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Shapiro v. U.S. Department of Justice

United States District Court, District of Columbia

February 1, 2018




         Plaintiff Ryan Noah Shapiro seeks a judgment from this Court that the U.S. Department of Justice (“DOJ”), by and through its components the Federal Bureau of Investigation (“FBI”) and the Office of Information Policy (“OIP”) (collectively, the “Defendant”), violated its obligations under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., in responding to seven requests submitted by Mr. Shapiro. Compl. 9. In particular, Mr. Shapiro challenges the FBI's search for responsive records as inadequate, disputes the FBI's refusal to process one request, and argues that the FBI and OIP improperly redacted non-exempt information from the responsive documents disclosed to Mr. Shapiro. See id.[1]

         Pending before the Court are the parties' cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. As jurisdiction and venue is proper in this Court, [2] and upon consideration of the pleadings, relevant law, related legal memoranda in opposition and in support, the parties' representations at oral argument, and the entire record therein, I find that no genuine issue of material fact exists and that the Defendant has met its obligations under FOIA. Accordingly, the Defendant's motion for summary judgment will be granted and the Mr. Shapiro's motion for summary judgment will be denied.

         I. BACKGROUND

         Plaintiff Ryan Noah Shapiro is a “historian of national security, the policing of dissent, and governmental transparency.” Compl. ¶ 1. Between June 5, 2014 and May 11, 2016, Mr. Shapiro submitted seven FOIA requests to the FBI and OIP seeking information regarding a research and public relations effort conducted by the FBI in the mid-to-late 1970s called “Operation Mosaic.” Id. at ¶¶ 13-15, 21-66. According to Mr. Shapiro, Operation Mosaic was conducted to “publicly highlight perceived difficulties for the FBI caused by the 1974 amendments to [FOIA], ” and to “secur[e] legislation to limit the applicability of the newly amended FOIA to the FBI, as well as to justify unilateral FBI measures to limit Bureau disclosures under FOIA.” Id. at ¶ 13. In support of his interest in the matter, Mr. Shapiro quotes an article written in 1982 by then-FBI Director William Webster (“Webster article”), who explained that the FBI “reviewed FOIA materials that already had been released. . . . [and] discovered that seemingly innocuous information can be combined with records released at a different time . . . [that] could reveal clues as to the identity of FBI sources or the extent of an FBI investigation.” Id. at ¶ 15. The existence and contents of the article are not contested by the FBI. See Def.'s Response to Pl.'s Statement of Material Facts (“Def.'s Response to Pl.'s SOMF”) ¶ 2, ECF No. 17-2. “Operation Mosaic” and mosaic-related terms underlie all of Mr. Shapiro's requests to the Defendant.

         A. Mr. Shapiro's FOIA Requests

         Mr. Shapiro's seven FOIA requests are as follows. First, on June 5, 2014, Mr. Shapiro submitted a request to the FBI seeking records “relating or referring to FBI file 94-69979.” Def.'s Statement of Material Facts As to Which There Is No Genuine Issue (“Def.'s SOMF”) ¶ 1, ECF No. 13-1.[3] This file contained the Webster article that referred to Operation Mosaic. Pl.'s Statement of Material Facts As To Which There Is No Genuine Dispute (“Pl.'s SOMF”) Ex. 16, ECF No. 16-4. The FBI assigned tracking number 1272678-000 to the request, and on July 24, 2014, after processing the request, the FBI released 49 pages of previously processed documents deemed responsive to the request to Mr. Shapiro. Def.'s SOMF ¶¶ 2-3. The FBI's response was affirmed on internal administrative appeal. Id. at ¶¶ 3-4. Subsequent to the appeal, the FBI provided Mr. Shapiro with a coded and Bates stamped version of material previously released to him on July 24, 2014. Id. at ¶ 5.

         Second, on June 5, 2014, Mr. Shapiro requested from the FBI all records “relating or referring to Operation Mosaic.” Id. at ¶ 6. The FBI assigned tracking number 1272573-000 to the request and, after its search, informed Mr. Shapiro that no records were identified as responsive to the request. Id. at ¶ 7-8. The FBI's determination was affirmed on internal appeal. Id. at ¶ 9. Subsequent to the decision on appeal, the FBI informed Mr. Shapiro that an additional search determined that one responsive record was already released to Mr. Shapiro under his prior request regarding FBI file 94-69979. Id. at ¶ 10.

         Third, on June 5, 2014, Mr. Shapiro requested that the FBI produce records relating to the word “mosaic.” Id. at ¶ 16. The FBI assigned this request tracking number 1272599-000 and informed Mr. Shapiro that the request was overbroad and did not enable the FBI to locate records “with a reasonable amount of effort.” Id. at ¶ 17; see also 28 C.F.R. § 16.3(b) (requiring FOIA requests submitted to DOJ to describe “the records sought in sufficient detail to enable Department personnel to locate them with a reasonable amount of effort.”). The FBI's decision was affirmed on internal appeal. Def.'s SOMF ¶ 18.

         Fourth, Mr. Shapiro requested on June 5, 2014 that the FBI provide “any and all ‘94' files relating or referring to” FOIA or the Privacy Act. Id. at ¶ 20. The “94” files represent FBI research matters. Second Hardy Declaration (“Hardy Decl.”) ¶ 23, ECF No. 17-1. The FBI assigned this request tracking number 1272733-000 and informed Mr. Shapiro that it located an estimated 1, 140, 000 pages of records potentially responsive to his request. Def.'s SOMF ¶¶ 21-22. After expending five and a half hours of time on this search without identifying any responsive records, the FBI administratively closed this request. Id. at ¶ 31. The FBI's search was affirmed on internal administrative appeal. Id. at ¶ 32.

         Fifth, on December 15, 2014, Mr. Shapiro submitted a request seeking records responsive to “Operation Mosaic” and “mosaic study.” Id. at ¶ 11. The FBI assigned this request tracking number 1272573-001 and, after processing his request, advised Mr. Shapiro that no responsive records were identified. Id. at ¶¶ 12-13. The FBI's search was affirmed on internal administrative appeal. Id. at ¶ 14.

         Sixth, on May 11, 2016, Mr. Shapiro submitted a FOIA request seeking records related to the processing of three of his prior FOIA requests (tracking numbers 1272678-000, 1272573-000, and 1272573-001). Id. at ¶¶ 35, 40. The FBI assigned two tracking numbers to this request, 1351095-000 and 1353203-000. Id. at ¶¶ 36, 42; see also Notice, ECF No. 25 (clarifying that both tracking numbers pertain to the same request). Pursuant to these tracking numbers, the FBI reviewed and released to Mr. Shapiro 136 pages and 49 pages of documents, respectively. Id. at ¶¶ 39, 45. Some of these pages included redactions withheld on the bases of FOIA exemptions 5, 6, 7(C), and/or 7(E). Id. As the agency's production was made after this litigation commenced, no administrative appeal was filed. Notice 2, ECF No. 26.

         The last of Mr. Shapiro's requests at issue in this litigation is his May 11, 2016 request to the OIP for records relating to three of his prior FOIA requests (tracking numbers 1272678-000, 1272573-000, and 1272573-001). Def.'s SOMF ¶ 54. He also requested records regarding the destruction of records potentially responsive to those requests. Id. The OIP assigned this request tracking number DOJ-2016-002983 and identified 128 pages of records responsive to Mr. Shapiro's request. Id. at ¶¶ 55, 58. Of the 128 pages, 24 were produced in full, 7 were produced with redactions pursuant to FOIA exemption 5, and 97 pages were referred to the FBI for processing. Id. at ¶ 62. As the agency's production was made after this litigation commenced, no administrative appeal was filed. Notice 1, ECF No. 26.

         B. Relevant FBI Systems

         Compounding the complex background of this matter are the myriad systems used by the FBI.[4] Which of these systems the FBI searched, and how, forms the crux of Mr. Shapiro's complaint.

         The FBI utilizes various systems for different operational needs, which contain information that is sometimes distinct but is sometimes overlapping. In October 1995, the FBI began using its Automated Case Support (“ACS”) system, a single, electronic, integrated case management system which permits the FBI to “locate, retrieve, and maintain information in its files in the performance of its myriad missions and functions.” Def.'s SOMF ¶ 47. As part of the ACS implementation process, over 105 million records from the FBI's Central Records System (“CRS”) were converted and incorporated into ACS. Id. CRS is the FBI's repository for “applicant, investigative, intelligence, personnel, administrative, and general files.” Id. at ¶ 46. It spans the entire FBI organization, including its headquarters, field offices, and legal attaché offices worldwide. Id. It is organized by “classifications, ” which include “types of criminal conduct and investigations conducted by the FBI, as well as categorical subjects pertaining to counterterrorism, intelligence, counterintelligence, personnel, and administrative matters.” Id. FBI case files are identifiable by a classification number, followed by the abbreviation of the FBI office of origin initiating the file, and the individual case file number. Id. For example, for fictitious file number “11Z-HQ-56789, ” the “11Z” is the classification number, “HQ” denotes the origin of the file as FBI headquarters, and “56789” is the case-specific file number. Id. n.1.

         The key to locating information within CRS is through its index, which is arranged in alphabetical order according to “subject matters to include individuals, organizations, events, or other subjects of investigative interest.” Id. The FBI does not index every name or other subject matter in the general index, but rather exercises discretion, based on operational necessity, to index “information considered relevant and necessary for future retrieval.” Id. at ¶ 47. This may include indexing by individuals' name, by organization (e.g., entities, places, and things), or by event. Id. The FBI's index is searchable through its Universal Index (“UNI”), which is a centralized, electronic means of both indexing and searching for information. Id. Electronically searching UNI in ACS permits an individual to locate records, both in paper and electronic format, dating from prior to 1995, when CRS records were consolidated into ACS, to the present day. Id. UNI currently contains approximately 115.3 million searchable records. Id.

         Also within ACS is the FBI's Electronic Case File (“ECF”), the “main, and most extensive ACS database.” Pl.'s SOMF ¶¶ 7-8; Def.'s Response to Pl.'s SOMF ¶¶ 7-8. ECF is the central repository for the FBI's text-based documents, and can be searched for particular terms or phrases, as well as by case number and other characteristics. Id. at ¶¶ 9, 11-13; Def.'s Response to Pl.'s SOMF ¶¶ 9, 11-13. The FBI “does not generally conduct text searches in response to FOIA and Privacy Act requests without a bona fide factual reason to do so, ” such as a “clear and certain lead” generated from an index search of CRS, or where the FBI has a “factual basis” to determine that responsive records exist in CRS but were not located through an index search. Mem. of P. & A. in Opp. to Pl.'s Cross-Mot. for Summary J. and Reply in Supp. of Def.'s Mot. for Summary J. (“Def.'s Reply”) 6, ECF No. 18; Def.'s Response to Pl.'s SOMF ¶ 15.

         In July 2012, the FBI debuted its next generation case management system, Sentinel, which “builds on ACS and shares its operational purpose.” Def.'s SOMF ¶ 48. Sentinel is used for FBI records generated after July 1, 2012 and similarly utilizes an indexing system to organize information for future retrieval. Id. All records originally located within ACS, including most ECF content, has been migrated to Sentinel as legacy content. Declaration of Michael G. Seidel (“Seidel Decl.”) ¶ 7 n.1, ECF No. 30-1. Further, certain of Sentinel's index are “backfilled” into ACS. Def.'s SOMF ¶ 48. Thus, while Sentinel did not replace ACS, it provides another avenue by which to locate FBI records generated both prior to and after July 1, 2012. Id.

         Distinct from, but related to, CRS is the FBI's Electronic Surveillance System (“ELSUR”). Id. ELSUR is similarly searchable through an index search of ACS and Sentinel, but only indexes information by the names of the targets; participants; or owners, lessors, or licensors of the premises that is the subject of FBI surveillance. Id. While ELSUR files contain records of electronic surveillance, other pertinent information, such as the application and court order authorizing the surveillance where the electronic surveillance is being conducted, is maintained in CRS. Id. Thus, there must exist a CRS record for every record in ELSUR. Id.

         Last, the FBI has a Freedom of Information and Privacy Document Processing System (“FDPS”) which helps to “maintain information that [the FBI] has acquired in the course of fulfilling its responsibilities under the FOIA and Privacy Act.” Second Hardy Decl. ¶ 18. FDPS is the official records storage location for all FOIPA processing records, id. at ¶ 19, and is searchable by FOIA and/or Privacy Act request numbers. Def.'s SOMF ¶ 53. The FBI explains, given the difference in their operational functions-namely, a tracking system for FOIA and Privacy Act requests versus documents pertaining to the FBI's law enforcement responsibilities-that “[t]he vast majority of FOIPA request records are not maintained, indexed, or cross-referenced in the CRS.” Second Hardy Decl. ¶¶ 21-22.

         C. Procedural History

         Subsequent to the parties' cross-motions for summary judgment becoming ripe, I ordered and heard a hearing on the cross-motions. After the hearing, I ordered that the Defendant perform ECF text searches of “94-HQ-69979, ” “94-69979, ” and “Operation Mosaic, ” and conduct a targeted physical search of the paper files in the “94” classification, or submit a supplemental declaration describing why these searches are not required by law. Minute Order Dec. 21, 2017; Minute Order Jan. 12, 2018. I also ordered the Defendant to submit for in camera review the documents redacted pursuant to the deliberative process privilege. Minute Order Dec. 20, 2017. With the Defendant's responses to these orders now complete, I now consider whether the Defendant's responses to Mr. Shapiro's requests merit summary judgment.


         A. Summary Judgment

         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) (records sought must be “reasonably describe[d]”). The “vast majority” of FOIA cases can be decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). To prevail on summary judgment, the movant must show an absence of a genuine issue of material fact. Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In FOIA cases, an agency must demonstrate that no material facts are in dispute, that it has conducted an adequate search for responsive records, and that each responsive record has either been produced to the requestor or is exempt from disclosure. See Weisberg v. U.S. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980).

         B. ...

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