Raimondo et al v. Federal Bureau of Investigation

Filing 111

ORDER by Magistrate Judge Jacqueline Scott Corley granting in part and denying in part 102 Motion for Reconsideration. (ahm, COURT STAFF) (Filed on 7/18/2017)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 DENNIS JOSEPH RAIMONDO, ET AL., Plaintiffs, 10 United States District Court Northern District of California 11 Case No.13-cv-02295-JSC ORDER RE: PLAINTIFFS' MOTION FOR RECONSIDERATION v. 12 FEDERAL BUREAU OF INVESTIGATION, 13 Re: Dkt. No. 102 Defendant. 14 15 Plaintiffs Dennis Raimondo and Eric Garris bring claims under the Freedom of 16 Information Act and the Privacy Act against Defendant the Federal Bureau of Investigation 17 (“FBI”). Plaintiffs seek records regarding a 2004 threat assessment the FBI conducted of a 18 website, Antiwar.com, with which the Plaintiffs are affiliated, and related investigations that the 19 FBI conducted of Plaintiffs. Plaintiffs also seek expungement of certain records related to the 20 exercise of their First Amendment rights. The parties filed cross-motions for summary judgment 21 which the Court granted in part and denied in part. (Dkt. No. 90.) Plaintiffs’ motion for 22 reconsideration, in part, of that Order is now pending before the Court. (Dkt. No. 102.) After 23 carefully considering the arguments and briefing submitted, the Court concludes that oral 24 argument is unnecessary, see Civ. L.R. 7-1(b), and GRANTS IN PART and DENIES IN PART 25 Plaintiffs’ motion for reconsideration. 26 27 28 BACKGROUND In August of 2011, Raimondo and Garris discovered that they and the website, Antiwar.com, had been subject to FBI surveillance. (Dkt. No. 28-1 ¶ 15.) In particular, Plaintiffs discovered a 1 heavily redacted FBI memorandum from April 30, 2004 (“April 30 Memo”) which suggested that the 2 FBI had conducted a threat assessment of Antiwar.com “an anti-interventionist website that publishes 3 news and opinion articles regarding U.S. foreign and military policy.” (Id. ¶ 2.) Garris is the founder, 4 managing editor, and webmaster of Antiwar.com, and Raimondo is the editorial director. (Id. ¶¶ 8-9.) 5 Plaintiffs contend that the FBI initiated investigations into each of them based on First Amendment 6 protected speech activity which was memorialized in the April 30 Memo. (Id. ¶ 3.) Two months later, Plaintiffs separately filed Freedom of Information Act (“FOIA”) and 7 8 Privacy Act requests (collectively known as “FOIPA requests”) seeking disclosure of records 9 maintained by the FBI regarding themselves. Plaintiffs exhausted their administrative remedies and then filed this action in May 2013. Five months after the lawsuit was filed, the FBI made its first 11 United States District Court Northern District of California 10 interim release of records, which has been supplemented several times during the pendency of this 12 action. At the time the parties’ summary judgment motions were filed, the FBI had identified 290 13 responsive pages of records: of these, 26 pages had been released in full, 104 pages were released in 14 part, 117 pages were withheld in full, and 43 pages were withheld in full as duplicates. (Dkt. No. 71 ¶ 15 4.) 16 The Court denied the parties’ cross-motions for summary judgment on Plaintiff’s FOIA and 17 Privacy Act disclosure claims without prejudice and granted the government’s motion for summary 18 judgment on Plaintiffs’ (e)(7) and (d)(2) Privacy Act claims. (Dkt. No. 90.) The parties then settled 19 the FOIA claims, but not the Privacy Act claims because Plaintiffs believe that documents the 20 government recently produced give rise to new issues with respect to Plaintiffs’ Privacy Act claims. 21 (Dkt. No. 101.) Plaintiffs thereafter filed a request for leave to file a motion for reconsideration 22 regarding these new issues, which the Court granted. (Dkt. No. 105.) The motion is now fully briefed. 23 (Dkt. Nos. 102, 108, 109.) 24 DISCUSSION 25 A party seeking leave to file a motion for reconsideration must show either: (1) “at the time 26 of the motion for leave, a material difference in fact or law exists from that which was presented to 27 the Court”; (2) “[t]he emergence of new material facts or a change of law occurring after the time 28 of such order;” or (3) a “manifest failure by the Court to consider material facts or dispositive 2 1 legal arguments” previously presented to the court. N.D. Cal. Civ. L. R. 7-9(b), “No motion for 2 leave to file a motion for reconsideration may repeat any oral or written argument made by the 3 applying party in support of or in opposition to the interlocutory order which the party...seeks to 4 have reconsidered.” N.D. Cal. Civ. L.R. 7-9(c). “A motion for reconsideration should not be 5 granted, absent highly unusual circumstances, unless the district court is presented with newly 6 discovered evidence, committed clear error, or if there is an intervening change in the controlling 7 law.” 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). 8 9 Plaintiffs contend that reconsideration is warranted based on newly discovered evidence. In particular, Plaintiffs point to four documents which they contend: (1) undermine the government’s proffered explanation for the threat assessment memorialized in the April 30 memo, 11 United States District Court Northern District of California 10 and (2) reflect two additional recordings of Plaintiffs’ First Amendment activities which give rise 12 to new Privacy Act claims. The government counters that Plaintiffs’ arguments are nothing more 13 than an attempt to rehash the Court’s prior ruling with respect to the April 30 Memo, and that to 14 the extent that Plaintiffs seek to identify new Privacy Act violations in the new documents, they 15 are not part of this action. 16 A. The April 30 Memo 17 Section 552a(e)(7) of the Privacy Act provides that a federal agency may not “maintain 18 [any] record describing how any individual exercises rights guaranteed by the First Amendment 19 unless expressly authorized by statute or by the individual about whom the record is maintained or 20 unless pertinent to and within the scope of an authorized law enforcement activity.” 5 U.S.C. § 21 552a(e)(7). “The purpose of the section (e)(7) First Amendment protection is to prevent collection 22 of protected information not immediately needed, about law-abiding Americans, on the off-chance 23 that Government or the particular agency might possibly have to deal with them in the future.” 24 MacPherson v. I.R.S., 803 F.2d 479, 483 (9th Cir. 1986) (quoting S. Rep. 1183, 93d Cong., 2d 25 Sess., reprinted in 1974 U.S. Code Cong. & Admin. News 6916, 6971). In granting summary 26 judgment in the government’s favor on this claim, the Court concluded that although the April 30 27 Memo undisputedly describes Plaintiffs’ exercise of their First Amendment rights, the government 28 was nonetheless entitled to maintain the document pursuant to the authorized law enforcement 3 1 activity exception. In support of its motion for summary judgment, the government submitted the Declaration 3 of Andrew Campi, the Assistant Special Agent in Charge of the FBI’s Newark Field Office. (Dkt. 4 No. 70.) According to the Campi Declaration, in March of 2004, while conducting research on the 5 internet, an agent with the Newark FBI office discovered a possible copy of the FBI’s post-9/11 6 watch list on the website Antiwar.com. (Dkt. No. 70 at ¶ 9; Dkt. No. 70-1 at 3.1) This prompted 7 further review of the website and led to discovery of a second 22-page spreadsheet dated May 22, 8 2002 with “FBI SUSPECT LIST” noted in the header and “Law Enforcement Sensitive” noted in 9 the footer of each page. (Id.) Both spreadsheets contained personally identifiable information of 10 the individuals listed. (Dkt. No. 70 at ¶ 9.) The Newark Office thus conducted a threat assessment 11 United States District Court Northern District of California 2 of Plaintiffs and Antiwar.com to determine whether they posed a threat to national security. The 12 threat assessment included a review of publicly available articles authored by or referencing 13 Plaintiffs and Antiwar.com.11 (Id. at ¶ 10.) This threat assessment is memorialized in the April 30 14 Memo. In opposing summary judgment, Plaintiffs argued that while the FBI was entitled to 15 16 conduct an investigation, they were not entitled to document Plaintiffs’ exercise of their First 17 Amendment rights. The Court disagreed concluding that Plaintiffs’ argument would place the 18 FBI in an untenable position—agents could investigate national security concerns, but they could 19 not document their investigation if doing so would in any way describe exercise of an individual’s 20 First Amendment rights. (Dkt. No. 90 at 22.) The Court held that there was no genuine dispute 21 that the threat assessment was pertinent to authorized law enforcement activity; namely, whether 22 publication of the watch list on Antiwar.com posed a national security threat. Ultimately, the 23 Court concluded that “[i]f the investigation itself is pertinent to an authorized law enforcement 24 activity, the Privacy Act does not regulate what can be done in the course of that investigation or 25 how that authorized investigation may be documented.” (Id. at 23:16-19.) Plaintiffs contend that documents produced after the Court’s summary judgment order 26 27 1 28 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents. 4 1 show that the government in fact discovered the publicly posted watch list several months prior to 2 conducting the threat assessment, which Plaintiffs contend undermines the government’s claim 3 that the threat assessment was based on discovery of the watch list on Antiwar.com. Plaintiffs 4 base their argument on an FBI memorandum dated April 22, 2008 (“April 2008 Memo”) which 5 states that “[t]he FBI has been aware of this FBI Suspect List being posted on the internet since at 6 least November of 2003.” (Dkt. No. 102-1 at 27.) However, there is nothing in the April 2008 7 Memo to suggest that the FBI discovered the watch list posted on Antiwar.com in November 8 2003—as opposed to elsewhere on the internet. As such, the April 2008 Memo does not 9 contradict the statements in the Campi Declaration or in the April 30 Memo itself that an FBI agent from the Newark office discovered the watch list on Antiwar.com in March of 2004. (Dkt. 11 United States District Court Northern District of California 10 No. 70 at ¶ 9 (“[f]ollowing release of the March 24, 2004 EC, while conducting research on the 12 internet, a member of the Newark office discovered a possible “watch list,” an untitled 22-page 13 spreadsheet, dated October 3, 2001, on the website www.antiwar.com.”) Indeed, the April 30 14 Memo itself states that a March 24, 2004, electronic communication “advised that the post-9/11 15 “watch list,” “Project Lookout,” was posted on the Internet” and that “[d]ifferent versions of these 16 lists may be on the Internet.” (Dkt. No. 102-1 at 16.) There is thus nothing in April 2008 Memo 17 to suggest that the FBI knew the watch list was on Antiwar.com in November 2003 and 18 nonetheless waited until April 2004 to conduct the at-issue threat assessment. 19 Nor is the Court persuaded by Plaintiffs’ reliance on a subsequently discovered August 20 2004 Memo, which Plaintiffs contend provides an example of a narrowly tailored investigatory 21 memorandum. Once the government has established that documents which it has maintained were 22 “pertinent to and within the scope of an authorized law enforcement activity”—which it has— 23 Section (e)(7) does not authorize the Court to substitute its judgment for that of the FBI regarding 24 the manner or scope of the investigation. 25 26 Accordingly, Plaintiffs’ motion for reconsideration of the Court’s Order regarding Plaintiffs’ 552a(e)(7) claim based on the April 30 Memo is DENIED. 27 B. Newly Discovered Documents 28 Plaintiffs also contend that two recently produced or produced in less redacted form 5 1 documents also give rise to claims under (e)(7) because “Plaintiffs cannot discern any apparent 2 basis for the law enforcement exception to apply to these memoranda.” (Dkt. No. 102-1 at 8:14- 3 15.) These documents are (1) a November 28, 2006 FBI memorandum (“November 2006 4 Memo”) which includes an excerpt from an article published on Antiwar.com discussing the 5 decrease in enlisted military officers; and (2) an April 5, 2006 FBI memorandum (“April 2006 6 Memo”) which lists Antiwar.com as a website that publicly posted details regarding an upcoming 7 Halliburton shareholder meeting. (Dkt. No. 102-1 at 52-57.) The government does not address 8 Plaintiffs’ argument that these documents give rise to new Privacy Act claims, and instead insists 9 that the documents fail to shed any light on the April 30 Memo and do not provide a basis for 10 United States District Court Northern District of California 11 reconsidering the Court’s prior summary judgment ruling. The Court agrees that these two new documents fail to provide a basis for reconsidering 12 the Court’s prior Order with respect to Plaintiffs’ (e)(7) Privacy Act claim. Because these 13 documents were not before the Court—or the parties for that matter—at the time of the summary 14 judgment briefing, they were not encompassed by the Court’s summary judgment order. 15 However, as Plaintiffs correctly note, their Privacy Act claim is broadly pled alleging that 16 “Defendant FBI collected and maintained records describing how Plaintiffs exercise their rights 17 guaranteed by the First Amendment in violation of 5 U.S.C. § 522a(e)(7)” and does not 18 specifically allege which documents are at issue in the claim. (Dkt. No. 28-1 at ¶¶ 87-89; Dkt. No. 19 28-1 at pp. 35, 39 (administrative claim similarly broadly worded requesting expungement of all 20 records not just the April 30 Memo).) 21 Given that the government did not produce the documents until August 2016 and has not 22 raised an objection to the timeliness of Plaintiffs’ claims regarding these documents, the Court 23 concludes that Plaintiffs may separately raise (e)(7) Privacy Act claims with respect to the 24 November 2006 Memo and the April 2006 Memo. The record currently before the Court, 25 however, is not adequate for the Court to consider such a claim now. The memos themselves are 26 heavily redacted, the Court has only Plaintiffs’ characterization of the purpose of the memos and 27 no statement from the government regarding the nature of the memos or the law enforcement 28 investigation memorialized in the memos. Accordingly, the parties are ordered to meet and confer 6 1 to discuss a briefing schedule to bring Plaintiffs’ claims regarding these two documents to the 2 Court for resolution. 3 CONCLUSION 4 For the reasons stated above, Plaintiffs’ motion for reconsideration is GRANTED IN 5 PART and DENIED IN PART. The parties shall meet and confer to discuss a briefing schedule 6 for resolution of Plaintiffs’ Privacy Act claims with respect to the November 2006 Memo and the 7 April 2006 Memo. The parties shall file a stipulated briefing schedule, or separate proposals for 8 the same if they are unable to agree, by August 14, 2017. The parties shall also address whether 9 they would like a referral to a magistrate judge for a settlement conference. 10 This Order disposes of Docket No. 102. United States District Court Northern District of California 11 12 13 IT IS SO ORDERED. Dated: July 18, 2017 14 15 JACQUELINE SCOTT CORLEY United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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