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Reporters Committee for Freedom of Press v. Federal Bureau of Investigation

United States District Court, District of Columbia

March 1, 2019

REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

          MEMORANDUM OPINION DENYING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT; GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         In this lawsuit under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, Plaintiff the Reporters Committee for Freedom of the Press (“RCFP”) challenges the Federal Bureau of Investigation's (“FBI's”) response to a request for records relating to the FBI's impersonation of documentary filmmakers and film crews. In early 2017, it was publicly disclosed that the FBI had impersonated a documentary film crew to investigate cattle rancher Cliven D. Bundy (“Bundy”) and his followers following a 2014 armed standoff between Bundy and law enforcement. RCFP subsequently filed an eight-part FOIA request seeking, inter alia, the production of records referencing any other instance of impersonation of a documentary filmmaker or film crew by the FBI in connection with a criminal investigation since 2010 (“Item 6”), and records of professional credentials, websites, and business cards used by FBI agents in connection with the impersonation of documentary filmmakers or film crews since 2010 (“Item 7”).

         RCFP filed suit against the FBI and the Department of Justice (“DOJ”) in August 2017 after the FBI failed to release any documents in response to its FOIA request. The FBI subsequently issued a so-called “Glomar” response pursuant to FOIA Exemption 7(E) as to all records responsive to Items 6 and 7 and not related to the criminal investigations of Bundy and of one of his supporters, Gregory Burleson (“Burleson”), refusing to confirm or deny the existence of any such records. Defendants now move for summary judgment solely on the issue of whether the FBI's Glomar response is appropriate, while RCFP cross-moves for summary judgment on the same issue. Because it finds that the impersonation of documentary film workers is an enforcement technique commonly known to the public, and that acknowledging the existence or absence of records would not reduce or nullify the effectiveness of that technique, the Court denies Defendants' motion and grants RCFP's cross-motion.

         II. FACTUAL BACKGROUND

         A. The FBI's Impersonation of News Media

         While law enforcement impersonation of journalists is a practice that has been documented for decades, the FBI's impersonation of news media has received increased scrutiny in recent years. In 2014, it was widely reported that the FBI had impersonated an Associated Press (“AP”) editor in a 2007 investigation of a Seattle high school student suspected of sending bomb threats. Compl. ¶ 13, ECF No. 1; see, e.g., FBI Says It Faked AP Story to Catch Bomb Suspect, Associated Press, Oct. 28, 2014, Declaration of Katie Townsend (“Townsend Decl.”) Ex. N, at 147, [1] ECF No. 21-3.[2] The story generated significant backlash, and AP's general documentary filmmakers. See Pl.'s Mem. Supp. 6-7; Pl.'s Statement of Material Facts (“SMF”) ¶ 46; FBI Guidelines, Townsend Decl. Ex. I, at 46. The guidelines also explicitly differentiate between the policies applicable to FBI impersonation of news media in the course of an investigation and those applicable to the impersonation of documentary filmmakers. See generally FBI Guidelines.

         B. 2014 Bundy Standoff and Operation Longbow

         Bundy is a Nevada cattle rancher involved in a long-running dispute with the U.S. government over grazing rights to federal land surrounding his ranch. See, e .g., United States v. Bundy, No. 2:12-cv-084, 2013 WL 3463610, at *1 (D. Nev. July 9, 2013). After the government obtained multiple judgments against Bundy in federal court, the United States Bureau of Land Management (“BLM”) attempted to seize and remove several hundred head of Bundy's cattle from public land in early 2014. See Compl. ¶ 8; In re Bundy, 840 F.3d 1034, 1036 (9th Cir. 2016). An armed confrontation erupted between BLM and hundreds of Bundy's supporters, following which BLM released the cattle and withdrew from the area. See Compl. ¶ 8; In re Bundy, 840 F.3d at 1036. Bundy was eventually arrested and prosecuted in connection with the standoff. Compl. ¶ 8. So were several of his supporters, including Burleson. Id.

         In the course of Bundy and Burleson's criminal prosecution, the government revealed that the FBI had impersonated documentary filmmakers to gain access to suspects as part of its investigation of the standoff. Id. ¶¶ 9-11. In January 2017, a court order in Burleson's case indicated that the court had reviewed video-recorded statements Burleson had given to investigators posing as documentary filmmakers. Id. ¶ 10. In February 2017, Bundy claimed in a motion in limine that FBI agents had used fake professional credentials, websites, and business cards as part of the operation, to lend credibility to their fake documentary film company. Id. ¶ 11 (citing Bundy Mot. in Limine, United States v. Bundy, No. 2:16-CR-00046 (D. Nev. Feb. 16, 2017), ECF No. 1488). In its opposition to the motion, the government acknowledged that Bundy had spoken to undercover agents in a hotel room “under circumstances designed to make Bundy believe that he was participating in [a] documentary.” Id. ¶ 10 (quoting Gov't Opp. Mot. in Limine 2, United States v. Bundy, No. 2:16-CR-00046 (D. Nev. Feb. 16, 2017), ECF No. 1591). And in March 2017, an FBI agent testified at Burleson's trial that FBI agents had impersonated a documentary film crew to lure Bundy and other suspects into talking with them. Id. ¶ 9.

         The revelations generated significant media attention. See, e.g., Andrew Blake, FBI Posed as Documentary Filmmakers to Conduct Interview with Bundy Ranch Supporters, Washington Times (Mar. 24, 2017), Townsend Decl. Ex. B, at 12; Jenny Wilson, Bundy Defendants Interviewed in Undercover FBI Operation, Las Vegas Review-Journal (Mar. 22, 2017), Townsend Decl. Ex. A, at 9. In a lengthy article, online newspaper The Intercept dissected the FBI operation, coined “Operation Longbow.” See Ryan Devereaux & Trevor Aaronson, America Reloaded: The Bizarre Story Behind the FBI's Fake Documentary About the Bundy Family, The Intercept (May 16, 2017), Townsend Decl. Ex. C, at 15. The article described how the Bundy family was initially approached by undercover FBI agents, and discussed several interviews undertaken as part of the operation. See generally id.

         C. RCFP's FOIA Request

         On April 12, 2017, RCFP submitted an eight-part FOIA request to the FBI regarding its impersonation of documentary filmmakers and film crews. Compl. ¶¶ 18-19; April 12, 2017 FOIA Request, Compl. Ex. A, ECF No. 1-1; Defs.' SMF ¶ 1, ECF No. 19-2. Items 1 through 5 of the request involved records related to Operation Longbow and to the criminal prosecution of Bundy and Burleson. Item 1 sought the production of all records mentioning the terms “Longbow” or “Longbow Productions” since January 1, 2010. Defs.' SMF ¶ 1. Items 2 and 4 sought all records concerning or referencing the impersonation of documentary film workers in connection with any criminal investigation of, respectively, Burleson and Bundy. Id. Item 3 sought the October 2014 video recording of Burleson made as part of the operation, and Item 5 sought a release form referenced in a government motion in Bundy's criminal case. Id.

         Items 6 through 8 of the request sought materials beyond the Bundy standoff investigation. Item 8 targeted “records of the FBI's policies and practices concerning the impersonation of documentary filmmakers and/or documentary film crews.” Id. And items 6 and 7 targeted records relating to the FBI's impersonation of documentary filmmakers beyond the investigation of Bundy and Burleson. Id. Item 6 requested the production of “[a]ll records . . . referencing any other instance of impersonation of a documentary filmmaker and/or a documentary film crew by the FBI in connection with any criminal investigation since January 1, 2010.” Id. Item 7 requested the production of “[r]ecords of any ‘professional credentials, websites and business cards' used by FBI agents in connection with the impersonation of a documentary filmmaker and/or a documentary film crew since January 1, 2010.” Id.

         In its initial response, the FBI split RCFP's request into four distinct groups. Compl. ¶ 23; see FBI FOIA Responses, Compl. Ex. B., ECF No. 1-2. The FBI assigned Request No. 1372347-000 to items 2, 3, and 5, and gave a Glomar response to the request pursuant to FOIA Exemption 7(E). Defs.' SMF ¶ 2; Declaration of David M. Hardy (“Hardy Decl.”) ¶ 12, ECF No. 19-3. The FBI assigned Request No. 1372342-000 to items 1 and 4, and asserted that FOIA Exemption 7(A) prevented the disclosure of any records in response to the request. Compl. ¶ 26; FBI FOIA Responses 15. Item 8 was assigned Request No. 1372351, with the FBI stating that processing of the request would be delayed due to unusual circumstances. Compl. ¶ 27. And items 6 and 7 were assigned Request No. NFP-71761, for which the FBI stated that RCFP's request did not contain enough descriptive information to permit a search. Defs.' SMF ¶ 7. On June 5, 2017, RCFP appealed the FBI's responses to the entire request. Compl. ¶ 28; June 5, 2017 FOIA Appeal, Compl. Ex. C, ECF No. 1-3. The appeal of Request No. 1372351-000 was dismissed on July 5, 2017 because the request was still pending. Compl. ¶ 33; July 5, 2017 Denial, Compl. Ex. D, ECF No. 1-4.

         D. Procedural History

         After failing to receive any further update on the status of its appeal, RCFP filed suit on August 21, 2017. See generally Compl. Defendants filed their answer on September 25, 2017. Answer, ECF No. 8. Defendants asserted as a defense that some or all of the records were exempted from disclosure pursuant to FOIA exemptions. Id. at 1. On May 8, 2018, based on the parties' proposal, the Court directed the parties to first brief summary judgment solely on the propriety of the FBI's Glomar response. Min. Order (May 8, 2018).

         Defendants filed their motion for partial summary judgment on July 23, 2018. Defs.' Mot. Partial Summ. J., ECF No. 19. In the motion, Defendants indicated that the FBI has modified its responses to RCFP's request. Defs.' Mem. Supp. Partial Summ. J. 6, ECF No. 19-1. The FBI now provides a Glomar response pursuant to exemption 7(E) to all records sought under items 6 and 7 that are not related to the criminal investigation of Bundy and Burleson. Defs.' Mem. Supp. 6; Defs.' SMF ¶¶ 12-13. That is to say, the FBI now provides a Glomar response as to the existence of any records referencing the impersonation of documentary film workers, or of any records of credentials, websites, or business cards used in connection with such an impersonation, in connection with any criminal investigation outside of the two for which the use of the technique has already been revealed. See Defs.' SMF ¶¶ 12-13.

         On September 14, 2018, RCFP filed its cross-motion for summary judgment and opposition to Defendants' motion as to the FBI's new Glomar responses. Pl.'s Cross-Mot. Partial Summ. J., ECF No. 21. Defendants filed their opposition to RCFP's motion and reply in further support of their motion on October 12, 2018, Defs.' Reply, ECF No. 26, and RCFP filed its ...


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