BRICK v. DEPARTMENT OF JUSTICE

Filing 35

MEMORANDUM AND OPINION GRANTING the Department of Justice's 26 Renewed Motion for Summary Judgment and DENYING Plaintiff's 28 Renewed Cross-Motion for Summary Judgment. Signed by Judge Ketanji Brown Jackson on 02/19/2019. (lckbj1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHRISTOPHER BRICK,
Plaintiff,
v.
DEPARTMENT OF JUSTICE,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

No. 15-cv-1246 (KBJ)

MEMORANDUM OPINION
During her lifetime, Eleanor Roosevelt served the United States in a variety of
roles, including as First Lady of the United States, as a United Nations delegate, and as
a representative to the United Nations Commission on Human Rights. (See Compl.,
ECF No. 1, ¶ 5.) She also caught the attention—and provoked the ire—of J. Edgar
Hoover, the former director of the Federal Bureau of Investigation (“FBI”). (See id.) 1
At Hoover’s direction, the FBI collected extensive information regarding Mrs.
Roosevelt during the later years of her life (see id. ¶¶ 5–6); in 2015, more than five
decades after her death, plaintiff Christopher Brick submitted a request to the FBI under
the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking disclosure of certain
records from the FBI’s Eleanor Roosevelt file (see id. ¶ 7). The FBI released hundreds
of pages of documents in response to Brick’s FOIA request, but the agency redacted
some of the responsive documents on the grounds that the information was exempted
from disclosure under the FOIA. (See id. ¶ 8.) At issue in the instant lawsuit is a
The FBI is a component of the Department of Justice (“DOJ” or “Defendant”), the named defendant
in this matter. (See Compl. ¶ 4.)

1

subset of 12 pages of records that the FBI produced to Brick, with respect to which the
agency invoked FOIA Exemptions 3 and 7(E), among other provisions, to withhold
certain information. In his complaint, Brick maintains that the FBI has “no legal basis
for refusing to disclose these twelve pages in full.” (Id. ¶ 11.)
Before this Court at present are the parties’ cross-motions for summary
judgment. (See Def.’s Renewed Mot. for Summ. J. (“Def.’s Renewed Mot.”), ECF No.
26; Pl.’s Renewed Cross-Mot. for Summ. J. (“Pl.’s Renewed Mot.”), ECF No. 28.) The
parties’ arguments specifically pertain to the redactions in 12 pages of records “that
appear to provide information on Mrs. Roosevelt’s travel to the Soviet Union and
participation in events and activities where she was likely to encounter Soviet United
Nations personnel[.]” (Pl.’s Renewed Mot. at 3.) 2 DOJ argues that Exemptions 3 and
7(E) authorize the FBI to withhold the information at issue, and also that the agency has
adequately justified those withholdings in the ex parte, classified declaration the agency
submitted with its motion. (See Def.’s Renewed Mot. at 8–11.) Brick insists that
DOJ’s public filings provide no justification for the FBI’s assertion of Exemption 3 or
7(E), and asserts that the FOIA requires DOJ to articulate publicly an explanation “that
is adequate to support the claimed exemptions without revealing the information that
the exemptions are designed to protect.” (See Pl.’s Renewed Mot. at 4.)
As discussed fully below, the Court has reviewed the relevant documents in
camera, and it finds that DOJ has established in its ex parte filing that the FBI properly
invoked Exemptions 3 and 7(E) to redact the information at issue in this case. This
Court further finds that, under the circumstances of this case, it was appropriate for the
Page-number citations to the documents that the parties have filed refer to the page numbers that the
Court’s electronic filing system automatically assigns.

2

2

government to explain the bases for its withholdings in a classified, ex parte
declaration. As such, DOJ’s renewed motion for summary judgment must be
GRANTED and Brick’s renewed cross-motion must be DENIED. A separate Order
consistent with this Memorandum Opinion will follow.
I.

BACKGROUND 3
A.

Factual Background

Christopher Brick is the Project Director and Editor for the Eleanor Roosevelt
Papers Project (“Project”), which describes itself as “a research center that aims to
make the vast record of Eleanor Roosevelt’s written, spoken, and audio-visual legacy
accessible to scholars, students, teachers, and the general public.” (Decl. of
Christopher Brick, ECF No. 14-1, ¶ 2.) The Project accomplishes this mission by
publishing Eleanor Roosevelt’s papers, among other things, and it has published two
volumes of her records to date. (See id.; see also Compl. ¶ 3.)
As noted above, at the behest of its former director J. Edgar Hoover, the FBI
maintained an extensive individual file on former First Lady Eleanor Roosevelt. (See
Compl. ¶ 5.) In 1982, the FBI released to the public many, but not all, of the records
from this file. (See Compl. ¶ 6; see also Ans., ECF No. 9, ¶ 6.) Brick submitted a
FOIA request to DOJ on June 25, 2015, seeking certain records from the FBI’s file that
had not been included in the 1982 release. (See Pl.’s Stmt. of Material Facts as to
Which There Is No Genuine Dispute, ECF No. 28 at 12–13, ¶ 1.) In response to Brick’s
request, the FBI released 338 pages of redacted records, and invoked FOIA Exemptions
6, 7(C), 7(D), and 7(E) to justify the withholdings. (See id. ¶ 2.) Brick appealed the

3

The background facts are undisputed unless otherwise noted.

3

redactions on 12 of these pages (see id. ¶ 3), and on February 9, 2015, DOJ’s Office of
Information Policy affirmed the FBI’s withholdings on the grounds that the agency had
properly redacted information pursuant to Exemptions 6, 7(C), and 7(E) (see id. ¶ 4).
B.

Procedural History

On August 3, 2015, Brick filed a four-page complaint in this Court, “to challenge
the decision of the Department of Justice (‘DOJ’) to redact certain records in Eleanor
Roosevelt’s Federal Bureau of Investigation (‘FBI’) file[.]” (Compl. ¶ 1.) At issue in
Brick’s complaint are “the withheld portions of . . . twelve pages” that, according to
Brick, “defendants have no legal basis for refusing to disclose[.]” (Id. ¶ 11.)
On November 17, 2015, DOJ filed a motion for summary judgment that argued
that the redactions in those 12 pages were proper under Exemptions 6, 7(C), and 7(E).
(See Def.’s Mot. For Summ. J, ECF No. 12.) DOJ also filed a supporting declaration
from FBI declarant David M. Hardy. (See Decl. of David M. Hardy, ECF No. 12-1.)
Brick filed a cross-motion for summary judgment (see Pl.’s Cross-Mot. for Summ. J.,
ECF No. 14), and in response, DOJ filed an additional declaration from Hardy further
explaining its withholdings (see Second Decl. of David M. Hardy, ECF No. 18-2). 4
On November 9, 2017, this Court found that Hardy’s declarations were not
“sufficiently detailed to permit the Court to conduct a meaningful review” of the FBI’s
assertion of the FOIA exemptions, and thus, denied both cross-motions without
prejudice. Brick v. Dep’t of Justice, 293 F. Supp. 3d 9, 10, 13 (D.D.C. 2017). DOJ
filed a renewed motion for summary judgment, along with an unclassified declaration
from Hardy, on February 1, 2018. (See Def.’s Renewed Mot.; Fourth Decl. of David.

Defendant subsequently submitted a third declaration from Hardy that it asserts corrected a clerical
error in his second declaration. (See Third Decl. of David M. Hardy, ECF No. 21.)

4

4

M. Hardy, ECF No. 26-1.) DOJ also lodged with the Classified Information Security
Officer a classified declaration from Hardy, as well as unredacted copies of the 12
pages at issue in the instant case. (See Notice of Lodging Classified Decl. &
Unredacted Documents with the Classified Info. Sec. Officer, ECF No. 27; Classified
Hardy Decl.)
In its papers, DOJ explains that the FBI has reprocessed the 12 pages of records,
and it subsequently released additional information to Brick after dropping its reliance
on Exemptions 6 and 7(C). (See Def.’s Stmt. of Undisputed Material Facts, ECF No. 26
at 2-3, ¶ 7.) DOJ asserts that the FBI is entitled to summary judgment with respect to
the remaining redactions, because the agency properly invoked FOIA Exemption 3—
which permits an agency to withhold records that are “specifically exempted from
disclosure by [a] statute [that] . . . establishes particular criteria for withholding or
refers to particular types of matters to be withheld[,]” 5 U.S.C. § 552(b)(3)—and FOIA
Exemption 7(E)—which permits an agency to withhold certain records “compiled for
law enforcement purposes[,]” 5 U.S.C. § 552(b)(7)(E). (See Def.’s Renewed Mot. at 9–
11.) In particular, DOJ maintains that the FBI properly redacted information regarding
United States intelligence sources and methods that is exempt from disclosure under
Section 102A(i)(1) of the National Security Act of 1947, 50 U.S.C. § 3024(i)(1) (see id.
at 8), as well as information that was “compiled for law enforcement purposes” (id. at
9) and that, if disclosed, would reveal “FBI investigative techniques and procedures”
and “risk circumvention of the law” (id. at 10-11). Finally, DOJ argues that it has
released all non-exempt, reasonably segregable portions of records that are responsive
to Brick’s FOIA request. (See id. at 11-12.)

5

For his part, Brick has filed a renewed cross-motion for summary judgment, in
which he maintains that DOJ’s “public filings offer no support for its claimed
exemptions [and therefore] they cannot carry [Defendant’s] burden of establishing that
the records fall within the exemptions[.]” (Pl.’s Renewed Mot. at 6.) Brick further
contends that it is improper for the FBI to justify its invocation of Exemptions 3 and
7(E) only in sealed, ex parte filings; instead, according to Brick, the agency should
have provided in its public papers a general description of the law enforcement and
intelligence techniques at issue. (See id. at 7–11; see also id. at 7 (asserting that “the
government’s bald assertion that it cannot provide any meaningful public explanation of
its withholdings is entirely unsupported and would, if accepted, frustrate the ability of
FOIA litigation to provide a check on unjustified and unlawful withholding of
records”).)
The parties’ cross-motions for summary judgment are now ripe for this Court’s
review. (See Reply in Supp. of Def.’s Renewed Mot. & Opp’n to Pl.’s Renewed Mot.,
ECF No. 31; Reply in Supp. of Pl.’s Renewed Mot. (“Pl.’s Renewed Reply”), ECF No.
33.)
II.

LEGAL STANDARDS
“FOIA cases typically and appropriately are decided on motions for summary

judgment.” Judicial Watch, Inc. v. Dep’t of the Navy, 25 F. Supp. 3d 131, 136 (D.D.C.
2014) (internal citation and quotation marks omitted). Summary judgment is available
when the pleadings, record, and any in camera documents “show[ ] that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “[B]ecause the FOIA favors disclosure, the

6

defending agency bears the burden of demonstrating in its motion for summary
judgment that it has ‘fully discharged its obligations.’” Hall & Assocs. LLC v. U.S.
Envtl. Prot. Agency, 315 F. Supp. 3d 519, 531 (D.D.C. 2018) (quoting Moore v. Aspin,
916 F. Supp. 32, 35 (D.D.C. 1996) (alteration omitted)). In deciding whether the
agency has carried this burden, the district court will conduct a de novo review the
agency’s evidence and arguments, see Stein v. DOJ, 134 F. Supp. 3d 457, 468 (D.D.C.
2015), and will interpret the facts “in the light most favorable to the FOIA requester[,]”
Willis v. DOJ, 581 F. Supp. 2d 57, 65 (D.D.C. 2008).
Where an agency asserts that it is entitled to withhold information under a FOIA
exemption, it “bears the burden of proving the applicability of [the] claimed
exemptions.” Am. Civil Liberties Union v. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir.
2011). “To carry this burden, the agency must submit sufficiently detailed affidavits or
declarations, a Vaughn index of the withheld documents, or both, in order to, among
other things, enable the court to fulfill its duty of ruling on the applicability of the
exemption.” Judicial Watch, Inc. v. CIA, 310 F. Supp. 3d 34, 41 (D.D.C. 2018)
(internal quotation marks, citation, and alteration omitted). The affidavits that an
agency submits are entitled to a presumption of good faith, and the court can award the
agency summary judgment based solely on the information provided therein. See
Hedrick v. FBI, 216 F. Supp. 3d 84, 94–95 (D.D.C. 2016). However, to be sufficient to
support an award of summary judgment, the affidavits must describe “the justifications
for nondisclosure with reasonably specific detail, [and] demonstrate that the
information withheld logically falls within the claimed exemption,” and must not be

7

“controverted by either contrary evidence in the record [] or by evidence of agency bad
faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).
Significantly for present purposes, an agency is authorized to submit its
affidavits ex parte, for the Court’s in camera review under certain circumstances, and
while “the use of in camera affidavits has generally been disfavored,” Shapiro v. DOJ,
239 F. Supp. 3d 100, 110 (D.D.C. 2017) (internal quotation marks and citation omitted),
it is appropriate for an agency to support its withholdings in this manner when there is a
reasonable risk “that public itemization and detailed justification would compromise
legitimate secrecy interests[.]” Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d
1381, 1385 (D.C. Cir. 1979); see also Campbell v. U.S. Dep’t of Justice, 164 F.3d 20,
31 (D.D.C. 1998) (acknowledging that in certain “special circumstances” involving
intelligence activities, “even minimal detail itself [can] constitute sensitive
information”). “[W]hen a district court uses an in camera affidavit, it must both make
its reasons for doing so clear and make as much as possible of the in camera submission
available to the opposing party.” Armstrong v. Exec. Office of the President, 97 F.3d
575, 580 (D.C. Cir. 1996) (italics added); see also Barnard v. Dep’t of Homeland Sec.,
598 F. Supp. 2d 1, 16 (D.D.C. 2009) (explaining that “where, as here, an agency
indicates that no additional information concerning an investigation may be publicly
disclosed without revealing precisely the information that the agency seeks to withhold,
the receipt of in camera declarations is appropriate”).
The FOIA also requires the government to produce all reasonably segregable
information that remains after exempt information has been withheld. See Mead Data
Cent., Inc. v. Dep’t of the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). “The

8

government bears the burden of demonstrating that no reasonably segregable material
exists in the withheld documents[,]” and “must provide a detailed justification and not
just conclusory statements to demonstrate that all reasonably segregable information
has been released.” Barouch v. DOJ, 962 F. Supp. 2d 30, 56 (D.D.C. 2013) (internal
quotation marks, citation, and alteration omitted). The government can meet this
burden through the submission of “affidavits that show with reasonable specificity why
documents withheld pursuant to a valid exemption cannot be further segregated.”
Juarez v. Dep’t of Justice, 518 F.3d 54, 61 (D.C. Cir. 2008).
III.

ANALYSIS
At issue in this litigation are redactions that the FBI has made to 12 pages of

docments concerning Eleanor Roosevelt, which the agency maintains are justified under
FOIA Exemptions 3 and 7(E), as well as the agency’s explanations for asserting these
exemptions. (See Def.’s Renewed Mot. at 7–11.) Notably, the explanations for the
agency’s withholdings are contained in a classified declaration that the FBI has
submitted to the Court ex parte; from Brick’s perspective, because the public
declarations are insufficient to support the claimed exemptions, the agency has simply
“refus[ed] to provide support for its exemption claims.” (Pl.’s Renewed Mot. at 4; see
also id. (“The government’s public filings offer not even the most general account of
how the records would reveal intelligence sources and methods, provide no inkling of
the basis for the assertion that the records were compiled for law enforcement purposes,
and offer no explanation of how they would reveal investigative techniques and
methods and create a risk of circumvention of the law.”).) As explained below, this
Court finds that the government’s reliance on an ex parte, classified declaration to

9

justify its withholdings is permissible under the circumstances of this case; moreover,
upon consideration of that declaration and all of the parties’ filings in this case, the
Court concludes that the material that the FBI has withheld falls within the protective
scope of Exemptions 3 and 7(E), such that the agency is entitled to summary judgment.
A.

Under The Circumstances Presented In This Case, Reliance On An Ex
Parte Declaration Is Appropriate

Like every plaintiff in a FOIA case that involves a classified declaration, Brick is
“at a distinct disadvantage with respect to [his] argument that the withheld information
should be released.” EPIC, 296 F. Supp. 3d at 119. (See also Pl.’s Renewed Mot. at 5
(noting that the government “relies entirely on its sealed submission to justify its claims
of exemption”).) This is because, when the government provides its justification for
withholding requested information in an in camera declaration, the decision to tender
the reasons ex parte admittedly “‘deprives the FOIA requester of an opportunity to
present his interpretation of the withheld documents[,]’” Jarvik v. CIA, 741 F. Supp. 2d
106, 111 (D.D.C. 2010) (quoting Quinon v. FBI, 86 F.3d 1222, 1228 (D.C. Cir. 1996)),
and, indeed, such a practice runs counter to the general presumption in favor of full and
open judicial proceedings, see EEOC v. Nat’l Children’s Ctr. Inc., 98 F.3d 1406, 1409
(D.C. Cir. 1996). This perceived unfairness is the focus of much of Brick’s argument
in the instant case. (See, e.g., Pl.’s Renewed Mot. at 4 (lamenting that “[t]he
government’s failure to justify [publicly] its exemptions makes a mockery of FOIA, the
adversary process, and this Court’s order that it present [its] justifications”); see also
id. at 6 (insisting that “it is obviously not possible . . . to demonstrate the legal or
factual inadequacy of the agency’s arguments: The agency has made none”).)

10

Nevertheless, the D.C. Circuit has long recognized that an agency can support its
withholdings through classified declarations submitted to the Court for in camera
review when “extensive public justification would threaten to reveal the very
information for which a FOIA exemption is claimed.” Lykins v. DOJ, 725 F.2d 1455,
1463 (D.C. Cir. 1984); see also Hayden, 608 F.2d at 1385; Edmonds v. FBI, 272 F.
Supp. 2d 35, 46–47 (D.D.C. 2003). Having reviewed the classified declaration and the
unredacted materials at issue in the instant case, this Court concludes that such is the
case here. In particular, the Court rejects Brick’s vigorous contention that the FBI
could have done more to explain itself on the public record—i.e., that its public
declaration could have provided some information “describing the intelligence sources
and methods or law enforcement techniques the records here would supposedly reveal,”
or some statement “substantiating that the records relate to foreign intelligence or were
compiled for law enforcement,” or some explanation of “how their disclosure would
lead to circumvention of the law” (Pl.’s Renewed Reply at 5)—“without disclosing the
information the government claims is protected” (id.).
In this regard, Brick insists that “it is possible at least for [the FBI] to ‘describe
the general nature of the technique while withholding the full details’” (id. (quoting
Boyd v. Bur. of Alcohol, Tobacco, Firearms & Explosives, 2006 WL 2844912, at *9
(D.D.C. 2006))); for example, he surmises from “the face of the redacted records” that
the documents are “memoranda that appear to report statements about Mrs. Roosevelt’s
activities made by informants[,]” and he argues that this “method of using confidential
informants and writing down what those informants say” is a “widely known method
[that] does not qualify for protection” as a confidential intelligence method. (Id. at 6;

11

see also Pl.’s Renewed Mot. at 10 (asserting that “the government’s utilization of that
method is already revealed by the very existence of the memoranda, regardless of the
redactions” (internal quotation marks omitted)); Pl.’s Renewed Reply at 6–7 (arguing
that Defendant has “effectively conced[ed]” the nature of the method at issue).) Brick
further maintains that “[n]othing the government has yet said publicly in the course of
this litigation provides any basis for concluding that the documents provide any
‘detailed . . . description of . . . Hoover-era methods,’ let alone that disclosing them
would reveal unknown intelligence or law enforcement methods, or risk damage to
national security or circumvention of the laws.” (Pl.’s Renewed Mot. at 10 (quoting
Campbell v. Dep’t of Justice, 164 F.3d 20, 31 (D.C. Cir. 1998) (alterations in
original)).)
This Court is not at liberty to confirm or refute Brick’s assumptions and
assertions about what the agency is able to reveal, because the instant Opinion cannot
specifically reference the information set forth in the agency’s declaration, which is
classified. But the Court will say that it has given full consideration to Brick’s
contentions about the government’s ability to provide more details regarding the
general nature of the methods and techniques at issue and the underlying law
enforcement purposes, as well as Brick’s deductions about the nature of the redacted
information, and the Court finds based on its in camera review of the classified
declaration and the unredacted records that the government’s concerns about potentially
harmful disclosure are justified. In other words, this Court agrees with the agency that
this case presents a circumstance in which there is a risk of revelation of information
that “compromise[s] legitimate secrecy interests[,]” Hayden, 608 F.2d at 1385, such

12

that resort to an in camera declaration is necessary. And it likewise agrees that the
government’s public declaration provides as fulsome of a statement as is possible
without revealing the very information that the government seeks to protect. See, e.g.,
Lykins, 725 F.2d at 1463–65; see also Shapiro, 239 F. Supp. 3d at 111; Edmonds, 272
F. Supp. 2d at 46–47.
B.

The FBI Properly Invoked Exemption 3 To Withhold Information In
The 12 Pages At Issue

Turning to the merits of the FBI’s withholding determination, for the reasons
explained below, this Court further concludes that the government has properly relied
on FOIA Exemption 3, and alternatively, FOIA Exemption 7(E), to withhold the
redacted information.
FOIA’s Exemption 3 permits an agency to withhold information that is
responsive to a FOIA request when that information is “specifically exempted from
disclosure by [another] statute,” provided that the applicable statute “(i) requires that
matters be withheld from the public in such a manner as to leave no discretion on the
issue; or (ii) establishes particular criteria for withholding or refers to particular types
of matters to be withheld.” 5 U.S.C. § 552(b)(3). In analyzing whether an agency can
rely upon a particular statute for an Exemption 3 withholding, a reviewing court “must
first determine whether the statute is a withholding statute at all by deciding whether it
satisfies the threshold requirement that it specifically exempt matters from
disclosure[,]” EPIC, 296 F. Supp. 3d at 120 (emphasis, internal quotation marks,
alterations, and citation omitted); this determination is made by “look[ing] to the
language of the statute on its face[,]” Gov’t Accountability Project v. FDA, 206 F.
Supp. 3d 420, 429 (D.D.C. 2016) (internal quotation marks and citation omitted). After

13

conducting this initial analysis, the court must then determine (1) whether the statute
satisfies either of Exemption 3’s disjunctive conditions for withholding the responsive
information, see Gov’t Accountability Project, 206 F. Supp. 3d at 428, and if so (2)
whether the material the agency has withheld falls within the scope of the statute, see
Fitzgibbon v. CIA, 911 F.2d 755, 761–62 (D.C. Cir. 1990).
Here, the FBI relied upon Section 102A(i)(1) of the National Security Act of
1947, which requires the Director of National Intelligence to “protect from
unauthorized disclosure intelligence sources and methods.” 50 U.S.C. § 3024(i)(1).
(See Def.’s Renewed Mot. at 8.) “The DNI has delegated enforcement of this National
Security Act mandate to the heads of the 17 agencies that constitute the Intelligence
Community,” and the FBI is one of those delegees. EPIC, 296 F. Supp. 3d at 121
(internal quotation marks, citation, and alterations omitted). Thus, it is clear quite wellaccepted that Section 102A(i)(1) of the National Security Act of 1947 is a withholding
statute for purposes of Exemption 3, because it “specifically exempt[s]” matters from
disclosure, and it is further established that the statute satisfies one of Exemption 3’s
disjunctive conditions, because it “refers to particular types of matters to be withheld.”
5 U.S.C. § 552(b)(3); see also CIA v. Sims, 471 U.S. 159, 167 (1985) (explaining that
the “conclusion [that the National Security Act is a withholding statute] is supported by
the plain meaning of the statute, by the legislative history of FOIA, and by every
federal court of appeals that has considered the matter”); DiBacco v. U.S. Army, 795
F.3d 178, 197 (D.C. Cir. 2015) (noting that the plaintiff in that case “does not dispute,
nor could she, that Section 3024(i)(1) is a valid Exemption 3 statute”).

14

With respect to whether or not the withheld material at issue in the instant case
falls within the substantive ambit of the National Security Act, this Court readily finds
that the withheld material pertains to “intelligence sources and methods” that the FBI
must protect from disclosure. 50 U.S.C. § 3024(i)(1). This finding is based upon the
Court’s review of Hardy’s public and in camera declarations, as well as the documents
themselves, for the reasons explained in the declarations. (See, e.g., 2d Hardy Decl. ¶ 7
(explaining that the “withheld information named specific intelligence sources,
including a permanent source symbol number, as well as intelligence collected by the
source”); Classified Hardy Decl. (providing details regarding the nature of the
intelligence sources and methods at issue).) Moreover, in his ex parte declaration,
Hardy has provided a logical explanation of how certain intelligence sources and
methods would be revealed if additional information in the 12 pages at issue is released.
(See Classified Hardy Decl.) This is all that Exemption 3 requires. See Fitzgibbon, 911
F.2d at 761–62 (explaining that “the sole issue for decision [with respect to Exemption
3] is the existence of a relevant statute and the inclusion of withheld material within the
statute’s coverage” (internal quotation marks and citation omitted)).
C.

The FBI Properly Invoked Exemption 7(E) To Withhold Information
In The 12 Pages At Issue

FOIA’s Exemption 7(E) enables agencies to withhold records or information that
are “compiled for law enforcement purposes,” 5 U.S.C. § 552(b)(7), where production
of the records or information “would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law,” id. § 552(b)(7)(E) (emphasis added).

15

Records or information can be deemed to have been “compiled for law enforcement
purposes,” id. § 552(b)(7), “even when the materials have not been compiled in the
course of a specific investigation.” Tax Analysts v. IRS, 294 F.3d 71, 79 (D.C. Cir.
2002). Indeed, “[l]aw enforcement entails more than just investigating and prosecuting
individuals after a violation of the law[,]” Pub. Emps. For Envtl. Responsibility v. U.S.
Section, Int’l Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195, 203 (D.C. Cir.
2014) (emphasis in original); it can also include “‘proactive steps designed to prevent
criminal activity and to maintain security.’” Id. (quoting Milner v. Dep’t of Navy, 562
U.S. 562, 582 (2011) (Alito, J., concurring)).
The second element of Exemption 7(E)—that records or information would
disclose “techniques” and “procedures” for law enforcement investigations or
prosecutions—is satisfied in circumstances where the material at issue “would disclose
details about a law enforcement technique or procedure itself[.]” Sheridan v. U.S.
Office of Pers. Mgmt., 278 F. Supp. 3d 11, 19 (D.D.C. 2017) (citation omitted). And
the final element of Exemption 7(E)—that disclosure of records or information “could
reasonably be expected to risk circumvention of the law,” 5 U.S.C. § 552(b)(7)(E)—
“sets a relatively low bar for the agency to justify withholding[.]” Blackwell v. FBI,
646 F.3d 37, 42 (D.C. Cir. 2011). “In fact, ‘the exemption looks not just for [actual]
circumvention of the law, but for a risk of circumvention; not just for an actual or
certain risk of circumvention, but for an expected risk; not just for an undeniably or
universally expected risk, but for a reasonably expected risk; and not just for certitude
of a reasonably expected risk, but for the chance of a reasonably expected risk.’”
Sheridan, 278 F. Supp. 3d at 19 (quoting Mayer Brown LLP v. IRS, 562 F.3d 1190,

16

1193 (D.C. Cir. 2009) (alteration in original) (emphasis added)). As such, “[r]ather
than requiring a highly specific burden of showing how the law will be circumvented,
exemption 7(E) only requires that the [agency] demonstrate[] logically how the release
of [the requested] information might create a risk of circumvention of the law.” Mayer
Brown, 562 F.3d at 1194 (third and fourth alterations in original) (internal quotation
marks and citation omitted).
Here, Hardy’s classified declaration, in conjunction the unredacted records
themselves, establishes that the records at issue were “compiled for law enforcement
purposes” as the D.C. Circuit has interpreted that phrase. See Pub. Emps. For Envtl.
Responsibility, 740 F.3d at 203. In particular, the information at issue was compiled as
part of an FBI national security investigation (see Hardy Decl., ECF No. 12-1, ¶ 22
(explaining that the records “were compiled in furtherance of the FBI’s national
security investigation into potential targets, and in accordance with the FBI’s authority
to collect intelligence to protect the United States from terrorism and threats to National
Security”); see also Classified Hardy Decl.). Furthermore, it is apparent from these
same documents that releasing any additional information would in fact disclose law
enforcement techniques and procedures. See Sheridan, 278 F. Supp. 3d at 18–19. (See
also Classified Hardy Decl.) Based on its consideration of all of the materials
submitted for in camera review, this Court further finds that the FBI has established a
logical connection between release of the redacted information and risk of
circumvention of the law. See Mayer Brown, 562 F.3d at 1194. (See also, generally,
Classified Hardy Decl.)

17

D.

The FBI Has Established That It Has Released All Reasonably
Segregable, Non-Exempt Information

Finally, this Court finds that the government has satisfied its obligation “of
demonstrating that no reasonably segregable material exists” beyond what it has already
released. Barouch, 962 F. Supp. 2d at 56. Stated simply, the Court’s in camera review
of the unredacted records reveals that the redactions at issue here are indeed narrowly
tailored, and the Court agrees with the government that it is not possible for any
additional information to be released from the records at issue without disclosing the
very information that the government seeks to protect. See EPIC, 296 F. Supp. 3d at
118–19.
IV.

CONCLUSION
For the reasons discussed above, and after careful consideration of all of the

materials submitted in this matter, including Hardy’s classified affidavit and unredacted
copies of the 12 pages of records at issue in this case, the Court concludes that the
FBI’s submission of an ex parte declaration providing its explanation for the redactions
was appropriate, and that the agency’s invocation of Exemptions 3 and 7(E) to withhold
the information at issue in this lawsuit was proper. Accordingly, and as set forth in the
accompanying Order, Brick’s motion for summary judgment is DENIED and DOJ’s
motion for summary judgment is GRANTED.
Date: February 19, 2019

Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge

18