Associated Press v. Fed. Bureau of Investigation

265 F.Supp.3d 82

ASSOCIATED PRESS, et al., Plaintiffs,

v.FEDERAL BUREAU OF INVESTIGATION, Defendant.

Civil Action No. 16–cv–1850 (TSC)

United States District Court, District of Columbia.

Signed September 30, 2017

Jay Ward Brown, Levine Sullivan Koch & Schulz, LLP, Washington, DC, Jeremy A. Kutner, Pro Hac Vice, Levine Sullivan Koch & Schulz, LLP, New York, NY, for Plaintiffs.

Joseph Evan Borson, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge

Before the court are cross motions for summary judgment in this case brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. In 2016, Plaintiffs Associated Press, Gannett Satellite Information Network d/b/a USA Today, and Vice Media, LLC ("Plaintiffs"), each filed FOIA requests to the Federal Bureau of Investigation ("FBI") for records relating to an agreement with a technology vendor who assisted the FBI in unlocking the iPhone of a suspected terrorist. As part of the parties' joint agreement in this litigation, the FBI has produced 100 of 123 responsive pages in full or in part, with certain material withheld pursuant to FOIA Exemptions 1, 3, 4, 6, 7(C), and 7(E). Plaintiffs have narrowed their FOIA request on summary judgment to two specific pieces of information—the identity of the vendor, and the price paid to the vendor—such that only Exemptions 1, 3, 4, and 7(E) remain disputed. The FBI claims that Exemptions 1, 3, and 7(E) apply independently to the identity of the vendor and the purchase price, and that Exemption 4 also applies independently to the purchase price.

Plaintiffs have also moved to supplement the record with then-FBI Director James Comey's May 3, 2017, Senate testimony. The court will GRANT Plaintiffs' motion to supplement the record and consider the testimony as part of Plaintiffs' brief.

Upon consideration of the parties' filings, the court concludes that Exemptions 1, 3, and 7(E) independently apply to the requested information, and that Exemption 4 does not. Accordingly, as set forth below, the FBI's motion for summary judgment is GRANTED, and Plaintiffs' cross-motion for summary judgment is DENIED.

I. BACKGROUND

In December 2015, Syed Rizwan Farook and Tashfeen Malik killed fourteen people and injured twenty-two others in an attack on the Inland Regional Center in San Bernardino, California. See Government's Motion to Compel Apple Inc. to Comply, No. 5:16–cm–10–SP (C.D. Cal.) at 1 ECF No. 1. The FBI led the federal investigation into the attack, and during the course of that investigation, discovered an employer-owned iPhone issued to Farook that was password-protected. See id. at 1, 5. The phone was equipped with an auto-erase function that would result in the permanent destruction of the information in the phone after 10 failed attempts at entering the passcode. Id. at 5. Thus, the FBI was unable to access the phone without risking the loss of its contents. Id. at 10–11. After initially commencing legal action against the phone's manufacturer, Apple, to compel its assistance in accessing the phone, id. at 6, the FBI moved to stay the proceedings in March 2016 when an "outside party demonstrated to the FBI a possible method for unlocking Farook's iPhone." Government's Ex Parte Application for a Continuance, No. 5:16–cm–10 (C.D. Cal.) at 3 ECF No. 191.

Rather than allow competitive bidding, the FBI sought a waiver to solicit a single source for the contract to unlock the phone. (Declaration of Jay Ward Brown ("Brown Decl.") Ex. J, at AP–19–AP–23). None of the vendors who inquired with the agency about unlocking the phone had demonstrated that they could produce a solution quickly enough to meet the FBI's investigative requirements, and in fact, none of them had begun to develop or test a solution at the time of the inquiries. (Id. at AP–22). At the end of March 2016, the FBI reported that it had "successfully accessed the data stored on Farook's iPhone and therefore no longer require[d] the assistance from Apple Inc." Government's Status Report, No. 5:16–cm–10 (C.D. Cal.) at 1 ECF No. 209.

Following this revelation, then-FBI Director James Comey gave interviews to reporters on April 21, 2016, and May 11, 2016, during which he confirmed several details regarding the tool and its purchase. (Brown Decl. Ex. G; Ex. H; Ex. I). This information included details about its cost, which Comey believed "for sure" exceeded the salary he was due at the time for the remainder of his seven-year, four-month tenure, about $1.2 million. (Brown Decl. Ex. G). He also stated that the tool was narrowly tailored to only work on an iPhone 5C operating on iOS 9, and the FBI had not identified any other phones on which the tool could be used. (Brown Decl. Ex. I at 3, 16). Moreover, he noted that the urgency of the FBI's investigation necessitated the FBI's purchase of the tool and the agency spent what it needed to in order to acquire it. (Id. at 5).

Each Plaintiff filed a separate FOIA request with the FBI between March and April of 2016. (See Declaration of David M. Hardy ("First Hardy Decl.") Ex. A; Ex. I; Ex. M). They sought records concerning the FBI's financial agreements with the vendor the agency employed to unlock the iPhone. (See id. ) The FBI initially denied each request on the basis of FOIA Exemption 7(A), which permits agencies to withhold records or information compiled for law enforcement purposes to the extent that the production of such records could reasonably be expected to interfere with law enforcement proceedings. (First Hardy Decl. Ex. C; Ex. J; Ex. N). Each Plaintiff appealed administratively as provided under FOIA, and the Department of Justice Office of Information Policy affirmed the FBI's denial of the requests for the records in each case. (First Hardy Decl. Ex. D; Ex. H; Ex. K; Ex. L; Ex. O; Ex. Q).

Plaintiffs then filed this action in September 2016. (ECF No. 1). On January 6, 2017, the FBI produced 100 of 123 responsive pages in full or in part, with certain information withheld or redacted pursuant to FOIA Exemptions 1, 3, 4, 6, 7(C), and 7(E). (First Hardy Decl. ¶ 25; Ex. R; Brown Decl. Ex. J). The FBI then moved for summary judgment (ECF No. 14), and Plaintiffs filed their cross-motion for summary judgment, narrowing their outstanding FOIA request to two pieces of information: (1) the identity of the vendor, and (2) the amount paid to the vendor for the tool in question. (See Pls. Mem at 9, ECF Nos. 15, 16). As a result of this revised request, the remaining issues on summary judgment are whether the FBI properly applied Exemptions 1, 3, and 7(E) to the identity of the vendor, and whether it properly applied Exemptions 1, 3, 4, and 7(E) to the purchase price.

II. PLAINTIFFS' MOTION TO SUPPLEMENT THE RECORD

On May 3, 2017, Director Comey testified before the Senate Judiciary Committee. (See Supplemental Declaration of Jay Ward Brown "Supp. Brown Decl." Ex. A). During questioning, Senator Dianne Feinstein mentioned the FBI's hacking of Farook's iPhone, as excerpted below from the hearing transcript:

FEINSTEIN: Well I—I was so struck when San Bernardino happened and you made overtures to allow that device to be opened, and then the FBI had to spend $900,000 to hack it open. And as I subsequently learned of some of the reason for it, there were good reasons to get into that device.

And the concern I have is that once people had been killed in a terrorist attack and that there may be other DNA, there may be other messages that lead an investigative agency to believe that there are others out there, isn't to the—for the protection of the public that one would want to be able to see if a device could be opened.

And I've had a very hard time—I've tried—I've gone out, I tried to talk to the tech companies that are in my state. One—Facebook was very good and understood the problem. But most do not have. Has the FBI ever talked with the tech companies about this need in particular?

COMEY: Yes, senator. We've had a lot of conversations, and as I said earlier, they're—in my sense, they've been getting more productive because I think the tech companies have come to see the darkness a little bit more. My—my concern was privacy's really important but that they didn't see the public safety costs.

I think they're starting to see that better and what—what nobody wants to have happen is something terrible happen in the United States and it be connected to our inability to access information with lawful authority. That we ought to have the conversations before that happens and the companies more and more get that. I think over the last year and half, and—but it's vital, we weren't picking on Apple in the San Bernardino case.

(Id at 4). On May 12, 2017, Plaintiffs moved to supplement the record on summary judgment with this testimony, citing it as "further evidence in support of [their] arguments on pages 15, 20, 26, and 29" of their memorandum in support of their cross-motion. (ECF No. 20 at 2).

Regarding Exemption 1, Plaintiffs note that then-Director Comey has already spoken publicly about the price (namely that it was very high), and thus disclosing the price information would not jeopardize national security interests. (See Pls. Mem. at 15). Regarding Exemption 3, Plaintiffs claim the FBI's argument that releasing the specific purchase price would aid those seeking to thwart the FBI's tool is belied by the fact that the information that could provide such aid—that the purchase price was very high—is already publicly available. (See id. at 20). Regarding Exemption 4, Plaintiffs emphasize that the tool's vendor would not suffer competitive harm from disclosure of the purchase price because Comey already released the general price-related information, and potential competitors have a ballpark figure from which to underbid. (See id. at 26). Regarding Exemption 7(E), Plaintiffs argue that releasing the purchase price will not risk circumvention of the law because the FBI took that risk...