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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TRUTHOUT, 12 13 14 15 No. CIV. S-12-2601 LKK/CKD Plaintiff, v. ORDER DEPARTMENT OF JUSTICE, Defendant. 16 17 Plaintiff Truthout sues the U.S. Department of Justice 18 (“DOJ”) under the Freedom of Information Act, 5 U.S.C. § 552 19 (“FOIA”), seeking the release of certain records withheld by the 20 agency in response to a FOIA request. 21 The DOJ has moved for summary judgment in its favor, lodging 22 with the court the in camera, ex parte declaration of one David 23 Hardy in support. To date, only a redacted copy of this 24 declaration has been filed on the court’s publicly-accessible 25 electronic docket. Truthout, in turn, has moved the court to 26 order the declaration either stricken or filed publicly. 27 28 This matter has been decided on the papers submitted. For the reasons set forth below, the court will deny Truthout’s 1 1 motion to either strike Hardy’s declaration or order it publicly- 2 filed. Further, based on its review of the declaration, the court 3 will grant the DOJ’s motion for summary judgment. 4 I. BACKGROUND 5 6 7 A. Factual Background The following facts are taken from the operative complaint. (ECF No. 1.) 1. Initial FOIA request 8 9 Truthout is a nonprofit organization organized under the 10 laws of California. (Complaint ¶ 3.) On April 12, 2011, Truthout 11 submitted a FOIA request to the Federal Bureau of Investigation 12 for all records about one Hesham Abu Zubaidah, who resides in 13 this judicial district. (Id. ¶ 7.) Zubaidah’s brother is Zayn al- 14 Abidin Muhammad Husayn a/k/a Abu Zubaydah, whom Truthout 15 characterizes as “a high-value detainee currently imprisoned at 16 Guantanamo Bay.” (Id.) Truthout also submitted a privacy waiver 17 signed by Mr. Zubaidah, and requested expedited processing of its 18 FOIA request. (Id.) 19 On August 26, 2011, the FBI acknowledged receipt of the FOIA 20 request, assigning it Request No. 1164662-000. The FBI did not 21 address the merits of Truthout’s expedited processing request. 22 (Id. ¶ 8.) 23 On September 22, 2011, the FBI informed Truthout that it had 24 located approximately 1200 pages of responsive records. The FBI 25 requested that Truthout agree to pay an estimated fee of $35 for 26 production of these records; Truthout did so. (Id. ¶ 9.) 27 28 On September 30, 2012 (i.e., more than one year later), the FBI made an interim release of redacted records to Truthout. (Id. 2 1 ¶ 10.) But as of October 18, 2012 (the date this action was 2 filed), no final determination had been made as to the request. 3 (Id. ¶ 11.) 4 Truthout’s first cause of action alleges a constructive 5 denial of its FOIA request, No. 1164662-000, and seeks, inter 6 alia, an order directing the FBI to provide all responsive 7 records in an expedited fashion. 8 It appears, at this time, that the parties have resolved 9 their dispute regarding this FOIA request. Plaintiff Truthout 10 writes, in its briefing herein, that, “This Motion only pertains 11 to Count 2 of the Complaint, as Plaintiff is satisfied with [the] 12 FBI’s response to Count 1 and is not challenging any of its 13 withholdings.” (Motion 2 n. 1, ECF No. 50-1.) Accordingly, the 14 court will not rule on those portions of the DOJ’s motion for 15 summary judgment that address its denial of FOIA Request 16 No. 1164662-000. 17 2. FBI interview of Mr. Zubaidah and subsequent FOIA request 18 19 On August 26, 2011, the same day that the FBI acknowledged 20 FOIA Request No. 1164662-000, an FBI agent interviewed 21 Mr. Zubaidah at his home, in an attempt to convince him to 22 rescind his privacy waiver. (Id. ¶ 17.) When Truthout reporter 23 Jason Leopold learned of this interview, he contacted the FBI “to 24 ask why agents were interfering with Truthout’s FOIA request.” 25 (Id. ¶ 18.) 26 Mr. Leopold was told by multiple FBI representatives, 27 including David Hardy, the chief of the FOIA office, that such 28 interviews were routine, and done to ensure that privacy waivers 3 1 were not forged or signed under duress. (Id.) Truthout alleges 2 that, “Despite diligent research, Truthout has not located a 3 single other instance in which [the] FBI has interviewed the 4 subject of a FOIA request regarding a privacy waiver.” (Id. 5 ¶ 19.) 6 7 8 9 10 11 12 13 14 15 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.) 16 On August 15, 2012, the FBI acknowledged receipt of this FOIA 17 request, assigning it Request No. 1196660-000. (Id. ¶ 21.) The 18 FBI then responded as follows: 19 20 21 22 23 24 25 26 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.) 27 On September 12, 2012, Truthout appealed this determination to 28 the DOJ Office of Information Policy (“OIP”), arguing that 4 1 “[t]his request was not for records regarding which people were 2 of investigatory interest to the FBI, it was for records about 3 how the FBI processed FOIA requests, specifically, instances in 4 which FBI agents conducted interviews to determine if private 5 parties had given consent for the release of their records, as 6 occurred during the processing of Truthout’s FOIA Request No. 7 1164662-000.” (Id. ¶ 22.) 8 On September 28, 2012, OIP acknowledged this appeal, 9 assigning it Appeal No. AP-2012-03443. As of the date of filing 10 of the instant action, OIP had not issued a final determination 11 on the appeal. (Id. ¶¶ 23, 24.) 12 Truthout’s second cause of action alleges a denial of its 13 FOIA request, No. 1196660-000, and seeks, inter alia, an order 14 directing the FBI to provide all responsive records in an 15 expedited fashion. 16 B. Procedural Background 17 Truthout filed the instant action on October 18, 2012. The 18 DOJ answered on December 5, 2012. (ECF No. 13.) Pursuant to court 19 order, the DOJ filed a motion for summary judgment on September 20 9, 2013. (ECF No. 27.) For a variety of reasons, including the 21 government shutdown and various stipulations by the parties, the 22 hearing on the summary judgment motion was continued until March 23 2014. After reviewing the party’s filings, the court determined 24 that oral argument was unnecessary. 25 //// 26 //// 27 //// 28 //// 5 1 II. TRUTHOUT’S MOTION TO STRIKE OR, ALTERNATIVELY, TO ORDER PUBLICATION OF THE HARDY DECLARATION 2 3 In support of its motion for summary judgment, the DOJ 4 lodged the in camera, ex parte declaration of David Hardy,1 while 5 filing a redacted version on the court’s electronic docket. (ECF 6 No. 27-5.) Plaintiff now moves the court to either strike Hardy’s 7 declaration from the record or, alternatively, to order it filed 8 on the public record. (ECF No. 50.) This motion was originally 9 set for hearing on January 31, 2014, but the parties subsequently 10 stipulated to having it decided on the papers. (ECF No. 59.) 11 A. Legal Background re: FOIA 12 FOIA requires “every federal agency, upon request, to make 13 ‘promptly available to any person’ any ‘records’ so long as the 14 request ‘reasonably describes such records.’” Assassination 15 Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003) 16 (quoting 5 U.S.C. § 552(a)(3)(A)). The Supreme Court recently 17 summarized relevant agency procedures under FOIA as follows: 18 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 19 20 21 22 23 24 25 26 27 28 1 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.) 6 1 estimate to the person making the request.” §§ 552(a)(6)(C)(i), (F). 2 3 Schindler Elevator Corp. v. U.S. ex rel. Kirk, __ U.S. __, 131 S. 4 Ct. 1885, 1893 (2011). Defendant DOJ has adopted implementing 5 regulations under the statute at 28 CFR §§ 16.1-16.12 (2013). 6 Despite FOIA’s purpose of “facilitat[ing] public access to 7 Government documents,” U.S. Dep’t of State v. Ray, 502 U.S. 164. 8 173 (1991), the statutory scheme “contemplates that some 9 information may legitimately be kept from the public.” Lahr v. 10 Nat’l Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009). The 11 statute enumerates nine exemptions under which the government may 12 withhold documents or portions of document. See 5 U.S.C. 13 § 552(b)(1)-(9). An agency that invokes one of these exemptions 14 bears the burden of demonstrating its propriety. Ray, 502 U.S. at 15 173. The Ninth Circuit has held that FOIA exemptions are to be 16 interpreted “narrowly.” Assembly of Cal. v. U.S. Dep’t of 17 Commerce, 968 F.2d 916, 920 (9th Cir. 1992). 18 The DOJ seeks to exempt the redacted portions of the Hardy 19 declaration by invoking FOIA Exemption 7E, which exempts from 20 disclosure: 21 22 23 24 25 26 27 [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). 28 7 1 Ordinarily, “in camera inspection of documents is 2 disfavored . . . where the government sustains its burden of 3 proof by way of its testimony or affidavits,” as it has here. 4 Lion Raisins v. U.S. Dept. of Agric., 354 F.3d 1072 (9th Cir. 5 2004). Nevertheless, the Ninth Circuit has recognized that in 6 certain cases, “the government’s public description of a document 7 and the reasons for exemption may reveal the very information 8 that the government claims is exempt from disclosure.” Doyle v. 9 F.B.I., 722 F.2d 554, 556 (9th Cir. 1983). In such cases, the 10 district need not “require the government to specify its 11 objections in such detail as to compromise the secrecy of the 12 information.” Id. 13 14 The scope of judicial review of FOIA determinations is as follows: 15 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 16 17 18 19 20 21 22 23 24 25 2 26 27 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. 28 8 1 agency concerning the agency’s determination as to technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B).3 2 3 4 5 U.S.C. § 552(a)(4)(B). B. Analysis re: Motion to Strike or Publish the Unredacted Hardy Declaration 5 6 7 8 9 10 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. 11 12 Plaintiff Truthout moves to unseal the declaration based on Local Rule 141(f), which provides: 13 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. 14 15 16 17 18 19 20 21 22 23 24 25 26 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. 3 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). 27 4 28 Under the “compelling reasons” standard, a district court must weigh “relevant factors,” base its decision “on a compelling 9 1 Truthout’s reliance on Kamakana, while understandable, is 2 inapt. Importing the general standard for the sealing of records 3 into FOIA litigation threatens to vitiate the exemptions that the 4 statute sets forth. In deciding whether a FOIA exemption applies, 5 the court may be unable to “articulate the factual basis for its 6 ruling,” Pintos, 605 F.3d at 679, without simultaneously 7 revealing the information that the government seeks to withhold. 8 It is in recognition of this fact that the Ninth Circuit allows 9 district courts to “rule on summary judgment in FOIA cases solely 10 on the basis of government affidavits describing the documents 11 sought.” Lion Raisins, 354 F.3d at 1082 (citing Church of 12 Scientology of Cal. v. U.S. Dept. of Army, 611 F.2d 738, 742 (9th 13 Cir. 1979)). 14 Both parties cite Lion Raisins, 354 F.3d at 1072, in support 15 of their positions. Defendant DOJ describes the case as 16 “recognizing the Court’s endorsement of using in camera 17 affidavits to decide some FOIA cases.” It is better understood as 18 standing for the proposition that district courts “must require 19 the government to justify FOIA withholdings in as much detail as 20 possible on the public record before resorting to in camera 21 review.” Id. at 1084. Lion Raisins concerns an appeal from entry 22 of summary judgment in the government’s favor in a FOIA case; 23 several records had been withheld under FOIA Exemption 7(A), “law 24 enforcement records or information [which] could reasonably be 25 expected to interfere with enforcement proceedings.” 5 U.S.C. 26 27 28 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)). 10 1 § 552(b)(7). The Ninth Circuit reversed the district court, 2 finding fault with the latter’s “reliance on in camera review of 3 the sealed declaration as the sole basis for its decision,” id. 4 at 1082, and remanded, requiring “the district court [to] require 5 [the government] to submit detailed public declarations, 6 testimony, or other material in support of its invocation of 7 the . . . exemption and afford [plaintiff] an opportunity to 8 advocate for the release of the reports.” Id. at 1085. 9 Ultimately, the Ninth Circuit held, “the district court must 10 require the government to justify FOIA withholdings in as much 11 detail as possible on the public record before resorting to in 12 camera review.” Id. at 1084. 13 The DOJ has not run afoul of Lion Raisins here. Having 14 reviewed the unredacted Hardy declaration, the court is satisfied 15 that the government “has submitted as much detail in the form of 16 public affidavits and testimony as possible” in the form of the 17 redacted Hardy declaration. Id. at 1083. Moreover, Truthout has 18 had the opportunity to advocate for the release of both the 19 unredacted Hardy declaration (by seeking an order that unseals or 20 strikes it) and the underlying records responsive to the FOIA 21 request (by opposing the DOJ’s summary judgment motion).5 22 23 24 25 26 27 28 5 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. 11 1 Truthout also argues that the DOJ should be required to 2 provide it with a “Vaughn index,” a term of art originating in 3 the seminal case of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 4 1973). The Ninth Circuit has described Vaughn indices as follows: 5 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.] 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 “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 28 12 1 extent, and to permit more effective judicial review of the agency’s decision. 2 3 Wiener v. F.B.I., 943 F.2d 972, 977-78 (9th Cir. 1991). Not only 4 did the DOJ deny Truthout’s FOIA request herein, it also failed 5 to furnish a Vaughn index with its denial. The difficulty, 6 however, is that the court cannot discern a way to require the 7 DOJ to provide “a particularized explanation of how disclosure of 8 the particular document would damage the interest protected by 9 the claimed exemption,” id., without also forcing the agency to 10 reveal the information contained in the withheld documents. As 11 discussed below, this information falls within FOIA Exemption 7E. 12 Accordingly, the court will deny Truthout’s motion to either 13 strike Hardy’s declaration or order that it be publicly filed. 14 C. Analysis re: Summary Judgment Motion 15 Having reviewed the unredacted Hardy declaration, the court 16 concludes that the DOJ has met its burden on summary judgment 17 regarding Request No. 1196660-000. “There is no genuine dispute 18 as to any material fact and the movant is entitled to judgment as 19 a matter of law,” Fed R. Civ. P. 56(a), that the withheld 20 documents meet the criteria outlined in FOIA Exemption 7E. 21 Disclosure of the withheld information would “disclose techniques 22 and procedures for law enforcement investigations or 23 prosecutions, or would disclose guidelines for law enforcement 24 investigations or prosecutions if such disclosure could 25 reasonably be expected to risk circumvention of the law.” 5 26 U.S.C. § 552(b)(7)(E).6 27 6 28 Moreover, it is arguable, though the court does not here find, that the pertinent documents would qualify for other FOIA 13 1 I am bound by the FOIA statute in reaching this conclusion. 2 Nonetheless, the court must state that Hardy’s unredacted 3 declaration is the quintessence of bureaucratic obfuscation. 4 While attempting to decipher its meaning, I recalled one of 5 Orwell’s observations when confronted with such writing: 6 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. 7 8 9 10 11 George Orwell, “Politics and the English Language,” in A 12 Collection of Essays 162, 165 (Anchor Books 1954). Which begs the 13 question, why did the government resort to hackwork here? Orwell 14 again: 15 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. 16 17 18 19 20 21 IV. CONCLUSION 22 The court hereby orders as follows: 23 [1] Plaintiff’s motion for an order striking the ex parte 24 declaration of David Hardy from the record, or 25 26 27 28 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. 14 1 alternatively, directing that it be filed on the public 2 record, is DENIED. 3 [2] Defendant’s motion for summary judgment is GRANTED. 4 IT IS SO ORDERED. 5 DATED: May 5, 2014. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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