Raimondo v. Fed. Bureau of Investigation

DENNIS JOSEPH RAIMONDO, ET AL., Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.

Case No.13-cv-02295-JSC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

January 12, 2018

ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT

Re: Dkt. Nos. 114, 117

Plaintiffs Dennis Raimondo and Eric Garris filed this Freedom of Information Act ("FOIA") and Privacy Act action against Defendant the Federal Bureau of Investigation ("FBI") in 2013. Plaintiffs sought records regarding a 2004 threat assessment the FBI conducted of a website, Antiwar.com, with which the Plaintiffs are affiliated, and related investigations that the FBI conducted of Plaintiffs. Plaintiffs also sought expungement of certain records related to the exercise of their First Amendment rights, and Plaintiff Garris sought expungement of a record that contains inaccurate information.

In May 2016, the Court granted the FBI's motion for summary judgment as to the Privacy Act claims and denied both parties' motions for summary judgment as to the FOIA claims. (Dkt. No. 90.) The FBI then produced a second Vaughn index as well as certain documents which had either been produced in more redacted form previously or not produced at all. Shortly thereafter, the parties stipulated to dismissal of the FOIA claims. (Dkt. No. 101.) Plaintiffs also filed a motion for reconsideration of the Court's summary judgment order as to their Privacy Act claims based on recently produced documents. The Court granted the motion in part and denied it in part, allowing Plaintiffs to raise Privacy Act claims with respect to two documents produced in less redacted form following the Court's summary judgment order. (Dkt. No. 111.) The parties' cross-motions for summary judgment regarding these documents are now pending before the Court. (Dkt. Nos. 114 & 117.) Having considered the parties' briefs and having had the benefit of oral argument on January 11, 2018, the Court GRANTS the FBI's motion for summary judgment and DENIES Plaintiffs' cross-motion.

BACKGROUND

The Court's prior summary judgment order summarized the factual record in detail. (Dkt. No. 90.) Because the factual record is largely unchanged, the Court incorporates the recitation of the facts and procedural background from that order by reference and only addresses the developments following the order.

As part of the meet and confer process following the first round of summary judgment briefing, Plaintiffs identified 34 documents as having been improperly withheld in whole or in part pursuant to certain FOIA exemptions. (Dkt. No. 95.) Thereafter, the FBI produced a second supplemental Vaughn index and reproduced documents with fewer redactions than previously provided, including documents that had previously been withheld in full. (Dkt. No. 102-1.) As relevant here, among these documents were (1) a November 28, 2006 FBI memorandum ("November 2006 Memo") which includes a reference to an article published on Antiwar.com; and (2) an April 5, 2006 FBI memorandum ("April 2006 Memo") which lists Antiwar.com as a website that publicly posted details regarding an upcoming Halliburton shareholder meeting. (Dkt. No. 102-1 at 52-57.) The FBI had previously produced a more heavily redacted version of the April 2006 Memo on November 18, 2013 and had listed the November 2006 Memo on its November 12, 2015 Vaughn index as withheld in full pursuant to certain FOIA exemptions. (Dkt. No. 114-3 at ¶ 2; Dkt. No. 71 at 70.¹)

Upon receipt of these documents, Plaintiffs filed a motion for reconsideration arguing that (1) recently produced documents undermined the FBI's explanation for the threat assessment memorialized in the April 30, 2004 memorandum which had formed the crux of Plaintiff's Privacy Act claims, and (2) that the November 2006 Memo and the April 2006 Memo gave rise toadditional Privacy Act claims. (Dkt. No. 102.) The Court rejected the first basis for reconsideration, but concluded that Plaintiffs' Privacy Act claims were pled sufficiently broad to encompass these two additional documents. (Dkt. No. 111.) The parties were directed to meet and confer regarding a briefing schedule as to these additional documents, which they did, and now those motions are fully briefed. Plaintiffs have withdrawn any claim with respect to the November 2006 Memo; thus only the April 2006 memo is at issue. (Dkt. No. 117 at 7 n.1.)

THE APRIL 2006 MEMO

The April 2006 Memo provides "[i]nformation regarding annual Halliburton Shareholders' Meeting at Duncan, Oklahoma, May 15-17, 2006." (Dkt. No. 114-1 at 6.) The memo states that the annual shareholder meeting has been "targeted by multiple organized protest groups." (Id.) It includes a summary of Halliburton's business and notes that "Dick Cheney served as Halliburton's Chief Executive Officer prior to becoming Vice President of the United States." (Id. at 7.) The memo also details the logistics for the meeting including that it will begin with four jets with VIPs arriving at the Duncan Municipal Airport at 4:00 p.m. on Monday, May 15, 2006, and that these individuals will be escorted to the Chisholm Suite Hotel in a Duncan Police Department motorcade. (Id.) It then goes on to review other logistics for the meeting and associated events including locations and number of guests. (Id.) The only reference to Antiwar.com is contained at the end of the memorandum. As reflected in the below excerpt, Antiwar.com is one of 11 websites listed which was identified by a third-party as having posted information regarding the shareholders' meeting:

(U) The following web sites were provided by [ ] [ ] According to [ ] all of these sites have posted information regarding the snareholders' meeting at Duncan:

http://www.codepink4peace.org/

www.globalexchange.org

www.iconoclast-texas.com

http://houston.indymedia.org/

www.houstonglobalawareness.org

http://www.halliburtonwatch.org/

www.antiwar.com

www.corpwatch.org

www.motherjones.com

http://unitedforpeace.org

http://antiwarfair.com

(Id.)

DISCUSSION

The question before the Court is narrow: whether the FBI has violated Section (e)(7) of the Privacy Act through its maintenance of the April 2006 Memo. The Privacy Act of 1974 "safeguards the public from unwarranted collection, maintenance, use and dissemination of personal information contained in agency records . . . by allowing an individual to participate in ensuring that his records are accurate and properly used." Henke v. U.S. Dep't of Commerce, 83 F.3d 1453, 1456 (D.C. Cir. 1996) (internal citation and quotation marks omitted). "The Act gives agencies detailed instructions for managing their records and provides for various sorts of civil relief to individuals aggrieved by failures on the Government's part to comply with the requirements." Doe v. Chao, 540 U.S. 614, 618 (2004).

Section 552a(e)(7) of the Act provides that a federal agency may not "maintain [any] record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity." 5 U.S.C. § 552a(e)(7). "The purpose of the section (e)(7) First Amendment protection is to prevent collection of protected information not immediately needed, about law-abiding Americans, on the off-chance that Government or the particular agency might possibly have to deal with them in the future." MacPherson v. I.R.S., 803 F.2d 479, 483 (9th Cir. 1986) (quoting S. Rep. 1183, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Admin. News 6916, 6971). The government bears the initial burden of demonstrating that the law enforcement activity exception to the Privacy Act applies. See Afifi v. Lynch, 101 F. Supp. 3d 90, 107 (D.D.C. 2015) (requiring defendants to demonstrate that the records of the plaintiff's First Amendment activities complied with Section (e)(7) of the Privacy Act); see also Chambers v. U.S. Dep't of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009)(noting that the burden is on the government in both FOIA and Privacy Act cases to demonstrate that it acted in accordance with the applicable statute).

In MacPherson, the Ninth Circuit recognized that "[t]here are strong policy considerations on both sides of the issue" of whether to allow law enforcement to maintain records of an individual's First Amendment conduct. 803 F.2d at 483. On the one hand, "[t]he merecompilation by the government of records describing the exercise of First Amendment freedoms creates the possibility that those records will be used to the speaker's detriment, and hence has a chilling effect on such exercise." Id. at 484 (internal quotation marks and citation omitted). "Blanket allowance of [] incidental surveillance and recording under the guise of general investigation could permit the exception to swallow the rule." Id. (internal quotation marks omitted). On the other hand, "the legitimate investigation and surveillance of suspected criminals and civil offenders inevitably involves observation and recording of the actions of innocent people, sometimes when those people are exercising their First Amendment rights." Id. "To forbid 'incidental' surveillance of innocent people or to require excision of references to such people in surveillance records would be administratively cumbersome and damaging to the completeness and accuracy of the agency records." Id. Indeed, the very presence of the law enforcement exception "recognizes that some recording of First Amendment activities will take place." Id. Thus, McPherson concluded, when determining whether the section 552a(e)(7) law enforcement activity exception applies, a court must "consider the factors for and against the maintenance of such records of First Amendment activities on an individual, case-by-case basis." Id.

Plaintiffs contend that the FBI's maintenance of the April 2006 Memo, and in particular the reference to Antiwar.com, violates Section (e)(7) of the...