Reporters Comm. for Freedom of the Press v. Fed. Bureau of Investigation

548 F.Supp.3d 185

REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Plaintiff,

v.FEDERAL BUREAU OF INVESTIGATION et al., Defendant.

Civil Action No. 17-1701 (RC)

United States District Court, District of Columbia.

Signed July 12, 2021

KatieLynn Boyd Townsend, Adam Alexander Marshall, Jennifer Anne Nelson, Reporters Committee for Freedom of the Press, Washington, DC, for Plaintiff.

Sian Jones, U.S. Department of Justice, Washington, DC, for Defendants Federal Bureau of Investigation, Department of Justice.

MEMORANDUM OPINION

RUDOLPH CONTRERAS, United States District Judge

GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT , DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT , AND DENYING PLAINTIFF'S MOTION FOR IN CAMERA REVIEW

I. INTRODUCTION

Concerned about law enforcement going undercover to impersonate journalists and documentary filmmakers, Plaintiff Reporters Committee for Freedom of the Press seeks records relating to the practice from the Federal Bureau of Investigation. In response to the Committee's Freedom of Information Act ("FOIA") request, the Bureau disclosed some redacted documents and withheld others completely. It says it has discharged its obligations under FOIA. The Committee disagrees. For the most part, the Bureau is right. It has adequately justified its withholdings for all but one group of the disputed records. With respect to that group of records, the agency must provide a better explanation.

II. BACKGROUND

As discussed in the Court's previous opinion in this case, the Committee's lawsuit has its origins in a series of news events that brought public attention to law enforcement's practice of impersonating journalists and documentary filmmakers. See Reps. Comm. for Freedom of Press v. FBI (Reps. Comm. I) , 369 F. Supp. 3d 212, 215–217 (D.D.C. 2019). The most prominent of those events involved an armed standoff between federal law enforcement officers and Nevada cattle rancher Cliven Bundy. See id. at 216. During the subsequent prosecution of Bundy and his supporters, the federal government revealed that FBI agents posed as documentary filmmakers to lure suspects into speaking with them. Id. at 216–17.

Media coverage of the Bureau's undercover operation—called "Operation Longbow"—prompted the Committee to request information about the filmmaker impersonation tactic. see id. at 217. Its FOIA request sought eight kinds of records. See Defs. Statement of Material Facts as to Which There Is No Genuine Issue ("Defs.’ SMF") ¶ 1, ECF No. 47-2.

Items 1 through 5 of the request asked for records pertaining to the Bundy standoff. Id. Items 6 through 8 were framed more broadly. They requested:

(6) All records, including but not limited to, email communications, concerning or referencing any other instances of impersonation of a documentary filmmaker and/or a documentary film crew by the FBI in connection with any criminal investigation since January 1, 2010;

(7) Records of any "professional credentials, websites and business cards" used by FBI agents in connection with the impersonation of a documentary filmmaker and/or a documentary film crew since January 1, 2010; and

(8) All records of the FBI's policies and practices concerning the impersonation of documentary filmmaker and/or documentary film crew since January 1, 2010, including records of any changes to those policies and practices.

Id. These last three items are at the center of the parties’ current dispute.

When the Committee's attempts to get records directly from the Bureau failed, it filed this FOIA suit. See Reps. Comm. I , 369 F. Supp. 3d at 218. The Bureau initially refused to confirm or deny the existence of any records responsive to items 6 and 7 (other than those dealing with the already-public Bundy investigation). See id. It argued that disclosure of any information related to the Committee's request would reveal information about a law enforcement technique that would lessen that technique's effectiveness. Id. at 219. The Court disagreed, see id. at 225, so the Bureau began searching for responsive records, see, e.g. , Joint Status Report, ECF No. 30.

The Bureau's search uncovered "approximately 125,000 pages and approximately 200 audio/video files potentially responsive to items 6 and 7," 4th Seidel Decl. ¶ 21, ECF No. 47-3, as well as 28 pages responsive to item 8, id. ¶ 25. Although the agency released a small portion of these records to the Committee, it withheld most of them under various exemptions to FOIA's general disclosure requirement. See id. ¶¶ 21–23, 27.

Whether the Bureau properly withheld the records that it did is at issue today. It moves for partial summary judgment, asserting that it has satisfied its obligations under FOIA for items 6 through 8 of the Committee's request. See Defs.’ Mot. Partial Summ. J. ("Defs.’ Mot."), ECF No. 47-1; see also Defs.’ Combined Reply and Opp'n, ECF No. 53. The Committee counters with a motion for partial summary judgment of its own, challenging various aspects of the Bureau's disclosure as inadequate. See Pl.’s Mem. Opp'n Defs.’ Mot. Partial Summ. J. and Supp. Pl.’s Cross-Mot. Partial Summ. J. ("Pl.’s Mot."), ECF No. 49-1. It also asks the Court to review a sample of the disputed records in camera to verify the Bureau's exemption claims. See Pl.’s Mem. Supp. Mot. In Camera Review ("Pl.’s In Camera Mot."), ECF No. 50-1; see also Pl.’s Reply Supp. Cross-Mot. Partial Summ. J. and Mot. In Camera Review ("Pl.’s Reply").

For the reasons stated below, the Court grants in part and denies in part the Bureau's motion and denies both of the Committee's motions. The Bureau properly withheld most of the records in dispute. Nevertheless, it did not adequately justify withholding one category of records. The agency will have another chance to do so. In addition, in camera review of a sampling of the withheld records is not necessary at this time.

III. LEGAL STANDARD

A court must grant summary judgment "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). Because resolving a FOIA claim generally entails applying law to undisputed facts, "FOIA cases typically and appropriately are decided on motions for summary judgment." See Defs. of Wildlife v. U.S. Border Patrol , 623 F. Supp. 2d 83, 87 (D.D.C. 2009).

The Freedom of Information Act "was designed ‘to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.’ " U.S. Dep't of State v. Ray , 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) (quoting Dep't of Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ). Put simply, it "mandates that an agency disclose records on request, unless they fall within one of nine exemptions." Milner v. Dep't of Navy , 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). Because FOIA embodies a general policy of disclosure, however, the exemptions must "be given a narrow compass." Citizens for Resp. & Ethics in Wash. v. U.S. Dep't of Just. (CREW) , 746 F.3d 1082, 1088 (D.C. Cir. 2014) (internal quotation marks omitted) (quoting Milner , 562 U.S. at 571, 131 S.Ct. 1259 ). For the same reason, "[t]he agency bears the burden of establishing that a claimed exemption applies." Id. And even then, the recently enacted FOIA Improvement Act requires an agency to disclose an exempted record unless it can also show that it "reasonably foresees that disclosure would harm an interest protected by [the] exemption" or that "disclosure is prohibited by law." 5 U.S.C. § 552(a)(8)(A)(i) ; see also Machado Amadis v. U.S. Dep't of State , 971 F.3d 364, 370 (D.C. Cir. 2020) ; Ctr. for Pub. Integrity v. U.S. Dep't of Def. , 486 F. Supp. 3d 317, 335 (D.D.C. 2020).

An agency carries its burden at summary judgment "by submitting affidavits that ‘describe 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.’ " CREW , 746 F.3d at 1088 (quoting Larson v. Dep't of State , 565 F.3d 857, 862 (D.C. Cir. 2009) ). Agency affidavits can "take the form of a ‘Vaughn index,’ but there is ‘no fixed rule’ establishing" what they "must look like." Id. (citations omitted). An agency may offer declarations from agency officials, Vaughn indices, the requested records in camera , or a combination of some or all those sources. see Tax Analysts v. IRS , 410 F.3d 715, 720 (D.C. Cir. 2005) ; see also ACLU v. CIA , 710 F.3d 422, 432 (D.C. Cir. 2013) ("[A] district court has considerable latitude to determine [a Vaughn index's] requisite form and detail in a particular case."). What matters is that the agency materials "give the reviewing court a reasonable basis to evaluate the claim of privilege." ACLU , 710 F.3d at 433 (quoting Gallant v. NLRB , 26 F.3d 168, 173 (D.C. Cir. 1994) ).

Usually, an agency must "provide the requestor with a description of each document being withheld[ ] and an explanation of the reason for the agency's nondisclosure." Oglesby v. U.S. Dep't of Army , 79 F.3d 1172, 1176 (D.C. Cir. 1996). But when "the FOIA litigation process threatens to reveal ‘the very information the agency hopes to protect,’ " the agency may limit the information in its affidavits to just " ‘brief or categorical descriptions’ of the withheld information." CREW , 746 F.3d at 1088 (quoting ACLU , 710 F.3d at 432 ). In that circumstance, the agency can "justify withholding or redacting records ‘category-of-document by category-of-document’ rather than ‘document-by-document.’ " Am. Immigr. Lawyers Ass'n v. Exec. Off. for Immigr. Rev. , 830 F.3d 667, 675 (D.C. Cir. 2016) (quoting CREW , 746 F.3d at 1088 ).

Finally, an agency that withholds requested information "must demonstrate that it cannot segregate the exempt material from the non-exempt and...