Raimondo et al v. Federal Bureau of Investigation

Filing 122

ORDER by Magistrate Judge Jacqueline Scott Corley granting 114 Defendant's Second Motion for Summary Judgment and denying 117 Plaintiffs' Second Cross-motion for Summary Judgment. (ahm, COURT STAFF) (Filed on 1/12/2018)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DENNIS JOSEPH RAIMONDO, ET AL., Plaintiffs, 8 9 ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT v. 10 FEDERAL BUREAU OF INVESTIGATION, 11 United States District Court Northern District of California Case No.13-cv-02295-JSC Re: Dkt. Nos. 114, 117 Defendant. 12 13 Plaintiffs Dennis Raimondo and Eric Garris filed this Freedom of Information Act 14 (“FOIA”) and Privacy Act action against Defendant the Federal Bureau of Investigation (“FBI”) in 15 2013. Plaintiffs sought records regarding a 2004 threat assessment the FBI conducted of a 16 website, Antiwar.com, with which the Plaintiffs are affiliated, and related investigations that the 17 FBI conducted of Plaintiffs. Plaintiffs also sought expungement of certain records related to the 18 exercise of their First Amendment rights, and Plaintiff Garris sought expungement of a record that 19 contains inaccurate information. 20 In May 2016, the Court granted the FBI’s motion for summary judgment as to the Privacy 21 Act claims and denied both parties’ motions for summary judgment as to the FOIA claims. (Dkt. 22 No. 90.) The FBI then produced a second Vaughn index as well as certain documents which had 23 either been produced in more redacted form previously or not produced at all. Shortly thereafter, 24 the parties stipulated to dismissal of the FOIA claims. (Dkt. No. 101.) Plaintiffs also filed a 25 motion for reconsideration of the Court’s summary judgment order as to their Privacy Act claims 26 based on recently produced documents. The Court granted the motion in part and denied it in part, 27 allowing Plaintiffs to raise Privacy Act claims with respect to two documents produced in less 28 redacted form following the Court’s summary judgment order. (Dkt. No. 111.) The parties’ 1 cross-motions for summary judgment regarding these documents are now pending before the 2 Court. (Dkt. Nos. 114 & 117.) Having considered the parties’ briefs and having had the benefit of 3 oral argument on January 11, 2018, the Court GRANTS the FBI’s motion for summary judgment 4 and DENIES Plaintiffs’ cross-motion. BACKGROUND 5 6 The Court’s prior summary judgment order summarized the factual record in detail. (Dkt. 7 No. 90.) Because the factual record is largely unchanged, the Court incorporates the recitation of 8 the facts and procedural background from that order by reference and only addresses the 9 developments following the order. As part of the meet and confer process following the first round of summary judgment 10 United States District Court Northern District of California 11 briefing, Plaintiffs identified 34 documents as having been improperly withheld in whole or in part 12 pursuant to certain FOIA exemptions. (Dkt. No. 95.) Thereafter, the FBI produced a second 13 supplemental Vaughn index and reproduced documents with fewer redactions than previously 14 provided, including documents that had previously been withheld in full. (Dkt. No. 102-1.) As 15 relevant here, among these documents were (1) a November 28, 2006 FBI memorandum 16 (“November 2006 Memo”) which includes a reference to an article published on Antiwar.com; 17 and (2) an April 5, 2006 FBI memorandum (“April 2006 Memo”) which lists Antiwar.com as a 18 website that publicly posted details regarding an upcoming Halliburton shareholder meeting. (Dkt. 19 No. 102-1 at 52-57.) The FBI had previously produced a more heavily redacted version of the 20 April 2006 Memo on November 18, 2013 and had listed the November 2006 Memo on its 21 November 12, 2015 Vaughn index as withheld in full pursuant to certain FOIA exemptions. (Dkt. 22 No. 114-3 at ¶ 2; Dkt. No. 71 at 70.1) Upon receipt of these documents, Plaintiffs filed a motion for reconsideration arguing that 23 24 (1) recently produced documents undermined the FBI’s explanation for the threat assessment 25 memorialized in the April 30, 2004 memorandum which had formed the crux of Plaintiff’s Privacy 26 Act claims, and (2) that the November 2006 Memo and the April 2006 Memo gave rise to 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. 2 1 additional Privacy Act claims. (Dkt. No. 102.) The Court rejected the first basis for 2 reconsideration, but concluded that Plaintiffs’ Privacy Act claims were pled sufficiently broad to 3 encompass these two additional documents. (Dkt. No. 111.) The parties were directed to meet 4 and confer regarding a briefing schedule as to these additional documents, which they did, and 5 now those motions are fully briefed. Plaintiffs have withdrawn any claim with respect to the 6 November 2006 Memo; thus only the April 2006 memo is at issue. (Dkt. No. 117 at 7 n.1.) THE APRIL 2006 MEMO 7 The April 2006 Memo provides “[i]nformation regarding annual Halliburton Shareholders’ 8 9 Meeting at Duncan, Oklahoma, May 15-17, 2006.” (Dkt. No. 114-1 at 6.) The memo states that the annual shareholder meeting has been “targeted by multiple organized protest groups.” (Id.) It 11 United States District Court Northern District of California 10 includes a summary of Halliburton’s business and notes that “Dick Cheney served as Halliburton’s 12 Chief Executive Officer prior to becoming Vice President of the United States.” (Id. at 7.) The 13 memo also details the logistics for the meeting including that it will begin with four jets with VIPs 14 arriving at the Duncan Municipal Airport at 4:00 p.m. on Monday, May 15, 2006, and that these 15 individuals will be escorted to the Chisholm Suite Hotel in a Duncan Police Department 16 motorcade. (Id.) It then goes on to review other logistics for the meeting and associated events 17 including locations and number of guests. (Id.) The only reference to Antiwar.com is contained at 18 the end of the memorandum. As reflected in the below excerpt, Antiwar.com is one of 11 19 websites listed which was identified by a third-party as having posted information regarding the 20 shareholders’ meeting: 21 22 23 24 25 26 27 (Id.) 28 3 1 2 DISCUSSION The question before the Court is narrow: whether the FBI has violated Section (e)(7) of the 3 Privacy Act through its maintenance of the April 2006 Memo. The Privacy Act of 1974 4 “safeguards the public from unwarranted collection, maintenance, use and dissemination of 5 personal information contained in agency records . . . by allowing an individual to participate in 6 ensuring that his records are accurate and properly used.” Henke v. U.S. Dep’t of Commerce, 83 7 F.3d 1453, 1456 (D.C. Cir. 1996) (internal citation and quotation marks omitted). “The Act gives 8 agencies detailed instructions for managing their records and provides for various sorts of civil 9 relief to individuals aggrieved by failures on the Government’s part to comply with the 10 United States District Court Northern District of California 11 requirements.” Doe v. Chao, 540 U.S. 614, 618 (2004). Section 552a(e)(7) of the Act provides that a federal agency may not “maintain [any] 12 record describing how any individual exercises rights guaranteed by the First Amendment unless 13 expressly authorized by statute or by the individual about whom the record is maintained or unless 14 pertinent to and within the scope of an authorized law enforcement activity.” 5 U.S.C. § 15 552a(e)(7). “The purpose of the section (e)(7) First Amendment protection is to prevent collection 16 of protected information not immediately needed, about law-abiding Americans, on the off-chance 17 that Government or the particular agency might possibly have to deal with them in the future.” 18 MacPherson v. I.R.S., 803 F.2d 479, 483 (9th Cir. 1986) (quoting S. Rep. 1183, 93d Cong., 2d 19 Sess., reprinted in 1974 U.S. Code Cong. & Admin. News 6916, 6971). The government bears the 20 initial burden of demonstrating that the law enforcement activity exception to the Privacy Act 21 applies. See Afifi v. Lynch, 101 F. Supp. 3d 90, 107 (D.D.C. 2015) (requiring defendants to 22 demonstrate that the records of the plaintiff’s First Amendment activities complied with Section 23 (e)(7) of the Privacy Act); see also Chambers v. U.S. Dep’t of Interior, 568 F.3d 998, 1003 (D.C. 24 Cir. 2009)(noting that the burden is on the government in both FOIA and Privacy Act cases to 25 demonstrate that it acted in accordance with the applicable statute). 26 In MacPherson, the Ninth Circuit recognized that “[t]here are strong policy considerations 27 on both sides of the issue” of whether to allow law enforcement to maintain records of an 28 individual’s First Amendment conduct. 803 F.2d at 483. On the one hand, “[t]he mere 4 1 compilation by the government of records describing the exercise of First Amendment freedoms 2 creates the possibility that those records will be used to the speaker’s detriment, and hence has a 3 chilling effect on such exercise.” Id. at 484 (internal quotation marks and citation omitted). 4 “Blanket allowance of [] incidental surveillance and recording under the guise of general 5 investigation could permit the exception to swallow the rule.” Id. (internal quotation marks 6 omitted). On the other hand, “the legitimate investigation and surveillance of suspected criminals 7 and civil offenders inevitably involves observation and recording of the actions of innocent 8 people, sometimes when those people are exercising their First Amendment rights.” Id. “To 9 forbid ‘incidental’ surveillance of innocent people or to require excision of references to such people in surveillance records would be administratively cumbersome and damaging to the 11 United States District Court Northern District of California 10 completeness and accuracy of the agency records.” Id. Indeed, the very presence of the law 12 enforcement exception “recognizes that some recording of First Amendment activities will take 13 place.” Id. Thus, McPherson concluded, when determining whether the section 552a(e)(7) law 14 enforcement activity exception applies, a court must “consider the factors for and against the 15 maintenance of such records of First Amendment activities on an individual, case-by-case basis.” 16 Id. Plaintiffs contend that the FBI’s maintenance of the April 2006 Memo, and in particular 17 18 the reference to Antiwar.com, violates Section (e)(7) of the Privacy Act. The FBI moves for 19 summary judgment on the grounds that no reasonable trier of fact could find that the memo’s 20 reference to Antiwar.com was not within the scope of authorized law enforcement activity. Or, to 21 put it another way, that every reasonable trier of fact would have to find that that the reference was 22 within the scope of authorized law enforcement activity and therefore the FBI’s maintenance of 23 the memo does not violate the Privacy Act. See Animal Legal Def. Fund v. U.S. Food & Drug 24 Admin., 836 F.3d 987, 989 (9th Cir. 2016) (the usual summary judgment standard applies to FOIA 25 cases). 26 According to the declaration of Agent Bujanda, the Assistant Special Agent in Charge 27 (“ASAC”) for National Security, a field office, such as the Oklahoma Field Office which prepared 28 the April 2006 Memo, is responsible for “maintaining ‘domain awareness’ in its area-of 5 responsibility” which includes “‘strategic understanding of national security and criminal threats 2 and vulnerabilities that exist in the domain.’” (Dkt. No. 114-1 at ¶ 4 (quoting from the FBI 3 Domestic Investigations and Operations Guide, Section 15 (attached at Dkt. No. 114-1 at 12).) 4 “[T]o prepare for events that present potential security concerns in the field office’s geographical 5 [area of responsibility], the FBI and local law enforcement coordinate and advise one another of 6 their advance preparations.” (Id. at ¶ 4.) “The April 2006 EC documents information the FBI 7 received regarding a potential security and public safety concern surrounding an upcoming event 8 in the OC Field Office’s geographic [area of concern] – the annual Haliburton shareholder’s 9 meeting to be held in Duncan, Oklahoma in May 2006—and the steps taken by the FBI and local 10 law enforcement to prepare for that event.” (Id. ¶ 5.) “[P]rior to 2006, FBI agents and local law 11 United States District Court Northern District of California 1 enforcement had observed public safety concerns at Halliburton annual shareholders’ meetings, 12 and that activity at the protests resulted in multiple arrests.” (Id. at ¶ 6.) The April 2006 Memo 13 thus represents the FBI’s collaboration with local law enforcement to prepare for public safety 14 concerns arising out of the annual Halliburton shareholder’s meeting. (Id. at ¶ 7.) Agent Bujanda 15 explains that identifying the websites that had information regarding the proposed protests 16 “conveys the level of public awareness of the event.” (Id. at ¶ 8.) 17 The “ensuring public safety” nature of the memo is further evidenced by the memorandum 18 itself. First, the “synopsis” of the memo is identified as “Information regarding annual 19 Halliburton Shareholders’ Meeting at Duncan, Oklahoma, May 15-17, 2006,” supporting an 20 inference that the memo was prepared regarding the meeting rather than to document First 21 Amendment activities of persons or organizations reporting on the meeting or the planned 22 protests. Second, the “Details” section of the memorandum provides specific details about the 23 meeting itself and related events, including details as to the location, timing and number of 24 expected guests—information relevant to ensuring public safety and not relevant to simply 25 recording or monitoring the First Amendment activities of Antiwar.com. Third, the memo recites 26 only that certain websites provided information regarding the shareholders’ meeting and nothing 27 more; it does not discuss the content of the information or any other information that suggests the 28 memo was not created for a law enforcement purpose. 6 1 Plaintiffs first respond that the Court cannot consider Agent Bujanda’s declaration 2 because (1) he lacks personal knowledge regarding the April 2006 Memo since he was not 3 stationed in Oklahoma City at the time the Memo was prepared, and (2) the statements in the 4 memo are hearsay. 5 The FBI counters that personal knowledge can come from review of the contents of agency 6 files and records and that as the Assistant Special Agent In Charge of the Oklahoma City Field 7 Office Bujanda has knowledge to testify regarding: (1) the Field Office’s responsibilities as they 8 relate to domain awareness, (2) the Field Office’s geographical area of responsibility, (3) threats 9 and vulnerabilities that exist in the Field Office’s area of responsibility, (4) events that raise public safety concerns within the Field Office’s area of responsibility, (5) the Field Office’s efforts to 11 United States District Court Northern District of California 10 ensure that appropriate preparations are in place for such events including the process for 12 memorializing those efforts, and (6) the relevance of the information documented in the April 13 2006 Memo to ongoing and future FBI activity. The FBI emphasizes that in FOIA cases “[a]n 14 affidavit from an agency employee responsible for supervising a FOIA search is all that is needed 15 to satisfy the personal knowledge requirement of Federal Rule of Civil Procedure 56(e).” Lahr v. 16 National Transp. Safety Bd., 569 F.3d 964, 989 (9th Cir. 2009). Thus, courts routinely deny 17 hearsay and lack of personal knowledge objections in FOIA cases based on agency affidavits 18 similar to those submitted here. See, e.g., Our Children’s Earth Found. v. Nat’l Marine Fisheries 19 Serv., No. 14-1130 SC, 2015 WL 6331268, at *2 (N.D. Cal. Oct. 21, 2015) (overruling hearsay 20 and personal knowledge objections with respect to a declaration submitted by the agency’s San 21 Francisco Branch Chief); Hersh & Hersh v. U.S. Dep’t of Health & Human Servs., No. C 06- 22 4234, 2008 WL 901539, at *4 (N.D. Cal. Mar. 31, 2008) (same with respect to a declaration 23 submitted by the Health and Human Services FOIA officer). Indeed, this Court overruled similar 24 objections from Plaintiffs with regards to the prior motions for summary judgment on the FOIA 25 and Privacy Act claims. 26 While there is some similarity between FOIA and Privacy Act claims, the purpose of the 27 declaration in a Privacy Act action is different. In a Privacy Act action such as this the declaration 28 is relied upon to establish the purpose for the historical document and not just the methodology of 7 1 a recent search for documents. Under these circumstances, Plaintiffs’ lack of personal knowledge 2 and hearsay objections to the declaration cannot simply be denied out of hand. Federal Rule of Civil Procedure 56(e) requires that affidavits “shall be made on personal 3 knowledge, shall set forth such facts as would be admissible in evidence, and shall show 5 affirmatively that the affiant is competent to testify to the matters stated therein.” Fed. R. Civ. P. 6 56(e). Here, Agent Bujanda attests that his knowledge is based on his “experience, review of 7 information provided to me in the course of my official duties, including the April 2006 EC, and 8 my personal knowledge.” (Dkt. No. 114-1 at ¶ 3.) Plaintiffs insist that this is insufficient to 9 establish personal knowledge regarding why the April 2006 Memo was created or the underlying 10 activities relying on Block v. City of Los Angeles, 253 F.3d 410, 419 (9th Cir. 2001), a Fair Labor 11 United States District Court Northern District of California 4 Standards Act case, which rejected a declaration regarding disciplinary suspensions when the 12 supervisor affiant lacked an personal involvement in the suspensions. The Court disagrees. Unlike in Block, Agent Bujada’s position as the ASAC of the 13 14 Oklahoma City Field Office provides him with institutional knowledge regarding the 15 responsibilities and investigatory activities of the field office. In particular, he has personal 16 knowledge to testify regarding the fact that “to prepare for events that present potential security 17 concerns in the field office’s [geographic area of responsibility], the FBI and local law 18 enforcement coordinate and advise one another of their advance preparations.” (Dkt. No. 1114-1 19 at ¶ 4.) Rule 602 states that “[a] witness may testify to a matter only if evidence is introduced 20 sufficient to support a finding that the witness has personal knowledge of the matter.” Fed. R. 21 Evid. 602; see also Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999, 1018 (9th Cir. 1990) 22 (concluding that the affiants’ “personal knowledge and competence to testify are reasonably 23 inferred from their positions and the nature of their participation in the matters to which they 24 swore”).2 Given his position at the Oklahoma City Field Office, Agent Bujanda has adequate 25 2 26 27 28 Plaintiffs’ reliance on Londrigan v. Fed. Bureau of Investigation, 670 F.2d 1164, 1174 (D.C. Cir. 1981), is equally unavailing. The court there noted that the agent would have been competent to testify, as relevant here, about “the agency’s procedures with respect to investigations during his own tenure therewith and earlier practices of which he possesses personal knowledge; and his personal experiences as an agent to the extent that they bore relevance to the case.” Id. at 1174. So too here—Agent Bujanda has personal knowledge to talk about the Oklahoma City Field 8 1 personal knowledge to testify regarding why a memo such as the April 2006 Memo would have 2 been prepared. However, to the extent that the declaration references statements made by FBI agents 3 4 regarding prior protests and arrests made at prior protests, these statements are hearsay. See Fed. 5 R. Evd. 801(c). Hearsay is inadmissible unless a federal statute, the Rules of Civil Procedure, or 6 other rules prescribed by the Supreme Court provide otherwise. See Fed. R. Evd. 802. However, 7 “at summary judgment a district court may consider hearsay evidence submitted in an 8 inadmissible form, so long as the underlying evidence could be provided in an admissible form at 9 trial, such as by live testimony.” JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016). Thus, even if the statement in the declaration that Agent Bujanda was 11 United States District Court Northern District of California 10 “informed” about public safety concerns at prior Halliburton shareholder meetings and that arrests 12 were made at protests surrounding the meetings is hearsay, the FBI could offer the facts 13 underlying the declaration in an admissible form at trial, for instance, through direct testimony of 14 one of the FBI agents involved in the prior protests. At oral argument, the FBI affirmed that they 15 would be able to offer such testimony at trial. Accordingly, the Court overrules Plaintiffs’ hearsay 16 objection to the Bujanda declaration as well. Next, Plaintiffs concede that the April 2006 Memo reflects law enforcement activity, but 17 18 nonetheless insist that the FBI was not authorized to identify and record the websites that 19 referenced the Halliburton meeting.3 Plaintiffs argue that to find otherwise would suggest that the 20 FBI has a “blank check to take any measures to prepare for events where protest activity it 21 22 23 24 25 26 27 28 Office’s practices and procedures. Likewise, the affiant in Bright v. Ashcroft, 259 F. Supp. 2d 494, 497 (E.D. La. 2003), was an attorney from the Freedom of Information–Privacy Acts Section, Records Management Division at FBI Headquarters who lacked personal knowledge to properly invoke certain FOIA exemptions because he had no involvement in the underlying FBI murder investigation or knowledge of any arrangements made with a confidential source. 3 At oral argument, Plaintiffs insisted that even though the memo reflects law enforcement activity, the FBI was nonetheless required to state in the memo what the law enforcement purpose was, i.e., ensuring public safety around the Halliburton shareholder meeting. Plaintiffs could point to no authority for this remarkable proposition because there is none to be found. The Privacy Act describes what the government can document with respect to an individual’s exercise of his or her First Amendment rights, but it does not proscribe that the government must identify in writing the law enforcement purpose behind every document it prepares. 9 1 anticipated and to ensure the safety of the public at those events.” (Dkt. No. 119 at 11:15-17 2 (emphasis in original).) Not so. While there are certainly circumstances under which the FBI 3 might overreach the necessary scope of its responsibility to ensure public safety, Plaintiffs have 4 not shown that the bare recording of the name of websites which have included information 5 regarding the Halliburton shareholder meeting was not a lawful law enforcement activity. 6 Notably, Plaintiffs have not argued that the FBI conducted any surveillance of Antiwar.com or any 7 of the other websites listed or any individuals associated with those websites. At oral argument, 8 Plaintiffs suggested that the Privacy Act claim would not have arisen had the FBI done just that 9 and documented what Antiwar.com and the other websites said; that is, that the FBI could have avoided running afoul of the Privacy Act if it had described what Antiwar.com said about the 11 United States District Court Northern District of California 10 shareholder meeting rather than merely listing Antiwar.com as a website that said something about 12 the shareholder meeting. The Court is not persuaded. 13 Here, the FBI, as part of its collaboration with local law enforcement, assessed any public 14 safety issues associated with the Halliburton’s annual shareholder meeting in light of activity that 15 had occurred at prior meetings and in that process talked to a third-party who identified 16 Antiwar.com as one of many websites that included information regarding the meeting. 17 Information as to how broadly information regarding the meeting was shared, and how it was 18 shared, is relevant to determining what law enforcement might expect to occur at the meeting and 19 how it should prepare in advance. Indeed, it defies logic to expect law enforcement to prepare to 20 protect public safety without obtaining information that allows them to anticipate what might 21 happen. But there is no evidence that the FBI surveilled Antiwar.com or anyone else in connection 22 with the preparation of the memo. The FBI’s investigation as documented in the April 2006 23 Memo falls squarely within the authorized law enforcement activity exception to (e)(7). No other 24 inference is reasonable from the record. 25 Plaintiffs’ insistence that the law enforcement activity documented in the April 2006 26 Memo was not “authorized” is likewise unavailing. Plaintiffs rely on language from the FBI’s 27 Domestic Investigation and Operations Guide which notes that all investigative activity must be 28 for an authorized national security, criminal or foreign intelligence collection purpose, and may 10 not be based solely on the exercise of First Amendment activities. (Dkt. No. 117-3 at 11, 18.) But 2 the manual also states that the law does not preclude the FBI from observing and collecting any 3 forms of protected speech and considering its content so long as those activities are for valid law 4 enforcement or national security purposes “such as providing assistance to other agencies.” (Id. at 5 18.) The memo here was prepared as part of the FBI’s collaboration with local law enforcement. 6 The Court is not in a position to parse the way in which the FBI collaborated with local law 7 enforcement and conducted its assessment of the public safety risks involved. Just as the Court 8 noted in its prior order rejecting Plaintiff’s Privacy Act claims, “if the investigation itself is 9 pertinent to an authorized law enforcement activity, the Privacy Act does not regulate what can be 10 done in the course of that investigation or how that authorized investigation may be documented.” 11 United States District Court Northern District of California 1 (Dkt. No. 90 at 23:16-19.) 12 Indeed, “the legitimate investigation and surveillance of suspected criminals and civil 13 offenders inevitably involves observation and recording of the actions of innocent people, 14 sometimes when those people are exercising their First Amendment rights.” MacPherson, 803 15 F.2d at 484 (internal citation and quotation marks omitted). “Blanket prohibition of such 16 surveillance and recording unless the agency was investigating a specific offense or a specific 17 person could thwart agency investigations and seriously undermine agency enforcement 18 operations.” Id. Plaintiffs have not identified any evidence that supports a reasonable inference 19 that the April 2006 Memo represents anything more than the type of “incidental surveillance” 20 which the Ninth Circuit has held is authorized because to hold otherwise “could thwart agency 21 investigations and seriously undermine agency enforcement operations.” Id. 22 On the record before the Court every reasonable trier of fact would have to find that the 23 April 2006 Memo, including its mention of Antiwar.com, was prepared for a law enforcement 24 purpose. Plaintiffs’ motion for summary judgment on their remaining 552(7) claim is DENIED 25 and Defendant’s cross-motion is GRANTED. CONCLUSION 26 27 28 For the reasons discussed above, the FBI’s motion for summary judgment is GRANTED and Plaintiffs’ cross-motion is DENIED. 11 1 This Order disposes of Docket No. 114. 2 IT IS SO ORDERED. 3 Dated: January 12, 2018 4 5 JACQUELINE SCOTT CORLEY United States Magistrate Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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