United States District Court, District of Columbia
N. MCFADDEN UNITED STATES DISTRICT JUDGE
Ryan Noah Shapiro seeks a judgment from this Court that the
U.S. Department of Justice (“DOJ”), by and
through its components the Federal Bureau of Investigation
(“FBI”) and the Office of Information Policy
(“OIP”) (collectively, the
“Defendant”), violated its obligations under the
Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552 et seq., in responding to seven requests
submitted by Mr. Shapiro. Compl. 9. In particular, Mr.
Shapiro challenges the FBI's search for responsive
records as inadequate, disputes the FBI's refusal to
process one request, and argues that the FBI and OIP
improperly redacted non-exempt information from the
responsive documents disclosed to Mr. Shapiro. See
before the Court are the parties' cross-motions for
summary judgment pursuant to Federal Rule of Civil Procedure
56. As jurisdiction and venue is proper in this Court,
upon consideration of the pleadings, relevant law, related
legal memoranda in opposition and in support, the
parties' representations at oral argument, and the entire
record therein, I find that no genuine issue of material fact
exists and that the Defendant has met its obligations under
FOIA. Accordingly, the Defendant's motion for summary
judgment will be granted and the Mr. Shapiro's motion for
summary judgment will be denied.
Ryan Noah Shapiro is a “historian of national security,
the policing of dissent, and governmental
transparency.” Compl. ¶ 1. Between June 5, 2014
and May 11, 2016, Mr. Shapiro submitted seven FOIA requests
to the FBI and OIP seeking information regarding a research
and public relations effort conducted by the FBI in the
mid-to-late 1970s called “Operation Mosaic.”
Id. at ¶¶ 13-15, 21-66. According to Mr.
Shapiro, Operation Mosaic was conducted to “publicly
highlight perceived difficulties for the FBI caused by the
1974 amendments to [FOIA], ” and to “secur[e]
legislation to limit the applicability of the newly amended
FOIA to the FBI, as well as to justify unilateral FBI
measures to limit Bureau disclosures under FOIA.”
Id. at ¶ 13. In support of his interest in the
matter, Mr. Shapiro quotes an article written in 1982 by
then-FBI Director William Webster (“Webster
article”), who explained that the FBI “reviewed
FOIA materials that already had been released. . . . [and]
discovered that seemingly innocuous information can be
combined with records released at a different time . . .
[that] could reveal clues as to the identity of FBI sources
or the extent of an FBI investigation.” Id. at
¶ 15. The existence and contents of the article are not
contested by the FBI. See Def.'s Response to
Pl.'s Statement of Material Facts (“Def.'s
Response to Pl.'s SOMF”) ¶ 2, ECF No. 17-2.
“Operation Mosaic” and mosaic-related terms
underlie all of Mr. Shapiro's requests to the Defendant.
Mr. Shapiro's FOIA Requests
Shapiro's seven FOIA requests are as follows. First, on
June 5, 2014, Mr. Shapiro submitted a request to the FBI
seeking records “relating or referring to FBI file
94-69979.” Def.'s Statement of Material Facts As to
Which There Is No Genuine Issue (“Def.'s
SOMF”) ¶ 1, ECF No. 13-1. This file contained the
Webster article that referred to Operation Mosaic. Pl.'s
Statement of Material Facts As To Which There Is No Genuine
Dispute (“Pl.'s SOMF”) Ex. 16, ECF No. 16-4.
The FBI assigned tracking number 1272678-000 to the request,
and on July 24, 2014, after processing the request, the FBI
released 49 pages of previously processed documents deemed
responsive to the request to Mr. Shapiro. Def.'s SOMF
¶¶ 2-3. The FBI's response was affirmed on
internal administrative appeal. Id. at ¶¶
3-4. Subsequent to the appeal, the FBI provided Mr. Shapiro
with a coded and Bates stamped version of material previously
released to him on July 24, 2014. Id. at ¶ 5.
on June 5, 2014, Mr. Shapiro requested from the FBI all
records “relating or referring to Operation
Mosaic.” Id. at ¶ 6. The FBI assigned
tracking number 1272573-000 to the request and, after its
search, informed Mr. Shapiro that no records were identified
as responsive to the request. Id. at ¶ 7-8. The
FBI's determination was affirmed on internal appeal.
Id. at ¶ 9. Subsequent to the decision on
appeal, the FBI informed Mr. Shapiro that an additional
search determined that one responsive record was already
released to Mr. Shapiro under his prior request regarding FBI
file 94-69979. Id. at ¶ 10.
on June 5, 2014, Mr. Shapiro requested that the FBI produce
records relating to the word “mosaic.”
Id. at ¶ 16. The FBI assigned this request
tracking number 1272599-000 and informed Mr. Shapiro that the
request was overbroad and did not enable the FBI to locate
records “with a reasonable amount of effort.”
Id. at ¶ 17; see also 28 C.F.R. §
16.3(b) (requiring FOIA requests submitted to DOJ to describe
“the records sought in sufficient detail to enable
Department personnel to locate them with a reasonable amount
of effort.”). The FBI's decision was affirmed on
internal appeal. Def.'s SOMF ¶ 18.
Mr. Shapiro requested on June 5, 2014 that the FBI provide
“any and all ‘94' files relating or referring
to” FOIA or the Privacy Act. Id. at ¶ 20.
The “94” files represent FBI research matters.
Second Hardy Declaration (“Hardy Decl.”) ¶
23, ECF No. 17-1. The FBI assigned this request tracking
number 1272733-000 and informed Mr. Shapiro that it located
an estimated 1, 140, 000 pages of records potentially
responsive to his request. Def.'s SOMF ¶¶
21-22. After expending five and a half hours of time on this
search without identifying any responsive records, the FBI
administratively closed this request. Id. at ¶
31. The FBI's search was affirmed on internal
administrative appeal. Id. at ¶ 32.
on December 15, 2014, Mr. Shapiro submitted a request seeking
records responsive to “Operation Mosaic” and
“mosaic study.” Id. at ¶ 11. The
FBI assigned this request tracking number 1272573-001 and,
after processing his request, advised Mr. Shapiro that no
responsive records were identified. Id. at
¶¶ 12-13. The FBI's search was affirmed on
internal administrative appeal. Id. at ¶ 14.
on May 11, 2016, Mr. Shapiro submitted a FOIA request seeking
records related to the processing of three of his prior FOIA
requests (tracking numbers 1272678-000, 1272573-000, and
1272573-001). Id. at ¶¶ 35, 40. The FBI
assigned two tracking numbers to this request, 1351095-000
and 1353203-000. Id. at ¶¶ 36, 42; see
also Notice, ECF No. 25 (clarifying that both tracking
numbers pertain to the same request). Pursuant to these
tracking numbers, the FBI reviewed and released to Mr.
Shapiro 136 pages and 49 pages of documents, respectively.
Id. at ¶¶ 39, 45. Some of these pages
included redactions withheld on the bases of FOIA exemptions
5, 6, 7(C), and/or 7(E). Id. As the agency's
production was made after this litigation commenced, no
administrative appeal was filed. Notice 2, ECF No. 26.
last of Mr. Shapiro's requests at issue in this
litigation is his May 11, 2016 request to the OIP for records
relating to three of his prior FOIA requests (tracking
numbers 1272678-000, 1272573-000, and 1272573-001).
Def.'s SOMF ¶ 54. He also requested records
regarding the destruction of records potentially responsive
to those requests. Id. The OIP assigned this request
tracking number DOJ-2016-002983 and identified 128 pages of
records responsive to Mr. Shapiro's request. Id.
at ¶¶ 55, 58. Of the 128 pages, 24 were produced in
full, 7 were produced with redactions pursuant to FOIA
exemption 5, and 97 pages were referred to the FBI for
processing. Id. at ¶ 62. As the agency's
production was made after this litigation commenced, no
administrative appeal was filed. Notice 1, ECF No. 26.
Relevant FBI Systems
the complex background of this matter are the myriad systems
used by the FBI. Which of these systems the FBI searched,
and how, forms the crux of Mr. Shapiro's complaint.
utilizes various systems for different operational needs,
which contain information that is sometimes distinct but is
sometimes overlapping. In October 1995, the FBI began using
its Automated Case Support (“ACS”) system, a
single, electronic, integrated case management system which
permits the FBI to “locate, retrieve, and maintain
information in its files in the performance of its myriad
missions and functions.” Def.'s SOMF ¶ 47. As
part of the ACS implementation process, over 105 million
records from the FBI's Central Records System
(“CRS”) were converted and incorporated into ACS.
Id. CRS is the FBI's repository for
“applicant, investigative, intelligence, personnel,
administrative, and general files.” Id. at
¶ 46. It spans the entire FBI organization, including
its headquarters, field offices, and legal attaché
offices worldwide. Id. It is organized by
“classifications, ” which include “types of
criminal conduct and investigations conducted by the FBI, as
well as categorical subjects pertaining to counterterrorism,
intelligence, counterintelligence, personnel, and
administrative matters.” Id. FBI case files
are identifiable by a classification number, followed by the
abbreviation of the FBI office of origin initiating the file,
and the individual case file number. Id. For
example, for fictitious file number “11Z-HQ-56789,
” the “11Z” is the classification number,
“HQ” denotes the origin of the file as FBI
headquarters, and “56789” is the case-specific
file number. Id. n.1.
to locating information within CRS is through its index,
which is arranged in alphabetical order according to
“subject matters to include individuals, organizations,
events, or other subjects of investigative interest.”
Id. The FBI does not index every name or other
subject matter in the general index, but rather exercises
discretion, based on operational necessity, to index
“information considered relevant and necessary for
future retrieval.” Id. at ¶ 47. This may
include indexing by individuals' name, by organization
(e.g., entities, places, and things), or by event.
Id. The FBI's index is searchable through its
Universal Index (“UNI”), which is a centralized,
electronic means of both indexing and searching for
information. Id. Electronically searching UNI in ACS
permits an individual to locate records, both in paper and
electronic format, dating from prior to 1995, when CRS
records were consolidated into ACS, to the present day.
Id. UNI currently contains approximately 115.3
million searchable records. Id.
within ACS is the FBI's Electronic Case File
(“ECF”), the “main, and most extensive ACS
database.” Pl.'s SOMF ¶¶ 7-8; Def.'s
Response to Pl.'s SOMF ¶¶ 7-8. ECF is the
central repository for the FBI's text-based documents,
and can be searched for particular terms or phrases, as well
as by case number and other characteristics. Id. at
¶¶ 9, 11-13; Def.'s Response to Pl.'s SOMF
¶¶ 9, 11-13. The FBI “does not generally
conduct text searches in response to FOIA and Privacy Act
requests without a bona fide factual reason to do so, ”
such as a “clear and certain lead” generated from
an index search of CRS, or where the FBI has a “factual
basis” to determine that responsive records exist in
CRS but were not located through an index search. Mem. of P.
& A. in Opp. to Pl.'s Cross-Mot. for Summary J. and
Reply in Supp. of Def.'s Mot. for Summary J.
(“Def.'s Reply”) 6, ECF No. 18; Def.'s
Response to Pl.'s SOMF ¶ 15.
2012, the FBI debuted its next generation case management
system, Sentinel, which “builds on ACS and shares its
operational purpose.” Def.'s SOMF ¶ 48.
Sentinel is used for FBI records generated after July 1, 2012
and similarly utilizes an indexing system to organize
information for future retrieval. Id. All records
originally located within ACS, including most ECF content,
has been migrated to Sentinel as legacy content. Declaration
of Michael G. Seidel (“Seidel Decl.”) ¶ 7
n.1, ECF No. 30-1. Further, certain of Sentinel's index
are “backfilled” into ACS. Def.'s SOMF ¶
48. Thus, while Sentinel did not replace ACS, it
provides another avenue by which to locate FBI records
generated both prior to and after July 1, 2012. Id.
from, but related to, CRS is the FBI's Electronic
Surveillance System (“ELSUR”). Id. ELSUR
is similarly searchable through an index search of ACS and
Sentinel, but only indexes information by the names of the
targets; participants; or owners, lessors, or licensors of
the premises that is the subject of FBI surveillance.
Id. While ELSUR files contain records of electronic
surveillance, other pertinent information, such as the
application and court order authorizing the surveillance
where the electronic surveillance is being conducted, is
maintained in CRS. Id. Thus, there must exist a CRS
record for every record in ELSUR. Id.
the FBI has a Freedom of Information and Privacy Document
Processing System (“FDPS”) which helps to
“maintain information that [the FBI] has acquired in
the course of fulfilling its responsibilities under the FOIA
and Privacy Act.” Second Hardy Decl. ¶ 18. FDPS is
the official records storage location for all FOIPA
processing records, id. at ¶ 19, and is
searchable by FOIA and/or Privacy Act request numbers.
Def.'s SOMF ¶ 53. The FBI explains, given the
difference in their operational functions-namely, a tracking
system for FOIA and Privacy Act requests versus documents
pertaining to the FBI's law enforcement
responsibilities-that “[t]he vast majority of FOIPA
request records are not maintained, indexed, or
cross-referenced in the CRS.” Second Hardy Decl.
to the parties' cross-motions for summary judgment
becoming ripe, I ordered and heard a hearing on the
cross-motions. After the hearing, I ordered that the
Defendant perform ECF text searches of “94-HQ-69979,
” “94-69979, ” and “Operation Mosaic,
” and conduct a targeted physical search of the paper
files in the “94” classification, or submit a
supplemental declaration describing why these searches are
not required by law. Minute Order Dec. 21, 2017; Minute Order
Jan. 12, 2018. I also ordered the Defendant to submit for
in camera review the documents redacted
pursuant to the deliberative process privilege. Minute Order
Dec. 20, 2017. With the Defendant's responses to these
orders now complete, I now consider whether the
Defendant's responses to Mr. Shapiro's requests merit
requires federal agencies to “disclose information to
the public upon reasonable request unless the records at
issue fall within specifically delineated exemptions.”
Judicial Watch, Inc. v. FBI, 522 F.3d 364, 365-66
(D.C. Cir. 2008); see also 5 U.S.C. §
552(a)(3)(A) (records sought must be “reasonably
describe[d]”). The “vast majority” of FOIA
cases can be decided on motions for summary judgment. See
Brayton v. Office of U.S. Trade Representative, 641 F.3d
521, 527 (D.C. Cir. 2011). To prevail on summary judgment,
the movant must show an absence of a genuine issue of
material fact. Fed.R.Civ.P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In FOIA cases, an agency must demonstrate that no material
facts are in dispute, that it has conducted an adequate
search for responsive records, and that each responsive
record has either been produced to the requestor or is exempt
from disclosure. See Weisberg v. U.S. Dep't of
Justice, 627 F.2d 365, 368 (D.C. Cir. 1980).