Am. Civil Liberties Union of N. Cal. v. Fed. Bureau of Investigation

AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.

Case No. 12-cv-03728-SI

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

February 17, 2015

ORDER RE: IN CAMERA REVIEW

BACKGROUND

This action arises under the Freedom of Information Act, 5 U.S.C. § 552. On March 8, 2012, plaintiffs American Civil Liberties Union of Northern California and the San Francisco Bay Guardian submitted a FOIA request to the Federal Bureau of Investigations for records pertaining to the "Occupy" movement. Docket No. 22-1, First Hardy Decl. ¶ 7, Ex. A. Specifically, plaintiffs requested the following materials:

1) Records created, received, gathered or maintained by the FBI (including but not limited to sub-entities within the FBI such as the Joint Terrorism Task Force, the Campus Liaison Initiative, and the Academic Alliance Program) since June 1, 2011 pertaining to persons, planning, assemblies, marches, demonstrations, or any other activity associated with movements referring to themselves as Occupy Oakland, Occupy San Francisco, Occupy Cal, or Occupy UC Davis.

2) Intelligence Bulletins referring to the "Occupy" movement generally or any geographically specific Occupy movement.

3) Training for FBI agents regarding the Occupy movement generally or any geographically specific Occupy movement.

4) Written materials related or referring to the Occupy movement generally of any geographically specific Occupy movement and setting forth or referring to legal reasoning or authority relied uponby the FBI with respect to its investigatory and enforcement activities.

Id.

On March 26, 2012, the FBI informed plaintiffs that their request had been approved for expedited processing and a search for responsive records had begun. Id. ¶ 9, Ex. C. On May 17, 2012, plaintiffs asked the FBI when they could expect to receive the responsive records, and, having received no response, plaintiffs filed the present action in this Court two months later. Id. ¶¶ 10-11, Ex. D. On August 24, 2012, the FBI released 13 pages to plaintiffs, out of 37 responsive pages, explaining that it had withheld 24 pages in full pursuant to FOIA exemptions. Id. ¶ 12, Ex. E. After receiving clarification of plaintiffs' request in October, the FBI found three more responsive pages, and withheld all three pages pursuant to FOIA exemptions. Id. ¶ 13, Ex. F.

On December 21, 2012, the FBI filed a motion for summary judgment, and on January 18, 2013, plaintiffs filed a cross motion for summary judgment. Docket No. 22-23. In their cross motion, plaintiffs argued that the FBI's search for responsive documents was inadequate, and that the FBI was improperly withholding information pursuant to FOIA exemptions. On July 1, 2013, the Court denied the FBI's motion for summary judgment, and granted in part and denied in part plaintiffs' motion for summary judgment. Docket No. 32. The Court concluded that the FBI had failed to establish that it had conducted an adequate search and had failed to establish that the claimed FOIA exemptions applied to the withheld information. Id. at 7, 16. The Court ordered the FBI to file a supplemental declaration addressing the concerns mentioned in the order. Id.

On July 31, 2013, the FBI filed supplemental declarations and submitted an additional declaration for ex parte, in camera review. Docket Nos. 33-35. Subsequently, the parties filed cross motions for summary judgment on the issue of whether the FBI's withholding of information pursuant to certain FOIA exemptions is proper.¹ Docket Nos. 43, 47. On September 16, 2014, the Court granted in part and denied in part the FBI's motion, and denied the ACLU's motion. Docket No. 54. In its order, the Court agreed with the parties that in camera review wasappropriate to decide whether the remaining documents were subject to the claimed FOIA exemptions. Accordingly, the Court ordered the FBI to provide the contested documents to the Court, and to publicly file a new declaration addressing the issues raised in the Court's summary judgment order.² On October 16, 2014, the FBI filed its updated declaration. Docket No. 57, Fifth Hardy Decl.

LEGAL STANDARD

I. Summary Judgment

Summary judgment is proper "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). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party, however, has no burden to disprove matters on which the non-moving party will have the burden of proof at trial. The moving party need only demonstrate to the Court that there is an absence of evidence to support the non-moving party's case. Id. at 325.

Once the moving party has met its burden, the burden shifts to the nonmoving party to "set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex, 477 U.S. at 324). To carry this burden, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

In deciding a summary judgment motion, the Court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment." Id. However, conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Moreover, the evidence the parties present must be admissible. Fed. R. Civ. P. 56(c)(2).

"[M]ost FOIA cases are resolved at the summary judgment stage." Flightsafety Servs. Corp. v. Dep't of Labor, 326 F.3d 607, 610 (5th Cir. 2003); see also Nat'l Wildlife Fed'n v. U.S. Forest Serv., 861 F.2d 1114 (9th Cir. 1988). This is because "the primary question is a legal one: whether the withheld documents are covered by one of the statutory exemptions. Am. Civil Liberties Union of Michigan v. F.B.I., 734 F.3d 460, 465 (6th Cir. 2013). This is in large part due to the "peculiar posture of FOIA cases, in which plaintiffs, lacking access to the documents, can only challenge the application of the correct legal standard to the descriptions provided by the government, not the actual content of the underlying documents." Id. (internal quotations omitted).

II. FOIA

"[FOIA] was enacted to facilitate public access to Government documents." U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991). Consistent with this purpose, there is a strong presumption in favor of disclosure. See id. "However, FOIA contains a number of exemptions." Ctr. for Biological Diversity v. USDA, 626 F.3d 1113, 1116 (9th Cir. 2010) (citing 5 U.S.C. § 552(b)); see also Lahr v. NTSB, 569 F.3d 964, 973 (9th Cir. 2009) ("FOIA contemplates that some information may legitimately be kept from the public."). The Supreme Court has explained that "these exemptions 'must be narrowly construed.'" John Doe Agency v. John Doe Corp., 493 U.S. 146, 154 (1989).

The government agency bears the ultimate burden of proving that a particular document orredaction falls within one of the nine statutory exemptions to the disclosure requirement. See Ray, 502 U.S. at 173; Lahr v. NTSB, 569 F.3d at 973. "[G]overnment agencies seeking to withhold documents requested under the FOIA [are] required to supply the opposing party and the court with a 'Vaughn index,'³ identifying each document withheld, the statutory exemption claimed, and a particularized explanation of how disclosure of the particular document would damage the interest protected by the claimed exemption." Wiener v. FBI, 943 F.2d 972, 977 (9th Cir. 1991). The government may submit affidavits to satisfy its burden, but "the government 'may not rely upon conclusory and generalized allegations of exemptions.'" Kamman v. IRS, 56 F.3d 46, 48 (9th Cir. 1995) (quoting Church of Scientology v. Dep't of the Army, 611 F.2d 738, 742 (9th Cir. 1980)). The government's "affidavits must contain 'reasonably detailed descriptions of the documents and allege facts sufficient to establish an exemption.'" Id. (quoting Lewis v. IRS, 823 F.2d 375, 378 (9th Cir. 1987)); see also Shannahan v. IRS, 672 F.3d 1142, 1148 (9th Cir. 2012) ("To justify withholding, the government must provide tailored reasons in response to a FOIA request. It may not respond with boilerplate or conclusory statements.").

Even if an exemption is applicable, an agency may only withhold that information to which the exemption applies. Yonemoto v. VA, 686 F.3d 681, 688 (9th Cir. 2012). Therefore, the agency must provide all "reasonably segregable" portions of the records to the requester. Id.; 5 U.S.C. § 552(b). Under this standard, "non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions." Mead Data Cent., Inc. v. United States Dep't of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). "The burden is on the agency to establish that all reasonably segregable portions of a document have been segregated and disclosed." Pac. Fisheries, Inc. v. United States, 539 F.3d 1143, 1148 (9th Cir. 2008). "To meet its burden in this regard, the agency must 'provide[] a detailed justification and not just...