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Brick v. Department of Justice

United States District Court, District of Columbia

February 19, 2019




         During her lifetime, Eleanor Roosevelt served the United States in a variety of roles, including as First Lady of the United States, as a United Nations delegate, and as a representative to the United Nations Commission on Human Rights. (See Compl., ECF No. 1, ¶ 5.) She also caught the attention-and provoked the ire-of J. Edgar Hoover, the former director of the Federal Bureau of Investigation (“FBI”). (See id.)[1]At Hoover's direction, the FBI collected extensive information regarding Mrs. Roosevelt during the later years of her life (see Id. ¶¶ 5-6); in 2015, more than five decades after her death, plaintiff Christopher Brick submitted a request to the FBI under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking disclosure of certain records from the FBI's Eleanor Roosevelt file (see Id. ¶ 7). The FBI released hundreds of pages of documents in response to Brick's FOIA request, but the agency redacted some of the responsive documents on the grounds that the information was exempted from disclosure under the FOIA. (See Id. ¶ 8.) At issue in the instant lawsuit is a subset of 12 pages of records that the FBI produced to Brick, with respect to which the agency invoked FOIA Exemptions 3 and 7(E), among other provisions, to withhold certain information. In his complaint, Brick maintains that the FBI has “no legal basis for refusing to disclose these twelve pages in full.” (Id. ¶ 11.)

         Before this Court at present are the parties' cross-motions for summary judgment. (See Def.'s Renewed Mot. for Summ. J. (“Def.'s Renewed Mot.”), ECF No. 26; Pl.'s Renewed Cross-Mot. for Summ. J. (“Pl.'s Renewed Mot.”), ECF No. 28.) The parties' arguments specifically pertain to the redactions in 12 pages of records “that appear to provide information on Mrs. Roosevelt's travel to the Soviet Union and participation in events and activities where she was likely to encounter Soviet United Nations personnel[.]” (Pl.'s Renewed Mot. at 3.)[2] DOJ argues that Exemptions 3 and 7(E) authorize the FBI to withhold the information at issue, and also that the agency has adequately justified those withholdings in the ex parte, classified declaration the agency submitted with its motion. (See Def.'s Renewed Mot. at 8-11.) Brick insists that DOJ's public filings provide no justification for the FBI's assertion of Exemption 3 or 7(E), and asserts that the FOIA requires DOJ to articulate publicly an explanation “that is adequate to support the claimed exemptions without revealing the information that the exemptions are designed to protect.” (See Pl.'s Renewed Mot. at 4.)

         As discussed fully below, the Court has reviewed the relevant documents in camera, and it finds that DOJ has established in its ex parte filing that the FBI properly invoked Exemptions 3 and 7(E) to redact the information at issue in this case. This Court further finds that, under the circumstances of this case, it was appropriate for the government to explain the bases for its withholdings in a classified, ex parte declaration. As such, DOJ's renewed motion for summary judgment must be GRANTED and Brick's renewed cross-motion must be DENIED. A separate Order consistent with this Memorandum Opinion will follow.

         I. BACKGROUND[3]

         A. Factual Background

         Christopher Brick is the Project Director and Editor for the Eleanor Roosevelt Papers Project (“Project”), which describes itself as “a research center that aims to make the vast record of Eleanor Roosevelt's written, spoken, and audio-visual legacy accessible to scholars, students, teachers, and the general public.” (Decl. of Christopher Brick, ECF No. 14-1, ¶ 2.) The Project accomplishes this mission by publishing Eleanor Roosevelt's papers, among other things, and it has published two volumes of her records to date. (See id.; see also Compl. ¶ 3.)

         As noted above, at the behest of its former director J. Edgar Hoover, the FBI maintained an extensive individual file on former First Lady Eleanor Roosevelt. (See Compl. ¶ 5.) In 1982, the FBI released to the public many, but not all, of the records from this file. (See Compl. ¶ 6; see also Ans., ECF No. 9, ¶ 6.) Brick submitted a FOIA request to DOJ on June 25, 2015, seeking certain records from the FBI's file that had not been included in the 1982 release. (See Pl.'s Stmt. of Material Facts as to Which There Is No. Genuine Dispute, ECF No. 28 at 12-13, ¶ 1.) In response to Brick's request, the FBI released 338 pages of redacted records, and invoked FOIA Exemptions 6, 7(C), 7(D), and 7(E) to justify the withholdings. (See Id. ¶ 2.) Brick appealed the redactions on 12 of these pages (see Id. ¶ 3), and on February 9, 2015, DOJ's Office of Information Policy affirmed the FBI's withholdings on the grounds that the agency had properly redacted information pursuant to Exemptions 6, 7(C), and 7(E) (see Id. ¶ 4).

         B. Procedural History

         On August 3, 2015, Brick filed a four-page complaint in this Court, “to challenge the decision of the Department of Justice (‘DOJ') to redact certain records in Eleanor Roosevelt's Federal Bureau of Investigation (‘FBI') file[.]” (Compl. ¶ 1.) At issue in Brick's complaint are “the withheld portions of . . . twelve pages” that, according to Brick, “defendants have no legal basis for refusing to disclose[.]” (Id. ¶ 11.)

         On November 17, 2015, DOJ filed a motion for summary judgment that argued that the redactions in those 12 pages were proper under Exemptions 6, 7(C), and 7(E). (See Def.'s Mot. For Summ. J, ECF No. 12.) DOJ also filed a supporting declaration from FBI declarant David M. Hardy. (See Decl. of David M. Hardy, ECF No. 12-1.) Brick filed a cross-motion for summary judgment (see Pl.'s Cross-Mot. for Summ. J., ECF No. 14), and in response, DOJ filed an additional declaration from Hardy further explaining its withholdings (see Second Decl. of David M. Hardy, ECF No. 18-2).[4]

         On November 9, 2017, this Court found that Hardy's declarations were not “sufficiently detailed to permit the Court to conduct a meaningful review” of the FBI's assertion of the FOIA exemptions, and thus, denied both cross-motions without prejudice. Brick v. Dep't of Justice, 293 F.Supp.3d 9, 10, 13 (D.D.C. 2017). DOJ filed a renewed motion for summary judgment, along with an unclassified declaration from Hardy, on February 1, 2018. (See Def.'s Renewed Mot.; Fourth Decl. of David. 0M. Hardy, ECF No. 26-1.) DOJ also lodged with the Classified Information Security Officer a classified declaration from Hardy, as well as unredacted copies of the 12 pages at issue in the instant case. (See Notice of Lodging Classified Decl. & Unredacted Documents with the Classified Info. Sec. Officer, ECF No. 27; Classified Hardy Decl.)

         In its papers, DOJ explains that the FBI has reprocessed the 12 pages of records, and it subsequently released additional information to Brick after dropping its reliance on Exemptions 6 and 7(C). (See Def.'s Stmt. of Undisputed Material Facts, ECF No. 26 at 2-3, ¶ 7.) DOJ asserts that the FBI is entitled to summary judgment with respect to the remaining redactions, because the agency properly invoked FOIA Exemption 3- which permits an agency to withhold records that are “specifically exempted from disclosure by [a] statute [that] . . . establishes particular criteria for withholding or refers to particular types of matters to be withheld[, ]” 5 U.S.C. § 552(b)(3)-and FOIA Exemption 7(E)-which permits an agency to withhold certain records “compiled for law enforcement purposes[, ]” 5 U.S.C. § 552(b)(7)(E). (See Def.'s Renewed Mot. at 9- 11.) In particular, DOJ maintains that the FBI properly redacted information regarding United States intelligence sources and methods that is exempt from disclosure under Section 102A(i)(1) of the National Security Act of 1947, 50 U.S.C. § 3024(i)(1) (see Id. at 8), as well as information that was “compiled for law enforcement purposes” (id. at 9) and that, if disclosed, would reveal “FBI investigative techniques and procedures” and “risk circumvention of the law” (id. at 10-11). Finally, DOJ argues that it has released all non-exempt, reasonably segregable portions of records that are responsive to Brick's FOIA request. (See Id. at 11-12.)

         For his part, Brick has filed a renewed cross-motion for summary judgment, in which he maintains that DOJ's “public filings offer no support for its claimed exemptions [and therefore] they cannot carry [Defendant's] burden of establishing that the records fall within the exemptions[.]” (Pl.'s Renewed Mot. at 6.) Brick further contends that it is improper for the FBI to justify its invocation of Exemptions 3 and 7(E) only in sealed, ex parte filings; instead, according to Brick, the agency should have provided in its public papers a general description of the law enforcement and intelligence techniques at issue. (See Id. at 7-11; see also Id. at 7 (asserting that “the government's bald assertion that it cannot provide any meaningful ...

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