BRICK v. DEPARTMENT OF JUSTICE
Filing
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MEMORANDUM OPINION AND ORDER denying without prejudice 12 , 14 Motion for Summary Judgment, requiring parties to submit proposed schedule for renewed summary judgment briefing on or before 12/8/2017, and requiring submission of documents for in camera review. See attached document for details. Signed by Judge Ketanji Brown Jackson on 11/9/2017. (lckbj1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHRISTOPHER BRICK,
Plaintiff,
v.
DEPARTMENT OF JUSTICE,
Defendant.
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No. 15-cv-1246 (KBJ)
MEMORANDUM OPINION AND ORDER
DENYING CROSS MOTIONS FOR SUMMARY JUDGMENT
AND REQUIRING SUPPLEMENTAL SUBMISSIONS
The question presently before this Court is whether the two declarations that the
Federal Bureau of Investigation (“FBI”) has submitted in support of its motion for
summary judgment are sufficiently detailed to permit the Court to conduct a meaningful
review of the FBI’s invocation of Exemptions 3, 6, 7(C), and 7(E) to the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, under the circumstances presented in this
case. The government has invoked these exemptions with respect to information that it
has redacted from 12 pages of records that are responsive to the FOIA request that
plaintiff Christopher Brick submitted to the FBI (see Def.’s Mot. for Summ. J., ECF
No. 12; Pl.’s Mot. for Summ. J. (“Pl.’s Mot.”), ECF No. 14; Decl. of David M. Hardy
(“Hardy Decl.”), ECF No. 12-1; Second Decl. of David M. Hardy (“2d Hardy Decl.”),
ECF No. 18-2), and on at least three prior occasions, this Court has addressed this exact
issue in connection with FBI declarations in FOIA matters, see Poitras v. Dep’t of
Homeland Sec., No. 15cv1091, slip op. at 3–6 (D.D.C. March 31, 2017); Elec. Privacy
Info. Ctr. v. DOJ, No. 13cv1961, 2016 WL 447426, at *3–4 (D.D.C. Feb. 4, 2016);
Sciacca v. FBI, 23 F. Supp. 3d 17, 30–31 (D.D.C. 2014). The answer here is no
different than it was in those cases: now, as then, the Court’s response to the question
of whether the submitted declarations are sufficient is a resounding, “No.”
Although the record in this case contains redacted copies of the 12 pages at
issue, and also includes notations as to which exemption is being claimed for each
redaction, the proferred declarations do not provide a sufficient justification for these
withholdings, because the declarations provide no details about, or context for, the
FBI’s redaction determinations. See Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1184
(D.C. Cir. 1996) (concluding that affidavits that “offer no functional description of the
documents” and that “contain only sweeping and conclusory assertions that the agency
withheld the documents because they contained material which could reasonably be
expected to cause damage to national security” were inadequate). For example,
regarding the FBI’s invocation of Exemption 3, one of the declarations merely states
that “the FBI’s intelligence sources and methods would be revealed if any of the
withheld information is disclosed to plaintiff[,]” and that the redacted information
“pertains to intelligence activities source and methods and has been the subject of
declassification in accordance with existent regulations.” (Hardy Decl. ¶ 21.) The law
is settled, however, that a declaration that does “little more than parrot established legal
standards” when explaining withholdings falls well short of meeting the government’s
obligations under the FOIA. See Am. Immigration Council v. U.S. Dep’t of Homeland
Sec., 950 F. Supp. 2d 221, 236 (D.D.C. 2013) (finding that an agency fails to meet its
burden under the FOIA if the agency’s declarations and briefs are “laden with
generalized, categorical descriptions of the contents”).
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The FBI’s support for its claim that the records at issue were compiled for law
enforcement purposes, and are thus within the ambit of Exemptions 7(C) and 7(E), is
similarly scant, consisting almost entirely of the conclusory contention that “the
information collected was integrated into national security/criminal investigation of
third party individuals.” (Hardy Decl. ¶ 22.) Reliance on this unadorned statement to
establish a law enforcement purpose for these records flouts more than 35 years of
precedent that establishes that such bare contentions are simply not enough. See Pratt
v. Webster, 673 F.2d 408, 414 (D.C. Cir. 1982) (“The simplest response to the
Government’s contention that FBI records per se meet the threshold criterion of
Exemption 7 is that that argument has been rejected by this Circuit in Abramson v. FBI,
658 F.2d 806 (D.C. Cir. 1980)[.]”); see also Quinon v. FBI, 86 F.3d 1222, 1228–30
(D.C. Cir. 1996) (holding that when an agency seeks to withhold records under
Exemption 7 on the grounds that the records were compiled for law enforcement
purposes, the agency must make a threshold showing that the predicate law enforcement
investigation had a rational basis).
Nor do the declarations establish that the FBI has satisfied its indisputable
obligation to use reasonable efforts to determine whether the individuals mentioned in
four of the disputed records are deceased, for the purpose of evaluating personal
privacy interests in the context of Exemptions 6 and 7(C). See Schrecker v. DOJ, 349
F.3d 657, 662 (D.C. Cir. 2003) (explaining that, when an agency invokes Exemption
7(C), “the proper inquiry is whether the Government has made reasonable use of the
information readily available to it, and whether there exist reasonable alternative
methods [of discovering an individual’s death status] that the Government failed to
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employ”). The FBI’s declarant generally avers that the agency approached its
obligation to ascertain the death status of the individuals mentioned in the records at
issue in two ways: (1) it undertook a failed effort to ascertain the birthdates of the
individuals on the face of the responsive documents in order to apply the “100-year”
rule (under which the FBI will presume that an individual who was born more than 100
years before the production date is dead), and (2) it utilized unspecified “institutional
knowledge” to evaluate the individuals’ death status in an unexplained way. (2d Hardy
Decl. ¶ 13.) However, Given the nature of the records here and the state of modern
technology, it is not at all clear why the FBI thinks that even a successful application of
the 100-year rule—standing alone—would constitute a reasonable effort to determine
the death status of the individuals in question. See Davis v. DOJ, 460 F.3d 92, 95 (D.C.
Cir. 2006) (“The Bureau does not appear to have [even] contemplated other ways of
determining” if the individuals mentioned in these four pages of records are dead or
alive, “such as Googling them.” (emphasis added)). And the declarant’s cryptic
statement that, in addition to attempting to apply the 100-year rule, the FBI used
“institutional knowledge gained from prior FOIA requests or internal records” to
evaluate the individual’s death status (2d Hardy Decl. ¶ 13) is also of no help, because,
frankly, this Court “ha[s] no idea what that means.” Davis, 460 F.3d at 99; see also
Schrecker v. DOJ, 254 F.3d 162, 167 (D.C. Cir. 2001) (remanding for an explanation of
the agency’s general averment that it had relied upon “other readily available
information” to determine the death status of individuals for the purpose of Exemption
7(C), because “[w]ithout confirmation that the Government took certain basic steps to
ascertain whether an individual was dead or alive, we are unable to say whether the
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Government reasonably balanced the interests in personal privacy against the public
interest in release of the information at issue”).
Thus, this Court wholeheartedly agrees with Brick’s assertion that the FBI’s
declarations in this case are “so sweeping and vague that [they] could apply to almost
any exemption 3, 6, 7(C), or 7(E) case[.]” (Pl.’s Mot. at 10.) Moreover, this is not the
first time that this Court has brought the persistent vagueness of the FBI’s declarations
in FOIA cases to the agency’s attention, see Poitras, slip op. at 3–6; Elec. Privacy Info.
Ctr., 2016 WL 447426, at *3–4; Sciacca, 23 F. Supp. 3d at 30–31, and this deficiency is
particularly worrisome in a case such as this one, where a mere 12 pages of records are
in dispute. In the future, this Court expects the FBI to be vigilant in its submission of
supporting materials, and to provide the Court with documents that will enable review
of the agency’s FOIA withholdings “in the first instance[,] rather than waiting to be
prompted to do so by Court Order.” Schoenman v. FBI, 576 F. Supp. 2d 3, 10 (D.D.C.
2008). Today, however, this Court will provide the FBI with one additional opportunity
to justify its withholdings fully; the agency must do so through submission of a
supplemental declaration that addresses the concerns the Court has expressed in this
Opinion and any others that the agency might identify as it undertakes to comply with
the instant Order. The Court will also require the FBI to submit unredacted copies of
the 12 disputed pages for in camera review.
Make no mistake: if the FBI fails to furnish a supplemental declaration that
contains sufficient detail for the Court to ascertain the particular bases for the
government’s withholdings, this Court will rely solely upon the insufficient materials
that have thus far been submitted, and as a result, it will grant Plaintiff’s cross motion
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for summary judgment and require production of unredacted copies of these 12 pages of
records. See Sciacca, 23 F. Supp.3d at 30 (noting that, “because of the information
asymmetries inherent in the FOIA system, the agency bears the burden of justifying any
withholding of otherwise responsive information”).
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Accordingly, it is hereby
ORDERED that Defendant’s [12] Motion for Summary Judgment and Plaintiff’s
[14] Cross Motion for Summary Judgment are DENIED without prejudice for the
reasons stated above. It is
FURTHER ORDERED that the parties shall meet and confer, and on or before
December 8, 2017, the parties shall file a joint proposed schedule that proposes due
dates for the following filings: (1) a supplemental declaration with respect to the FBI’s
withholdings under FOIA Exemptions 3, 6, 7(C), and 7(E) that is sufficient to permit
the Court to evaluate the particular reasons for the FBI’s invocation of each FOIA
exemption, and (2) renewed cross-motions for summary judgment. To the extent the
government maintains that provision of this information will force it to disclose the
information it is authorized to protect, it may file both a public and an ex parte version
of the supplemental declaration. In light of this Order requiring new summary
judgment briefs and materials, it is
FURTHER ORDERED that Defendant shall submit for in camera review
unredacted copies of all 12 pages at issue in this case. Defendant may opt to submit
these materials at any time, but these materials must be provided to the Court no later
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than the date on which Defendant’s renewed cross motion for summary judgment and
supporting materials are filed.
DATE: November 9, 2017
Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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