Shapiro v. U.S. Dep't of Justice

153 F.Supp.3d 253

Ryan Noah Shapiro; Jeffrey Stein ; National Security Counselors; Truthout, Plaintiffs,

v.U.S. Department of Justice, Defendant.

Civil Action No. 13-555 (RDM)

United States District Court, District of Columbia.

Signed January 22, 2016

Jeffrey Louis Light, Law Offices of Jeffrey Light, Washington, DC, Kelly Brian McClanahan, National Security Counselors, Rockville, MD, for Plaintiffs.

Kenneth A. Adebonojo, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

RANDOLPH D. MOSS, United States District Judge

The Freedom of Information Act (“FOIA” or the “Act”), 5 U.S.C. § 552 et seq ., was enacted to promote transparency and accountability in how the federal government discharges its numerous and far-ranging responsibilities. This case raises a variety of questions relating to how FOIA applies to the Federal Bureau of Investigation's (“FBI”) discharge of one of those duties—its responsibility to comply with FOIA itself. This is, in short, a case about how the FBI applies FOIA to FOIA.

Plaintiffs are several nonprofit organizations and journalists who filed multiple FOIA requests with the FBI seeking the processing documents associated with dozens of prior FOIA requests that they or others had submitted. The FBI produced some responsive documents, but redacted or withheld pages from those documents, and issued categorical denials in response to many of the plaintiffs' requests, refusing to produce any responsive documents at all. Most broadly, the agency declined to produce any of the processing records routinely generated in responding to FOIA requests submitted in the last 25 years for material contained in investigative files. The FBI explained that producing these records might allow a savvy FOIA requester to identify the rare cases where the FBI has exercised its discretion to issue a “none-found” response to a FOIA request for records that are “excludable” under FOIA, and thus would risk the implicit disclosure of highly sensitive information relating to ongoing investigations, confidential informants, and classified national security matters. See 5 U.S.C. § 552(b)(7)(E), (c). The agency also broadly declined to provide any “case evaluation forms,” which are forms used to track and evaluate the performance of FBI employees engaged in processing FOIA requests. In the FBI's view, these forms are exempt from disclosure because they relate “solely to the internal personnel rules and practices of [the] agency.” Id. § 552(b)(2). In addition to these categorical denials, the FBI declined to produce a number of records responsive to individual requests, relying on a host of other, more specific grounds.

The plaintiffs filed this action to compel the FBI to produce the withheld material. They challenge the adequacy of the FBI's searches and many, although not all, of the grounds asserted by the agency to withhold responsive records. They also bring a facial challenge to the FBI's policy of declining to provide any processing records for FOIA requests made within the last 25 years that sought material from FBI investigative files. The FBI has now moved for summary judgment, and the plaintiffs have cross-moved for partial summary judgment. For the reasons detailed below, the Court will GRANT the plaintiffs' motion for partial summary judgment in part and DENY it in part; it will, for the same reasons, GRANT the FBI's motion for summary judgment in part and DENY it in part.

I. BACKGROUND

A. Statutory Framework

The Freedom of Information Act is premised on the notion that an informed citizenry is “vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co. , 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). The Act embodies “a general philosophy of full agency disclosure.” U.S. Dep't of Defense v. FLRA , 510 U.S. 487, 494, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (quoting Dep't of Air Force v. Rose , 425 U.S. 352, 360–61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ). It thus mandates that an agency disclose records upon request, unless they fall within one of nine exemptions. “These exemptions are ‘explicitly made exclusive’ and must be ‘narrowly construed.’ ” Milner v. Dep't of Navy , 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (quoting EPA v. Mink , 410 U.S. 73, 79, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973), and FBI v. Abramson , 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982) ).

At issue here are four of the nine exemptions. Exemption 2 “shields from compelled disclosure documents ‘related solely to the internal personnel rules and practices of an agency.’ ” Id. (quoting 5 U.S.C. § 552(b)(2) ). Exemption 5 protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). It exempts “those documents, and only those documents, normally privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) ). Exemption 6 protects information about individuals in “personnel and medical files and similar files” when its disclosure “would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Finally, Exemption 7 shields from disclosure “records or information compiled for law enforcement purposes, but only to the extent that” release of the records would disclose one of six kinds of sensitive information. Id. § 552(b)(7). Two of the six are relevant here: Exemption 7(C), which applies whenever disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy,” id. § 552(b)(7)(C), and Exemption 7(E), which applies whenever release of the information “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law,” id. § 552(b)(7)(E).

Also at issue here are FOIA's three “exclusions.” These statutory provisions authorize law enforcement agencies, under unusual circumstances, to “treat [responsive] records as not subject to the requirements of [FOIA],” see id. § 552(c)(1)–(3), and accordingly to deny that any such records exist. See ACLU of Michigan v. FBI , 734 F.3d 460, 469–72 (6th Cir.2013).¹ A law enforcement agency may rely on an exclusion only if a request is made for records that (1) implicate an ongoing criminal investigation if “there is reason (i) to believe that the subject of the investigation ... is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings,” 5 U.S.C. § 552(c)(1) ; (2) concern an undisclosed informant, id. § 552(c)(2) ; or (3) “pertain[ ] to foreign intelligence or counterintelligence, or international terrorism,” if the records are maintained by the FBI and are classified, id. § 552(c)(3).

B. FBI FOIA Procedures

This case concerns various documents that the FBI creates while processing FOIA requests. The division of the FBI that is responsible for processing FOIA requests is known as the Record/Information Dissemination Section (“RIDS”). See Dkt. 21-3 at 1–2 (Hardy Decl. ¶¶ 1–3). According to a declaration submitted by the director of RIDS, David M. Hardy, RIDS analysts primarily rely on two database systems to conduct searches of records that might be responsive to FOIA requests. Id. at 14–16 (Hardy Decl. ¶¶ 53–57). The FBI's Freedom of Information and Privacy Act Document Processing System (“FDPS”) is the primary database. Id. at 14 (Hardy Decl. ¶ 53). FDPS is a “request management system” that RIDS employees use to “track FOIA/Privacy Act requests, referrals, appeals, and litigations.” Id. (Hardy Decl. ¶ 54). “Within FDPS, an electronic file is created for each FOIA/Privacy Act request” that contains “copies of pertinent correspondence,” including the request and the FBI's response letter; “processing-related documents,” including search slips; and “multiple versions” (i.e., the original version and a redacted version) “of the records processed in response to” the FOIA request. Id. at 14–15 (Hardy Decl. ¶ 55). “FDPS also includes a ‘notes' section in which additional processing-related information may be included.” Id.

The second database is the FBI's Central Records System (“CRS”). Id. at 15 (Hardy Decl. ¶ 56). The CRS contains “administrative, applicant, criminal, personnel, and other files compiled for law enforcement purposes.” Id. According to Hardy, “[a]lthough the CRS is primarily designed to serve as an investigative tool, the FBI searches the CRS for documents that are potentially responsive to FOIA/Privacy Act requests[ ] when it determines that responsive records are likely to be maintained in the CRS.” Id. In other words, RIDS employees search the CRS for records that may be responsive to FOIA requests; they document the results of those searches, and other efforts, in FDPS.

As described below, Plaintiffs submitted various FOIA requests to obtain documents that the FBI had previously created in processing earlier FOIA requests—some submitted by Plaintiffs themselves and some submitted by other requesters. Although Plaintiffs stated generally that they sought “all records” that documented the FBI's efforts to respond to the prior FOIA requests, see, e.g. , Dkt. 21-4 at 3 (Hardy Decl., Ex. A), this case centers on three types of processing records: search slips, case processing notes, and case evaluation forms.

Search slips are records that document the efforts of RIDS analysts to search for files responsive to FOIA requests. Plaintiffs have provided the following example of a search slip, which they presumably obtained before the FBI adopted its categorical policy of denying access to...