Truthout v. Department of Justice

Filing 61

ORDER signed by Judge Lawrence K. Karlton on 5/5/2014 DENYING plaintiff's 50 Motion for Order striking Ex Parte Declaration of David Hardy from record. Defendant's 27 Motion for Summary Judgment is GRANTED and this matter is CLOSED. (Marciel, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TRUTHOUT,

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No.

CIV. S-12-2601 LKK/CKD

Plaintiff,
v.

ORDER

DEPARTMENT OF JUSTICE,
Defendant.

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Plaintiff Truthout sues the U.S. Department of Justice

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(“DOJ”) under the Freedom of Information Act, 5 U.S.C. § 552

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(“FOIA”), seeking the release of certain records withheld by the

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agency in response to a FOIA request.

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The DOJ has moved for summary judgment in its favor, lodging

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with the court the in camera, ex parte declaration of one David

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Hardy in support. To date, only a redacted copy of this

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declaration has been filed on the court’s publicly-accessible

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electronic docket. Truthout, in turn, has moved the court to

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order the declaration either stricken or filed publicly.

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This matter has been decided on the papers submitted. For
the reasons set forth below, the court will deny Truthout’s
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motion to either strike Hardy’s declaration or order it publicly-

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filed. Further, based on its review of the declaration, the court

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will grant the DOJ’s motion for summary judgment.

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I.

BACKGROUND

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A. Factual Background
The following facts are taken from the operative complaint.
(ECF No. 1.)
1. Initial FOIA request

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Truthout is a nonprofit organization organized under the

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laws of California. (Complaint ¶ 3.) On April 12, 2011, Truthout

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submitted a FOIA request to the Federal Bureau of Investigation

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for all records about one Hesham Abu Zubaidah, who resides in

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this judicial district. (Id. ¶ 7.) Zubaidah’s brother is Zayn al-

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Abidin Muhammad Husayn a/k/a Abu Zubaydah, whom Truthout

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characterizes as “a high-value detainee currently imprisoned at

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Guantanamo Bay.” (Id.) Truthout also submitted a privacy waiver

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signed by Mr. Zubaidah, and requested expedited processing of its

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FOIA request. (Id.)

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On August 26, 2011, the FBI acknowledged receipt of the FOIA

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request, assigning it Request No. 1164662-000. The FBI did not

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address the merits of Truthout’s expedited processing request.

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(Id. ¶ 8.)

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On September 22, 2011, the FBI informed Truthout that it had

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located approximately 1200 pages of responsive records. The FBI

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requested that Truthout agree to pay an estimated fee of $35 for

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production of these records; Truthout did so. (Id. ¶ 9.)

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On September 30, 2012 (i.e., more than one year later), the
FBI made an interim release of redacted records to Truthout. (Id.
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¶ 10.) But as of October 18, 2012 (the date this action was

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filed), no final determination had been made as to the request.

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(Id. ¶ 11.)

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Truthout’s first cause of action alleges a constructive

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denial of its FOIA request, No. 1164662-000, and seeks, inter

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alia, an order directing the FBI to provide all responsive

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records in an expedited fashion.

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It appears, at this time, that the parties have resolved

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their dispute regarding this FOIA request. Plaintiff Truthout

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writes, in its briefing herein, that, “This Motion only pertains

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to Count 2 of the Complaint, as Plaintiff is satisfied with [the]

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FBI’s response to Count 1 and is not challenging any of its

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withholdings.” (Motion 2 n. 1, ECF No. 50-1.) Accordingly, the

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court will not rule on those portions of the DOJ’s motion for

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summary judgment that address its denial of FOIA Request

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No. 1164662-000.

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2. FBI interview of Mr. Zubaidah and subsequent
FOIA request

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On August 26, 2011, the same day that the FBI acknowledged

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FOIA Request No. 1164662-000, an FBI agent interviewed

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Mr. Zubaidah at his home, in an attempt to convince him to

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rescind his privacy waiver. (Id. ¶ 17.) When Truthout reporter

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Jason Leopold learned of this interview, he contacted the FBI “to

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ask why agents were interfering with Truthout’s FOIA request.”

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(Id. ¶ 18.)

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Mr. Leopold was told by multiple FBI representatives,

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including David Hardy, the chief of the FOIA office, that such

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interviews were routine, and done to ensure that privacy waivers
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were not forged or signed under duress. (Id.) Truthout alleges

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that, “Despite diligent research, Truthout has not located a

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single other instance in which [the] FBI has interviewed the

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subject of a FOIA request regarding a privacy waiver.” (Id.

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¶ 19.)

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On July 19, 2012, Truthout submitted a FOIA request to the
FBI, seeking:
all FBI records pertaining to instances in
which the FBI has dispatched special agents,
or any other FBI officials, to make personal
visits to the homes, workplaces, and/or have
directed said officials to personally call
third parties who have signed Privacy Act
waivers
authorizing
individuals
or
organizations to file FOIA requests on behalf
of
the
third
party
to
discuss
and/or
determine the legitimacy of the FOIA requests
the
third
parties
authorized
and
the
authenticity of signatures on Privacy Act
waivers. (Id. ¶ 20.)

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On August 15, 2012, the FBI acknowledged receipt of this FOIA

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request, assigning it Request No. 1196660-000. (Id. ¶ 21.) The

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FBI then responded as follows:

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Please be advised that it is the FBI’s policy
to neither confirm nor deny the existence of
any records which would tend to indicate or
reveal whether an individual or organization
is of investigatory interest to the FBI.
Acknowledging the FBI’s interests invites the
risk
of
circumvention
of
federal
law
enforcement efforts. Thus, pursuant to FOIA,
5 U.S.C. § 552 exemption (b)(7)(E), the FBI
neither confirms nor denies the existence of
records which would indicate whether an
individual or organization is or has ever
been of investigatory interest. (Id. ¶ 21.)

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On September 12, 2012, Truthout appealed this determination to

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the DOJ Office of Information Policy (“OIP”), arguing that
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“[t]his request was not for records regarding which people were

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of investigatory interest to the FBI, it was for records about

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how the FBI processed FOIA requests, specifically, instances in

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which FBI agents conducted interviews to determine if private

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parties had given consent for the release of their records, as

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occurred during the processing of Truthout’s FOIA Request No.

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1164662-000.” (Id. ¶ 22.)

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On September 28, 2012, OIP acknowledged this appeal,

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assigning it Appeal No. AP-2012-03443. As of the date of filing

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of the instant action, OIP had not issued a final determination

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on the appeal. (Id. ¶¶ 23, 24.)

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Truthout’s second cause of action alleges a denial of its

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FOIA request, No. 1196660-000, and seeks, inter alia, an order

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directing the FBI to provide all responsive records in an

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expedited fashion.

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B. Procedural Background

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Truthout filed the instant action on October 18, 2012. The

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DOJ answered on December 5, 2012. (ECF No. 13.) Pursuant to court

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order, the DOJ filed a motion for summary judgment on September

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9, 2013. (ECF No. 27.) For a variety of reasons, including the

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government shutdown and various stipulations by the parties, the

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hearing on the summary judgment motion was continued until March

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2014. After reviewing the party’s filings, the court determined

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that oral argument was unnecessary.

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II.

TRUTHOUT’S MOTION TO STRIKE OR, ALTERNATIVELY, TO ORDER
PUBLICATION OF THE HARDY DECLARATION

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In support of its motion for summary judgment, the DOJ

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lodged the in camera, ex parte declaration of David Hardy,1 while

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filing a redacted version on the court’s electronic docket. (ECF

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No. 27-5.) Plaintiff now moves the court to either strike Hardy’s

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declaration from the record or, alternatively, to order it filed

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on the public record. (ECF No. 50.) This motion was originally

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set for hearing on January 31, 2014, but the parties subsequently

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stipulated to having it decided on the papers. (ECF No. 59.)

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A. Legal Background re: FOIA

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FOIA requires “every federal agency, upon request, to make

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‘promptly available to any person’ any ‘records’ so long as the

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request ‘reasonably describes such records.’” Assassination

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Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003)

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(quoting 5 U.S.C. § 552(a)(3)(A)). The Supreme Court recently

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summarized relevant agency procedures under FOIA as follows:

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FOIA requires each agency receiving a request
to “notify the person making such request of
[its]
determination
and
the
reasons
therefor.” 5 U.S.C. § 552(a)(6)(A)(i). When
an agency denies a request in whole or in
part, it must additionally “set forth the
names and titles or positions of each person
responsible
for
the
denial,”
“make
a
reasonable effort to estimate the volume of
any [denied] matter,” and “provide any such

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The operative complaint describes Hardy as “the chief of the
FOIA office.” (Complaint ¶ 18.) Hardy avers in his declaration
that he is “the Section Chief of the Record/Information
Dissemination Section of the Records Management Division at the
Federal Bureau of Investigation in Winchester, Virginia.”
(Redacted Hardy Decl. ¶ 1.)
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estimate to the person making the request.”
§§ 552(a)(6)(C)(i), (F).

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Schindler Elevator Corp. v. U.S. ex rel. Kirk, __ U.S. __, 131 S.

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Ct. 1885, 1893 (2011). Defendant DOJ has adopted implementing

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regulations under the statute at 28 CFR §§ 16.1-16.12 (2013).

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Despite FOIA’s purpose of “facilitat[ing] public access to

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Government documents,” U.S. Dep’t of State v. Ray, 502 U.S. 164.

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173 (1991), the statutory scheme “contemplates that some

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information may legitimately be kept from the public.” Lahr v.

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Nat’l Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009). The

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statute enumerates nine exemptions under which the government may

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withhold documents or portions of document. See 5 U.S.C.

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§ 552(b)(1)-(9). An agency that invokes one of these exemptions

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bears the burden of demonstrating its propriety. Ray, 502 U.S. at

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173. The Ninth Circuit has held that FOIA exemptions are to be

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interpreted “narrowly.” Assembly of Cal. v. U.S. Dep’t of

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Commerce, 968 F.2d 916, 920 (9th Cir. 1992).

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The DOJ seeks to exempt the redacted portions of the Hardy

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declaration by invoking FOIA Exemption 7E, which exempts from

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disclosure:

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[R]ecords or information compiled for law
enforcement purposes, but only to the extent
that the production of such law enforcement
records
or
information . . .
(E) 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 . . . .
5 U.S.C. § 552(b)(7)(E).

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Ordinarily, “in camera inspection of documents is

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disfavored . . . where the government sustains its burden of

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proof by way of its testimony or affidavits,” as it has here.

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Lion Raisins v. U.S. Dept. of Agric., 354 F.3d 1072 (9th Cir.

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2004). Nevertheless, the Ninth Circuit has recognized that in

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certain cases, “the government’s public description of a document

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and the reasons for exemption may reveal the very information

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that the government claims is exempt from disclosure.” Doyle v.

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F.B.I., 722 F.2d 554, 556 (9th Cir. 1983). In such cases, the

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district need not “require the government to specify its

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objections in such detail as to compromise the secrecy of the

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information.” Id.

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The scope of judicial review of FOIA determinations is as
follows:

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On complaint, the district court of the
United States in the district in which the
complainant resides . . .
has jurisdiction
to enjoin the agency from withholding agency
records and to order the production of any
agency records improperly withheld from the
complainant. In such a case the court shall
determine the matter de novo, and may examine
the contents of such agency records in
camera2 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, and the burden is on the
agency to sustain its action. In addition to
any other matters to which a court accords
substantial weight, a court shall accord
substantial weight to an affidavit of an

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In this case, the DOJ has not provided the withheld records for
review; the in camera, ex parte Hardy declaration merely
describes the withheld records and the reasons why the agency
withheld them.

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agency concerning the agency’s determination
as to technical feasibility under paragraph
(2)(C) and subsection (b) and reproducibility
under paragraph (3)(B).3

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5 U.S.C. § 552(a)(4)(B).
B. Analysis re: Motion to Strike or Publish the
Unredacted Hardy Declaration

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The question presented is whether the DOJ’s reliance on the
unredacted Hardy declaration is justified, i.e., whether ordering
disclosure of the redacted portions “may reveal the very
information that the government claims is exempt from
disclosure.” Doyle, 722 F.2d at 556.

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Plaintiff Truthout moves to unseal the declaration based on
Local Rule 141(f), which provides:

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Upon the motion of any person, or upon the
Court’s own motion, the Court may, upon a
finding of good cause or consistent with
applicable law, order documents unsealed. See
Fed. R. Civ. P. 5.2, Fed. R. Crim. P. 49.1.

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Truthout also cites Kamakana v. City & Cnty. of Honolulu, 447
F.3d 1172 (9th Cir. 2006), in support of its position. Kamakana
stands for the general proposition that a party seeking to seal a
judicial record attached to a dispositive motion must articulate
“compelling reasons” in favor of sealing.4 See id. at 1178.
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Paragraph (2)(C) requires agencies to “make available for public
inspection and copying . . . administrative staff manuals and
instructions to staff that affect a member of the public[.]” 5
U.S.C. § 552(a)(2)(C). Subsection (b) sets forth the nine
statutory exemptions from FOIA disclosure alluded to above. 5
U.S.C. § 552(b). Paragraph (a)(3)(B) provides, inter alia, that
“an agency shall provide the record in any form or format
requested by the person if the record is readily reproducible by
the agency in that form or format.” 5 U.S.C. § 552(3)(B).

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Under the “compelling reasons” standard, a district court must
weigh “relevant factors,” base its decision “on a compelling
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Truthout’s reliance on Kamakana, while understandable, is

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inapt. Importing the general standard for the sealing of records

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into FOIA litigation threatens to vitiate the exemptions that the

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statute sets forth. In deciding whether a FOIA exemption applies,

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the court may be unable to “articulate the factual basis for its

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ruling,” Pintos, 605 F.3d at 679, without simultaneously

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revealing the information that the government seeks to withhold.

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It is in recognition of this fact that the Ninth Circuit allows

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district courts to “rule on summary judgment in FOIA cases solely

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on the basis of government affidavits describing the documents

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sought.” Lion Raisins, 354 F.3d at 1082 (citing Church of

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Scientology of Cal. v. U.S. Dept. of Army, 611 F.2d 738, 742 (9th

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Cir. 1979)).

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Both parties cite Lion Raisins, 354 F.3d at 1072, in support

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of their positions. Defendant DOJ describes the case as

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“recognizing the Court’s endorsement of using in camera

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affidavits to decide some FOIA cases.” It is better understood as

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standing for the proposition that district courts “must require

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the government to justify FOIA withholdings in as much detail as

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possible on the public record before resorting to in camera

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review.” Id. at 1084. Lion Raisins concerns an appeal from entry

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of summary judgment in the government’s favor in a FOIA case;

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several records had been withheld under FOIA Exemption 7(A), “law

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enforcement records or information [which] could reasonably be

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expected to interfere with enforcement proceedings.” 5 U.S.C.

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reason,” and “articulate the factual basis for its ruling,
without relying on hypothesis or conjecture.” Pintos v. Pac.
Creditors Ass’n, 605 F.3d 665, 679 (9th Cir. 2009) (quoting
Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)).
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§ 552(b)(7). The Ninth Circuit reversed the district court,

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finding fault with the latter’s “reliance on in camera review of

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the sealed declaration as the sole basis for its decision,” id.

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at 1082, and remanded, requiring “the district court [to] require

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[the government] to submit detailed public declarations,

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testimony, or other material in support of its invocation of

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the . . . exemption and afford [plaintiff] an opportunity to

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advocate for the release of the reports.” Id. at 1085.

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Ultimately, the Ninth Circuit held, “the district court must

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require the government to justify FOIA withholdings in as much

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detail as possible on the public record before resorting to in

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camera review.” Id. at 1084.

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The DOJ has not run afoul of Lion Raisins here. Having

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reviewed the unredacted Hardy declaration, the court is satisfied

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that the government “has submitted as much detail in the form of

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public affidavits and testimony as possible” in the form of the

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redacted Hardy declaration. Id. at 1083. Moreover, Truthout has

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had the opportunity to advocate for the release of both the

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unredacted Hardy declaration (by seeking an order that unseals or

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strikes it) and the underlying records responsive to the FOIA

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request (by opposing the DOJ’s summary judgment motion).5

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Despite the Ninth Circuit’s admonition that “[r]equiring as
detailed public disclosure as possible of the government’s
reasons for withholding documents under a FOIA exemption is
necessary to restore, to the extent possible, a traditional
adversarial proceeding by giving the party seeking the documents
a meaningful opportunity to oppose the government’s claim of
exemption,” Lion Raisins, 354 F.3d at 1083, the court is fully
aware that Truthout is essentially fighting blindfolded.
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Truthout also argues that the DOJ should be required to

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provide it with a “Vaughn index,” a term of art originating in

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the seminal case of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.

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1973). The Ninth Circuit has described Vaughn indices as follows:

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Ordinarily, rules of discovery give each
party access to the evidence upon which the
court will rely in resolving the dispute
between them. In a FOIA case, however,
because the issue is whether one party will
disclose documents to the other, only the
party opposing disclosure will have access to
all the facts. [citations.]

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“This lack of knowledge by the party seeking
disclosure seriously distorts the traditional
adversary nature of our legal system[ ].”
Vaughn, 484 F.2d at 824. The party requesting
disclosure must rely upon his adversary’s
representations as to the material withheld,
and the court is deprived of the benefit of
informed advocacy to draw its attention to
the weaknesses in the withholding agency’s
arguments. It is simply “unreasonable to
expect a trial judge to do as thorough a job
of illumination and characterization as would
a party interested in the case.” Id. at 825.
In recognition of this problem, government
agencies
seeking
to
withhold
documents
requested under the FOIA have been required
to supply the opposing party and the court
with a ”Vaughn index,” identifying each
document withheld, the statutory exemption
claimed, and a particularized explanation of
how disclosure of the particular document
would damage the interest protected by the
claimed exemption. [citations.] The purpose
of the index is to “afford the FOIA requester
a meaningful opportunity to contest, and the
district court an adequate foundation to
review, the soundness of the withholding.”
[King v. Dep’t of Justice, 830 F.2d. 210, 218
(D.C. Cir. 1987).] The index thus functions
to restore the adversary process to some

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extent, and to permit more effective judicial
review of the agency’s decision.

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Wiener v. F.B.I., 943 F.2d 972, 977-78 (9th Cir. 1991). Not only

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did the DOJ deny Truthout’s FOIA request herein, it also failed

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to furnish a Vaughn index with its denial. The difficulty,

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however, is that the court cannot discern a way to require the

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DOJ to provide “a particularized explanation of how disclosure of

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the particular document would damage the interest protected by

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the claimed exemption,” id., without also forcing the agency to

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reveal the information contained in the withheld documents. As

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discussed below, this information falls within FOIA Exemption 7E.

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Accordingly, the court will deny Truthout’s motion to either

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strike Hardy’s declaration or order that it be publicly filed.

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C. Analysis re: Summary Judgment Motion

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Having reviewed the unredacted Hardy declaration, the court

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concludes that the DOJ has met its burden on summary judgment

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regarding Request No. 1196660-000. “There is no genuine dispute

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as to any material fact and the movant is entitled to judgment as

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a matter of law,” Fed R. Civ. P. 56(a), that the withheld

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documents meet the criteria outlined in FOIA Exemption 7E.

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Disclosure of the withheld information would “disclose techniques

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and procedures for law enforcement investigations or

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prosecutions, or would disclose guidelines for law enforcement

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investigations or prosecutions if such disclosure could

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reasonably be expected to risk circumvention of the law.” 5

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U.S.C. § 552(b)(7)(E).6

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Moreover, it is arguable, though the court does not here find,
that the pertinent documents would qualify for other FOIA
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I am bound by the FOIA statute in reaching this conclusion.

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Nonetheless, the court must state that Hardy’s unredacted

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declaration is the quintessence of bureaucratic obfuscation.

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While attempting to decipher its meaning, I recalled one of

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Orwell’s observations when confronted with such writing:

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As soon as certain topics are raised, the
concrete melts into the abstract and no one
seems able to think of turns of speech that
are not hackneyed: prose consists less and
less of words chosen for the sake of their
meaning, and more and more of phrases tacked
together like the sections of a prefabricated
henhouse.

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George Orwell, “Politics and the English Language,” in A

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Collection of Essays 162, 165 (Anchor Books 1954). Which begs the

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question, why did the government resort to hackwork here? Orwell

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again:

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The inflated style is itself a kind of
euphemism. A mass of Latin words falls upon
the facts like soft snow, blurring the
outlines and covering up all the details. The
great enemy of clear language is insincerity.
When there is a gap between one’s real and
one’s declared aims, [the writer] turns, as
it were, instinctively to long words and
exhausted idioms, like a cuttlefish squirting
out ink.

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IV.

CONCLUSION

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The court hereby orders as follows:

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[1] Plaintiff’s motion for an order striking the ex parte

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declaration of David Hardy from the record, or

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Exemptions outlined in 5 U.S.C. § 552(b)(7), thereby possibly
reinforcing the propriety of allowing the DOJ to withhold the
information from disclosure.
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alternatively, directing that it be filed on the public

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record, is DENIED.

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[2] Defendant’s motion for summary judgment is GRANTED.

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IT IS SO ORDERED.

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DATED:

May 5, 2014.

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