Broward Bulldog, Inc. et al v. U.S. Department of Justice et al

Filing 99

ORDER granting in part and denying in part 66 Motion for Summary Judgment; granting in part and denying in part 83 Motion for Partial Summary Judgment. The parties have until May25, 2017 to file a joint status report advising how they wish to proceed to conclude the case, andif a trial is to be held, to propose a trial period. Signed by Judge Cecilia M. Altonaga on 5/16/2017. (ps1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
BROWARD BULLDOG, INC., et al.,
Plaintiffs,
v.
UNITED STATES DEPARTMENT
OF JUSTICE, et al.,
Defendants.
________________________________/
ORDER
THIS CAUSE came before the Court on Defendants, the United States Department of
Justice and the Federal Bureau of Investigation’s Motion for Summary Judgment on Count I
(“Second MSJ”) [ECF No. 66], and Motion for Partial Summary Judgment on Count I (“Third
MSJ”) [ECF No. 83]. The Court has carefully considered the Motions; Plaintiffs, Broward
Bulldog, Inc. and Dan Christensen’s Opposition memoranda [ECF Nos. 73, 871]; Defendants’
Replies [ECF Nos. 79, 882]; the parties’ additional written submissions;3 and applicable law.
I. BACKGROUND
Plaintiffs bring this case against the Government under the Freedom of Information Act
(“FOIA”), 5 U.S.C. section 552, seeking records from a commission created to investigate the
September 11, 2001 terrorist attacks (the “Meese Commission”4). (See generally Complaint

1

Plaintiffs’ Opposition memoranda are referred to as the Second and Third Response, respectively.

2

Defendants’ Replies are referred to as the Second and Third Reply, respectively.

The submissions include Defendants’ Statement of Undisputed Facts (“Defendants’ SUF”) [ECF No.
64], and Plaintiffs’ Response (“Plaintiffs’ SUF Response”) [ECF No. 72].
3

4

The Government refers to the Meese Commission as the 9/11 Review Commission.

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
[ECF No. 1]). The Court summarized the factual background underlying Plaintiffs’ FOIA
request in the February 27 Order.

(See February 27 Order 2–6).

Because that factual

background remains the same, it is incorporated here.
A.

Procedural Background

The Government first moved for summary judgment on December 30, 2016, seeking
judgment on Counts II and III of the Complaint. (See generally Motion for Summary Judgment
(“First MSJ”) [ECF No. 27]). At that time, the Government had not fully processed Plaintiffs’
first FOIA request (see February 27 Order [ECF No. 58] 55), which was submitted by Plaintiffs
to the FBI on April 8, 2015. Plaintiffs’ first request sought transcripts of the Meese Commission
proceedings; an April 30, 2014 Memorandum for the Record; drafts of the final Commission
report; several FBI briefings and summaries given to the Commission; and a case file reviewed
by the Commission regarding a family that once lived in Sarasota, Florida (“First Request” or
“Count I”). (See Defs.’ SUF ¶¶ 1–2).
On February 27, 2017, the Court issued an Order granting in part and denying in part
Defendants’ First MSJ. (See generally February 27 Order). Five days before the Court issued its
Order, the Government filed a Motion for Continuance (“Extension Motion”) [ECF No. 52],
requesting leave to move for summary judgment on Count I on the basis it was unable to do so in
the First MSJ. The Government explained it had just finished producing records responsive to
Count I and wanted an opportunity to move for summary judgment, as “FOIA cases are
generally and most appropriately resolved on motions for summary judgment.” (Id. 4 (citations
omitted)). At calendar call, on February 28, 2017 (see Minute Entry [ECF No. 59]), the Court
granted in part Defendants’ Extension Motion and allowed the Government to file a second
5

For consistency, the Court uses the pagination generated by the electronic CM/ECF database, which
appears in the header of all court filings.

2

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
motion for summary judgment to address Count I (see Order [ECF No. 60]).
The Government filed its Second MSJ on March 14, 2017 (see generally Second MSJ);
however, more than two weeks later, on March 31, 2017, it filed a Motion for Leave [ECF No.
75], to file a third motion for summary judgment. In the Motion for Leave, the Government
explained it had located an additional 302 pages of records responsive to Count I and sought to
supplement its Second MSJ, stating a ruling on the pending motion would not fully resolve the
case. (See id. 4–5). After considering the parties’ submissions (see generally id.; Plaintiffs’
Opposition [ECF No. 80]; Defendants’ Reply [ECF No. 81]), the Court granted the Motion for
Leave (see Order [ECF No. 82]), and the Government filed its Third MSJ on April 6, 2017.
B.

Second and Third MSJ Issues

In the Second and Third Motions, the Government requests summary judgment on Count
I of the Complaint, corresponding to Plaintiffs’ First Request. (See generally Second MSJ; Third
MSJ). Defendants argue the Court should rule as a matter of law: (1) they have conducted a
reasonable search to “locate all records responsive to Plaintiffs’ FOIA request,” and (2) the FBI
“lawfully asserted FOIA exemptions to withhold certain information.” (Second MSJ 35; Third
MSJ 20). Plaintiffs dispute this, insisting: (1) “the FBI has not shown” it “conducted an adequate
search for responsive records,” and (2) disputed issues of material fact remain regarding
exemptions asserted by the FBI to redact and withhold information. (Second Resp. 41; see Third
Resp. 5, 23). There is also a third issue regarding whether the FBI must produce certain records
in this case which are also before Judge William Zloch for review in Broward Bulldog, Inc., et
al. v. U.S. Department of Justice, et al., 12-CV-61735-WJZ (S.D. Fla. 2012) (“Broward Bulldog
I”). The FBI asserts it does not have to reproduce these records (see Second Reply 2–4), while
Plaintiffs maintain the FBI must provide them (see Second Resp. 9–14).

3

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
II. LEGAL STANDARDS
A.

The FOIA and Summary Judgment Generally

“The purpose of FOIA is to encourage public disclosure of information so citizens may
understand what their government is doing.” Office of Capital Collateral Counsel, N. Region of
Fla. ex rel. Mordenti v. U.S. Dep’t of Justice, 331 F.3d 799, 802 (11th Cir. 2003). “Congress
enacted FOIA to ‘enable the public to have access to government information that is
unnecessarily shielded from public view.’” Miccosukee Tribe of Indians of Fla. v. United States,
516 F.3d 1235, 1244 (11th Cir. 2008) (quoting Nadler v. U.S. Dep’t of Justice, 955 F.2d 1479,
1484 (11th Cir.1992)). Accordingly, “the records at issue . . . are presumed to be subject to
disclosure unless” Defendants “affirmatively establish[] . . . the requested records fall into one of
FOIA’s exemptions.” Office of Capital Collateral Counsel, 331 F.3d at 802 (alterations added;
citation omitted); see also Light v. U.S. Dep’t of Justice, 968 F. Supp. 2d 11, 26 (D.D.C. 2013)
(“It is clear that ‘disclosure, not secrecy, is the dominant objective of the [FOIA].’” (alteration
added; citation omitted)).
The FOIA “vests jurisdiction in federal district courts to enjoin an ‘agency from
withholding agency records and to order the production of any agency records improperly
withheld from the complainant.’” Kissinger v. Reporters Comm. for Freedom of the Press, 445
U.S. 136, 139 (1980) (quoting 5 U.S.C. § 552(a)(4)(B)). Courts review an agency’s decision to
withhold its records de novo, and the Government bears the burden of justifying any disputed
exemptions. See id.; see also Miccosukee Tribe of Indians of Fla., 516 F.3d at 1258. In
assessing the evidence, courts must determine whether the agency had an “adequate factual
basis” for invoking the exemptions. Miccosukee Tribe of Indians of Fla., 516 F.3d at 1244.
“[I]n this Circuit, an adequate factual basis may be established, depending on the circumstances

4

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
of the case, through affidavits, a Vaughn Index,[6] in camera review, or through a combination of
these methods.” Id. at 1258 (alteration and footnote call number added; emphasis in original;
citation omitted).
FOIA cases are generally resolved on motions for summary judgment. Id. The court
may only enter summary judgment if the pleadings, discovery and disclosure materials on file,
and any affidavits show “there is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a), (c). An issue of fact is “material”
if it might affect the outcome of the case under the governing law. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). It is “genuine” if the evidence could lead a reasonable
jury to find for the non-moving party. See id.; see also Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
“The relevant question on summary judgment, viewed in the light most favorable to the
person making the FOIA request, is whether an agency conducted a reasonable and adequate
search ‘calculated to uncover all relevant documents’ and whether any withholdings were
justified.” Guidry v. Comey, No. 4:15CV23-RH/CAS, 2016 WL 1068611, at *3 (N.D. Fla. Feb.
4, 2016), report and recommendation adopted, No. 4:15CV23-RH/CAS, 2016 WL 1069669
(N.D. Fla. Mar. 17, 2016) (citations omitted). Where “the moving party fails to demonstrate the
absence of a genuine issue of material fact, the motion should be denied.” Kernel Records Oy v.
Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012) (citations omitted).
B.

FOIA Exemptions 1, 3, 5, 6, 7(C)–(E)

The Government may invoke nine statutory exemptions to withhold records from public
disclosure. See 5 U.S.C. §§ 552(b)(1)–(9); see also Chilivis v. S.E.C., 673 F.2d 1205, 1210–11
6

A Vaughn index lists the documents the agency is withholding along with a detailed justification for the
agency’s claim. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).

5

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
(11th Cir. 1982) (“[R]ecords and documents held by federal agencies are presumed subject to
disclosure unless the agency can establish that the material falls into one of the FOIA’s nine
exemptions.” (alteration added; citations omitted)). These exemptions attempt to “balance the
public’s need for access to information with the Government’s need, under some circumstances,
for confidentiality.” Chilivis, 673 F.2d at 1210 (citation omitted). Because of the FOIA’s
presumption in favor of public disclosure, these “exemptions are . . . narrowly construed.” F.B.I.
v. Abramson, 456 U.S. 615, 630 (1982) (alteration added; citation omitted).
Below is a summary of the seven statutory exemptions the Government invokes in its
Motions to withhold and redact information.
1.

Exemption 1 – Classified Information

Exemption 1 protects classified information from disclosure; it exempts documents
“specifically authorized under criteria established by an Executive order to be kept secret in the
interest of national defense or foreign policy and . . . [documents that] are in fact properly
classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1) (alterations added). Because
of the possible strong implications for national security, courts should defer to an agency’s
decision to withhold information under Exemption 1. See Halperin v. Cent. Intelligence Agency,
629 F.2d 144, 147–48 (D.C. Cir. 1980); see also Military Audit Project v. Casey, 656 F.2d 724,
738 (D.C. Cir. 1981) (stating courts are required to “accord substantial weight to an agency’s
affidavit concerning the details of the classified status of the disputed record” (internal quotation
marks and citation omitted)).
While the burden of proof is on the Government, “a reviewing court ‘must recognize that
the Executive departments responsible for national defense and foreign policy matters have
unique insights into what adverse affects [sic] might occur as a result of public disclosures of a

6

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
particular classified record.’” Krikorian v. U.S. Dep’t of State, 984 F.2d 461, 464 (D.C. Cir.
1993) (alteration in original) (quoting Military Audit Project, 656 F.2d at 738).

“Judges,

moreover, lack the expertise necessary to second-guess such agency opinions in the typical
national security FOIA case.”

Id. (quoting Halperin, 629 F.2d at 148).

However, the

Government must present “reasonable specificity of detail rather than merely conclusory
statements” to be entitled to summary judgment in its favor under Exemption 1. Halperin, 629
F.2d at 148. If the Government provides a detailed explanation, “the court is not to conduct a
detailed inquiry to decide whether it agrees with the agency’s opinions; to do so would violate
the principle of affording substantial weight to the expert opinion of the agency.” Id.
2.

Exemption 3 – Information Exempted from Disclosure by Statute

Exemption 3 protects from disclosure documents that are “specifically exempted from
disclosure by statute.” 5 U.S.C. § 552(b)(3). It “allows for legislative override of [the] FOIA’s
presumption of disclosure.” Castagna v. Sec’y of Health & Human Servs., No. 99-411V, 2011
WL 4348135, at *16 (Fed. Cl. Aug. 25, 2011) (alteration added). As with Exemption 1, courts
should defer to an agency’s decision to withhold information under Exemption 3. See Halperin,
629 F.2d at 147–48. Under Exemption 3, the Government need only show a statute falls under
Exemption 3 and that the withheld material falls within the statute. See Larson v. Dep’t of State,
565 F.3d 857, 865 (D.C. Cir. 2009). This exemption is different from other FOIA exemptions
because “its applicability depends less on the detailed factual contents of specific documents; the
sole issue for decision is the existence of a relevant statute and the inclusion of withheld material
within that statute’s coverage.” Goland v. Cent. Intelligence Agency, 607 F.2d 339, 350 (D.C.
Cir. 1978).

7

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
3.

Exemption 5 – Privileged Documents

Exemption 5 allows the Government to withhold “inter-agency or intra-agency
memorandums or letters that would not be available by law to a party other than an agency in
litigation with the agency.” 5 U.S.C. § 552(b)(5). “This means, in effect, privileged documents
that originated with the agency.” Touarsi v. U.S. Dep’t of Justice, 78 F. Supp. 3d 332, 344
(D.D.C. 2015) (citation omitted).
One of the recognized privileges is the “deliberative process” privilege, which
encompasses documents “reflecting advisory opinions, recommendations, and deliberations
comprising part of a process by which governmental decisions and policies are formulated.”
Moye, O’Brien, O’Rourke, Hogan & Pickert v. Nat’l R.R. Passenger Corp., 376 F.3d 1270, 1277
(11th Cir. 2004) (citation omitted); see also U.S. Dep’t of Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 8 (2001). “The purpose of this privilege is to allow agencies to
freely explore possibilities, engage in internal debates, or play devil’s advocate without fear of
public scrutiny.” Moye, O’Brien, O’Rourke, Hogan & Pickert, 376 F.3d at 1277 (citing Klamath
Water Users, 532 U.S. at 8–9).
“To fall within the deliberative process privilege, a document must be both
‘predecisional’ and ‘deliberative.’” Id. (citation omitted). A document is predecisional if it was
“prepared in order to assist an agency decision-maker in arriving at his decision and may include
recommendations, draft documents . . . and other subjective documents which reflect the
personal opinions of the writer rather than the policy of the agency.” Id. (alteration added;
citations omitted). “A document is ‘deliberative’ if the disclosure of the materials would expose
an agency’s decision-making process in such a way as to discourage candid discussion within the

8

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
agency and, thereby, undermine the agency’s ability to perform its functions.” Id. at 1278
(citations omitted).
In Environmental Protection Agency v. Mink,7 the Supreme Court “distinguished between
deliberative and factual materials: ‘Exemption 5 . . . requires different treatment for material
reflecting deliberative or policy-making processes on the one hand, and purely factual,
investigative matters on the other.’” Trentadue v. Integrity Comm., 501 F.3d 1215, 1227 (10th
Cir. 2007) (quoting Mink, 410 U.S. at 73). It held “memoranda consisting only of compiled
factual material” were not protected unless the factual material was intertwined with deliberative
process material. Mink, 410 U.S. at 89.
In the Eleventh Circuit, “[t]he only inquiry that should be made in deciding whether
something should be denoted opinion, and hence deliberative, is: Does the information reflect the
give-and-take of the consult[at]ive process?” Fla. House of Reps. v. U.S. Dep’t of Commerce,
961 F.2d 941, 949 (11th Cir. 1992) (alterations added).

“The underlying purpose of the

deliberative process privilege is to ensure that agencies are not forced to operate in a fish bowl. .
. . Therefore, courts must focus on the effect of the material’s release.” Moye, O’Brien,
O’Rourke, Hogan, & Pickert, 376 F.3d at 1278 (internal citations omitted; alteration added).
4.

Exemption 6 – Exemption of Personnel and Medical Files

Exemption 6 allows the Government to withhold “personnel and medical files and similar
files the disclosure of which would constitute a clearly unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(6). In Department of Air Force v. Rose, 425 U.S. 352 (1976), the
Supreme Court held Exemption 6 does not “create[] a blanket exemption for personnel files,” id.
at 371 (alteration added), and “does not protect against disclosure every incidental invasion of
privacy[,] [but] only such disclosures as constitute ‘clearly unwarranted’ invasions of personal
7

410 U.S. 73 (1973) (superseded by statute on other grounds).

9

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
privacy,” id. at 382 (alterations added). The “primary purpose” of Exemption 6 is to “protect
individuals from the injury and embarrassment that can result from the unnecessary disclosure
of personal information.” News-Press v. U.S. Dep’t of Homeland Sec., 489 F.3d 1173, 1196
(11th Cir. 2007) (emphasis in original; internal quotation marks omitted) (quoting U.S. Dep’t of
State v. Wash. Post Co., 456 U.S. 595, 599 (1982)).
In Rose, the Supreme Court explained Exemption 6 requires “a balancing of the
individual’s right of privacy against the preservation of the basic purpose of the [FOIA] to open
agency action to the light of public scrutiny.” 425 U.S. at 372 (alteration added; internal
quotation marks omitted). The Eleventh Circuit has stated “the crux of Exemption 6 is its second
prong, which asks whether disclosure ‘would constitute a clearly unwarranted invasion of
personal privacy.’” News-Press, 489 F.3d at 1197 (citations omitted). The Eleventh Circuit has
also described “an agency’s burden under Exemption 6” as “onerous.” Id. at 1198 (alteration
added) (citing Stern v. F.B.I., 737 F.2d 84, 91 (D.C. Cir. 1984) (Exemption 6’s language
“require[s] a balance tilted emphatically in favor of disclosure” (alteration added)) (other
citations omitted).
5.

Exemptions 7(C)–(E)
a. Exemption 7(C) – Protection of Personal Privacy

Exemption 7(C) covers records compiled for law enforcement purposes and allows the
Government to withhold information that “could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Exemption 7(C) is similar
to Exemption 6 but less onerous, see News-Press, 489 F.3d at 1198, because the agency need
only show disclosure “could reasonably be expected” to constitute an unwarranted invasion of
personal privacy. 5 U.S.C. § 552(b)(7)(C). Under Exemption 6, the Government must show

10

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
disclosure “would” constitute an unwarranted invasion of personal privacy. Id. § 552(b)(6); see
also U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 496 n.6 (1994) (“Exemption
7(C) is more protective of privacy than Exemption 6 . . . . Exemptions 7(C) and 6 differ in the
magnitude of the public interest that is required to override the respective privacy interests
protected by the exemptions.” (alteration added)).
b. Exemption 7(D) – Confidential Source Information
Exemption 7(D) permits withholding of information that “could reasonably be expected
to disclose the identity of a confidential source.” 5 U.S.C. § 552(b)(7)(D). It “has long been
recognized as the strongest of all of [the] FOIA’s law enforcement exemptions.” Bullock v.
F.B.I., 587 F. Supp. 2d 250, 253 (D.D.C. 2008) (alteration added; citation omitted). “A source is
confidential within the meaning of exemption 7(D) if the source provided information under an
express assurance of confidentiality or in circumstances from which such an assurance could be
reasonably inferred.” Williams v. F.B.I., 69 F.3d 1155, 1159 (D.C. Cir. 1995) (internal quotation
marks and citations omitted). The inquiry focuses on whether “the particular source spoke with
an understanding that the communication would remain confidential.” U.S. Dep’t of Justice v.
Landano, 508 U.S. 165, 172 (1993) (emphasis in original).
In Landano, the Supreme Court held “the Government is not entitled to a presumption
that a source is confidential within the meaning of Exemption 7(D) whenever the source provides
information to the FBI in the course of a criminal investigation.”

Id. at 181.

Instead,

circumstances such as the nature of the crime and the source’s relation to the crime must be
considered in determining whether the source spoke with the understanding the information
would remain confidential. See id.

11

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
c. Exemption 7(E) – Law Enforcement Techniques and Procedures
Exemption 7(E) applies to information that “would disclose techniques and procedures
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) (alteration added). “A
highly specific burden of showing how the law will be circumvented is not required; instead,
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.” Touarsi, 78 F. Supp. 3d
at 348 (alterations, internal quotation marks, and citations omitted). “While Exemption 7(E)’s
protection is generally limited to techniques or procedures that are not well-known to the public,
even commonly known procedures may be protected from disclosure if the 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) (citations omitted).
III. ANALYSIS
A.

Introduction

At issue in the Second and Third Motion are: (1) the adequacy of the Government’s
search for responsive records; (2) whether the FBI must reproduce records already provided in
Broward Bulldog I; and (3) the adequacy of various statutory exemptions claimed by the
Government in withholding information. The Government asserts it conducted an adequate
search for records, properly withheld documents duplicative of records produced in Broward
Bulldog I, and correctly withheld information under numerous exemptions.

(See generally

Second MSJ; Third MSJ). Plaintiffs argue genuine issues of material fact remain regarding the
adequacy of the FBI’s search and the claimed exemptions, and contend the FBI must produce
records in this case already furnished in Broward Bulldog I. (See generally Second Resp.; Third

12

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
Resp.). Defendants submitted the disputed documents, unredacted, for in camera review,8 along
with a Vaughn index (see Unclassified Summary Vaughn Index (“Vaughn Index”) [ECF No. 761–76-18]); as well as three declarations9 from David M. Hardy10 explaining the applicability of
the invoked exemptions (see generally Second Hardy Decl.; Fourth Hardy Decl.; Fifth Hardy
Decl.).
The Court will first address the adequacy of the FBI’s search for responsive records, and
then consider whether the FBI must produce the records already produced in Broward Bulldog I.
Finally, and most exhaustively, the Court examines the redacted and withheld disputed
documents one by one, redaction by redaction, to determine whether the Government has met its
burden of “affirmatively establish[ing] . . . the requested records fall into one of [the] FOIA’s
exemptions.” Office of Capital Collateral Counsel, 331 F.3d at 802 (alterations added) (citing
Chilivis, 673 F.2d at 1210–11).
B.

Adequacy and Reasonableness of the FBI’s Search

The FBI asserts it conducted an adequate and extensive search, processing 1,416 pages of
responsive records. (See Third MSJ 4–5). It assures Plaintiffs’ concerns regarding any possible
deficiencies in the search and production of records have been addressed. (See id. 7). For their
part, Plaintiffs vehemently dispute the adequacy of the search, accusing the Government of
submitting declarations that “contain blatantly misleading statements and raise numerous factual

8

The unredacted information marked as classified was separately submitted to the Clerk of Court. (See
Defendants’ Notice of Ex Parte Submissions [ECF No. 69]).
(See Second Declaration of David M. Hardy (“Second Hardy Declaration”) [ECF No. 27-1]; Fourth
Declaration of David M. Hardy (“Fourth Hardy Declaration”) [ECF No. 66-1]; Fifth Declaration of David
M. Hardy (“Fifth Hardy Declaration”) [ECF No. 83-1]).
9

Hardy is the Section Chief of the Record-Information Dissemination Section of the FBI’s Records
Management Division. (See Second Hardy Declaration ¶ 1).
10

13

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
issues.” (Second Resp. 17). According to Plaintiffs, there are “red flag[s]” suggesting the FBI
“intentionally concealed responsive records,” thereby “creating serious questions regarding the
completeness of the production.” (Id. 19–20, 22 (alterations added)). Because the law only
requires the FBI’s search be reasonable, not exhaustive, the Court finds the Government —
through detailed declarations — has met its burden of showing the search was adequate and
reasonable.
“Under [the] FOIA, an adequate search is one that is ‘reasonably calculated to uncover
all relevant documents.’” Davidson v. U.S. Dep’t of State, 206 F. Supp. 3d 178, 190 (D.D.C.
2016) (alteration added) (quoting Morley v. C.I.A., 508 F.3d 1108, 1114 (D.C. Cir. 2007)). The
agency does not “need to show that its search was exhaustive,” DelVecchio v. I.R.S., 360 F.
App’x 104, 108 (11th Cir. 2010) (internal quotation marks and citation omitted), but it “must
conduct a good faith, reasonable search of those systems of records likely to possess the
requested” documents, Marino v. Dep’t of Justice, 993 F. Supp. 2d 1, 9 (D.D.C. 2013) (citation
omitted); see also Pavlenko v. I.R.S., 356 F. App’x 293, 294 (11th Cir. 2009).
“When an agency seeks summary judgment on the basis that it conducted an adequate
search, it must provide a ‘reasonably detailed’ affidavit describing the scope of that search.”
Davidson, 206 F. Supp. 3d at 190 (citations omitted). “It is not enough . . . for the affidavit to
state in conclusory fashion that the agency conducted a review of [the files] which would contain
information that [the plaintiff] requested and did not find anything responsive to the request.” Id.
(first alteration added; second and third alterations in original; internal quotation marks and
citation omitted). The affidavit must be “reasonably detailed and not controverted by contrary
evidence or evidence of bad faith.” Marino, 993 F. Supp. 2d at 9 (citation omitted). “Once an
agency has made a prima facie showing of adequacy, the burden shifts to the plaintiff to provide

14

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
countervailing evidence as to the adequacy of the agency’s search,” Schoenman v. F.B.I., 764 F.
Supp. 2d 40, 46 (D.D.C. 2011) (internal quotation marks and citation omitted), and “demonstrate
the lack of a good faith search,” Marino, 993 F. Supp. 2d at 9 (citation omitted).
Hardy’s declarations describe how the FBI conducted its search.11 (See generally Hardy
Fourth Decl.; Hardy Fifth Decl.). Upon receipt of Plaintiffs’ FOIA request, the FBI directed its
search for records to the FBI Director’s Office, where two employees directly involved with the
Meese Commission’s work conducted the search. (See Hardy Fifth Decl. ¶ 8). The two
employees identified an electronic storage site where documents related to the Meese
Commission were stored, and because the FBI “believed this electronic storage contained all the
[Meese] Commission records [P]laintiffs were seeking,” it did not look elsewhere.

(Id.

(alterations added)). It then conducted “a document-by-document search of all records” on the
electronic storage site and “located 896 pages” of responsive records. (Id. ¶ 9). At that time, the
FBI did not believe responsive records existed in any other location and did not conduct
additional searches. (See id.).
After the FBI produced its first batch of documents, Plaintiffs questioned whether the
search had been adequate, identifying a list of missing records. (See id. ¶ 10). The FBI
maintains even though it believed its original search efforts were reasonable, it attempted to
address Plaintiffs’ concerns by contacting the two employees who conducted the original search.
(See id.). “[A]dditional inquiries” were made and “for the first time” the FBI learned of “the
existence of” another electronic case file and “additional records they believed” had been

The declarations “may be submitted by an individual who either participated in the search or
coordinated the search.” Bigwood v. U.S. Dep’t of Def., 132 F. Supp. 3d 124, 135 (D.D.C. 2015). Hardy
manages the FBI’s FOIA requests and is “aware of the FBI’s handling of [P]laintiffs’ FOIA requests.”
(Fifth Hardy Decl. ¶¶ 2–3 (alteration added)).
11

15

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
“destroyed.”

(Id. (alteration added)).

Some of the additional documents were located in

Washington, DC and were scheduled to be destroyed after having been held for a year. (See id.).
Upon learning the documents still existed, the FBI requested the responsive documents be
produced to Plaintiffs. (See id. ¶¶ 11–12). Plaintiffs were notified of these additional documents
on March 24, 2017. (See id. ¶ 12).
Hardy’s declarations regarding the FBI’s search for records is reasonably detailed,
describing the steps the FBI took to locate responsive records. (See, e.g., Hardy Fifth Decl.).
Because the declarations are detailed, the burden shifts to Plaintiffs to “demonstrate the lack of a
good faith search,” Marino, 993 F. Supp. 2d at 9 (citations omitted), and “produce
‘countervailing evidence’ suggesting a genuine dispute of material fact exists as to the adequacy
of the search,” Hunton & Williams LLP v. U.S. Envtl. Prot. Agency, No. 15- CV-1203-RC, 2017
WL 1207410, at *8 (D.D.C. Mar. 31, 2017) (citation omitted).
Plaintiffs state Hardy’s “declarations” contain “blatantly misleading statements and raise
numerous factual issues.”

(Second Resp. 17).

In support, they note the FBI incorrectly

anticipated producing documents in December 2016 but was unable to meet this deadline. (See
id. 17). Plaintiffs further question why the FBI initially chose not to search the central records
system and instead relied on the Director’s Office to respond to the requests. (See id. 17–18).
They assert the FBI’s decision to maintain the Meese Commission records out of the FBI’s
central records system raises a “red flag” (id. 18), and contend the FBI’s identification of new
records in March 2017 suggests the “FBI Director” “intentionally concealed responsive records”
(id. 20). Plaintiffs argue there is substantial evidence of bad faith on the FBI’s part and the
searches were inadequate because the agency did not immediately produce the responsive

16

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
documents and instead produced them late in in several rounds.12 They claim “[m]any records
still appear to be missing,” and they believe the FBI is intentionally withholding the production
of documents “to punish the Bulldog for shining a light on the FBI’s work . . . or to interfere with
its investigation, or both.” (Id. 22 (alterations added)).
Defendants contend any “delays in processing a FOIA request do not amount to a
showing of agency bad faith.” (Second Reply 6 (citing Calvert v. United States, 715 F. Supp. 2d
44, 47 (D.D.C. 2010)). And they insist, “Plaintiffs completely ignore the FBI’s explanation that
its initial delay in processing Plaintiffs’ requests was due to an overwhelming large backlog of
pending FOIA requests and litigation.” (Id.).
Under prevailing law, the Government has met its burden of showing its search was
adequate. Plaintiffs have failed to meet their burden of showing bad faith by the FBI in
performing the searches and do not identify other locations and documents the FBI should search
and locate. Hardy’s declarations are sufficiently detailed and non-conclusory, describing every
step the FBI took to identify responsive records. The declarations “are accorded ‘a presumption
of good faith,’ which can only be rebutted with clear evidence of bad faith, and not by ‘purely
speculative claims about the existence and discoverability of other documents.’” Bigwood, 132
F. Supp. 3d at 136 (citation omitted). Plaintiffs’ conclusory statements the FBI has acted in bad
faith “to punish” (Second Resp. 22), are insufficient.
Furthermore, the Court is unpersuaded by Plaintiffs’ claim the FBI’s tardiness in
producing the documents and multiple rounds of production show the search is inadequate. The

Plaintiffs’ discussion of the adequacy of the FBI’s search also addresses exemptions claimed by the FBI
in previous Hardy declarations in an attempt to show Hardy has made contradictory statements and
“confessed” his previous declaration “was wrong.” (Second Resp. 18). Plaintiffs also reference a Central
District of California case where the court sanctioned Hardy for misleading the court — the Ninth Circuit
later vacated the sanctions. (See id. 15–16). These discussions are not relevant to the analysis whether
the FBI’s search was adequate.

12

17

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
FBI’s willingness to address Plaintiffs’ concerns regarding the first two productions, by
conducting another search for records, “substantially undercut[s] any suggestion of bad faith.”
Bigwood, 132 F. Supp. 3d at 140 (alteration added). With respect to the late production,
Miccosukee Tribe of Indians of Florida is instructive. See 516 F.3d at 1257. There, the Eleventh
Circuit stated courts should not draw a negative inference from an agency’s late production of
documents. See id. Courts should instead evaluate whether the agency provided a reasonable
explanation for the late production, and the Eleventh Circuit ultimately found the “district court
did not err when it failed to draw any adverse interest against the [agency] due to its late
disclosure of the documents in question.” Id. (alteration added).
Here, the FBI’s explanation for its late production and for conducting a third search upon
Plaintiffs’ request, is sufficient to show the agency acted in good faith. See Bory v. U.S. R.R.
Ret. Bd., 933 F. Supp. 2d 1353, 1359 (M.D. Fla. 2013) (“Continuing discovery and release of
documents may not prove that the original search was inadequate, but rather may show good
faith on the part of the agency that it continues to search for responsive documents.” (citation
omitted)).
Last, Plaintiffs’ assertion “[m]any records still appear to be missing,” without specifying
which records are missing or where the FBI should search to find them, does not create a triable
issue. (Second Resp. 22 (alteration added)). “Mere speculation that as yet uncovered documents
may exist does not undermine the finding that the agency conducted a reasonable search for
them.” SafeCard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1201 (D.C. Cir. 1991) (alteration added;
citation omitted). The law does not require an “exhaustive or meticulous account of the agency’s
search, but merely a reasonably detailed one. . . . Perfection is not now, and never has been, the
relevant standard.”

Schoenman, 764 F. Supp. 2d at 50 (alteration added; internal citation

18

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
omitted). The FBI has produced detailed declarations regarding the searches it conducted, and
Plaintiffs have “adduced no countervailing evidence that would raise a ‘substantial doubt’ as to
the adequacy of the [FBI’s] search” (id. (alteration added)); thus, summary judgment in the
Government’s favor on this issue is appropriate.
C.

Disputed Documents

The second question on summary judgment is whether the Government has properly
withheld documents in their entirety and whether the statutory exemptions asserted to withhold
or redact information from responsive records are justified. The Court analyzes each of the 28
disputed documents.
1. Document 1 – The Sarasota Family Case File
Plaintiffs argue the FBI must reproduce documents of the Sarasota family case file
already furnished in Broward Bulldog I. (See Second Resp. 9–14). The FBI explains it released
records from the “Sarasota family case file” in Broward Bulldog I and thus did not “re-release”
them in this case because they are duplicates. (Second Reply 2). It furthers states any nonduplicative records of the Sarasota family case file “were produced to Plaintiffs in this action.”
(Id. 4 (emphasis in original)).
According to Plaintiffs, the FBI has not “offered . . . [a] declaration or other evidentiary
support” to confirm some of the records requested are duplicative of the records before Judge
Zloch. (Second Resp. 10 (alterations added)). Plaintiffs further state Judge Zloch has made no
determination regarding the records and thus the undersigned should consider them. (See id. 13).
They also assert they are “entitled to see the records” regardless of whether they are the same
“records produced in the prior lawsuit,” and producing the records would not burden the FBI.
(Id.).

19

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
The Court will not consider the records produced in Broward Bulldog I. To do so could
potentially result in inconsistent findings in the two actions with respect to the duplicate records.
Hardy’s declaration states the FBI released “eleven pages” of records regarding the Sarasota
family case file that were not duplicative. (Fifth Hardy Decl. ¶ 21). Because the Court must
accord the agency’s detailed declaration “a presumption of good faith,” Bigwood, 132 F. Supp.
3d at 136 (citation and internal quotation marks omitted), Plaintiffs’ speculative claim the
records were not produced in Broward Bulldog I is unpersuasive. The Court will not consider
any documents at issue in Broward Bulldog I; the FBI is not required to produce those
duplicative documents in this case.
2. Document 2 – April 30, 2014 Report (Broward Bulldog 1–4)13
The Court already considered this document in the February 27 Order, denying and
granting in part summary judgment for the Government on the claimed exemptions.

(See

February 27 Order 10–23). After the Court issued its Order, the FBI removed some of the
redactions but maintained the majority of the redactions. (Compare Exhibits to Second Hardy
Declaration (“Second Hardy Declaration Exhibits”), Ex. K [ECF No. 27-2] 37–40; with Exhibits
to Fourth Hardy Declaration (“Fourth Hardy Declaration Exhibits”), Ex. G [ECF No. 68-1] 22–
25). The FBI now moves for summary judgment again, providing further explanations for the
redactions it maintains are properly withheld under Exemptions 6 and 7(C). (See Second MSJ
13; Fourth Hardy Decl. Exs., Ex. G, 22–25). To avoid repetition, the Court incorporates its
analysis of this document and the claimed exemptions from its February 27 Order here (See
February 27 Order 10–23), and only addresses the new arguments raised by the Government.

All of the requested records’ pages were Bates stamped by the FBI on the bottom left corner with
“Broward Bulldog [#].” (See generally Vaughn Index (alteration added)). For each document discussed,
the Court identifies the Bates stamp number.
13

20

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
After reviewing the Government’s explanations for the redactions, the Court’s decision in
the February 27 Order remains the same. Most of the names redacted under Exemptions 6 and
7(C) already appear in the public domain and are listed in Judge Zloch’s Order to Compel. (See
February 27 Order 10–15). Despite the February 27 Order clearly explaining why summary
judgment would not be granted, the Government continues to baselessly assert these individuals’
privacy interests outweigh the public interest. Plaintiffs correctly point out the Government’s
position is inconsistent because the Government maintains these redactions despite revealing the
third parties’ and FBI agents’ names elsewhere. (See Second Resp., Ex. 1 [ECF No. 73-1] 5).
For the reasons stated in the February 27 Order, summary judgment is denied. The
majority of the names appear unredacted in the April 30, 2014 Report, Judge Zloch’s Order to
Compel, and in other public documents. Moreover, the FBI continues to apply Exemptions 6
and 7(C) inconsistently. The FBI explains this inconsistency is actually the result of its stringent
adherence to the balancing test between public and private interest required under the
exemptions. (See Fourth Hardy Decl. ¶ 41). It further states releasing the names in this context
would confirm the FBI investigated the individuals and disclosure could seriously disrupt their
lives. (See id. ¶ 40). As to the FBI agent, the Government argues even if the name is in the
public domain, it was not disclosed “officially by the FBI.” (See Fourth Hardy Decl. Exs., Ex.
G, 24).
These new explanations are insufficient to satisfy the FBI’s burden at summary
judgment. The information is already in the public domain, and the FBI has released some of the
names in this same report. Moreover, there is a significant public interest in the information, and
the Supreme Court has instructed courts to construe FOIA exemptions narrowly because the
FOIA’s objective is “disclosure, not secrecy.” Rose, 425 U.S. at 361.

21

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
3. Document 3 – October 24, 2014 Report (Broward Bulldog 5–6)
The Court also considered this report in its February 27 Order, denying and granting in
part summary judgment on the claimed exemptions. (See February 27 Order 23–29). The FBI’s
new justifications for the redactions are unpersuasive.
The first disputed redactions are the names of two FBI agents who prepared the report.
(See Fourth Hardy Decl. Exs., Ex. G, 26). The two agents’ names are redacted, while the name
of the third agent who prepared the report, Jackie Maguire, is unredacted. (See id.). The FBI
argues it “has not publically disclosed these FBI employees’ names in conjunction with this . . .
investigation,” and disclosure “could make them targets for reprisal by investigative subjects.”
(Id. (alteration added)). The Government further contends releasing the names “would do little
to nothing to advance public understanding of government operations.” (Fourth Hardy Decl. ¶
43). According to Plaintiff, “there is a significant public interest in understanding who briefed
the Meese Commission,” and the “Meese Commission report does not redact the names of the
FBI agents or 33 other current and former federal government employees.” (Second Resp. 28).
The Court’s decision regarding these two redactions in the February 27 Order remains
unchanged: “[t]he FBI’s posture these two agents’ personal privacy warrants protection, while
the third agent’s does not, is unsupported.” (February 27 Order 24 (alteration added)).
The second disputed redaction is the name of an individual investigated by the FBI for
possible connections to the September 11 attacks. (See Fourth Hardy Decl. Exs., Ex. G, 26–27).
The FBI argues release of the individual’s name would “place suspicion of wrongdoing on” him,
and the public interest “is rather limited” because the document would only reveal additional
suspects. (Id.). The Government repeats the same arguments it made in its First MSJ and skirts
the Court’s concern (see February 27 Order 25–26), by failing to explain why the name should

22

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
remain undisclosed. Notably, the sentence immediately following the redacted material states:
“None of this identifies new participants in the 9/11 attacks but hardens the existing known
connections to the plot.” (Fourth Hardy Decl. Exs., Ex. G, 27). Because the Government fails to
address the Court’s concerns and again does not meet its burden of showing Exemptions 6 and
7(C) are applicable, summary judgment is denied.
4. Document 4 – Youssef Interview Briefing (Broward Bulldog 7–8)
The Court granted summary judgment in the Government’s favor on this document
because “the redactions contain information of a confidential source and techniques used by the
FBI to counter terrorism.” (February 27 Order 30). Plaintiffs recognize “without the benefit of
viewing the redacted materials, [they] cannot judge the applicability of the exemption[s].”
(Second Resp. 29 (alterations added)). The Court has reviewed the redacted material and finds
the exemptions justified. (See February 27 Order 29–30).
5. Document 5 – October 5, 2012 Memorandum (Broward Bulldog 9–12)
The Court considered this memorandum in the February 27 Order. (See February 27
Order 31–36).

Summary judgment was granted in the Government’s favor for all of the

exemptions except for Exemptions 6 and 7(C). (See id.). To address the Court’s concerns the
Court could not determine how and why the exemptions applied — because some names were
unredacted, while others were not (see id. 35–36) — the Government provides multiple
explanations (see Fourth Hardy Decl. Exs., Ex. G, 30–33). According to the Government, the
unredacted names were released because the individuals: (1) have previously been
“acknowledged in the FBI’s public report”; (2) were hijackers in the September 11 attacks; (3)
were identified by the FBI in previous public reports as having connections to the attacks; or (4)
are deceased. (Id.). Yet, according to the Government, the redacted names have not been
publicly released by the FBI and releasing their names could “implicate these individual[s] in
23

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
illicit[] activities by revealing their ties to known and/or suspected terrorists and terrorist
activities.” (Id. 32 (alterations added)). It also contends the individuals’ privacy interests
outweigh the public’s interest in the information. (See id.).
According to Plaintiffs, “the FBI simply asserts its conclusory, boilerplate privacy
interest language . . . .

[and has] failed to explain the distinctions between redacted and

unredacted names.” (Second Resp. 31 (alterations added; citations omitted)). Although the
FBI’s present briefing does explain why the agency chose to redact some names while revealing
others, the FBI still fails to meet its onerous burden under Exemptions 6 and 7(C). See NewsPress, 489 F.3d at 1198 (stating “an agency’s burden under Exemption 6 of showing that
disclosure would constitute a clearly unwarranted invasion of personal privacy is an onerous
one” (internal quotation marks and citation omitted)).
Plaintiffs have identified the significant public interest in information about who may
have been involved in the September 11 attacks. They explain “families of 850 people killed in
the 9/11 attacks and 1,500 people injured . . . filed a new complaint against the Kingdom of
Saudi Arabia in New York” and believe there were Saudis living in the United States, such as the
Al-Hijji family, who may have known or were involved in supporting the hijackers. (Second
Resp. 8 (alteration added)). Given the significant public interest in learning about possible
suspects involved in the attacks, the FBI has not met its burden of showing Exemptions 6 and
7(C) apply to the selectively redacted names.
6. Document 6 – Duplicate of April 30, 2014 Report (Broward Bulldog 221–224)
The Government states this document is a duplicate of the April 30, 2014 Report. (See
Second MSJ 14). Plaintiffs request the FBI produce the pages in the document, Bates stamped as
Broward Bulldog 221 to 224, “to confirm that they are, in fact, copies.” (Second Resp. 31). The
Court has reviewed the document (see Vaughn Index [ECF No. 76-1] 2–5), and confirms it is
24

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
indeed a duplicate of the April 30, 2014 Report, Broward Bulldog 1–4 (see Fourth Hardy Decl.
Exs., Ex. G, 22–25).
7. Document 7 – Alleged Sarasota Link to 9/11 Hijackers (Broward Bulldog 229–
230)
This document summarizes the FBI’s investigation of a family alleged to have
connections to the September 11 attacks. (See id. Ex. H, 37; Vaughn Index [ECF No. 76-1] 6–7).
The FBI invokes Exemptions 6, 7(C), and 7(D) for the redactions. Regarding the redactions
made under Exemptions 6 and 7(C), the FBI explains it is protecting identifying information
about individuals suspected to have connections to the September 11 attacks. (See Second Hardy
Decl. ¶ 58). The FBI explains releasing the names “would cast them in an extremely negative
light.” (Vaughn Index [ECF No. 76-1] 6). Here, as in other instances where the Government
invoked these exemptions, the Government has failed to meet its burden. First, many of the
redacted names are already in the public domain — released by the FBI or media sources.
Second, the FBI previously released this document to Plaintiffs with fewer redactions than it now
claims are necessary. (See Second Resp. 32; see also Pls.’ SUF Resp., Ex. 1 [ECF No. 72-1] 27–
28).
It is unclear and contradictory why the FBI previously released some of the information
but has now decided to redact under Exemptions 6 and 7(C) the information previously released.
(Compare Vaughn Index [ECF No. 76-1] 6–7; with Pls.’ SUF Resp., Ex. 1, 27–28). As noted,
“[o]ne can have no privacy interest in information that is already in the public domain,” Citizens
for Responsibility & Ethics in Wash. I, 840 F. Supp. 2d at 233 (alteration added); particularly
where, as here, the FBI itself placed the exact information in the public domain.
As to Exemption 7(D), the FBI claims it redacted “identifying information of individuals
who provided information under implied assurances of confidentiality.” (Second Hardy Decl. ¶

25

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
67). The FBI previously released the exact information, in this same document, it now claims
must be redacted under Exemption 7(D). (See Vaughn Index [ECF No. 76-1] 6–7). The Court
cannot fathom why the FBI would redact and claim a statutory exemption for information it has
already released and which Plaintiffs already possess. (See Pls.’ SUF Resp., Ex. 1, 27–28).
Summary judgment as to all the redactions in this document is denied.
8. Document 8 – April 23, 2014 Report and Deleted Pages (Broward Bulldog 612–
616)
This document has numerous pages — some are completely withheld and others released
with redactions. (See Second Resp., Ex. 1 [ECF No. 73-1] 32–37). The pages withheld in their
entirety, Bates stamped Broward Bulldog 615–616, contain information of FBI investigative
techniques that may risk circumvention of the law if released and discuss the FBI’s decision
making process and deliberations. (See Vaughn Index [ECF No. 76-1] 8–9 [ECF No. 76-4] 5;
see also Ex Parte . . . Documents [ECF No. 93-1] 7–8). Thus, they are properly withheld under
Exemptions 5 and 7(E).
Turning to the April 23, 2014 memorandum, the FBI relies on Exemptions 1, 3, 5, 6,
7(C), 7(D), and 7(E). (See Second Resp., Ex. 1 [ECF No. 73-1] 34–36). Exemptions 1 and 3
protect classified information. See 5 U.S.C. §§ 552(b)(1), (b)(3). After reviewing the material
redacted under Exemptions 1 and 3 (see Vaughn Index [ECF No. 76-4] 1–5), the Court finds the
information involves classified material and is therefore properly exempt.
The FBI also properly invokes Exemption 5 to protect information regarding the FBI’s
deliberative process. (See id.; see also 5 U.S.C. § 552(b)(5)). The information redacted under
Exemption 5 reveals FBI policies and recommendations, the release of which could “have an
inhibiting effect upon agency policy development.” (Second Hardy Decl. ¶ 53).

26

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
Exemption 7(D) is also justified. A review of the redacted information in camera reveals
an FBI confidential source (see Second Hardy Decl. ¶ 67 (Hardy states any redaction under
category (b)(7)(D)-114 protects the names of parties who provided confidential information to the
FBI), who provided information to the FBI. See Lesar, 636 F.2d at 492 (Under Exemption 7(D),
if the Government establishes through affidavits that “the information at issue was furnished by a
‘confidential source’ during the course of a legitimate criminal law investigation,” “all such
information obtained from the confidential source receives protection.” (footnote call numbers
omitted)).
Moreover, the Government also properly invokes Exemption 7(E) to protect FBI
investigative techniques and procedures. (See Second Hardy Decl. ¶ 76 (alteration added); see
also id. ¶ 78 (noting the FBI is also protecting the methods it uses to collect and analyze
information); id. ¶ 79 (stating the FBI redacted information regarding the types of evidence it
gathers in national security investigations)); see also Citizens for Responsibility & Ethics in
Wash. II, 746 F.3d at 1102 (“Exemption 7(E) sets a ‘low bar for the agency to justify
withholding,’ Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011), [but] the agency must at least
provide some explanation of what procedures are involved and how they would be disclosed.”
(alteration added; emphasis in original)).
The last two exemptions are 6 and 7(C). These are used to redact the names of two FBI
agents who briefed the Meese Commission. (See Second Resp., Ex. 1 [ECF No. 73-1] 34). As
in other documents where the FBI selectively redacts some of the briefers’ names while
disclosing others (see, e.g., Doc. 1, supra), the FBI has not met its burden in establishing
Exemptions 6 and 7(C) apply.
14

This is an FBI subcategory identified in the margins of the documents and the Second Hardy
Declaration, and separate from the FOIA categories. (See generally Second Hardy Decl.; Second Hardy
Decl. Exs.);

27

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
9. Document 9 – March 11, 2014 Memorandum (Broward Bulldog 657–658)
In this document, the FBI invokes Exemptions 3, 5, 6, 7(C), and 7(E). (See Second
Resp., Ex. 1 [ECF No. 73-1] 39–40; see also Vaughn Index [ECF No. 76-2] 2–3). Here again,
the FBI redacts two agents’ names, while revealing the names of five others. (See Second Resp.,
Ex. 1 [ECF No. 73-1] 39; see also Vaughn Index [ECF No. 76-2] 2). This inconsistency in
redacting two names, while disclosing five, is unexplained. (See generally Second MSJ; Second
Hardy Decl.). Strangely, Exemption 3 is used simultaneously with Exemptions 6 and 7(C) to
redact one of the FBI agents’ names. (See Vaughn Index [ECF No. 76-2] 2). The FBI does not
explain why this agent’s name is exempt. (See id.; see also Fourth Hardy Decl. ¶ 56). It only
states the information was redacted “per [the National Security Agency].” (Vaughn Index [ECF
No. 76-2] 2 (alteration added)). Because the FBI has failed to properly explain why Exemptions
3, 6, and 7(C) apply to redact the two agents’ names, summary judgment is denied for these
redactions.
However, summary judgment is appropriate with respect to Exemptions 5 and 7(E)
because the redacted information discusses sensitive FBI investigative techniques and procedures
as well as internal deliberations, opinions, and analytics properly withheld from public
disclosure. (See Vaughn Index [ECF No. 76-2] 2–3).
10. Document 10 – March 31, 2014 Memorandum (Broward Bulldog 672–674)
The FBI relies on Exemptions 1, 3, 5, 6, 7(C), 7(D), and 7(E) to redact portions of this
memorandum. (See Second Resp., Ex. 1 [ECF No. 73-1] 41–44; see also Vaughn Index [ECF
No. 76-3] 3–7). For Exemptions 1 and 3, the Court must defer to the FBI’s classification of the
redacted information as classified, see Casey, 656 F.2d at 738, because of the possible strong
implications for national security. After reviewing the redacted information in camera, the Court

28

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
finds the FBI has met its burden and properly redacted the classified material, release of which
could cause “grave or serious damage to national security.” (Second Hardy Decl. ¶ 36).
As to Exemptions 7(D) and 7(E), which protect from disclosure information relating to a
confidential source and techniques of law enforcement, respectively, see 5 U.S.C. §§
552(b)(7)(D)–(E), the FBI also satisfies its burden on summary judgment. Under Exemption
7(D), the FBI withheld information containing “identifying information of individuals who
provided information under implied assurances of confidentiality.” (Vaughn Index [ECF No. 763] 6 (citing Second Hardy Decl. ¶ 67)).

And under Exemption 7(E), the FBI withheld

information to “protect the location and identity of a[n] FBI unit.” (Id. 5 (alteration added)).
The FBI also utilizes Exemptions 6 and 7(C) to withhold the names of FBI special agents
and personnel, arguing release of their names would constitute an unwarranted invasion of
privacy. (See Vaughn Index [ECF No. 76-3] 3). As in other documents where the FBI redacts
some agents’ names (see generally, supra), it does not meet its burden at summary judgment.
The last redaction on this document invokes Exemption 5. The information is properly withheld
because it discusses internal FBI deliberations.
11. Document 11 – Duplicate of April 23, 2014 Report (Broward Bulldog 692–696)
The FBI did not produce the pages Bates stamped Broward Bulldog 692–696 because
they are duplicates of Broward Bulldog 612–616. (See Second Resp. 33). Plaintiffs request the
FBI produce the document nonetheless “to ensure that it is identical to the produced report.”
(Id.). There is no need for the FBI to produce the document because the Court has reviewed it
and confirms it is a duplicate of the April 23, 2014 report already produced to Plaintiffs.
(Compare Vaughn Index [ECF No. 76-4] 1–5, with Second Resp., Ex. 1 [ECF No. 73-1] 34–37).

29

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
12. Document 12 – Duplicate of April 30, 2014 Report (Broward Bulldog 702–705)
This document is also a duplicate. The Court reviewed the document Bates stamped
Broward Bulldog 702–705 (see Vaughn Index [ECF No. 76-4] 6–9), and finds it is an exact
duplicate of the April 30, 2014 Report marked as Broward Bulldog 1–4 (see Fourth Hardy Decl.
Exs., Ex. G, 22–25). Accordingly, the FBI does not need to reproduce this document, as the
Court has already considered the FBI’s invoked exemptions.
13. Document 13 – May 9, 2014 Memorandum (Broward Bulldog 706–709)
The FBI asserts Exemptions 1, 3, 5, 6, 7(C), 7(D), and 7(E) to justify the redactions in
this memorandum.

(See Vaughn Index [ECF No. 76-4] 10; [ECF No. 76-5] 1–5).

After

reviewing the unredacted memorandum in camera, the Court finds all of the exemptions are
justified, except for Exemptions 6 and 7(C). These two exemptions are used to redact the name
of one FBI agent who prepared the memorandum. Because the other agents’ names are not
redacted, summary judgment is denied as to these two exemptions.
The FBI properly relies on Exemptions 1 and 3 to protect classified information.
Plaintiffs argue the FBI correctly redacted some information under these two exemptions but
assert because the information was gathered “over 15 years ago” it should no longer be
protected. (Second Resp. 34–35). Plaintiffs do not cite a single case or statute standing for the
proposition classified information loses protection after a given number of years. (See generally
id.). Plaintiffs and the Court “lack the expertise necessary to second-guess” the FBI’s opinion in
national security FOIA cases. Halperin, 629 F.2d at 148.
Under Exemption 7(E), the FBI redacts FBI investigative techniques and procedures used
to conduct investigations, as well as types of investigations conducted by the FBI. (See Vaughn
Index [ECF No. 76-4] 10; [ECF No. 76-5] 1–5). According to the FBI, disclosure of this
information would inform targets of FBI techniques and may enable them to develop
30

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
countermeasures. (See generally Vaughn Index [ECF No. 76-4] 10; [ECF No. 76-5] 1–5).
Plaintiffs, without reviewing the redacted information, assert “what evidence the FBI had is not
indicative of the technique or procedure used to obtain that evidence.” (Second Resp. 34). It is
unclear what Plaintiffs are attempting to argue with this statement, but a review of the material
evidences it is properly redacted under Exemption 7(E).

As to Exemption 7(D), it is

simultaneously invoked with Exemption 7(E) as to Broward Bulldog 707.15 (See Vaughn Index
[ECF No. 76-5] 1).

Because the Court finds this information is properly withheld under

Exemption 7(E), it does not consider Exemption 7(D).
Exemption 5 is also properly invoked to withhold internal agency deliberations and
recommendations. (See id. 3). Plaintiffs complain the FBI’s explanation for the redaction is
vague and does not pinpoint a specific policy or decision. (See Second Resp. 35–36). While the
FBI acknowledges a final decision was not made regarding the redacted comments, the internal
deliberation process would be harmed if the information is released. FBI personnel would be
“more guarded in their suggestions” if they knew their discussions and deliberations may one
day be disclosed. (Vaughn Index [ECF No. 76-5] 3 (citing Second Hardy Decl. ¶ 53)). “The
purpose of this privilege is to allow agencies to freely explore possibilities, engage in internal
debates, or play devil’s advocate without fear of public scrutiny.” Moye, O’Brien, O’Rourke,
Hogan & Pickert, 376 F.3d at 1277 (citing Klamath Water Users, 532 U.S. at 8–9). Because the
FBI explains the applicability of Exemption 5, and a review of the material shows it properly
falls under the exemption, summary judgment is appropriate.

15

Exemption 7(D) is also marked on Broward Bulldog 708. (See Vaughn Index [ECF No. 76-5] 3). The
FBI explains it inadvertently coded this redaction under 7(D), when the information actually falls under
Exemption 7(E). (See id. n.4).

31

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
14. Document 14 – Duplicate of October 24, 2014 Report (Broward Bulldog 757–
758)
The FBI did not produce Broward Bulldog 757–758 because it is a duplicate of the
October 24, 2014 Report, Broward Bulldog 5–6. (See Vaughn Index [ECF No. 76-5] 6–7;
Fourth Hardy Decl. Exs., Ex. G, 26–27). Plaintiffs argue even if the document is an exact replica
of a document they already possess, the FBI cannot “impose self-limitations” on the documents
it produces. (Second Resp. 36). The Court reviewed the document and it is indeed a duplicate of
Broward Bulldog 5–6; the FBI need not reproduce it.
15. Document 15 – February 18, 2014 (Broward Bulldog 759–760)
Only two exemptions are invoked in this document to withhold information: 5 and 7(E).
(See Vaughn Index [ECF No. 76-5] 8, [ECF No. 76-6] 1; Second Resp., Ex. 1 [ECF No. 73-2]
14–15). The FBI explains it is protecting its internal deliberations process under Exemption 5
because even though a final decision has not been made regarding the discussions, release of the
information would “impede candid discussions” within the agency. (Vaughn Index [ECF No.
76-6] 1 (citing Second Hardy Decl. ¶ 53)). Further, under Exemption 7(E), the FBI is protecting
“sensitive investigative techniques and procedures used by the FBI to conduct counterterrorism
investigations.” (Vaughn Index [ECF No. 76-5] 8 (citing Second Hardy Decl. ¶ 76)). Plaintiffs
dispute the exemptions are applicable and contend the FBI’s justifications for the redactions are
generic and vague. After reviewing the redacted material in conjunction with the Second Hardy
Declaration, the Court finds the exemptions are justified because the redacted information
encompasses FBI deliberations and investigative procedures. Additionally, Broward Bulldog
760 (see Vaughn Index [ECF No. 76-6] 1), falls entirely under Exemption 5 because it contains
FBI internal deliberations and recommendations.

32

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
16. Document 16 – Meese Commission Meeting Briefing (Broward Bulldog 859–
861)
The FBI redacted information in Broward Bulldog 859 under Exemptions 5, 6, and 7(C),
and withheld Broward Bulldog 860–861 entirely under Exemption 5.16 (See id. 2–5). The
information redacted under Exemption 5 involves internal opinions, evaluations, and
recommendations regarding an FBI program. (See generally id.). Plaintiffs protest they do not
have a “meaningful opportunity to contest the FBI’s redactions” because there is no date or topic
provided regarding the document. (Second Resp. 38). However, the FBI cannot release the
redacted information because it involves internal deliberations processes exempted from
disclosure.
As to the first redaction under Exemptions 6 and 7(C), containing the name of an FBI
Special Agent, summary judgment is denied. The Court has already explained in its analysis of
other documents, where the FBI redacts some agents’ names, that there are many inconsistencies
regarding the names the FBI chooses to redact. The FBI also invokes Exemptions 6 and 7(c) in
conjunction with Exemption 5 in Broward Bulldog 859; the Court finds the information falls
under Exemption 5 entirely.
17. Document 17 – September 8, 2014 (Broward Bulldog 1015–1017)
The FBI withheld Broward Bulldog 1016 and 1017 in full under Exemptions 1, 3, 5,
7(D), and 7(E). (Vaughn Index [ECF No. 76-6] 6–8). The majority of the information in this
document has been classified either by the National Security Act of 1947, 50 U.S.C. section
3024(i)(1), or the Department of State. (See id.; see also Fourth Hardy Decl. ¶¶ 46–56; Second
Hardy Decl. ¶¶ 33–36). There is also information regarding FBI deliberations and evaluations,

16

Broward Bulldog 860 also invokes Exemption 7(E). The Court finds the entire page is properly exempt
under Exemption 5.

33

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
properly exempted from disclosure under Exemption 5. (See Vaughn Index [ECF No. 76-6] 6–
8). Additionally, there are sensitive investigative techniques and information provided by a
foreign government under an express assurance of confidentiality, properly withheld under
Exemptions 7(E) and 7(D), respectively. (See id.).
Plaintiffs take issue with the FBI’s failure to “provide [them] any description of the
redacted information” (Second Resp. 38 (alteration added)), but the Court has reviewed the
information in camera and finds the Government has met its burden in justifying the exemptions.
As to Broward Bulldog 1015, a September 8, 2014 briefing regarding “Ottawa,” the FBI
asserts Exemptions 1, 3, 5, 6, 7(C), and 7(D) to redact portions of the page. (See Second Resp.,
Ex. 1 [ECF No. 73-2] 20; Broward Bulldog 1015 [ECF No. 89-1] 1). Exemptions 1, 3, 5, and
7(D) are justified because the redacted information is classified, discusses internal FBI
deliberations, or involves information obtained from a foreign government agency under an
express assurance of confidentiality. However, summary judgment is denied as to Exemptions 6
and 7(C) because there is no basis for redacting one of the FBI attendees’ names, while revealing
the other; and there is also no basis for redacting part of the meeting’s title.
18. Document 18 – New York Field Office Draft Briefing (Broward Bulldog 1263–
1270)
This document was withheld in its entirety from Plaintiffs. After reviewing it (see
Vaughn Index [ECF No. 76-7] 1–8; [ECF No. 76-8] 1–3), along with Hardy’s Second and Fourth
Declarations, the Court finds the Government properly withheld the document because it is
replete with information exempt from disclosure under Exemptions 1, 3, 5, and 7(D). Although
the Government has not met its burden with respect to Exemptions 6 and 7(C) — because it does
not properly explain why the third parties’ names deserve protection — the pages were redacted

34

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
in full under Exemptions 1, 3, 5, and 7(D), and thus summary judgment for the Government is
warranted for this document.
19. Document 19 – Briefing regarding 9/11 Conspirators (Broward Bulldog 1271–
1279)
This FBI briefing discusses conspirators of the September 11 attacks and the lessons
learned by the FBI from the attacks. (See Second Resp., Ex. 1 [ECF No. 73-2] 24–25; see also
Vaughn Index [ECF No. 76-8] 4–7; [ECF No. 76-9] 1–8; [ECF No. 76-10] 1). Plaintiffs want
this document because they “believe[] . . . either the FBI did, in fact, consider the al-Hijji[]s to be
co-conspirators and has covered up this connection, or failed in performing its duty to actively
pursue credible leads and has failed the victims of 9/11.” (Second Resp. 39 (alterations added)).
The Court has read the document carefully and finds the FBI appropriately withheld the
majority of the document under Exemptions 1, 3, 5, and 7(E). Some portions of the document
are exempt from disclosure under Exemptions 1 and 3 because the information is classified.
Additionally, much of the document discusses FBI investigative techniques and deliberations,
opinions, or analytical comments, which are protected under Exemptions 7(E) and 5,
respectively. As to the portions redacted under Exemptions 6 and 7(C), summary judgment is
denied. The FBI fails to properly explain what information in particular falls under these two
categories and why the individuals’ names merit protection. Further, the FBI does not explain
whether the information redacted under Exemptions 6 and 7(C) simultaneously falls under any of
the other statutory exemptions.
20. Document 20 – Intelligence Briefing regarding Counterterrorism (Broward
Bulldog 1356–1379)
This document was withheld in full under Exemptions 1, 3, 5, 6, 7(C), and 7(E). (See Ex
Parte . . . Documents [ECF No. 93-1] 57–80). It is a “[d]raft intelligence briefing regarding

35

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
counterterrorism.” (Second Resp., Ex. 1 [ECF No. 73-2] 26–27 (alteration added)). The Court
read the 24 pages and finds the briefing is properly withheld in full under Exemption 5 because it
contains “advisory opinions, recommendations, and deliberations comprising part of a process by
which governmental decisions and policies are formulated.” Moye, O’Brien, O’Rourke, Hogan
& Pickert, 376 F.3d at 1277. The document is is both predecisional and deliberative. See id.
There are numerous FBI discussions regarding internal FBI policies and recommendations.
Although other exemptions are applicable — for example, the document contains classified
information — the document is properly withheld in full under Exemption 5 and thus the
Government is entitled to summary judgment.
21. Document 21 – November 7, 2014 Memorandum (Broward Bulldog 1435–1439)
This memorandum discusses FBI policies, operational and strategic plans, as well as
proposals to address concerns within the agency. (See Ex Parte . . . Documents [ECF No. 97-1]
1–5). The FBI fully withheld the pages Bates stamped Broward Bulldog 1436–1439 under
Exemptions 5, 6, 7(C), and 7(E); and redacted portions of Broward Bulldog 1435 under
Exemptions 5, 6, 7(C), and 7(E).
The Court has read the document and reviewed Hardy’s Declarations for each of the
asserted exemptions, and finds the Government met its burden with respect to all of the
redactions except Exemptions 6 and 7(C). The last four pages of the document are properly
withheld in full under Exemption 5 because they contain FBI preliminary opinions, evaluations,
and analytical comments, the release of which could impede candid discussions within the
agency in its decision-making and policy formation process. (See Second Hardy Decl. ¶ 53). As
to the first page, Broward Bulldog 1435, the last three redactions are justified under Exemptions
5 and 7(E) because the information involves internal FBI deliberations and sensitive

36

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
investigative techniques and procedures. As to the first four redactions, all under Exemptions 6
and 7(c), the FBI has not met its burden in justifying why the exemptions are applicable.
22. Document 22 – April 25, 2014 Overview of 9/11 Investigation PowerPoint
(Broward Bulldog 1496–1556)
The next disputed document is an April 25, 2014 PowerPoint presentation titled
Overview of 9/11 Investigation. (See Ex Parte . . . Documents [ECF No. 97-2] 1–61; see also
Second Resp., Ex. 1 [ECF No. 73-3] 1–56). The presentation “covers the hijackers, where they
attended flight school, how they adapted to Western life and blended in, and known coconspirators.” (Second Resp. 39–40). Plaintiffs state this document is particularly important
because it discusses funding for the September 11 attacks, and they believe “the Saudi
government [funded the attacks] and the FBI is covering it up.” (Id. 40 (alteration added)). The
FBI invokes Exemptions 3, 5, 6, 7(C), and 7(E) to make redactions and withhold some of the
PowerPoint slides. (See Ex Parte . . . Documents [ECF No. 97-2] 1–61).
A few slides have redactions under Exemptions 6 and 7(C). The first slide is Broward
Bulldog 1507; it redacts the names of two airline agents. (See Second Resp., Ex. 1 [ECF No. 733] 15). The FBI explains it is protecting names of third parties who “were merely mentioned”
because they “came into contact with subject[s] of FBI” investigations. (Fifth Hardy Decl. ¶ 31
(alteration added)).

The two redactions on Broward Bulldog 1507 are justified under

Exemptions 6 and 7(C) because these two individuals, who are merely mentioned in the
PowerPoint, have “substantial and legitimate privacy interests in not having this information
disclosed.” (Id.). The rest of the redactions under Exemptions 6 and 7(C) are not justified
because the redactions contain information regarding suspects and subjects of interest in the
September 11 attacks (see Ex Parte . . . Documents [ECF No. 97-2] 23, 40–41, 55, 59), and the

37

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
public interest in learning about these individuals outweighs any privacy interest they may have.
Accordingly, summary judgment is denied with respect to these redactions.
The majority of the redactions in the PowerPoint are made under Exemption 7(E) to
protect FBI investigative techniques and procedures. (See generally Ex Parte . . . Documents
[ECF No. 97-2] 1–61). After reviewing the material redacted under Exemption 7(E), the Court
notes much of it does not discuss any FBI investigative techniques and procedures; instead the
material often encompasses facts and information gathered about FBI suspects. (See, e.g., Ex
Parte . . . Documents [ECF No. 97-2] 19, 24). The FBI explains it is protecting methods it uses
to collect and analyze data. (See Second Hardy Decl. ¶ 78). Yet, there is no discussion of FBI
investigative techniques or methods used to collect data; instead there is a summary of
information and facts about FBI suspects. Accordingly, the FBI has failed to meet its burden in
establishing Exemption 7(E) applies to the redacted information.
As to Exemption 3, it is properly applied to withhold information classified under the
National Security Act. (See Ex Parte . . . Documents [ECF No. 97-2] 46; Second Hardy Decl.
¶ 46).

Last, the redactions under Exemption 5 appropriately protect FBI deliberations,

recommendations, and decisions. (See Ex Parte . . . Documents [ECF No. 97-2] 55, 58–60).
However, on Broward Bulldog 1551 and 1552, where both Exemptions 5 and 7(E) are applied
(see Ex Parte . . . Documents [ECF No. 97-2] 56–57), summary judgment is denied because the
Court cannot ascertain what information falls under each exemption. There appears to be no
information falling under Exemption 5 on these two pages, and Exemption 7(E) is not applicable
because there is no discussion of FBI methods; what appears is mostly a summary of facts and
data. (See id. 56). However, on the other pages where both Exemptions 5 and 7(E) are asserted,
it is readily discernible the information is properly withheld under Exemption 5.

38

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
23. Document 23 – First Meese Commission Draft Report (Broward Bulldog 1579–
1721)
This document is a 143-page draft of the Meese Commission Report.17 (See Third Resp.
Ex. 1 [ECF No. 87-1] 1–3). The Government explains it withheld the entire report under
Exemption 5 because the draft contains advisory opinions, recommendations, and deliberations;
other portions of the draft are “subject to additional exemptions.” (Third Reply 2). Plaintiffs
assert the final Meese Commission report was released to the public and therefore the draft
should also be released because according to one of the Commission members, the FBI changed
very little in the report and only classified some pages before releasing the report to the public.
(See Third Resp. 9).
“Draft documents, by their very nature, are typically predecisional and deliberative.”
Exxon Corp. v. Dep’t of Energy, 585 F. Supp. 690, 698 (D.D.C. 1983). “They reflect only the
tentative view of their authors; views that might be altered or rejected upon further deliberation
either by their authors or by superiors.” Id. (citation and internal quotation marks omitted). And
even when “[t]here may be no final agency document because a draft died on the vine. . . .
[T]he draft is still a draft and thus still pre-decisional and deliberative.” Nat’l Sec. Archive v.
C.I.A., 752 F.3d 460, 463 (D.C. Cir. 2014) (citation omitted; alterations added).
To protect drafts from disclosure, an agency “carries its normal burden of demonstrating
that withheld materials are both predecisional and deliberative.” Nat’l Sec. Counselors v. C.I.A.,
206 F. Supp. 3d 241, 278 (D.D.C. 2016) (citations omitted). The FBI has met its burden here,
explaining the drafts “contain numerous edits, comments, and suggested changes reflecting intraagency recommendations, analyses, opinions, and other non-factual information typical of a
17

The Government hand-delivered the document to the Clerk of Court because it contains classified
information and was therefore not filed on CM/ECF. (See Defendants’ Response to Order [ECF No. 94]
2).

39

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
deliberative decision-making process.”

(Fifth Hardy Decl. ¶ 33).

Hardy states the drafts

“represent deliberations between FBI personnel as they worked to compile the final draft of the
FBI’s classified version of the report.” (Id.). Hardy further explains disclosure would harm the
FBI because it would inhibit frank discussions and “stifle its decision-making process,” as well
as create public confusion because “there is likely conflicting, inaccurate information in the draft
copies, or information that does not adequately [summarize] the FBI’s final findings.” (Id. ¶¶
34–35 (alteration added)).
The Government has met its burden in demonstrating the withheld Meese Commission
draft report is properly exempt under Exemption 5. The draft contains FBI predecisional and
deliberative information, and thus summary judgment is appropriate.
24. Document 24 – Second Meese Commission Draft Report (Broward Bulldog
1722–1858)
This document is also a draft of the Meese Commission report. 18 (See Third Resp. Ex. 1
[ECF No. 87-1] 10–17).

The Court has reviewed the document, along with the Hardy

Declarations (see, e.g., Fifth Hardy Decl.), and for the reasons discussed in the Document 23
analysis, summary judgment is granted.
25. Document 25 – Interview Cover Page (Broward Bulldog 1568)
This document is a cover page with the name of an individual and the word “Interview”
written underneath. (See Vaughn Index [ECF No. 76-18] 16; see also Third Resp. Ex. 1, 19).
The FBI explains the name is redacted under Exemptions 6 and 7(C) because the “FBI has not
disclosed the nature of its investigative interest of the individual in this context” and release of
the name “in relation to [the] 9/11 attacks[] would cast this individual in an extremely negative
18

The Government hand-delivered the document to the Clerk of Court because it contains classified
information and was therefore not filed on CM/ECF. (See Defendants’ Response to Order [ECF No. 94]
2).

40

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
light.” (Vaughn Index [ECF No. 76-18] 16 (alterations added) (citing Second Hardy Decl. ¶
58)). According to Plaintiffs, “the names of the targets of the interviews [are] already a public
record and therefore no privacy interests can justify the continued redaction of the title of the
interview.” (Third Resp. 13 (alteration added)). Whether the name is already in the public
domain, the FBI fails to explain why this particular individual’s name deserves protection and
how disclosure would constitute a “clearly unwarranted” invasion of the person’s privacy. Rose,
425 U.S. at 382. Additionally, there is significant public interest in knowing who the FBI
investigated regarding the September 11 attacks. Hence, summary judgment is denied.
26. Document 26 – September 15, 2001 Interview (Broward Bulldog 1569–1571)
This document summarizes information provided by an individual to the FBI regarding
Mohamed Atta and Marwan al-Sheehi, “two of the hijackers who visited the al-Hijji family prior
to September 11, 2001.” (Third Resp. 13; see also Vaughn Index [ECF No. 76-18] 17–19). The
individual’s name, along with other identifying information, as well as the name of an FBI
special agent and local law enforcement personnel, are all redacted under Exemptions 6 and
7(C). (See Vaughn Index [ECF No. 76-18] 17–19). The FBI explains the individual’s name and
information were redacted because the person was of “investigative interest,” and releasing the
name in connection with the September 11 attacks would cast the person in “an extremely
negative light.” (Vaughn Index [ECF No. 76-18] 18 (citing Second Hardy Decl. ¶ 58)). As to
the FBI agent and local law enforcement officers’ names, the FBI argues their names have not
been released to the public in connection with this investigation and releasing them would
constitute an invasion of privacy. (See id. 19 (citing Second Hardy Decl. ¶¶ 59–60; Fourth
Hardy Decl. ¶ 25)).

41

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
According to Plaintiffs, “[t]he FBI has made no showing . . . disclosure of the identity of
a witness who had incidental contact with Atta and al-Sheehi would constitute a clearly
unwarranted invasion of this source’s privacy or even that this source expected confidentiality.”
(Third Resp. 13 (alterations added)).

They further contend, “[p]ublic interest in who is

responsible for the events of 9/11 and how our law enforcement and intelligence communities
reacted obviously is of the highest importance” (id. 14 (alteration added)), particularly now that
“families of the victims of the 9/11 attacks” are suing in federal court (id.).
As in other instances where the Government asserts Exemptions 6 and 7(C), the Court is
unable to determine how and why the exemptions apply. The information is of significant public
interest, and the public interest may very well outweigh any privacy interests these individuals
may have. Accordingly, summary judgment is denied for the redactions in this document.
27. Document 27 – April 19, 2004 Interview (Broward Bulldog 1572–1577)
This document summarizes information the FBI received from an individual in an
interview regarding the September 11 attacks. (See Vaughn Index [ECF No. 76-18] 20–27). The
FBI redacts portions of the document under Exemptions 6, 7(C), and 7(D). (See generally id.).
Plaintiffs describe the document as an interview of Wissam Taysir Hammoud “in which
Hammoud reports to the FBI in 2004 that Abdulaziz told him that his hero was Osama bin
Laden”; “he planned to become a mujahedin (one who engages in jihad) in Afghanistan”; and
Al-Hijji was a friend of “one of the FBI’s most wanted suspects in connection with the
September 11 attacks.” (Third Resp. 15–16).
Plaintiffs contend the information should be released because representatives from the
Sarasota County Sheriff’s Office and the Florida Department of Law Enforcement also
participated in this interview of Hammoud with the FBI, and “the FDLE released its notes of the

42

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
interview to the Bulldog with very few redactions . . . in accordance with the requirements of the
Florida Public Records Law.” (Id. 16 (alteration added)). Because most of the information is in
the public domain and Plaintiffs know the information, Plaintiffs argue “the FBI has no basis”
for the redactions, and any privacy interest is outweighed by the public’s interest in the
information. (Id. 17–18).
According to the FBI, even if the information is already in the public domain because it
was “released by the Florida Department of Law Enforcement and reported by news media,”
Plaintiffs “have not shown” the “FBI previously disclosed the specific information redacted from
the documents at issue.” (Third Reply 6). The Government argues even if the information is in
the public domain, it may still invoke the FOIA privacy exemptions. (See id.). The FBI further
contends disclosure would not “further the stated public interest, but would subject the
individuals to . . . harms.” (Id. 8 (emphasis in original; alteration added)).
As stated in the February 27 Order (See February 27 Order 12–15), the Government’s
argument with regard to the privacy exemptions is unconvincing — “[o]ne can have no privacy
interest in information that is already in the public domain.” Citizens for Responsibility & Ethics
in Wash. I, 840 F. Supp. 2d at 233 (alteration added). Moreover, release of this information
could further the public interest in learning about the September 11 attacks and may outweigh
any privacy interest individuals mentioned in the document may have.
As to Exemption 7(D), it is invoked simultaneously with Exemptions 6 and 7(C)
throughout the document. (See Vaughn Index [ECF No. 76-18] 20–27). The FBI asserts it is
protecting identifying information about an individual who provided information under an
implied assurance of confidentiality. (See generally id.). Because this exemption is invoked
simultaneously with Exemptions 6 and 7(C), the Court is unable to determine what specific

43

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
information the Government seeks to protect under Exemption 7(D). Accordingly, summary
judgment is denied.
28. Document 28 – August 31, 2004 Memorandum (Broward Bulldog 1578)
The last disputed document is a one-page memorandum titled 2004 Threat Task Force
Intelligence Requirements. (See id. 28). It discusses a “subject” that has “not been interviewed
regarding intelligence requirements” because he “is currently residing in Saudi Arabia,” and “has
been residing outside the United States for approximately the past two and a half years.” (Id.).
Plaintiffs believe the “subject” being discussed is either Abdulaziz al-Hijji or Esam Ghazzawi.
(See Third Resp. 18). The FBI invokes Exemptions 6, 7(C), and 7(E) for the multiple redactions.
(See Vaughn Index [ECF No. 76-18] 28). Here, again, the FBI fails to justify the applicability of
Exemptions 6 and 7(C). With regard to Exemption 7(E), the FBI has met its burden because it
properly explains the redacted block protects sensitive FBI file numbers, the release of which
could cause suspects to “change their pattern of activity to avoid detection” and circumvent the
law. (Id. (citing Second Hardy Decl. ¶ 80)).
IV. CONCLUSION
In accordance with the foregoing, it is
ORDERED AND ADJUDGED that Defendants’ Second MSJ [ECF No. 66] and Third
MSJ [ECF No. 83] are GRANTED in part and DENIED in part. The parties have until May
25, 2017 to file a joint status report advising how they wish to proceed to conclude the case, and
if a trial is to be held, to propose a trial period.

44

CASE NO. 16-61289-CIV-ALTONAGA/O’Sullivan
DONE AND ORDERED in Miami, Florida, this 16th day of May, 2017.

_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

45