CANNING v. U.S. DEPARTMENT OF JUSTICE
Filing
76
MEMORANDUM OPINION to the Motion for Summary Judgment and Cross-Motion for Partial Summary Judgment. Signed by Judge Gladys Kessler on 6/5/17. (CL)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GEORGE CANNING,
Civil Action No. 11-1295{GK)
Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION
Pro Se Plaintiff George Canning
action against Defendant,
("Plaintiff"),
brings this
Federal Bureau of Investigation ("FBI"
or "Defendant"), under the Freedom of Information Act ("FOIA"), 5
U.S.C.
§
552. This matter is now before the Court on Defendant's
Motion for Summary Judgment
Plaintiff's
Cross-Motion
for
("Def.'s Mot.")
Partial
[Dkt. No.
Summary
30-1]
Judgment
and
("Pl.' s
Mot. " ) [Dkt. No. 4 6] .
Upon consideration of the Motions, Oppositions, Replies, the
entire
record
herein,
and
for
the
reasons
discussed
below,
Defendant's Motion for Summary Judgment is granted in part and
denied in part and Plaintiff's Cross-Motion for Partial Summary
Judgment is granted in part and denied in part.
-1-
I .
BACKGROUND
A. September 29,
2007 FOIA Requests
On September 29,
2007,
Plaintiff submitted a FOIA request to
the FBI Washington Field Office ("WFO"). He sought twelve serial
numbers
and
"any
other
serials
containing
references
to
or
information about Paul Goldstein, Lyndon H. LaRouche Jr., and/or
Jeffrey Steinberg" for items on a copy of a r~dacted FBI airtel
that Plaintiff enclosed with his request. 1 Am. Compl., Ex. D. Mr.
Canning attached privacy waivers from Mr. Goldstein, Mr. LaRouche,
and Mr. Steinberg to his request.
The same day, Mr. Canning submitted a separate FOIA request to
FBI
headquarters
( "FBI HQ" )
requested from the WFO,
prior
to
an
seeking:
( 1)
the same material he
(2) two documents declassified by the FBI
Interagency Security Classification Appeals
Panel
( "ISCAP") review, and (3) any information regarding Mr." Goldstein,
Mr. LaRouche, and Mr. Steinberg in airtel WMFO 196B-1918-364. Id.,
Ex. A. Defendant claims it has no record of receiving the FBI HQ
request. Second Hardy Deel.
B. July 18,
~
9 [Dkt. No. 30-3].
2 009 FOIA Request
On July 18, 2009, Mr. Canning submitted a FOIA request to the
FBI HQ seeking documents declassified by ISCAP for three specific
1
In 2011, Defendant located an unredacted copy of the FBI airtel
referenced in Plaintiff's request and used this version to locate
responsive material. Second Hardy Deel. ~ 27.
-2-
ISCAP appeals involving Plaintiff and Mr. Steinberg. Am. Compl.,
Ex. K. On December 22,
2009,
Mr. Canning amended his request to
seek an additional document related to a declassification review
appeal filed by Mr. Steinberg. Id., Ex. P. Although the Government
claims it had no prior record of Plaintiff's July 18, .2009 request,
upon receiving Plaintiff's amendment,
it opened a FOIA case and
released responsive material. Third Hardy Deel.
~
10.
C. December 31, 2009 FOIA Request
On December 31,
2009,
Mr. Canning submitted a FOIA request to
FBI HQ seeking information about suspected government surveillance
of Mr. LaRouche's presidential campaign. Am. Compl., Ex. R. Again,
the Government claims it had no official record of Plaintiff's
request. See Third Hardy Deel.
~
5. Nonetheless, it referenced the
FOIA request appended to Plaintiff's Amended Complaint to search
for and process responsive records related to the request. Id. ~
6.
D. Procedural History
Plaintiff
Government
instituted
filed
December 21,
2012.
its
this
pending
On May 9,
action
on
Motion
for
2013,
Motion for Partial Summary Judgment.
action,
July
19,
Summary
2011.
Judgment
The
on
Plaintiff filed his CrossDuring the course of this
the Court denied multiple Motions by Plaintiff to obtain
-3-
discovery. The Parties' Cross-Motions for Summary Judgment are now
fully briefed and ripe for review.
II.
STANDARD OF REVIEW
FOIA cases are typically and appropriately decided on motions
for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of
Governors of Fed. Reserve Sys.,
762 F. Supp. 2d 123, 130 (D.D.C.
2011); Defenders of Wildlife v. U.S. Border Patrol,
623 F. Supp.
2d 83, 87 (D.D.C. 2009). "The standard governing a grant of summary
judgment in favor of an agency's claim that it has fully discharged
its
disclosure
obligations
under
FOIA
is
well-established ....
[T]he agency bears the burden of showing that there is no genuine
issue of material fact, even when the underlying facts are viewed
in the light most favorable to the requester." Weisberg v. U.S.
Dep't of Justice,
705 F.2d 1344, 1350
(D.C. Cir. 1983); see also
Fed. R. Civ. P. 56(c).
The court may award summary judgment solely on the basis of
"[a] reasonably detailed affidavit, setting forth the search terms
and the
type of
search performed,
and averring that all
likely to contain responsive materials
files.
(if such records exist)
were searched." Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68
(D.C. Cir. 1990).
If the agency withholds any material on the basis of statutory
exemptions,
the agency's affidavits must also
-4-
(1)
"describe the
documents and the justifications for nondisclosure with reasonably
specific
detail;"
and
(2)
"demonstrate
that
the
information
withheld logically falls within the claimed exemption;" and must
not be (3) "controverted by either contrary evidence in the record
nor by evidence of agency bad faith." Military Audit Project v.
Casey,
656 F.2d 724,
declarations
cannot
be
existence
Servs.,
(D.C.
are accorded
rebutted
and
Inc.
738
by
'purely
S.E.C.,
1981).
Such affidavits or
"a presumption of good faith,
discoverability
v.
Cir.
926
(quoting Ground Saucer Watch,
speculative
of
other
F.2d 1197,
claims
about
documents.'"
1200
Inc. v. C.I.A.,
(D.C.
which
the
SafeCard
Cir.
1991)
692 F.2d 770,
771
(D.C. Cir. 1981)).
III. ANALYSIS
In
response
to
Plaintiff's
four
FOIA
withheld material under FOIA Exemptions 1,
requests,
3,
7(C),
Defendant
7(D), and 7
(E). Plaintiff objects to the sufficiency of Defendant's search,
contests a number of the asserted FOIA Exemptions, and argues that
certain information should be disclosed because it exists in the
public domain. The Court will address each issue in turn.
A. Sufficiency of the Search Conducted by the FBI
The
purpose
of
FOIA
is
to
"facilitate
public
access
to
Government documents" and "to pierce the veil of secrecy and to
open agency action to the light of public scrutiny." Mccutchen v.
-5-
U.S. Dep't of Health & Human Servs., 30 F.3d 183, 184 (D.C. Cir.
1994)
(internal
quotations
omitted).
In
responding
to
a
FOIA
request, an agency is under an obligation to conduct a reasonable
search for responsive records.
Oglesby,
summary judgment on the adequacy of a
920 F.2d at 68.
search,
To win
the agency must
demonstrate beyond material doubt that its search was "reasonably
calculated to uncover all relevant documents." Weisberg, 705 F.2d
at 1351. An agency may demonstrate the reasonableness of its search
by submitting "[a]
reasonably detailed affidavit." Oglesby,
920
F.2d at 68.
The Court "applies a
'reasonableness' test to determine the
'adequacy' of a search methodology, consistent with congressional
intent tilting the scale in favor of disclosure." Morley v. C.I.A.,
508 F.3d 1108, 1114 (D.C. Cir. 2007)
(internal quotation marks and
citation omitted) .
summary judgment motion,
To prevail in a
an
agency is not required to search every system possible, but must
show that it made a good faith effort that would be reasonably
expected to produce all the requested information. See Steinberg
v.
U.S.
Summary
Dep't of Justice,
judgment
for
an
23
F.3d 548,
agency
is
551
(D.C.
inappropriate
Cir.
only
1994).
if
the
agency's responses "raise serious doubts as to the completeness of
the search or are for some other reason unsatisfactory .... " Perry
v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982).
-6-
In
this
Plaintiff's
case,
FOIA
the
Court
requests,
concludes
the
FBI's
that,
search
as
to
was
each
of
reasonably
calculated to uncover the relevant documents. Three declarations
submitted
by
David
Record/Information
M.
Hardy,
Dissemination
Management Division of the FBI,
Defendant's
the
search
for
Section
Section
describe,
documents
Chief
("RIDS")
of
the
Records
I
in extensive detail,
responsive
to
Plaintiff's
requests. See Second Hardy Deel.; Third Hardy Deel.; Fourth Hardy
Deel.
[Dkt. No. 64-1].
With
regard
to
the
Washington Field Office,
September
29,
the Government
2007
request
to
the
initially located and
processed the files visible on the partially redacted airtel that
Plaintiff attached to his request. Second Hardy Deel.
~
43. The
Government supplemented its processing efforts with search terms
targeted to retrieve responsive information.
redacted
serial
numbers
that
Plaintiff
Id.
Concerning the
requested,
Defendant
searched for and found an unredacted version of the airtel,
processed the clean version for release,
and then located the
specific files that Plaintiff requested. Id.
also
deployed targeted
search
terms
to
~
44. The Government
search
its
electronic
surveillance ("ELSUR") indices for responsive material. 2 Id.
2
re-
~
47.
Defendant's ELSUR search terms included: "Executive Intelligence
Review," "EIR," "Foreign Police Cooperation," "Goldstein, Paul Neil,"
"LaRouche, Lyndon Hermyle," "Steinberg, Jeffrey," and the date of
-7-
The
Government
adopted a
similar approach with regard
to
Plaintiff's July 18, 2009 and December 31, 2009 requests. Although
Mr. Canning had originally requested a blacked-out file in the FBI
search slip that he attached to his December 31, 2009 request, the
Government located an unredacted version in its files and processed
the corresponding serial numbers for release. Third Hardy Deel. ~
28. Defendant also conducted ELSUR searches using targeted search
parameters.
By
coordinating
Committee liaison,
with
its
RIDS
Department
Review
the Government was able to locate all of the
material requested by Plaintiff in his July 18, 2009 request. Id.
~
30.
The Court finds
that the Government's efforts as to these
FOIA requests were reasonably calculated to uncover all relevant
documents and· therefore adequate.
Interior,
568
F.3d
998,
1005-06
See Chambers v. U.S. Dep't of
(D.C.
Cir.
2009).
The
Hardy
declarations identify, with reasonable specificity, the "system of
records
searched and the . geographic
location of
those
files."
Perry, 684 F.2d at 127. See Weisberg v. U.S. Dep't of Justice, 627
F.2d 365, 370 (D.C. Cir. 1980)
(agency affidavit must denote which
files were searched and reflect a systematic approach to document
birth and social security number for the targeted individuals. Second
Hardy Deel. ~ 47.
-8-
location
in
order
to
enable
the
appellant
to
challenge
the
procedures utilized) .
Mr. Canning does not appear to dispute that the above measures
were adequate to locate records responsive to his September 29,
2007
request
to
the Washington Field Office and his
two
2009
requests. Instead, Plaintiff principally challenges the fact that
Defendant did not conduct an independent search of the FBI HQ's
files in response to his September 29, 2007 request to the FBI HQ.
Pl. 's
Mot.
ignored
at
this
6.
According
request,
to
Plaintiff,
disregarding
Defendant
Plaintiff's
blatantly
concern
that
documents located in the FBI HQ might materially differ from the
records stored in the Field Office.
Id.
at 8.
In response,
the
Government asserts that since Field Office files are copied to the
FBI HQ, an independent search of the FBI HQ for the same materials
would have been needlessly redundant. Def.'s Reply at 4 [Dkt. No.
64] .
The Court agrees with the Government. It provided a reasonably
detailed affidavit
Office,
and why a
documents
would be
clarifying
why
it
only
searched
its
Field
search of the FBI Headquarters for the same
redundant
and not
likely to
location of additional responsive records.
result
in the
In the affidavit,
the
Government clearly explained the process in which each Field Off ice
copied the contents of its files to the corresponding HQ division.
-9-
~
Second Hardy Deel.
46. Unsatisfied, Mr. Canning claims that some
of the HQ documents may not be "in fact identical" because they
might "include[] handwritten notations and ink-stamps" that could
reveal
additional
original).
information.
Plaintiff's
Pl.' s
purely
Reply
speculative
at
2
(emphasis
claims
about
in
the
existence and discoverability of other documents do not overcome
the
of
~resumption
good
faith
afforded
to
declarations. See Leopold v. Nat'l Sec. Agency,
302,
308
(D.D.C.
2015)
the
agency's
118 F. Supp. 3d
(deferring to agency's declaration that
explained why a search of an additional government office would be
redundant) .
Nonetheless, Mr. Canning correctly points out that his FBI HQ
request is not identical to the Field Office request. The FBI HQ
request contains two elements absent from the Field Office request:
(1) specific documents declassified by the FBI prior to the ISCAP
review,
and
( 2)
any
information
regarding
Mr.
Goldstein,
Mr.
LaRouche, and Mr. Steinberg in airtel WMFO 196B-1918-364. See Am.
Compl, Exs. A, D.
Despite
request,
initially having no record of
Defendant
searched
released responsive material
for
the
Plaintiff's
requested
in response
FBI HQ
information and
to Plaintiff's Cross-
Motion for Summary Judgment. Fourth Hardy Deel.
~
12.
Defendant
not only released an unredacted copy of airtel WMFO 196B-1918-364
-10-
but also searched for the specific documents declassified by the
FBI prior to the ISCAP review, as requested by Mr. Canning. Second
Hardy Deel.
~
16 n.7; Fourth Hardy Deel.
~
12.
Defendant initiated
a manual search of available files, searched FOIA files indexed to
Plaintiff, and ran targeted key word searches across its internal
database using the applicable ISCAP serial number.
Fourth Hardy
Deel. ~ 12. Plaintiff, however, argues that Defendant should have
used additional search terms,
including the FBI reference number
and the DOJ Office of Information and Privacy's reference number.
Pl.'s Reply at 3 [Dkt. No. 65].
Plaintiff's argument is not convincing.
cannot dictate
the
search terms
Bigwood v. U.S. Dep't of Def.,
2015). Where,
as here,
"A FOIA petitioner
for his or her FOIA request.
132 F.
Supp.
3d 124,
140
/1
(D.D.C.
the agency's search terms are reasonable,
"the Court will not second guess the agency regarding whether other
search terms might have been superior.
/1
Liberation Newspaper v.
U.S. Dep't of State, 80 F. Supp. 3d 137, 146 (D.D.C. 2015).
Significantly,
Mr.
Canning does not explain why the search
terms he proposes are more likely to uncover responsive information
than the search terms
documents
related
to
the Government used.
an
ISCAP
review
and
Plaintiff requested
a
search
using
corresponding ISCAP serial number, which the Government used,
a
logical
way
to
target
that
-11-
information.
The
Court
the
is
finds
Defendant's search methods to be reasonable and, absent a showing
of bad faith,
the Court will not second guess Defendant's search
process.
Because
the
Court
finds
that
Defendant
has
adequately
explained its search protocols in multiple declarations that are
entitled to a presumption of good faith,
and that the protocols
used were reasonable, Defendant's motion for summary judgment on
this issue is granted.
B. Claimed Exemptions
Plaintiff
objects
to
Defendant's
withholding
of
certain
information based on various statutory exemptions. FOIA "requires
agencies to comply with requests to make their records available
to the public,
unless the requested records fall within one or
more of nine categories of exempt material." Oglesby v. U.S. Dep't
of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996)
§
552(a),
a
FOIA exemption bears
(citing 5 U.S.C.
(b)). An agency that withholds information pursuant to
the burden of
justifying its decision,
Petroleum Info. Corp. v. U.S. Dep't of the Interior, 976 F.2d 1429,
1433
(D.C. Cir. 1992)
(citing 5 U.S.C.
§
552 (a) (4) (B)), and must
submit an index of all materials withheld. Vaughn v. Rosen,
484
F.2d 820,
977
(1974).
827-28
(D.C.
Cir.
1973),
cert.
denied,
415 U.S.
In determining whether an agency has properly withheld
requested documents under a
FOIA exemption,
-12-
the district court
conducts a de novo review of the agency's decision.
5 U.S. C.
§
552(a) (4) (B).
As with claims of inadequacy of the search,
the court may
award summary judgment as to withheld records solely on the basis
of information provided in affidavits or declarations when they
( 1)
"describe
the
documents
and
justifications
the
nondisclosure with reasonably specific detail;"
(2)
for
"demonstrate
that the information withheld logically falls within the claimed
exemption;"
evidence
and
in the
(3)
"are
not
controverted by
record nor by evidence of
Military Audit Project,
656
F.2d at
738.
either
contrary
agency bad faith. "
As noted above,
such
affidavits or declarations are accorded "a presumption of good
faith, which cannot be rebutted by 'purely speculative claims about
the existence and discoverability of other documents.'" SafeCard
Servs., 926 F.2d at 1200 (quoting Ground Saucer Watch, 692 F.2d at
771).
1.
Exemption 1
FOIA Exemption 1 precludes disclosure of documents that are
"(A)
specifically authorized under
criteria
Exe cu ti ve order to be kept secret in the
established by an
interest of national
defense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order." 5 U.S.C.
-13-
§
552(b) (1).
As with all of FOIA's exemptions,
the burden of proof lies
with the Government to show proper application of Exemption 1. 5
U.S.C.
§
552(a) (4) (B). It is undisputed that the requirements for
classifying information relevant to Mr.
Canning's requests are
contained in Executive Order 13526 which went into full effect in
June 2010. Executive Order 13526 provides that information may be
classified if:
(1)
an
original
classification
classifying the information;
authority
is
( 2) the information is owned by, produced by or
for, or is under the control of the United States
Government;
(3) the information falls within one or more of the
categories of information listed in section 1.4 of
this order; and
(4)
the
original
classification
authority
determines that the unauthorized disclosure of the
information reasonably could be expected to result
in damage to the national security, which includes
defense against transnational terrorism, and the
original classification authority is able to
identify or describe the damage.
Exec. Order No. 13526, 75 FR 707, 707 (Dec. 29, 2009).
In this case,
the Government has asserted Exemption 1 over
certain classified material,
including the identities of covert
CIA employees and the location of covert CIA field installations.
See
Def. 's
Mot.
at
7,
32.
Mr.
Canning
challenge on a claim that Defendant
rests
continu~s
his
Exemption 1
to assert Exemption
1 over material that has been previously declassified by ISCAP.
-14-
Pl.'s Mot. at 12. He identifies a specific document, a memorandum
authored by Allen Mccreight,
to demonstrate that Defendant made
Exemption 1 withholdings over portions of the document despite
ISCAP's declassification. Id. at 23.
Al though Mr. Canning may be correct that the Government cannot
withhold dee lass if ied information under Exemption 1,
the Court
need not examine this issue further because in its Reply Motion,
it agreed to release the portions of the Mccreight memorandum that
were declassified by ISCAP.
See Def.' s
Reply at 23.
With this
disclosure, the Government further declared that it reviewed the
material and released all of the declassified information unless
another
exemption
applies,
see
Fourth
Hardy
Deel.
~
25,
an
assertion that is entitled to a presumption of good faith. Negley
v. F.B.I., 169 Fed. Appx. 591, 594 (D.C. Cir. 2006). In the absence
of a
showing of bad faith,
the Court will defer to Defendant's
declaration. See Ctr. for Auto Safety v. E.P.A.,
(D.C. Cir. 1984)
731 F.2d 16, 23
("This Circuit has repeatedly held that 'when the
agency meets its burden [under the FOIA] by means of affidavits,
in camera review is neither necessary nor appropriate").
Plaintiff also objects to the adequacy of the FBI's and
CIA's declassification reviews. Pl.'s Mot. at 24. He points to
Defendant's supporting affidavits, noting that they do not
specifically state:
(1) that Defendant weighed the public
-15-
interest in disclosure against the national security interest;
or (2) that Defendant submitted the classified intelligence
source or method information to the Director of National
Intelligence for declassification review. Id. at 25-26.
Plaintiff therefore "infers [these steps] were not performed."
Id.
Plaintiff's argument is unpersuasive for two reasons. First,
Executive Order 13526 expressly indicates that the determination
of whether the "exceptional case" exists in which "the need to
protect
[classified]
information may be outweighed by the public
interest in disclosure"
is a matter of agency discretion. Exec.
Order 13526 §3.l(d).
Second, Executive Order 13526 does not require Defendant to
submit
intelligence
information
to
the
Director
of
National
Intelligence for declassification review as a matter of course.
Instead, the Order merely states that the Director may declassify
information upon consultation with the relevant department.
Exec.
Order No.
13526
§3 .1 (c) .
Indeed,
Mr.
Canning appears
See
to
concede this point. See Pl.'s Mot. at 31 ("[F]rom ... the word 'may'
in the EO 13526 text, the DNI has discretion not to exercise his
§3.l(C) authority - i.e. it is not a reviewable decision"). Finding
that the withheld information was classified in accordance with
the applicable procedural and administrative requirements of Exec.
-16-
Order 13526, the Court concludes that Defendant properly withheld
the challenged classified material under Exemption 1.
While processing Plaintiff's FOIA requests,
identified
agencies
documents
and,
that
pursuant
to
originated
28
C.F.R.
with
§
the Government
other
16.4,
government
referred
those
documents to the appropriate agency for consultation. Def.'s Mot.
at 16.
The CIA and U.S.
Army Intelligence and Security Command
have also withheld classified material containing
("USAINSCOM")
the identities of covert CIA employees, the location of covert CIA
field installations, and other intelligence activities,
and methods under Exemption 1.
Id.
at 16-17,
22.
sources,
The CIA and
USAINCOM declare, with reasonable specificity, that the disclosure
of
such classified information would damage national
Dorris Deel.
30-14).
Mr.
statements
~~
6-8 (Dkt. No. 30-13); Lutz Deel.
Canning
or
does
identify
not
refute
contradictory
the
~~
CIA's
evidence
security.
7-18 (Dkt. No.
or
in
USAINCOM's
the
record.
Accordingly, the Court will defer to the detailed affidavits which
indicate
that
the
withheld
information
comports
with
the
substantive and procedural requirements of Exec. Order 13526. Id.
2.
Exemption 3
The Government contends that the CIA and the State Department
properly withheld information pursuant to Exemption 3. Def.'s Mot.
at 17-19. FOIA Exemption 3 covers records which are "specifically
-17-
exempted from disclosure by statute . . . provided that such statute
[requires withholding] in such a manner as to leave no discretion
on the issue, or ... establishes
~articular
criteria for withholding
or refers to particular types of matters to be withheld." 5 U.S.C.
§
552 (b) (3);
Justice,
see also Senate of
823 F. 2d 574,
582
Puerto Rico v.
(D. C.
Cir.
U.S.
Dep't of
1987) . To satisfy FOIA' s
requirements, Defendant "need only show that the statute claimed
is one of exemption as contemplated by Exemption 3 and that the
withheld material falls within the statute." Fitzgibbon v. C.I.A.,
911 F.2d 755, 761-62 (D.C. Cir. 1990).
The CIA relies on two statutes - Section 102(A) (i) (1) of the
National
Security Act
of
1947
("NSA"),
50
U.S.C.
§
403-1,
as
amended, and Section 6 of the Central Intelligence Agency Act of
1949 ("CIA Act"), 50 U.S.C.
§
403(g), as amended - to justify non-
disclosure of the withheld material.
According to the CIA,
the
release of the withheld material would reveal the identities of
covert CIA employees and the existence and location of covert CIA
field installations. Lutz Deel.
~
20. The State Department points
to Section 222(f) of the Immigration and Nationality Act
to
withhold
an
agency
telegram dated
September
5,
1985
("INA")
which
pertains to the issuance of visas for three Soviet diplomats on a
temporary duty assignment at the Soviet Embassy in Washington,
D.C. Walter Deel.
~~
5-6 [Dkt. No. 30-11]
-18-
As a threshold matter,
Plaintiff does not dispute that the
NSA, CIA Act and INA qualify as exemption statutes. Nor could he,
considering the well-settled case law to the contrary. See, e.g.,
Fitzgibbon, 911 F.2d at 761 ("There is thus no doubt that section
403 (d) (3)
[now NSA section 403-1 (i) (1)]
statute under exemption 3.
11
)
;
Nat' l
C.I.A., 402 F. Supp. 2d 211, 220
is
a
proper exemption
Sec. Archive Fund,
(D.D.C. 2005)
Inc.
v.
(recognizing that
section 6 of the CIA Act exempts certain material from disclosure);
Medina-Hincapie v. U.S. Dep't of State,
Cir.
·I
I
'
1983)
700 F.2d 737,
(concluding that INA section 222 (f)
741
(D.C.
qualifies as an
exemption statute) .
The CIA and State Department have adequately demonstrated
that the withheld material falls within the exemption statutes.
Section
102 (A) (i) (1)
information
U.S.C.
§
relating
of
the
NSA
permits
to
"intelligent
the
sources
CIA
withhold
and methods,"
50
403-l(i) (1), and Section 6 of the CIA Act protects against
the disclosure of the identities of CIA employees.
403(g).
to
The CIA,
in its declaration,
503 U.S.C.
§
explains that the withheld
material contains the identities of covert CIA employees and the
existence and location of covert CIA field installations.
Deel.
~
Lutz
20. Similarly, Section 222(f) of the INA protects agency
records "pertaining to the issuance or refusal of visas," 8 U.S.C.
§
1202 (f),
and
the
material
withheld by
-19-
the
State
Department
concerns visa issuances for three foreign nationals. Walter Deel.
~
8.
Plaintiff
does
not
challenge
the
agencies'
analysis
or
conclusion. Accordingly, the Court concludes that the CIA and State
Department properly withheld this material under Exemption 3.
3.
Exemption 7{C)
FOIA Exemption 7 (C)
enforcement
purposes
protects
to
the
information compiled for
extent
that
disclosure
law
"could
reasonably be expected to constitute an unwarranted invasion of
personal privacy." 5 U.S.C.
§
552(b) (7) (C). In determining whether
Exemption 7(C) applies, the Court must balance the public interest
in disclosure with the privacy interests implicated by the release
of the material. Computer Prof'ls for Soc. Responsibility v. U.S.
Secret
Serv.,
witnesses,
72
F.3d
897,
904
(D.C.
Cir.
1996).
Suspects,
investigators, and third parties all have substantial
privacy interests that are implicated by the public release of law
enforcement investigative materials.
Justice,
968 F.2d 1276,
1281
(D.C.
Id.; Davis v. U.S. Dep't of
Cir.
1992). Courts recognize
that the disclosure of such material may lead to embarrassment and
physical or reputational harm to these individuals. See SafeCard,
926 F.2d at 1205.
It "is well established that the only public interest relevant
for purposes of Exemption 7(C) is one that focuses on the citizens'
right to be informed about what their government is up to." Davis,
-20-
968 F.2d at 1282 (internal quotations omitted). Whether disclosure
of private information is warranted under Exemption 7(C) turns on
whether the information "sheds light on an agency's performance of
its statutory duties."
u. s.
Dep' t
of Justice v.
Reporters Comm.
for Freedom of the Press, 489 U.S. 749, 773 (1989).
Thus,
the
requested
information
must
shed
light
on
the
agency's own conduct and not merely on the subject matter of the
underlying law enforcement investigation. Id. Our Court of Appeals
has
held
"categorically that,
unless
access
to
the
names
and
addresses of private individuals appearing in files within the
ambit of Exemption 7(C) is necessary in order to confirm or refute
compelling evidence that the agency is engaged.in illegal activity,
such information is exempt from disclosure." SafeCard, 926 F.2d at
1206.
In this case, the Government has relied on Exemption 7(C) to
protect
the
names
parties who were
investigations;
and/or
interviewed by
( 2)
the released files;
who
were
maintaining
the
information of:
FBI
during
the
1)
third
course of
third parties mentioned in the documents in
(3)
responsible
the
identifying
FBI Special Agents and support personnel
for
conducting,
investigative
activities
supervising,
reported
and/or
in
the
documents; and (4) third parties who are of investigative interest
'
to the FBI and/or other law enforcement agencies. Def.'s Mot. at
-21-
10-11,
29.
According
to
the
Government,
the
release
of
this
information could subject the relevant individuals to harassment,
embarrassment, intimidation, or legal, economic or physical harm.
Id. at 11.
The Parties do not dispute that the records at issue were
compiled
for
law enforcement
purposes.
Instead,
Plaintiff
and
Defendant principally disagree on whether the public interest in
disclosure
outweighs
the
release of
the material.
privacy
interests
According to Mr.
implicated
Canning,
by
the
the public
interest in the withheld material is high, "certainly ris[ing] to
the same level as Watergate" because the withheld material,
he
suspects,
to
may show attempts made by the
federal government
penetrate the presidential campaign of Lyndon LaRouche. Pl.'s Mot.
at 27-33. The Government argues that no public interest would be
furthered by the disclosure of the withheld information. Def.'s
Mot. at 12.
The Government's withholding of the names of FBI personnel
and third parties that are interviewed by the FBI,
who are of
interest to the Bureau, or mentioned in internal documents, clearly
protects legitimate privacy interests.
These individuals have a
strong privacy interest because of the potential for harassment.
Martin v. U.S. Dep't of Justice, 488 F.3d 446, 457 (D.C. Cir. 2007)
("[T]hird parties who may be mentioned in investigatory files and
-22-
witnesses and informants who provide information during the course
of
an
investigation
interest
in
their
have
an
obvious
information.")
and
substantial
(internal
privacy
quotation
marks
omitted); Dunkelberger v. U.S. Dep't of Justice, 906 F.2d 779, 781
(D.C.
Cir.
'strong
1990)
("Exemption 7(C)
interest'
of
takes particular note of the
individuals,
whether
they
be
suspects,
witnesses, or investigators, in not being associated unwarrantedly
with
alleged
criminal
activity.")
(internal
quotation
marks
omitted); Fitzgibbon, 911 F.2d at 768.
Mr. Canning contends that there is a strong public interest
in the release of the names of these individuals because disclosure
"may indicate whether the surveillance was of high-level officials
(which may indicate attempts to suppress a campaign issue),
rank-and-file workers
in La Rouche' s
presidential
or
campaign [.]"
Pl.'s Mot. at 33. As the FOIA requester, Plaintiff bears the burden
of asserting a countervailing public interest in disclosure. Boyd
v.
Exec.
Office
for U.S.
Attorneys,
87
F.
Supp.
3d 58,
72-73
(D.D.C. 20l5). Here, Mr. Canning offers nothing more than his own
speculation to support his claim that government surveillance of
Mr. LaRouche's presidential campaign took place. Such speculation
does not constitute "evidence that would warrant a belief by a
reasonable person that the alleged Government impropriety might
-23-
have occurred." Id. at 82
(upholding Exemption 7(C) claims where
plaintiff offered only speculation as to government misconduct) .
Mr. Canning further argues that disclosure of the information
withheld under Exemption 7(C) is warranted because the Government
did
not
indicate
if
it
attempted
to
determine
whether
the
individuals whose identifying information is being withheld are
living or deceased. Pl.'s Mot. at 33-35. Plaintiff's argument has
no
validity.
Plaintiff's
In
a
declaration
Motion
for
Partial
supporting
Summary
its
Opposition
Judgment,
to
Defendant
explains that the FBI uses a "100-year rule" to discern the dates
of birth or deaths of individuals involved in an investigation.
Fourth Hardy Deel.
~
16. Under this rule,
(and releases the names of)
the FBI presumes dead
individuals born more than 100 years
ago. 3 Id. The Court of Appeals has considered the FBI's use of this
method to determine the life and death of individual_s mentioned in
its withholdings and found it to be reasonable. See Schrecker v.
U.S. Dep't of Justice, 349 F.3d 657, 665 (D.C. Cir. 2003) . 4
3
If the FBI is unable to determine the life or death status of an
individual using this method, the agency presumes the individual to be
alive and withholds any names and/or identifying information. Fourth
Hardy Deel. ~ 16.
4
Plaintiff notes that Defendant redacted the name of Mitchell Werbel,
a deceased individual. Pl.'s Mot. at 34. In response to Plaintiff's
concern, Defendant released each instance where Mr. Werbel's name was
mentioned in responsive records. Def.'s Reply at 17. Plaintiff has not
indicated that Defendant's actions inadequately addressed his concern.
-24-
The Government also contends that U.S.
Customs and Border
Protection ("CBP") properly withheld the signature of a government
employee from disclosure pursuant to Exemption 7(C). Def.'s Mot.
at 19. The Court agrees. As explained above, the employee retains
a privacy interest in his or her identity and Plaintiff has not
offered
any
argument
that
a
countervailing
public
interest
warrants disclosure.
For
these
reasons,
the
Court
finds
that
the
Government
properly withheld the challenged material under Exemption 7(C) . 5
4.
Exemption 7(D}
FOIA Exemption (7) (D) allows an agency to exempt records or
information
compiled
for
law
enforcement
purposes
where
such
information "could reasonably be expected to disclose the identity
of a
confidential
confidential
source
basis."
5
which furnished
U.S.C.
information on a
552 (b) (7) (D).
§
To
invoke
this
exemption, an agency must show either that the source spoke only
under
express
assurances
of
confidentiality
or
that
the
circumstances support an inference of confidentiality. U.S. Dep't
of Justice v. Landano, 508 U.S. 165, 174 (1993).
5
Defendant also generally asserts Exemption 6 in conjunction with its
Exemption 7(C) claims. Because the. Court has already concluded that
Defendant has properly withheld the same information under Exemption
7(C), it need not examine Exemption 6. See Roth v. U.S. Dep't of
Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011).
-25-
The
Government
confidential
has
informant
asserted
file
Exemption
numbers;
(2)
7(D)
over:
confidential
(1)
source
symbol numbers and FBI code names; (3) certain information provided
by confidential
source
symbol numbered informants who reported
information to the FBI on a regular basis under express assurances
of confidentiality;
(4) identities of and information provided by
foreign law enforcement agencies under an implied assurance of
confidentiality;
(5)
identities of and information provided by
foreign law enforcement agencies under an express assurance of
confidentiality;
( 6)
names,
information,
identifying
and
information provided by third parties to the FBI under an implied
assurance
of
confidentiality;
and
(7)
the
name
or
identifying
information of a third party who assisted the FBI under an express
assurance of confidentiality. Def.'s Mot. at 14, 30.
Mr.
Canning initially moved for summary judgment regarding
only the information for which the Government asserts an implied
confidentiality exemption where
the
sources are not affiliated
with law enforcement agencies. See Pl.'s Mot. at 36. However, after
the Government more fully explained the basis for its Exemption
7 (D)
assertions
challenge
promise
over
of
in
the
its
Reply Motion,
documents
confidentiality.
Mr.
Canning withdrew his
being
withheld
Pl.'s
Reply
-26-
at
under
6-7
an
implied
("Plaintiff
concedes defendant has now made the requisite factual showing, and
this element of plaintiff's motion is no longer appropriate.").
The Court agrees with the Government that disclosure of the
withheld material could potentially lead to the identification of
confidential sources, endanger informants, affect the cooperation
of future FBI informants, and diminish cooperation between the FBI
and
other
law enforcement
authorities.
Accordingly,
the
Court
finds that the Government properly withheld this material under
Exemption .7 (D) .
5.
Exemption 7{E)
FOIA Exemption (7) (E) provides for the withholding of records
or information compiled for law enforcement purposes to the extent
that disclosure of such information could reasonably be expected
to
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). This exemption protects from disclosure
only those law enforcement techniques and procedures that are not
well known to the public. National Sec. Archive v. F.B.I., 759 F.
Supp. 872,
885
(D.D.C. 1991); Albuquerque Pub. co. v. U.S. Dep't
of Justice, 726 F. Supp. 851, 857 (D.D.C. 1989). Exemption 7(E) 's
-27-
requirement that disclosure could risk circumvention of the law
"sets a relatively low bar for the agency to justify withholding."
Blackwell v. F.B.I., 646 F.3d 37, 42
that
relatively .low bar,
(D.C. Cir. 2011). "To clear
an agency must demonstrate only that
release of a document might increase the risk that a law will be
violated or that past violators will escape legal consequences."
Pub.
Emps.
for Envtl.
Responsibility v.
U.S.
Section,
740 F.3d
195, 205 (D.C. ·cir. 2014).
The
source
Government
numbers,
6
invokes
Exemption
information
conducted by the FBI,
7 (E)
concerning
to
withhold
electronic
internal FBI code names,
symbol
monitoring
and information
regarding law enforcement techniques that the FBI uses to obtain
intelligence in its investigations. See Second Hardy Deel ~~ 10405; Third Hardy Deel.
~~
81-85. According to the Government, the
release of this information would,
law
enforcement
compromise
means
efforts
of
to
inter alia,
detect
collecting
and
hamper the FBI's
apprehend
intelligence
criminals,
information,
and
enable criminal targets to better circumvent law enforcement by
developing countermeasures.
Id.
Plaintiff argues that Defendant
has not adequately shown that the underlying techniques are not
already known to the general public. Pl.'s Mot. at 39.
6 Symbol source numbers are designators for specific methods used to
obtain invaluable investigative intelligence information. Third Hardy
Deel. ~ 81.
-28-
As with the Government's Exemption 7 (D)
Parties do not dispute
that
withheld under Exemption 7 (E)
purposes.
The
categories
withheld here -
e.g. ,
of
the
withholdings,
the
information the Goverment has
was compiled for law enforcement
information
FBI code names,
electronic monitoring techniques -
that
Defendant
has
symbol methodology,
and
fall squarely within the type
of material envisioned by FOIA Exemption 7(E). The Court of Appeals
has explained that the government's burden under Exemption 7(E) is
to
"demonstrate[]
logically how the release of
[the requested]
information might create a risk of circumvention of the law," and
the
Government's
anticipated
disclosed,
harm
affidavits
that
would
which
outline,
in
should
the
follow
adequately meet this burden.
detail,
the
material
be
See Mayer Brown LLP v.
I.R.S., 562 F.3d 1190, 1194 (D.C. Cir. 2009).
Relying
heavily on broad descriptions
of
law enforcement
techniques that he has witnessed in movies and on television, Mr.
Canning claims that the withheld information likely concerns wellknown techniques such as consensual monitoring and wiretaps. Pl.'s
Mot.
at 41-42.
Plaintiff's assertions,
however,
do not indicate
that the specific material withheld in this case is in the public
domain.
Nonetheless,
even if certain aspects of the techniques
described in the withheld material are publically known,
"even
commonly known procedures may be protected from disclosure if the
-29-
.
disclosure
could
reduce
or
nullify
their
effectiveness."
Am.
Immigration Lawyers Ass'n v. U.S. Dep't of Homeland Sec., 852 F.
Supp. 2d 66, 78 (D.D.C. 2012). Because the Court is persuaded that
the disclosure of this material could reasonably be expected to
risk circumvention of the law, it finds that Defendant has properly
withheld this material under Exemption 7(E).
The Government also argues that the CBP properly withheld
navigation codes from a CBP records system database ("TECS") under
Exemption
7 (E)
because
disclosure
of
the
codes,
which
expose
precise keystrokes and navigation instructions, would compromise
the integrity of the CBP law enforcement database. Def.'s Mot. at
21.
Plaintiff does not challenge Defendant's assertion.
declaration,
In its
the CBP adequately explains how disclosure of this
information could reasonably be expected to risk circumvention of
the law.
therefore
See Suzuki Deel.
concludes
that
~~
20-23
[Dkt.
Defendant
No.
30-12].
properly
The Court
withheld
this
information under Exemption 7(E) . 7
7
Indeed, other courts in this District have reached the same result.
See, e.g., Strunk v. U.S. Dep't of State, 905 F. Supp. 2d 142, 148
(D.D.C. 2012) (concluding that CBP's decision to withhold TECS-related
information under Exemption 7(E) was proper); Skinner v. U.S. Dep't of
Justice, 893 F. Supp. 2d 109, 112-13 (D.D.C. 2012) (finding the
withholding of TECS internal computer access codes to be justified);
Miller v. U.S. Dep't of Justice, 872 F. Supp. 2d 12, 29 (D.D.C. 2012)
(same); McRae v. U.S. Dep't of Justice, 869 F. Supp. 2d 151, 169
(D.D.C. 2012) (same).
-30-
C. Public Domain Material
Mr.
that
Canning raises
the
Government
disclosure
because
two public domain arguments,
cannot
that
withhold
certain
information
is
asserting
information
already
from
publically
available.
First, Mr. Canning contends that the Government has withheld
the names and identifying information of two indi victuals,
Fred
Lewis and Gary Howard, despite having previously identified them
as sources, in response to Plaintiff's July 2009 FOIA request. See
Pl.'s
Mot.
at
19.
Because
some
information
about
these
two
individuals has already been disclosed, he argues, the Government
"cannot properly withhold any information to shield the fact that
[Lewis
and
Howard]
provided
information."
Id.
(emphasis
in
original) .
Second, Mr. Canning alleges that certain information that the
Government has withheld in response to his July 2009 request (the
"Boston ELSUR Searches" documents)
was previously released to a
different FOIA requester, Mr. Steinberg. Id. at 20. For example,
Mr. Canning claims Defendant released to Mr. Steinberg the name of
the co-prosecutor in a
Boston case regardl.ing Mr.
LaRouche yet
withheld the same information in response to Plaintiff's request.
Id.
In response,
the Government contends that Plaintiff has not
met
his burden to identify specific
-31-
information in the public
domain that corresponds to the withheld material. Def.'s Reply at
13.
Mr.
Canning's
first
argument
is persuasive.
The
Court
of
Appeals has held that "the government cannot rely on an otherwise
valid exemption claim to justify withholding information that has
been
'officially acknowledged'
Davis,
968 F.2d at 1279
or
is
in the
'public domain.'"
(quoting Afshar v. U.S. Dep't of State,
702 F.2d 1123, 1130-34 (D.C. Cir. 1983) and Fitzgibbon, 911 F.2d
at 765-66) . In asserting a claim of prior disclosure, plaintiffs
bear the burden of production to "point[] to specific information
in
the
public
withheld[.]"
Id.
domain
Mr.
that
appears
to
duplicate
that
Canning has met his burden here.
being
He has
identified specific material that has been officially disclosed to
him by the Government -
i.e., identifying information concerning
Mr. Lewis and Mr. Howard -
which duplicates the information the
Government continues to withhold. 8 Accordingly, the Court concludes
that Mr. Canning is entitled to this information.
Turning to Mr. Canning's second argument, the Court reaches
the
same
conclusion.
Whereas
the
identifying information concerning Mr.
Government
released
Lewis and Mr.
the
Howard in
Contrary to the Government's assertion, Mr. Canning does not request
all information that the Government has in its possession concerning
Mr. Lewis and Mr. Howard. Mr. Canning instead requests the withheld
material demonstrating that these individuals provided information to
the Government. Pl.'s Mot. at 19.
8
-32-
response
to
Mr.
Canning's
own
FOIA
request,
Mr.
Canning
has
demonstrated that the Government previously released the Boston
ELSUR information in response to Mr.
Steinberg's FOIA request.
Fifth Canning Deel., Ex. C. The Government has not explained why
the
identity of
analysis.
the
FOIA requester should affect
In both instances,
released to the public,
disclose
to Mr.
documents
and
(2)
that
the material has been previously
case.
Canning:
information concerning Mr.
material,
Court's
a fact that warrants the disclosure of
withheld information in this
shall
the
Accordingly,
( 1)
the
names
the Government
and
identifying
Lewis and Mr. Howard in the withheld
the information contained in the Boston ELSUR
the
Government
previously
disclosed
to
Mr.
Steinberg but continues to withhold from Mr. Canning.
IV.
CONCLUSION
For the
Judgment
foregoing reasons,
shall
be
granted
in
Defendant's Motion for Summary
part
and
denied
in
part
and
Plaintiff's Cross-Motion for Partial Summary Judgment shall be
granted in part and denied in part. An Order shall accompany this
Memorandum Opinion.
Gla~S~/_~
June 5, 2017
United States District Judge
-33-
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