Ctr. for Investigative Reporting v. Fed. Bureau of Investigation

THE CENTER FOR INVESTIGATIVE REPORTING, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.

Case No. 19-cv-04541-LB

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA San Francisco Division

February 18, 2021

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

Re: ECF No. 42

INTRODUCTION

This is a case brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The plaintiff, The Center for Investigative Reporting, submitted a FOIA request to the Federal Bureau of Investigation (FBI) about the 2002 murders of two American citizens in Papua, Indonesia.¹ There is a pending indictment against the murder suspect, an Indonesian citizen and Papuan separatist fighter named Anthonius Wamang, who was convicted of the murders in Indonesia and is serving a life sentence there. The government intends to pursue a criminal prosecution of the suspect after he is released from Indonesian custody. The government produced public documentsto the Center but withheld other responsive documents on the ground that they are categorically exempt from disclosure under FOIA Exemption 7(A), 5 U.S.C. § 552(b)(7)(A), because they are records compiled for law-enforcement purposes. To invoke Exemption 7(A), the government must show that there is a pending or prospective law-enforcement proceeding, and release of the information "could reasonably be expected to cause some articulable harm to the proceeding." Gerstein v. DOJ, No. C-03-04893-RMW, 2005 U.S. Dist. LEXIS 41276, at *21-22 (N.D. Cal. Sept. 30, 2005) (quotation omitted). The government met that burden. The court grants the government's summary-judgment motion and denies the Center's cross-motion.

STATEMENT

The parties do not dispute the sufficiency of the government's production and instead dispute the withholding of information under FOIA Exemption 7(A). This is the Center's FOIA request:

[A]ccess to and copies of all records, files, interviews, reports, memos, letter, emails, and documents concerning the death of two American citizens, Ricky Lynn Spier and Leon Edwin "Ted" Burgon after an attack that occurred on August 31, 2002, when 10 schoolteachers and a 6-year-old child were ambushed while they were returning from a picnic to their residences in Tembagapura, Papua Province, Indonesia, including but not limited to all records in the central records system, field offices, investigative case management, electronic case files, and/or universal index of cases. In making this request, I also request all records relating to the Indonesian citizen, Anthonius Wamang, in connection with the attack on August 31, 2002 as referenced above.²

In response to the request, the FBI (1) identified 24,400 pages of documents and 47 hours of video and audio footage, (2) segregated and released information (398 pages and roughly 51 minutes of media) that it determined would not jeopardize its future investigative or prosecutive efforts, and (3) withheld the rest under Exemption 7(A).³ It followed a three-step process: (1) it reviewed each document withheld on a document-by-document basis; (2) it grouped the documentsinto functional categories; and (3) it explained why release of documents in each category would interfere with pending or prospective law-enforcement proceedings.⁴

After exhausting its administrative remedies, the Center filed this lawsuit challenging the FBI's withholding of information from its investigative files.⁵ 5 U.S.C. § 552(a)(1-3), (a)(4)(B). The FBI moved for summary judgement on the following grounds: (1) Exemption 7(A) allowed it to categorically withhold non-public documents from release; and (2) other FOIA exemptions — (b)(1), (b)(3), (b)(6), (b)7)(C), (b)(7)(D), (b)(7)(E), and (b)(7)(F) — also justify its withholding of its investigative files.⁶ In its opposition and cross-motion for summary judgment, the Center contended that in camera review is needed because the FBI's assertions about the withheld records are too general.⁷ The court held a hearing on February 18, 2021. All parties consented to magistrate-judge jurisdiction.⁸

LEGAL STANDARD

The court must grant a motion for summary judgment if the movant shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material facts are those that may affect the outcome of the case. Anderson, 477 U.S. at 248. FOIA cases usually are decided at summary judgment because the facts generally are not in dispute. Animal Legal Def. Fund v. FDA., 836 F.3d 987, 989 (9th Cir. 2016) (per curiam); Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996).

FOIA provides public access to official information "shielded unnecessarily from public view." Lahr v. NTSB, 569 F.3d 964, 973 (9th Cir. 2009) (cleaned up) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)). Agencies may withhold documents only if the "material at issue falls within one of [] nine statutory exemptions." 5 U.S.C. § 552(b); Maricopa Audubon Soc. v. U.S.Forest Serv., 108 F.3d 1082, 1085 (9th Cir. 1997) (quoting DOJ v. Tax Analysts, 492 U.S. 136, 151 (1989)). FOIA's "exemptions are to be interpreted narrowly." Lahr, 569 F.3d at 973 (quotation omitted). An agency "shall withhold information" "only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption" or "disclosure is prohibited by law." 5 U.S.C. § 552(a)(8)(A). A plaintiff is entitled to injunctive relief when an agency's reliance on a FOIA exemption is improper. 5 U.S.C. § 552(a)(4)(B).

The court reviews de novo an agency's withholding of records and "may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section [listing FOIA exemptions], and the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B). The agency "must show that its search for responsive records was adequate, that any claimed exemptions actually apply, and that any reasonably segregable, non-exempt parts of records have been disclosed after redaction of exempt information." Frost v. DOJ, No. 17-cv-01240-JCS, 2018 WL 1626682, at *4 (N.D. Cal. Apr. 4, 2018) (cleaned up) (quoting Light v. DOJ, 968 F. Supp. 2d 11, 23 (D.D.C. 2013)); accord Lahr, 569 F.3d at 973.

At summary judgment, the court can rely on agency affidavits that "describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); accord Lion Raisins v. USDA, 354 F.3d 1072, 1082 (9th Cir. 2004), overruled on other grounds, Animal Legal Defense Fund, 836 F.3d at 987; Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978). A corollary of this principle is that agency affidavits are entitled to a presumption of good faith, SafeCard Servs. Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and a district court does not need to conduct an in camera review of each withholding unless an agency declaration "lacks sufficient detail or bears some indicia of bad faith by the agency," Hamdan v. DOJ, 797 F.3d 759, 779 (9th Cir. 2015). Courts "accord substantial weight to an agency's declarations regarding the application of a FOIA exemption." Shannahan v. IRS, 672 F.3d 1142, 1148 (9th Cir. 2012). "[A]n agency's justification for invoking a FOIAexemption is sufficient if it appears logical or plausible." Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007) (cleaned up).

Unlike other FOIA exemptions, a Vaughn index generally is not necessary in Exemption 7(A) cases. Lewis v. IRS, 823 F.2d 375, 380 (9th Cir. 1987); accord Wishart v. Comm'r, No. 97-20614 SW, 1998 WL 667638, at *3 (N.D. Cal. Aug. 6, 1998).

FOIA Exemption 7(A) exempts from disclosure "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information [] could reasonably be expected to interfere with enforcement proceedings. . . ." 5 U.S.C. § 552(b)(7)(A); id. § 552(a)(8)(A) (agency must reasonably foresee how disclosure harms its exemption-protected interest). "To invoke the exemption, the government must show that (1) a law enforcement proceeding is pending or prospective, and (2) release of the information could reasonably be expected to cause some articulable harm to the proceeding." Gerstein, 2005 U.S. Dist. LEXIS 41276, at *21-22 (quotation omitted). The government "is not required to make a specific factual showing with respect to each withheld document that disclosure would actually interfere with a particular enforcement proceeding." It must "only make a general showing that disclosure of its investigatory records would interfere with its enforcement proceedings." Lewis, 823 F.2d at 380.

ANALYSIS

The parties dispute whether Exemption 7(A) permits the FBI's withholding of documents and media that are in its investigative files. Because the FBI properly asserted Exemption 7(A), the court grants the government's motion for summary judgment and denies the Center's cross-motion.

First, the parties do not dispute that the information was compiled for a law-enforcement purpose.⁹

Second, there is a pending or prospective law-enforcement proceeding. The United States has charged Anthonius Wamang with murder and related charges, secured an arrest warrant, andintends to prosecute him after he is released from Indonesian custody.¹⁰ Exemption 7(A) applies to long-term or dormant investigations that could lead to a prospective law-enforcement proceeding. NPR v. Bell, 431 F. Supp. 509, 514 (D.D.C. 1977). To the extent that the Center contends that the life...