey gave
interviews to reporters on April 21, 2016, and May 11, 2016,
during which he confirmed several details regarding the tool
and its purchase. (Brown Decl. Ex. G; Ex. H; Ex. I). This
information included details about its cost, which Comey
believed “for sure” exceeded the salary he was
due at the time for the remainder of his seven-year,
four-month tenure, about $1.2 million. (Brown Decl. Ex. G).
He also stated that the tool was narrowly tailored to only
work on an iPhone 5C operating on iOS 9, and the FBI had not
identified any other phones on which the tool could be used.
(Brown Decl. Ex. I at 3, 16). Moreover, he noted that the
urgency of the FBI's investigation necessitated the
FBI's purchase of the tool and the agency spent what it
needed to in order to acquire it. (Id. at 5).
Plaintiff filed a separate FOIA request with the FBI between
March and April of 2016. (See Declaration of David
M. Hardy (“First Hardy Decl.”) Ex. A; Ex. I; Ex.
M). They sought records concerning the FBI's financial
agreements with the vendor the agency employed to unlock the
iPhone. (See id.) The FBI initially denied each
request on the basis of FOIA Exemption 7(A), which permits
agencies to withhold records or information compiled for law
enforcement purposes to the extent that the production of
such records could reasonably be expected to interfere with
law enforcement proceedings. (First Hardy Decl. Ex. C; Ex. J;
Ex. N). Each Plaintiff appealed administratively as provided
under FOIA, and the Department of Justice Office of
Information Policy affirmed the FBI's denial of the
requests for the records in each case. (First Hardy Decl. Ex.
D; Ex. H; Ex. K; Ex. L; Ex. O; Ex. Q).
then filed this action in September 2016. (ECF No. 1). On
January 6, 2017, the FBI produced 100 of 123 responsive pages
in full or in part, with certain information withheld or
redacted pursuant to FOIA Exemptions 1, 3, 4, 6, 7(C), and
7(E). (First Hardy Decl. ¶ 25; Ex. R; Brown Decl. Ex.
J). The FBI then moved for summary judgment (ECF No. 14), and
Plaintiffs filed their cross-motion for summary judgment,
narrowing their outstanding FOIA request to two pieces of
information: (1) the identity of the vendor, and (2) the
amount paid to the vendor for the tool in question.
(See Pls. Mem at 9, ECF Nos. 15, 16). As a result of
this revised request, the remaining issues on summary
judgment are whether the FBI properly applied Exemptions 1,
3, and 7(E) to the identity of the vendor, and whether it
properly applied Exemptions 1, 3, 4, and 7(E) to the purchase
PLAINTIFFS' MOTION TO SUPPLEMENT THE RECORD
3, 2017, Director Comey testified before the Senate Judiciary
Committee. (See Supplemental Declaration of Jay Ward
Brown “Supp. Brown Decl.” Ex. A). During
questioning, Senator Dianne Feinstein mentioned the FBI's
hacking of Farook's iPhone, as excerpted below from the
FEINSTEIN: Well I - I was so struck when San Bernardino
happened and you made overtures to allow that device to be
opened, and then the FBI had to spend $900, 000 to hack it
open. And as I subsequently learned of some of the reason for
it, there were good reasons to get into that device.
And the concern I have is that once people had been killed in
a terrorist attack and that there may be other DNA, there may
be other messages that lead an investigative agency to
believe that there are others out there, isn't to the -
for the protection of the public that one would want to be
able to see if a device could be opened.
And I've had a very hard time - I've tried - I've
gone out, I tried to talk to the tech companies that are in
my state. One - Facebook was very good and understood the
problem. But most do not have. Has the FBI ever talked with
the tech companies about this need in particular?
COMEY: Yes, senator. We've had a lot of conversations,
and as I said earlier, they're - in my sense, they've
been getting more productive because I think the tech
companies have come to see the darkness a little bit more. My
- my concern was privacy's really important but that they
didn't see the public safety costs.
I think they're starting to see that better and what -
what nobody wants to have happen is something terrible happen
in the United States and it be connected to our inability to
access information with lawful authority. That we ought to
have the conversations before that happens and the companies
more and more get that. I think over the last year and half,
and - but it's vital, we weren't picking on Apple in
the San Bernardino case.
(Id. at 4). On May 12, 2017, Plaintiffs moved to
supplement the record on summary judgment with this
testimony, citing it as “further evidence in support of
[their] arguments on pages 15, 20, 26, and 29” of their
memorandum in support of their cross-motion. (ECF No. 20 at
Exemption 1, Plaintiffs note that then-Director Comey has
already spoken publicly about the price (namely that it was
very high), and thus disclosing the price information would
not jeopardize national security interests. (See
Pls. Mem. at 15). Regarding Exemption 3, Plaintiffs claim the
FBI's argument that releasing the specific purchase price
would aid those seeking to thwart the FBI's tool is
belied by the fact that the information that could provide
such aid-that the purchase price was very high-is already
publicly available. (See Id. at 20). Regarding
Exemption 4, Plaintiffs emphasize that the tool's vendor
would not suffer competitive harm from disclosure of the
purchase price because Comey already released the general
price-related information, and potential competitors have a
ballpark figure from which to underbid. (See Id. at
26). Regarding Exemption 7(E), Plaintiffs argue that
releasing the purchase price will not risk circumvention of
the law because the FBI took that risk when Director Comey
revealed that the purchase price was substantial. (See
Id. at 29).
court will GRANT Plaintiffs' motion to supplement the
record with the Senate Judiciary Committee hearing
transcript, and will consider it part of Plaintiffs'
brief in the sections detailed above.
SUMMARY JUDGMENT STANDARD
judgment is appropriate where the record shows there is no
genuine issue of material fact and the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Waterhouse v. District of Columbia, 298 F.3d 989,
991 (D.C. Cir. 2002). In determining whether a genuine issue
of material fact exists, the court must view all facts in the
light most favorable to the non-moving party. See, e.g.,
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970). A fact is material if “a dispute over it might
affect the outcome of a suit under governing law; factual
disputes that are ‘irrelevant or unnecessary' do
not affect the summary judgment determination.”
Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir.
2006) (quoting Anderson v. Liberty Lobby, 477 U.S.
242, 248 (1986)). An issue is genuine if “the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. (quoting
Anderson, 477 U.S. at 248). The party seeking
summary judgment “bears the heavy burden of
establishing that the merits of his case are so clear that
expedited action is justified.” Taxpayers Watchdog,
Inc., v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987).
cases are typically and appropriately decided on motions for
summary judgment. Brayton v. Office of the U.S. Trade
Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Agencies bear
the burden of justifying withholding of any records, as FOIA
favors a “strong presumption in favor of
disclosure.” Dep't of State v. Ray, 502
U.S. 164, 173 (1991). The court therefore analyzes all
underlying facts and inferences in the light most favorable
to the FOIA requester, even where the requester has moved for
summary judgment. See Pub. Citizen Health Research Grp.
v. FDA, 185 F.3d 898, 904-05 (D.C. Cir. 1999).
cases where the applicability of certain FOIA exemptions is
at issue, agencies may rely on supporting declarations that
are reasonably detailed and non-conclusory. See, e.g.,
ACLU v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C.
Cir. 2011); Students Against Genocide v. Dep't of
State, 257 F.3d 828, 838 (D.C. Cir. 2001). “If an
agency's affidavit describes the justifications for
withholding the information with specific detail,
demonstrates that the information withheld 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.” ACLU, 628
F.3d at 619. “Ultimately, an agency's justification
for invoking a FOIA exemption is sufficient if it appears
‘logical' or ‘plausible.'”
Id. (internal quotation marks omitted) (quoting
Larson v. Dep't of State, 565 F.3d 857, 862
(D.C. Cir. 2009)). However, a motion for summary judgment
should be granted in favor of the FOIA requester where
“an agency seeks to protect material which, even on the
agency's version of the facts, falls outside the
proffered exemption.” Coldiron v. U.S. Dep't of
Justice, 310 F.Supp.2d 44, 48 (D.D.C. 2004) (quoting
Petroleum Info. Corp. v. Dep't of Interior, 976
F.2d 1429, 1433 (D.C. Cir. 1992)).
defendant in a FOIA case must show that its search for
responsive records was adequate, that any claimed exemptions
are valid, and that any reasonably segregable non-exempt
portions of records have been disclosed after redaction of
exempt information. Light v. Dep't of Justice,
968 F.Supp.2d 11, 23 (D.D.C. 2013).
Plaintiffs have conceded that the FBI's search for
responsive records was adequate, and do not challenge the
FBI's segregability determination. They do, however,
contest the FBI's claimed exemptions for the tool
vendor's identity and the tool's purchase price. The
FBI asserts that such information is properly and
independently protected under FOIA Exemptions 1, 3, and 7(E),
and that the purchase price is also independently protected
under FOIA Exemption 4. (Def. Opp. at 1). For the reasons set
forth below, the court finds that Exemptions 1, 3, and 7(E)
apply to both the vendor's identity and the purchase
price, and Exemption 4 does not apply to the purchase price.
Although invocation of a single valid exemption is sufficient
to permit the withholding of the information requested and
support a grant of summary judgment to the FBI, the court
will nevertheless analyze the application of each exemption.