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Electronic Frontier Foundation v. Department of Justice

United States District Court, District of Columbia

April 17, 2019

ELECTRONIC FRONTIER FOUNDATION, Plaintiff,
v.
DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION AND ORDER

          DABNEY L. FRIEDRICH UNITED STATES DISTRICT JUDGE

         During a criminal prosecution, the Federal Bureau of Investigation (FBI) disclosed that computer repair technicians at a Best Buy facility in Kentucky had served as confidential informants. After this revelation, Electronic Frontier Foundation (EFF) submitted a Freedom of Information Act (FOIA) request seeking records about the FBI's use of cooperating computer technicians. The FBI responded to EFF's FOIA request by refusing to confirm or deny the existence of most of the requested records, withholding in full some records, and processing and disclosing redacted versions of other records. Both parties have now cross-moved for summary judgment. For the reasons that follow, the Court will grant in part and deny in part the government's motion, and it will deny EFF's cross-motion.

         I. BACKGROUND

         EFF's FOIA request was prompted by disclosures the FBI made in United States v. Rettenmaier, No. 14-cr-0188 (C.D. Ca. filed Nov. 12, 2014), a child pornography case. In Rettenmaier, a Best Buy employee at a data recovery facility in Brooks, Kentucky discovered a suspicious image of a child while repairing Rettenmaier's computer. Gov't's Br. at 1-2, Dkt. 13-2; EFF's Br. at 2, Dkt. 15; Hardy Decl. ¶ 5, Dkt. 13-3. The employee's supervisor alerted the FBI, which triggered a criminal investigation that led to Rettenmaier's prosecution. Gov't's Br. at 2; EFF's Br. at 2.

         In December 2016, the federal judge presiding over the case issued an order that cited evidence about the FBI's cooperation with Best Buy employees. Hardy Decl. ¶ 5; id. Ex. A at 3, Dkt. 13-4. It is undisputed that the FBI ultimately revealed that it had used eight informants at Best Buy's Brooks, Kentucky data-recovery facility from 2007 through 2016, and that it revealed the names of four of those informants. Gov't's Statement of Facts ¶ 14, Dkt. 13-1; EFF's Statement of Facts ¶ 2, Dkt. 15-9; EFF's Reply at 5 n.1, Dkt. 21.

         On February 2, 2017, EFF emailed a FOIA request to the FBI that referenced the order in Rettenmaier and sought “[a]ll internal memoranda or other documentation regarding the use of informants . . . at any Best Buy facility, ” “[a]ll internal memoranda or other documentation regarding FBI training of Best Buy personnel in the detection and location of child pornography, or other material, on computers brought to Best Buy for repair, ” “[a]ll recruiting material from the FBI directed to Best Buy personnel, ” and “[a]ll memoranda, guidance, directives, or policy statements concerning the use of informants . . . at any computer repair facilities in the United States.” Hardy Decl. Ex. A at 3.[1] In responding to the request, the FBI construed the term “informant” to mean “an individual with whom the FBI has an established relationship, who ha[s] a specific source identification number used to obscure [his] identi[t]y in investigatory records, and ha[s] a separate distinct file containing documentation of their informant history, which has restricted access within the FBI.” Id. ¶ 3 n.1.

         The FBI initially invoked FOIA exemption 7(E) as the basis for a Glomar response[2] that neither confirmed nor denied the existence of responsive records. Gov't's Statement of Facts ¶ 5; see also EFF's Statement of Facts ¶ 1. But it eventually agreed to modify that response in light of the disclosures made during the Rettenmaier prosecution. Gov't's Statement of Facts ¶ 10; see also EFF's Statement of Facts ¶ 1; Joint Mot. to Vacate Summ. J. Briefing Schedule ¶ 2, Dkt. 8. Because the government acknowledged in Rettenmaier that the FBI used eight confidential informants at the Kentucky Best Buy from 2007 to 2016, it responded to the request for “internal memoranda or other documentation regarding the use of [confidential] informants . . . at any Best Buy” by searching for responsive documents “concerning the [confidential] informants . . . at the Brooks, Kentucky facility from 2007 to 2016.” Hardy Decl. ¶ 53 (internal quotation marks omitted). As for the request for training materials, it explained that it had already disclosed, in response to an inquiry by the Rettenmaier court, that it had no records from the relevant Kentucky field office related to “training conducted for Best Buy employees in the detection and location of child pornography on computers brought to Best Buy for repair, for the time period of 2008 through February 2012.” Id. ¶ 58 (internal quotation marks omitted). Similarly, the FBI acknowledged that it had disclosed during the Rettenmaier prosecution “that it [had] searched [the relevant field office's] records for any recruiting material directed to Best Buy personnel between 2008 and February 2012” and that it had failed to locate any responsive records. Id. ¶ 60 (alteration adopted and internal quotation marks omitted). It maintained its Glomar response for all training and recruiting material not covered by those two previous searches. Id. ¶¶ 58, 60. Finally, the FBI maintained its Glomar response to the extent any records responsive to the final part of EFF's request for “memoranda, guidance, directives, or policy statements concerning the use of [confidential] informants, ” id. Ex. A at 3, were not covered by the first part of its request, id. ¶ 62.

         The FBI invoked exemptions 6, 7(A), 7(C), 7(D), and 7(E) to redact or withhold the records no longer covered by its Glomar response. Id. ¶¶ 66, 113. It “categorically” withheld the “informant files concerning th[e] eight [confidential informants] specifically acknowledged in the Rettenmaier litigation.” Id. ¶ 113. Of the remaining records, it released 14 pages in full and 151 pages in part. Id. ¶ 112. It also withheld 78 pages in full because “all information on these pages was either fully covered by one or more of the cited FOIA exemptions or . . . any non-exempt information on these pages was so intertwined with exempt material that no information could be reasonably segregated for release.” Id. ¶ 112(c). The FBI later supplemented its disclosures after EFF filed its cross-motion by “removing redactions pursuant to Exemptions 6 and 7(C) where they had withheld (1) names of [confidential informants] who had been publicly identified in the Rettenmaier litigation, and (2) the 2009 work phone number of one [confidential informant] who had been publicly identified.” Suppl. Hardy Decl. ¶ 15, Dkt. 18-2.

         To justify its withholding decisions, the FBI submitted, among other things, two declarations by David M. Hardy, a section chief in the FBI's Records Management Division, see id.; Hardy Decl., a declaration by Special Agent Tracey L. Riley, see Riley Decl., Dkt. 19-1, and a Vaughn index, see Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), that delineated the redactions made to each page of the records that were not either categorically withheld as part of an informant file or covered by the partial Glomar response, Hardy Decl. Ex. K, Dkt. 13-4.

         II. LEGAL STANDARD

         Rule 56 of the Federal Rules of Civil Procedure mandates that “[t]he court shall grant summary judgment if the movant shows 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). When a federal agency moves for summary judgment in a FOIA case, all facts and inferences must be viewed in the light most favorable to the requester, and the agency bears the burden of showing that it complied with FOIA. Chambers v. U.S. Dep't of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009).

         To prevail under Rule 56, a federal agency “must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from [FOIA's] inspection requirements.'” Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (per curiam) (internal quotation marks omitted). “The system of disclosure established by the FOIA is simple in theory[:] [a] federal agency must disclose agency records unless they may be withheld pursuant to one of the nine enumerated exemptions listed in [5 U.S.C.] § 552(b).” DOJ v. Julian, 486 U.S. 1, 8 (1988). The agency bears the burden of justifying the application of any exemptions, “which are exclusive and must be narrowly construed.” Mobley v. CIA, 806 F.3d 568, 580 (D.C. Cir. 2015).

         Federal courts rely on agency affidavits to determine whether an agency complied with FOIA. Perry, 684 F.2d. at 126. Agency affidavits are entitled to a presumption of good faith, SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and a court may grant summary judgment based on an affidavit if it contains reasonably specific detail and is not called into question by contradictory record evidence or evidence of bad faith, Judicial Watch v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013). It is well established that “the vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).

         III. ANALYSIS

         EFF does not dispute that the FBI adequately searched for records associated with the Rettenmaier disclosures, or that it appropriately applied several exemptions to the records located in that search. EFF's Br. at 4-5. Instead, EFF focuses on a few specific applications of a handful of exemptions. The Court divides its analysis into three parts: first, whether the FBI satisfied its burden to justify (a) a partial Glomar response for documents unrelated to the disclosures made during the Rettenmaier prosecution and (b) redactions under exemption 7(E); second, whether exemption 7(C) protects the name of an individual who was convicted based on information obtained from the Kentucky Best Buy; and finally, whether the FBI satisfied its burden to justify the categorical withholding of the informant files under exemptions 6, 7(C), 7(D), and 7(E).

         A. Exemption 7(E)

         Exemption 7(E) protects “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . would disclose techniques and procedures for law enforcement investigations or prosecutions . . . if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7). The exemption does not ordinarily protect “routine techniques and procedures already well known to the public.” Founding Church of Scientology of Washington, D.C. v. NSA, 610 F.2d 824, 832 n.67 (D.C. Cir. 1979) (internal quotation marks omitted); see also Judicial Watch v. U.S. Dep't of Commerce, 337 F.Supp.2d 146, 181 (D.D.C. 2004). It does, however, protect “confidential details of . . . program[s]” if only their “general contours [are] publicly known.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1112 (D.C. Cir. 2007) (citing Blanton v. DOJ, 64 Fed. App'x 787, 788-89 (D.C. Cir. 2003) (per curiam)); see also Shapiro v. DOJ, 893 F.3d 796, 801 (D.C. Cir. 2018) (permitting the government to withhold documents that would disclose the way in which the FBI uses a particular publicly known database). In this Circuit, exemption 7(E) applies if the disclosure of information related to even “commonly known procedures” could “reduce or nullify their effectiveness.” Vazquez v. DOJ, 887 F.Supp.2d 114, 116 (D.D.C. 2012) (internal quotation marks omitted), aff'd, No. 13-5197, 2013 WL 6818207, at *1 (D.C. Cir. Dec. 18, 2013) (per curiam).

         Exemption 7(E) “sets a relatively low bar for the agency to justify withholding.” Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). “Rather than requiring a highly specific burden of showing how the law will be circumvented, exemption 7(E) only requires that the [agency] demonstrate logically how the release of the requested information might create a risk of circumvention of the law.” Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009) (alterations adopted and internal quotation marks omitted). The exemption “looks not just for circumvention of the law, but for a risk of circumvention; not just for an actual or certain risk of circumvention, but for an expected risk; not just for an undeniably or universally expected risk, but for a reasonably expected risk; and not just for certitude of a reasonably expected risk, but for the chance of a reasonably expected risk.” Id. at 1193.

         The FBI invoked exemption 7(E) to justify three withholding decisions. First, it invoked the exemption to justify a partial Glomar response and refuse to confirm or deny the existence of any documents unrelated to the use of confidential informants “at the Best Buy, Brooks, Kentucky facility for the period of 2007 to 2016” as well as the existence of any recruiting or training documents beyond the disclosures made during the Rettenmaier prosecution. Hardy Decl. ¶ 29; see also Id. ¶¶ 53, 58, 60, 62. Second, it invoked exemption 7(E) to justify its categorical withholding of the informant files for the eight informants who were publicly acknowledged during the Rettenmaier prosecution. Hardy Decl. ΒΆΒΆ ...


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