Shem-Tov v. Dep't of Justice

LORI SHEM-TOV, Plaintiff, v. DEPARTMENT OF JUSTICE, et al., Defendants.

Civil Action No. 17-2452 (RDM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

May 25, 2020

MEMORANDUM OPINION AND ORDER

Plaintiff Lori Shem-Tov, who is currently being criminally prosecuted in Israel, filed this Freedom of Information Act ("FOIA") action against Defendants the Criminal Division of the U.S. Department of Justice ("Justice Department"), the Department of Homeland Security ("DHS") and INTERPOL Washington ("Interpol Washington" or "USNCB"). Dkt. 1. She seeks the release of records of Defendants' communications with the Israeli government regarding the requests of Israeli law enforcement for assistance from the United States under the Treaty on Mutual Legal Assistance in Criminal Matters ("MLAT") between the United States and Israel. Dkt. 1-4 at 2-3. She also seeks records of Defendants' efforts to secure information pertaining to several blogs from Automattic, Inc. Id.

Defendants DHS and Interpol Washington now move for summary judgment, asserting that they have completed reasonable searches for records responsive to Plaintiff's requests and have either released the responsive documents or withheld them in whole or in part in accordance with various FOIA exemptions. Dkt. 34. The Court has also construed Plaintiff's opposition to Defendants' motion for summary judgment as her own cross-motion for summary judgment as to those two Defendants. Dkt. 41; Minute Order (Aug. 9, 2019) (treating Plaintiff's opposition to Defendants' motion for summary judgment as a cross-motion for summary judgment). The Justice Department, however, remains engaged in searching for and producing responsive records, see Dkt. 59, and therefore does not participate in the instant motion. For the most part, Plaintiff does not take issue with the methodologies of the searches Defendants performed but, instead, confuses the completed searches conducted by DHS and Interpol Washington with the search still being conducted by the Justice Department and then faults the Justice Department's (not yet completed) search. She also argues that, as a criminal defendant in the Israeli case, she is entitled to all relevant documents in the possession of all Defendants under Brady v. Maryland, 373 U.S. 83 (1963).

The Court concludes that DHS and Interpol Washington have carried their burdens of establishing that they performed adequate searches for documents responsive to Plaintiff's FOIA requests and have demonstrated that some of their withholdings were proper under the FOIA exemptions. The have failed, however, to satisfy their summary judgment burden of demonstrating that their withholdings of information pursuant to Exemption 7(D) were appropriate. Accordingly, the Court will GRANT in part and DENY in part Defendants' motion for summary judgment, Dkt. 34; and will DENY Plaintiff's cross-motion for summary judgment, Dkt. 41.

I. BACKGROUND

Plaintiff attests that she is a "journalist specializing in welfare stories since 2009." Dkt. 41-1 at 1 (Shem-Tov Decl. ¶ 2). She states that she was "arrested in Israel on charges of 'insulting public officials'" in February 2017, id. (Shem-Tov Decl. ¶ 3), and asserts that the Israeli government has improperly handled her case in numerous ways, including subjecting her to a "political arrest" that was "intended to coerce [her] into changing [her] position on corruption in the Israeli welfare and justice systems," id. (Shem-Tov Decl. ¶ 4). Defendants offer a different account of Plaintiff's criminal case in Israel. They claim that she "disparage[d] judicial and government officials and private persons who had any role in the . . . proceedings" in which she lost custody of her children and that she "published [on the internet] personal information about those . . . persons" and accused them on her blog "of sexually or physically abusing" children. Dkt. 47 at 1. This alleged misconduct, according to Defendants, "forms the basis of the criminal prosecution of Plaintiff under Israeli law." Id. at 2.

All agree that Israeli law enforcement authorities submitted a request to the United States pursuant to the Treaty on Mutual Legal Assistance in Criminal Matters ("MLAT") between the two countries, seeking aid in the Israeli criminal investigation of Plaintiff. See Dkt. 34 at 1; Dkt. 41-1 at 2 (Shem-Tov Decl. ¶ 8). Various U.S. government agencies appear to have been involved in rendering that assistance, at least in part by asking third parties to release to them information including "sites" or "blogs" maintained by certain "user[s]." See, e.g., Dkt. 34-1 at 26, 37, 40, 44, 52, 61; see also Dkt. 34-2 at 22, 24-25, 28, 31-33; Dkt. 47-2.

On September 15, 2017, Plaintiff, through R. David Weisskopf, who she had authorized as her "power-of-attorney . . . to make FOIA requests on her behalf," submitted to the Justice Department, DHS, and Interpol Washington requests for records pursuant to FOIA. Dkt. 1 at 1-2 (Compl. ¶¶ 1, 6-7); Dkt. 1-3 at 2 (Ex. 3); Dkt. 1-4 (Ex. 4); Dkt. 1-5 (Ex. 5). Interpol is the International Criminal Police Organization, which "was created to ensure and [to] promote the widest possible mutual assistance between all criminal police authorities within the limits of the law existing in the organization's member countries." Dkt. 34 at 4 (Def.'s SUMF ¶ 1). Each Interpol "member country designates a national law enforcement agency . . . as the member country's point of contact for all Interpol matters." Id. at 4-5 (Def.'s SUMF ¶ 2). The United States has designated the National Central Bureau ("USNCB") as its point of contact.¹ Id. USNCB is itself a component of the Department of Justice. See id. at 5 (Def.'s SUMF ¶ 3).

Plaintiff's FOIA request sought the following:

1. Any correspondence and records exchange[d] between the State of Israel and U.S. Department of Justice (DOJ) and/or Department of Homeland Security (DHS) and/or Interpol concerning the request of the Government of Israel pursuant to Article 7 of the Treaty on Mutual Legal Assistance in Criminal Matters related to data from WordPress.com web blogs, and release of such data to the DOJ, DHS, [Interpol] and/or the Israeli Ministry of Justice and/or the Israeli Police including application, attachment, responses, emails and all proof attached.

2. All correspondence exchanged between the DOJ and/or DHS and/or Interpol and Automattic Inc. concerning the web blogs:

http://lory-shemtov.com

http://mishpatsheker.com

http://mother-cry.com

http://motileybel.com

http://horimisrtael.wordpress.com

http://rackmanbarilan.wordpress.com

including demands and letters, Automattic's responses and anything exchanged regarding these web blogs.

3. Any correspondences received or exchanged with third parties regarding these web blogs accounts, including, but not limited to, other officials in the DOJ, DHS, Interpol, Israeli or American diplomats, politicians, officials in embassies or foreign offices relating to or in any way mentioning your activity vis a vis Automattic's above mentioned web blogs.

4. Any legal opinions composed by the DOJ, DHS, Israeli officials or Interpol concerning the mutual legal assistance and whether there are sufficient grounds for the U.S. to invoke section 2703 and act on behalf of the Government of Israel. I specifically request records clarifying why assistance to a foreign government relying on criminal offenses not recognized in the U.S. outweigh a journalist's Freedom of Expression protected under the First Amendment to the U.S. Constitution in this matter.

5. All records, including but not limited to notes, from the day of initial contact by the Government of Israel regarding the Automattic Inc. web blogs. I also request all records by anybody from the U.S. authorities concerning the handling of the request from Israel, including but not limited to OIA Ref: 182-54139.

6. All records of any application to any court or judicial authority to issue a search warrant or any other type of warrant to compel Automattic Inc., to release any documents preserved related to any criminal investigations against Ms. Shem-Tov. If no application to a court was made, any document or legal opinion why such application was denied.

Dkt. 34-1 at 9 (Dembkowski Decl. ¶ 19).

At the time that Plaintiff submitted her FOIA request (and at the time she initiated this suit), she was incarcerated in Israel pending trial.² Dkt. 1 at 2 (Compl. ¶ 4). She sought the requested records "for use to defend herself in [her] criminal trial." Id. On September 19, 2017, DHS initially responded that Plaintiff's request was overly "broad in scope or did not specifically identify the records" sought and asked that Plaintiff resubmit a narrowed request. Dkt. 1-7 at 2-3 (Ex. 7). The other Defendants also failed substantively to respond to her request. Dkt. 1 at 2 (Compl. ¶¶ 8-10); Dkt. 1-8 (Ex. 8) (Sept. 21, 2017 Interpol Washington Response). Plaintiff alleges that, on October 2, 2017, Weisskopf filed an administrative appeal based on Defendants' failures to release records in response to her FOIA request. Dkt. 1 at 2 (Compl. ¶¶ 6, 11); Dkt. 1-10 (Ex. 10). Interpol Washington later informed Plaintiff that it had at least 72 responsive pages and released 45 of those pages to her with some information redacted pursuant to FOIA Exemptions (b)(6), (b)(7)(C), and (b)(7)(D). Dkt. 1 at 3 (Compl. ¶¶ 12-13); Dkt. 1-11 at 3 (Ex. 11) (Oct. 10, 2017 Interpol Washington Response). Interpol Washington also redacted and then forwarded to DHS 16 pages that it had uncovered so that DHS could determine whether their release was appropriate. Dkt. 1 at 3 (Compl. ¶ 13); Dkt. 1-11 at 4 (Ex. 11) ("The remaining 16 pages concern[] [DHS], Immigration and Customs Enforcement (ICE). [The agency] is referring these documents to ICE for determination of releasability in accordance with the FOIA.").

On November 13, 2017, Plaintiff initiated this FOIA action against the Justice Department, DHS, and Interpol Washington. Dkt. 1 at 1. S...