United States District Court, District of Columbia
L. FRIEDMAN, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the defendant's renewed
motion for summary judgment [Dkt. No. 53] and Mr.
Shapiro's renewed cross-motion for summary judgment [Dkt.
No. 55], after remand to this Court from the Court of
Appeals. See Shapiro v. U.S. Dep't of Justice,
893 F.3d 796 (D.C. Cir. 2018). At issue is one remaining
record, known as “Serial 91, ” redacted by the
Federal Bureau of Investigation (“FBI”) under the
Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552. The Court will grant summary judgment in favor of
the government and deny Mr. Shapiro's cross-motion for
history of this case is set out in prior opinions of this
Court and of the U.S. Court of Appeals for the D.C. Circuit
and need not be repeated here. See Shapiro v. U.S.
Dep't of Justice, 893 F.3d 796; Shapiro v. U.S.
Dep't of Justice, 249 F.Supp.3d 502 (D.D.C. 2017);
Shapiro v. U.S. Dep't of Justice, 205 F.Supp.3d
68 (D.D.C. 2016); Shapiro v. U.S. Dep't of
Justice, 34 F.Supp.3d 89 (D.D.C. 2014). This Court has
yet to evaluate the propriety of the government's
withholdings as to Serial 91 - an additional, two-page
document that was released following oral argument in the
Court of Appeals. The D.C. Circuit remanded the case for
evaluation of the redactions made to Serial 91 and resolution
of any dispute as to those redactions. See Shapiro v.
U.S. Dep't of Justice 893 F.3d at 800.
government has made thirteen separate redactions to Serial
91, withholding material contained therein pursuant to
Exemptions 3, 6, 7(C), and 7(E) of FOIA. See Gov.
Mot. at 3; see also 5 U.S.C. §§ 552(b)(3),
(b)(6), (b)(7)(E). In his cross-motion, Mr. Shapiro
originally challenged eight of the thirteen withholdings made
under Exemptions 3 and 7(E) of FOIA and requested that the
Court review in camera an unredacted version of the
document. See Pl. Cross-Mot. at 1, 18. He submitted
a copy of the redacted version of Serial 91 as an exhibit to
his cross-motion, identifying each of the eight challenged
withholdings by letters A-H (referred to as
“blocks” by the parties). See Serial 91.
Over the course of the parties' briefing, Mr. Shapiro
withdrew his challenges to three withholdings made pursuant
to Exemption 7(E). The parties continue to dispute the
propriety of five redactions contained in Serial 91: the
redactions labeled A, B, E, F, and H in Mr. Shapiro's
Exhibit 4. See id.
as exhibits to its motion for summary judgment and its reply,
the government has submitted two separate declarations by
David M. Hardy - the Section Chief of the FBI's
Record/Information Dissemination Section, Information
Management Division - to explain the FBI's justifications
for nondisclosure. See Fifth Hardy Dec.; Sixth Hardy
Dec. At the Court's request, the government has also
submitted an unredacted copy of the two-page record referred
to as “Serial 91” for the Court's in
camera review. See Government's Notice
[Dkt. No. 68].
to FOIA, “[a]n agency must disclose agency records to
any person under § 552(a), ‘unless they may be
withheld pursuant to one of the nine enumerated exemptions
listed in § 552(b).'” See U.S. Dep't
of Justice v. Tax Analysts, 492 U.S. 136, 150-51 (1989)
(quoting Dep't of Justice v. Julian, 486 U.S. 1,
8 (1988)). “Consistent with [FOIA's] goal of broad
disclosure, these exemptions have been consistently given a
narrow compass.” See id. at 151.
moving for summary judgment, the government maintains that
“the record demonstrates that the FBI carefully and
deliberately differentiated between similar seeming kinds of
information to protect intelligence sources and methods, and
plaintiff's speculation and innuendo fail to establish
any genuine issue of material fact.” See Gov.
Reply at 2 (citations omitted). Mr. Shapiro disputes the
propriety of several of the FBI's withholdings made
pursuant to Exemptions 3 and 7(E). See Pl.
Cross-Mot. at 1. The challenged redactions are labeled by
letters A-H in Mr. Shapiro's Exhibit 4. See
Serial 91. In his reply in support of his cross-motion for
summary judgment, Mr. Shapiro states that “[w]ithout
conceding that the FBI was correct in its application of
Exemption 7(E) to the file numbers at issue in this
case” - Blocks C, D, and G - “[he] withdraws his
challenge to [those] redactions.” See Pl.
Reply at 10. The Court therefore need not consider the
propriety of the government's withholding as to Blocks C,
D, and G because there is “no dispute to
resolve.” See Shapiro v. U.S. Dep't of
Justice, 239 F.Supp.3d 100, 106 n.1 (D.D.C. 2017);
see also Shapiro v. U.S. Dep't of Justice, 249
F.Supp.3d at 505 n.3. Thus, the Court is tasked with
evaluating whether Blocks A, B, E, F, and H of Serial 91
contain information properly withheld from Mr. Shapiro
because they are exempted from release by FOIA Exemptions
7(E) and 3. The Court proceeds to do so by reviewing the
unredacted version of Serial 91 and applying the relevant
case law as to these exemptions.
7(E) of FOIA permits the withholding of records that are
compiled for law enforcement purposes, but only to the extent
that the production of such law enforcement records or
information . . . (E) would disclose techniques and
procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure
could reasonably be expected to risk circumvention of the
See 5 U.S.C. § 552(b)(7)(E).
justify a withholding under Exemption 7(E), the FBI must
demonstrate that: (1) the records were “compiled for
law enforcement purposes, ” see 5 U.S.C.
§ 552(b)(7)(E); (2) the redacted information would
“disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines
for law enforcement investigations or prosecutions, ”
see 5 U.S.C. § 552(b)(7)(E); and (3) “the
release of the requested information might create a risk of
circumvention of the law.” See Blackwell v.
F.B.I., 646 F.3d 37, 40-42 (D.C. Cir. 2011); see
also Bloche v. Dep't of Defense, 370 F.Supp.3d 40,
58 (D.D.C. 2019); Judicial Watch, Inc. v. U.S. Dep't
of State, Civil Action No. 12-893 (JDB), 2017 WL 3913212
(D.D.C. Sep. 6, 2017); Levinthal v. Fed. Election
Comm'n, 219 F.Supp.3d 1, 6 (D.D.C. 2016);
Shapiro v. Dep't of Justice, 249 F.Supp.3d at
7(E) requires the government to meet a “relatively low
bar” to justify withholdings. See Blackwell v.
FBI, 646 F.3d at 42. “[T]he 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.” See id. at 42 (quoting Mayer Brown
LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009)). And
“where an agency ‘specializes in law enforcement,
its decision to invoke ...