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Electronic Privacy Information Center v. Federal Bureau of Investigation

United States District Court, District of Columbia

May 22, 2018

ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, Defendant.

          MEMORANDUM OPINION

          TREVOR N. MCFADDEN, UNITED STATES DISTRICT JUDGE.

         The Electronic Privacy Information Center, or EPIC, challenges the way that the Federal Bureau of Investigation has responded to its Freedom of Information Act request for records related to Russian interference in the 2016 presidential election. EPIC questions the adequacy of the FBI's search for responsive records, the propriety of the FBI's withholdings and redactions, and the accuracy of the FBI's segregability determination. But because the FBI has shown that it conducted an adequate search and that it properly withheld and redacted non-segregable records under FOIA Exemptions 1, 3, and 7(A), the FBI's Motion for Summary Judgment will be granted and EPIC's Cross-Motion for Summary Judgment will be denied.

         I. BACKGROUND

         EPIC's FOIA request states generally that it “seeks records pertaining to the FBI's investigation of Russian interference in the 2016 U.S. Presidential Election.” EPIC's FOIA Request 1, attached to Mot. Summary J. Decl. of David M. Hardy (Hardy Decl.) as Ex. A. It provides several pages of background to the request, explaining EPIC's interest in Russian cyber attacks on the Republican National Committee, the Democratic National Committee, and the Democratic Congressional Campaign Committee. Id. at 1-5. It then makes itemized records requests for:

(1) All records, including but not limited to, memos, reports, guidelines, procedures, summaries, and emails pertaining to the FBI's investigation of Russian-sponsored cyber attack on the RNC, DNC, and DCCC.
(2) All records of communications to the RNC, DNC, and DCCC regarding the threat of Russian interference in the 2016 Presidential election.
(3) All records of communications with other federal agencies regarding Russian interference in the 2016 Presidential election.
(4) All records including, but not limited to, memos, reports, guidelines, and procedures pertaining to the FBI's procedure to notify targets of cyber attacks.

Id. at 6. The FBI searched for responsive records, but withheld all records responsive to Items 1-3 and heavily redacted some records responsive to Item 4. The FBI seeks summary judgment, arguing that it conducted an adequate search; that its withholdings and redactions are necessary to protect an ongoing investigation, to protect classified information, and to protect intelligence sources and methods; and that it has released all reasonably segregable information to EPIC. EPIC also seeks summary judgment, arguing that the FBI has not made an adequate showing on any of these issues.

         II. LEGAL STANDARD

         To prevail on a motion for summary judgment, a movant must show 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); see also Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986). FOIA 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) (creating a disclosure obligation only where a request “reasonably describes” the records sought). Thus, a FOIA defendant is entitled to summary judgment if it shows that there is no genuine dispute about whether “each document that falls within the class requested either has been produced, is unidentifiable or is wholly exempt from the Act's inspection requirements.” See Weisberg v. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). Courts decide the “vast majority” of FOIA cases on motions for summary judgment. See Brayton v. Office of United States Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).

         To show that any unproduced documents are exempt from FOIA, an agency may file “affidavits describing the material withheld and the manner in which it falls within the exemption claimed.” King v. Dep't of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). Courts review the applicability of FOIA exemptions de novo but give “substantial weight to detailed agency explanations” of national security concerns related to FOIA disclosures. Id.

         To show that any unproduced documents are unidentifiable, a defendant must show “a good faith effort to [] search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). In other words, the defendant must “demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Nation Magazine v. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995). The touchstone of the analysis is the reasonableness of the search, not the records produced. See Hodge v. FBI, 703 F.3d 575, 580 (D.C. Cir. 2013) (“[T]he adequacy of a search is determined not by the fruits of the search, but by the appropriateness of [its] methods.”); Mobley v. CIA, 806 F.3d 568, 583 (D.C. Cir. 2015) (“[A] search, under FOIA, is not unreasonable simply because it fails to produce all relevant material.”).

         An agency may exercise discretion in crafting its search to meet this standard, and does not have to search every system if additional searches are unlikely to produce any marginal return. See Campbell v. Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998). Searching for records requires “both systemic and case-specific exercises of discretion and administrative judgment and expertise, ” and is “hardly an area in which the courts should attempt to micro-manage the executive branch.” Schrecker v. Dep't of Justice, 349 F.3d 657, 662 (D.C. Cir. 2003). To prove the reasonableness of its search, an agency can submit a “reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.” Oglesby, 920 F.2d at 68. Agency ...


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