Hertz Schram PC et al v. Federal Bureau of Investigation

Filing 33

OPINION AND ORDER Granting in Part and Denying in Part Defendant Federal Bureau of Investigation's 26 Motion for Summary Judgment, (Plaintiff's Supplemental Brief due by 3/5/2014, Defendant's Supplemental Brief due by 3/12/2014). Signed by District Judge Mark A. Goldsmith. (Goltz, D)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HERTZ SCHRAM PC,
Plaintiff,
Civil Action No. 12-CV-14234
vs.
HON. MARK. A. GOLDSMITH
FEDERAL BUREAU OF INVESTIGATION,
Defendant.
_____________________________________/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
FEDERAL BUREAU OF INVESTIGATION’S MOTION FOR SUMMARY JUDGMENT
(DKT. 26)
I.

INTRODUCTION

This is a case brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.
The matter is presently before the Court on the motion for summary judgment (Dkt. 26) filed by
Defendant Federal Bureau of Investigation (“FBI”). For the reasons that follow, the Court denies
the motion with respect to the adequacy of the FBI’s search for records responsive to Plaintiff
Hertz Schram, PC’s FOIA request and grants the motion with respect to the FBI’s withholding of
materials under the FOIA exemptions.
II.

BACKGROUND1

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These facts are gleaned from: (i) the declaration of David M. Hardy, section chief of the
Record/Information Dissemination Section Records Management Division, Def. Ex. 1 (Dkt. 262); (ii) the attachments to Hardy’s declaration; and (iii) the Vaughn index outlining the
documents that were withheld. Def. Ex. 2 (Dkt. 26-9). See Rugiero v. United States Dep’t of
Justice, 257 F.3d 534, 544 (6th Cir. 2001) (noting that because FOIA cases are usually decided
on summary judgment prior to discovery, the factual background in a FOIA case is generally
provided by certain documents submitted by the defendant agency, such as a “‘Vaughn index,’ a
routine device through which the agency describes the documents responsive to a FOIA request
and indicates the reasons for redactions or withholdings in sufficient detail to allow a court to
1

On August 24, 2012, Plaintiff submitted to the FBI a request for disclosure of documents
under FOIA. FOIA Request, Def. Ex. 1(A) (Dkt. 26-3). The FOIA request states:
This shall serve as a request for information pursuant to the Freedom of
Information Act. Information is requested for the time period of 2007 to the
present for any and all records, reports, notes, correspondence, witness statements
(whether in writing or sound recordings), studies and documents of any kind, in
electronic and hard copy format (collectively, the “Documents”), regarding the
investigation and determination to include the identification of the “Juggalos” as a
“gang” in the National Gang Intelligence Center’s “2011 National Gang Threat
Assessment Emerging Trends” (the “Report”), including, but not limited to, the
following:
1. All Documents in support of the statement, “The Juggalos, a looselyorganized hybrid gang, are rapidly expanding into many US communities.”
2. All Documents in support of the statement, “Many Juggalos subsets exhibit
gang-like behavior and engage in criminal activity and violence.”
3. All Documents in support of the statement, “Law enforcement officials in at
least 21 states have identified criminal Juggalo sub-sets.”
4. All Documents in support of the statement, “Most crimes committed by
Juggalos are sporadic, disorganized, individualistic, and often involve simple
assault, personal drug use and possession, petty theft, and vandalism.”
5. All Documents in support of the statement, “Open source reporting suggests
that a small number of Juggalos are forming more organized subsets and
engaging in more gang-like criminal activity, such as felony assaults, thefts,
robberies, and drug sales.”
6. All Documents in support of the statement, “Social networking websites are a
popular conveyance for Juggalo sub-culture to communicate and expand.”
7. All Documents in support of the statement, “In January 2011, a suspected
Juggalo member shot and wounded a couple in King County, Washington,
according to open source reporting.”

make an independent assessment of the claims for exemptions . . . .”, as well as detailed
affidavits).
Plaintiff does not contest the facts gleaned from the Hardy declaration and Vaughn index.
Plaintiff admits all facts presented by the FBI, with one exception: Plaintiff asserts that the
FBI’s paraphrased summary of Plaintiff’s FOIA request is inaccurate. See Pl. Counter-Statement
of Material Facts, Pl. Resp. at 1-4 (Dkt. 29).  
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8. All Documents in support of the statement, “Juggalos’ disorganization and
lack of structure within their groups, coupled with their transient nature,
makes it difficult to classify them and identify their members and migration
patterns.”
9. All Documents in support of the statement, “Many criminal Juggalo sub-sets
are comprised of transient or homeless individuals, according to law
enforcement reporting.”
10. All Documents in support of the statement, “Law enforcement reporting
suggests that Juggalo criminal activity has increased over the past several
years and has expanded to several other states.”
11. All Documents in support of the statement, “Transient, criminal Juggalo
groups pose a threat to communities due to the potential for violence, drug
use/sales, and their general destructive and violent nature.”
12. All Documents in support of the statement, “In January 2010, two suspected
Juggalo associates were charged with beating and robbing an elderly homeless
man.”
13. All documents providing the name, last known professional address and last
known place of employment of all individuals who authored or contributed to
the above referenced statements as set forth in the Report.
Id. On August 27, 2012, a legal administrative specialist at the FBI sent an email indicating that
the FBI received Plaintiff’s FOIA request. Def. Ex. 1(B) (Dkt. 26-4).
On September 25, 2012, Plaintiff filed its complaint in this case (Dkt. 1). The complaint
asserts that the FBI, up to that date, had not provided the records requested by Plaintiff. The
complaint seeks an order compelling the FBI to disclose the requested documents, provide for
expeditious proceedings, and award Plaintiff costs and attorney fees. Compl. at 3 (CM/ECF
pagination).
After withholding certain documents based on a number of different exemptions, the FBI
released various records to Plaintiff. On December 6, 2012, the FBI notified Plaintiff that the
FBI had reviewed 63 pages of documents and was releasing 62 pages. Def. Ex. 1(D) (Dkt. 26-6).

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On January 30, 2013, the FBI notified Plaintiff that the FBI had reviewed 93 additional pages of
documents and was releasing 40 pages. Def. Ex. 1(E) (Dkt. 26-7).
On August 11, 2012, another organization — MuckRock.com — submitted a FOIA
request to the FBI. Pl. Ex. 2 (Dkt. 29-3). The MuckRock FOIA request stated:
I hereby request the following records:
Any and all responsive documents mentioning the Detroit, Michigan based hiphop group the Insane Clown Posse, aka ‘ICP’, its members Joseph Bruce, aka
‘Violent J,[’] and Joseph Utsler, aka ‘Shaggy 2 Dope,’ their classification as a
street gang, any criminal activity carried out by “members” of the “gang” (known
as the ‘Juggalo Family’), their annual gathering, ‘The Gathering of the Juggalos,’
and any documents sent on behalf of the Insane Clown Posse directed to the FBI.
Please ensure that copies of this request are also sent to the Detroit field office,
specifically the Detroit Violent Gang Task Force.
Id. MuckRock.com received 121 pages in response to this request. Pl. Ex. 3 (Dkt. 29-4).
III.

OVERVIEW OF FOIA AND LEGAL STANDARD

FOIA provides a mechanism to compel, from agencies of the United States, the
disclosure of records that are not subject to specified exemptions. 5 U.S.C. § 552(a)(3), (b). The
Supreme Court has explained,
[FOIA] seeks to permit access to official information long shielded unnecessarily
from public view and attempts to create a judicially enforceable public right to
secure such information from possibly unwilling official hands. Subsection (b)
[governing exemptions] is part of this scheme and represents the congressional
determination of the types of information that the Executive Branch must have the
option to keep confidential, if it so chooses.
Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation and quotation marks omitted).
“The burden is on the agency to demonstrate . . . that the materials sought may be withheld due
to an exemption.” Vaughn v. United States, 936 F.2d 862, 866 (6th Cir. 1991) (citation omitted).

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The district courts of the United States have “jurisdiction to enjoin the agency from
withholding agency records and to order the production of any agency records improperly
withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B).

The district court’s review of the

agency’s decision is de novo. Detroit Free Press, Inc. v. Dep’t of Justice, 73 F.3d 93, 95 (6th
Cir. 1996).
The Sixth Circuit has explained the standard of review for agency decisions under FOIA:
Procedurally, district courts typically dispose of FOIA cases on summary
judgment before a plaintiff can conduct discovery. Jones v. FBI, 41 F.3d 238,
242 (6th Cir. 1994). This posture creates a situation in which a plaintiff must
argue that the agency's withholdings exceed the scope of the statute, although
only the agency is in a position to know whether it has complied with the FOIA
unless the court reviews a potentially massive number of documents in camera.
Id. One means developed to address this situation is the use of a “Vaughn index,”
a routine device through which the agency describes the documents responsive to
a FOIA request and indicates the reasons for redactions or withholdings in
sufficient detail to allow a court to make an independent assessment of the claims
for exemptions from disclosure under the Act. Id. at 241-42; Vaughn v.
Rosen, 484 F.2d 820 (D.C. Cir. 1973). Ordinarily, the agency may justify its
claims of exemption through detailed affidavits, which are entitled to a
presumption of good faith. Jones, 41 F.3d at 242 (citing United States Dep’t of
State v. Ray, 502 U.S. 164, 179 (1991)). Evidence of bad faith on the part of the
agency can overcome this presumption, even when the bad faith concerns the
underlying activities that generated the FOIA request rather than the agency’s
conduct in the FOIA action itself. Id. at 242-43. Unless evidence contradicts the
government’s affidavits or establishes bad faith, the court’s primary role is to
review the adequacy of the affidavits and other evidence. Ingle, 698 F.2d at
265 (quoting Cox v. United States Dep’t of Justice, 576 F.2d 1302, 1312 (8th Cir.
1978)); Silets v. United States Dep’t of Justice, 945 F.2d 227, 231 (7th Cir.
1991) (citing Kimberlin v. Department of Treasury, 774 F.2d 204 (7th Cir.
1985)). “If the Government fairly describes the content of the material withheld
and adequately states its grounds for nondisclosure, and if those grounds are
reasonable and consistent with the applicable law, the district court should uphold
the government’s position.” Ingle, 698 F.2d at 265 (quoting Cox, 576 F.2d at
1312).

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Rugiero v. United States Dep’t of Justice, 257 F.3d 534, 544 (6th Cir. 2001). “To prevail on
summary judgment, the government must show that it made a good faith effort to conduct a
search for the requested records using methods reasonably expected to produce the requested
information and that any withholding of materials was authorized within a statutory exemption.”
Rimmer v. Holder, 700 F.3d 246, 255 (6th Cir. 2012) (citations and quotation marks omitted). 
IV.

ANALYSIS

For the reasons set forth in more detail below, the Court concludes that the FBI has not
shown that the search for records was sufficient; the declaration does not adequately describe the
search for records, and, because the FBI misconstrued Plaintiff’s FOIA request, the FBI’s search
was not conducted in a manner reasonably responsive to the request. The FBI has, however, met
its burden of demonstrating that the withholding of certain materials was authorized under FOIA
exemptions 5, 6, 7(C), 7(D), and 7(E). The Court will, therefore, deny the FBI’s motion for
summary judgment with respect to the adequacy of the search and grant the FBI’s motion with
respect to the withholding of materials.
A. Adequacy of the FOIA Search
For the reasons that follow, the Court concludes that the FBI has not met its burden of
demonstrating that its search for the requested records was sufficiently responsive to Plaintiff’s
FOIA request. Although the Court rejects Plaintiff’s argument that the existence of additional
documents potentially responsive to Plaintiff’s request raises a genuine issue of fact regarding
the adequacy of the search, the Court’s analysis does not end there. It is the FBI’s burden to
establish that the search was conducted using methods reasonably expected to produce the
requested information. The Court concludes that the FBI has not met this burden for two
reasons: (i) the declaration submitted in support of the search does not adequately describe the

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search for records and (ii) the FBI misconstrued the FOIA request and therefore did not conduct
a search reasonably tailored to the request. For these reasons, the Court will deny the FBI’s
motion for summary judgment with respect to the adequacy of the search.
The Sixth Circuit has explained the standard for a district court’s review of an agency’s
search in response to a FOIA request:
In response to a FOIA request, an agency must make a good faith effort to
conduct a search for the requested records using methods reasonably expected to
produce the requested information. Campbell v. United States Dep’t of
Justice, 164 F.3d 20, 27 (D.C. Cir. 1998). The FOIA requires a reasonable search
tailored to the nature of the request. Id. at 28. At all times the burden is on the
agency to establish the adequacy of its search. Patterson v. IRS, 56 F.3d 832, 840
(7th Cir. 1995); Steinberg v. United States Dep’t of Justice, 23 F.3d 548, 551
(D.C. Cir. 1994) (quoting Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485
(D.C. Cir. 1984)). In discharging this burden, the agency may rely on affidavits
or declarations that provide reasonable detail of the scope of the search. Bennett
v. DEA, 55 F. Supp. 2d 36, 39 (D.D.C. 1999) (citing Perry v. Block, 684 F.2d
121, 127 (D.C. Cir. 1982)). “In the absence of countervailing evidence or
apparent inconsistency of proof, [such affidavits] will suffice to demonstrate
compliance with the obligations imposed by the FOIA.” Id. The question focuses
on the agency’s search, not on whether additional documents exist that might
satisfy the request. Steinberg, 23 F.3d at 551 (quoting Weisberg, 745 F.2d at
1485).
Rugiero, 257 F.3d at 547.
With this standard in mind, the Court turns to the parties’ arguments. The FBI argues
that it conducted a search that was reasonably calculated to uncover relevant documents. Def.
Br. at 13 (Dkt. 26). The FBI asserts that Plaintiff’s FOIA request sought only the records on
which the National Gang Intelligence Center (“NGIC”) relied in classifying the Juggalos as a
gang in the “2011 National Gang Threat Assessment Emerging Trends” report (the “2011
report”). Id. at 14. The FBI, therefore, claims that it conducted a reasonable, tailored search
responsive to Plaintiff’s limited request, and that it disclosed the records on which NGIC relied
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and that were not protected from disclosure. Id. The FBI maintains that the MuckRock request
is materially different from Plaintiff’s request, because the MuckRock request asks for all
documents mentioning the Insane Clown Posse or the Juggalos, while Plaintiff’s FOIA request
was limited to documents on which NGIC relied in classifying the Juggalos as a gang. Def.
Reply at 3-4 (Dkt. 31). The FBI contends that discovery should be denied because Plaintiff fails
to show that discovery would be necessary to resolve a genuine issue of material fact regarding
the adequacy of the search. Id. at 6. The FBI further argues that records in its possession
supporting the identification of the Juggalos as a gang after the 2011 report would not be
responsive to Plaintiff’s request. Id. at 6-7.
Plaintiff argues that the fact that the FBI produced additional documents in response to
the MuckRock FOIA request than in response to Plaintiff’s FOIA request creates a genuine issue
of material fact regarding whether the FBI fulfilled its disclosure obligations, because the
MuckRock request was substantively identical to Plaintiff’s request. Pl. Resp. at 7-8 (Dkt. 29).
Plaintiff asserts that the discrepancy in documents produced serves as evidence of bad faith on
the FBI’s part, id. at 9, and argues that discovery should be allowed as to the scope of the search
and the indexing procedures. Id. at 9 n.1.
Plaintiff also contends that it is immaterial that its FOIA request was centered on the
2011 report and MuckRock’s FOIA request was more general, because both documents seek any
records supporting the FBI’s continued listing of Juggalos as a gang. Id. at 10. Plaintiff also
argues that its FOIA request asks for “all documents in support of” various statements made in
the 2011 report, and that, because the Juggalos continue to be classified as a gang by NGIC, the
FBI should have included any documents since the 2011 report that support that continued
listing. Id. at 10 n.2.

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The Court concludes that Plaintiff’s argument that the discrepancy between the
documents released in response to the MuckRock request and the documents released in
response to Plaintiff’s request creates a genuine issue of material fact lacks merit. In evaluating
the adequacy of a FOIA search for records, “[t]he factual question is whether the search was
reasonably calculated to discover the requested documents, not whether it actually uncovered
every document extant.” CareToLive v. Food & Drug Admin., 631 F.3d 336, 340 (6th Cir.
2011) (citations omitted); see also Rugiero, 257 F.3d at 547 (“The question focuses on the
agency’s search, not on whether additional documents exist that might satisfy the request.”
(citation omitted)). Therefore, the appropriate inquiry turns on the nature of the search —
whether the search was reasonably calculated to discover the requested documents — not on
whether every document responsive to the FOIA request actually was uncovered. Even if the
extra documents submitted in response to the MuckRock request would have been responsive to
Plaintiff’s request as well, the mere fact that additional responsive documents exist that were not
disclosed does not, without more, indicate that the FOIA search was inadequate. See id. at 547548 (concluding that although the plaintiff argued that the agency must have had responsive
documents that were undisclosed, “our legal standard focuses on the adequacy of the search, not
the chance that additional responsive documents exist, [so] summary judgment for [the agency]
was appropriate”).
Although the Court rejects Plaintiff’s argument regarding the MuckRock request, the
Court’s analysis does not end there. Although Plaintiff does not challenge the declaration
describing the search or argue that this document reveals that the search was inadequate, the
burden is on the FBI to demonstrate the search’s adequacy. See id. at 547. Therefore, the Court
must analyze whether the Hardy declaration adequately describes the search and whether the

9

search was reasonably calculated to uncover responsive documents. See id. at 544 (“Unless
evidence contradicts the government’s affidavits or establishes bad faith, the court’s primary role
is to review the adequacy of the affidavits and other evidence.” (citations omitted)); id. at 547
(“[A]n agency must make a good faith effort to conduct a search for the requested records using
methods reasonably expected to produce the requested information.”). The Court concludes that
the FBI has not met its burden for two reasons: (i) the declaration does not describe the search of
the NGIC’s records in sufficient detail and (ii) the briefing and Hardy declaration indicate that
the FBI misconstrued Plaintiff’s FOIA request and that the search was not responsive to the
FOIA request.
The Hardy declaration provides the following description of the FBI’s search in response
to Plaintiff’s FOIA request. The FBI’s main records system is the Central Record System
(“CRS”), which contains a numerical sequence of files on varied subject matters. Hardy Dec. ¶
11. The CRS is primarily designed as an investigative tool, but the FBI also routinely searches
the CRS for documents responsive to FOIA requests using the Automated Case Support System.
Id. After receiving Plaintiff’s FOIA request, the Record/Information Dissemination Section
(“RIDS”) of the FBI searched the CRS using keywords such as “Juggalo,” “Juggalos,” “Juggalo
gang,” and “2011 National Gang Threat Assessment Emerging Trends.” Id. No responsive
records were located during these searches. Id.
RIDS subsequently contacted the NGIC for assistance in locating responsive records. Id.
¶ 12. The NGIC, which was established by the FBI, collects, shares, and analyzes information
on the “growth, migration, criminal activity, and association of gangs that pose a significant
threat to communities throughout the United States.” Id. ¶ 14. The NGIC’s 2011 report was
based on federal, state, local, and tribal law enforcement and corrections agency information; the

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NGIC synthesized, analyzed, and presented this data. Id. ¶ 15.
After RIDS contacted the NGIC, “NGIC reviewed its files and located the material it
relied upon in preparing the 2011 National Gang Threat Assessment-Emerging Trends report.”
Hardy Dec. ¶ 12. NGIC provided 156 pages of records to RIDS for processing. Id. “RIDS
concluded that it was not reasonably likely that any other office in the FBI would maintain the
records that NGIC relied upon in preparing its 2011 National Gang Threat Assessment-Emerging
Trends report.” Id. RIDS then processed the records “for maximum disclosure consistent with
the access provisions of the FOIA.” Id. ¶ 19.
The records included both public source materials and materials solicited from law
enforcement agencies regarding information they had gathered about the Juggalos. Id. ¶¶ 17, 18.
All public source materials were provided to Plaintiff in full, with the exception of one page and
a handwritten notation, prepared by an FBI analyst, that were redacted. Id. ¶ 17. The FBI also
released to Plaintiff any public source material interspersed throughout the law enforcement
materials.

Id. ¶ 18.

Finally, the Vaughn index prepared for this case lists records and

information that were collected in response to Plaintiff’s FOIA request but were withheld or only
partially released; the index marks these records as exempt under various FOIA provisions. Id. ¶
20; Vaughn index, Def. Ex. 2 (Dkt. 26-9).
The Court first concludes that although the Hardy declaration adequately describes the
FBI’s search of the CRS, the declaration does not describe the NGIC’s search for records in
sufficient detail. The declaration does describe, in reasonable detail, the FBI’s search of the CRS
database, including specific search terms.

Furthermore, the search terms are reasonably

calculated to reveal any documents regarding either the 2011 report or the Juggalos in general.
Additionally, RIDS’ decision that no other office in the FBI would be likely to maintain the

11

records NGIC relied on in preparing the report is a permissible and reasonable conclusion. See
Knight v. Nat’l Aeronautics & Space Admin., 04-2054, 2006 WL 3780901, at *5 (E.D. Cal. Dec.
21, 2006) (“[T]here is no requirement that an agency search all possible sources in response to a
FOIA request when it believes all responsive documents are likely to be located in one place.”
(citing Oglesby v. United States Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)).
However, the declaration’s description of the NGIC’s search for records is insufficient.
The declaration only states that “NGIC reviewed its files and located the material it relied upon
in preparing the [2011 report].” The declaration does not describe how the NGIC organized or
searched its files, nor does the declaration provide information regarding “the procedures [the
NGIC] used to process [the] request and to ensure that it appropriately responded to the request.”
CareToLive, 631 F.3d at 341. The declaration does not “explain in reasonable detail the scope
and method of [the NGIC’s] search,” Morley v. C.I.A., 508 F.3d 1108, 1121 (D.C. Cir. 2007)
(citation omitted), nor does it “identify[] the terms searched or explain[] how the search was
conducted” by the NCIG. Id. at 1122 (citation omitted).

The FBI, therefore, has not met its

burden of producing affidavits or declarations adequately describing the search.
Second, the Court concludes that the FBI misinterpreted Plaintiff’s FOIA request and,
therefore, conducted a search that was not responsive to Plaintiff’s request. The request sought
all documents “regarding the investigation and determination to include the identification of the
‘Juggalos’ as a ‘gang’ in the [2011 report] . . . .” The FBI asserts that Plaintiff’s FOIA request
sought only the records on which the NGIC relied in classifying the Juggalos as a gang in the
2011 report. See Def. Br. at 14 (“[P]laintiff’s FOIA request sought only the records on which
the NGIC relied in deciding to classify Juggalos as a ‘gang’ in its 2011 report. . . . Defendant

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conducted a reasonable search for records responsive to plaintiff’s limited request.” (emphasis in
original)). The Court disagrees.
The plain language of the request encompasses a range of documents beyond those on
which the NGIC relied in deciding to classify the Juggalos as a gang in the 2011 report. The
request for documents “regarding the investigation and determination to include the
identification of the ‘Juggalos’ as a ‘gang’” contemplates, for example, documents weighing
against classifying the Juggalos as a gang.

It also contemplates documents regarding the

investigation of the Juggalos in preparation for the 2011 report, but on which the NGIC did not
actually rely in preparing the report or classifying the Juggalos as a gang. In other words, the
language of the request encompasses not only documents relating to the decision to classify the
Juggalos as a gang, but also, more generally, the investigation of the Juggalos for suspected gang
activity in preparation for the report. The documents on which the NGIC relied in deciding to
classify the Juggalos as a gang in the 2011 report constitute only a subset of possible documents
“regarding the investigation and determination to include the identification of the ‘Juggalos’ as a
‘gang.’”
It is true that Plaintiff, as the party making the FOIA request, had the “burden of
adequately identifying the record requested.” 22 C.F.R. § 171.5(c); see also Rugiero, 257 F.3d at
548 (noting that a FOIA request must reasonably describe the documents sought). The Court
concludes, however, that Plaintiff’s request, by its plain language, reasonably describes a range
of documents that is not limited to only those documents on which the NGIC relied in preparing
the 2011 report.
What is more, an agency “has a duty to construe a FOIA request liberally,” Nation
Magazine, Washington Bureau v. United States Custom Service, 71 F.3d 885, 890 (D.C. Cir.

13

1995) (citation omitted), so even if the FBI perceived some ambiguity in Plaintiff’s FOIA
request — a perception that the Court does not share — the FBI nevertheless had an obligation to
interpret the request liberally toward broader disclosure. See Miccosukee Tribe of Indians of
Florida v. United States, 516 F.3d 1235, 1255 (11th Cir. 2008) (“Even if the EPA found the
scope of the Tribe’s June 3rd request to be ambiguous, it was obliged under FOIA to interpret
both that request, and certainly the unambiguous February request before it, liberally in favor of
disclosure.”).
Because the FBI misinterpreted Plaintiff’s FOIA request, the search for records was not
sufficiently responsive to Plaintiff’s request.

There is no indication that documents regarding

the investigation of the Juggalos as a gang in connection with the 2011 report, but on which the
NGIC did not actually rely in classifying the Juggalos as a gang, were disclosed. The Court
concludes from the Hardy declaration that the records disclosed were responsive to only a
portion of Plaintiff’s request, not its entirety. Therefore, the FBI has not shown that its search
was “reasonably calculated to discover the requested documents.” CareToLive, 631 F.3d at
340.2
The parties also dispute whether the FBI is required to disclose records dating after the
2011 report. Plaintiff argues that because the 2011 report continues to be maintained online, and
because the FOIA request asked for all documents in support of various statements made in the

2

The Court notes, too, that the Hardy declaration is inconsistent in its interpretation of the FOIA
request. At one point, the declaration characterizes the request as “plaintiff’s multi-part FOIA
request seeking access to documents regarding the identification of Juggalos as a ‘hybrid gang’
in the [2011 report].” Hardy Dec. ¶ 3. Later, the declaration notes that “[i]n response to RIDS’s
search request for records responsive to plaintiff’s FOIA request, NGIC provided the materials
upon which is [sic] relied in preparing the portion of the [2011 report] relating to Juggalos.” Id.
¶ 16. The FBI’s brief, however, clearly adopts the latter interpretation of Plaintiff’s request, see
Def. Br. at 14, and both the Hardy declaration and the FBI’s brief assert that the NGIC only
searched for records on which it relied in deciding to classify the Juggalos as a gang.
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2011 report, the FOIA response should include any documents after the report was authored that
support the continued classification of Juggalos as a gang. Pl. Resp. at 10 n.2. The Court agrees
that documents responsive to Plaintiff’s request are not limited to documents created prior to the
authoring of the 2011 report.
The FOIA request sought documents and information “for the time period of 2007 to the
present,” “regarding the investigation and determination to include the identification of the
‘Juggalos’ as a ‘gang’ in the [2011 report], including, but not limited to, the following:
[documents in support of various statements made in the 2011 report].” The request was made
on August 24, 2012, and specifically seeks documents “for the time period of 2007 to the
present”; therefore, the express language of the request contemplates documents dating from
after 2011 “regarding the investigation and determination” to classify the Juggalos as a gang in
the 2011 report.3
In one case analyzing a FOIA request in which the defendant agency searched for
documents produced only within a two-month period, the court concluded that the temporal
scope of the search was too narrow:
While the underlying events occurred in November and December of 2001, [the
plaintiff has] clearly requested all records “pertaining” or “relating to” the
underlying events, including any subsequent investigations. Pls.’ Ex. 2 at 3-4. For
instance, the FOIA request expressly seeks “[a]ll records pertaining to the
existence or reported existence of a grave in or around Dasht-e-Leili (using this or
other spelling) in Afghanistan in November or December 2001, including records
of physical evidence of a mass grave or investigations conducted
contemporaneously or subsequently to determine whether such a grave
exists....” Id. at 4 (emphasis added).
Consequently, summary judgment is appropriate for [the plaintiff] on the
adequacy of CENTCOM's search. There is no genuine dispute that the temporal
scope of CENTCOM's search was too narrow and did not comport with [the

3

For example, documents regarding comments or criticism the agency received about statements
in the report after its publication could be relevant.
15

plaintiff’s] FOIA petition. Therefore, CENTCOM must conduct a new search that
is designed to obtain responsive documents generated from November 1, 2001,
until the start date of its new search.
Physicians for Human Rights v. United States Dep’t of Defense, 675 F. Supp. 2d 149, 164
(D.D.C. 2009) (some citations omitted); see also Center for Biological Diversity v. Office of
United States Trade Representative, 450 F. App’x 605, 608 (9th Cir. 2011) (“Restricting the
search for documents to that time period in which ‘detailed discussion of implementation issues’
occurred is simply not warranted by [the plaintiff’s] request, which asked for all records related
to the implementation of the program.” (emphasis in original)).
Like the FOIA request in Physicians for Human Rights, Plaintiff’s FOIA request
expressly sought records “regarding” two underlying events — the investigation and
determination to classify the Juggalos as a gang in the 2011 report — and the request expressly
encompassed records relating to, but dating after, the report. Because Plaintiff’s request sought
records “from 2007 to the present,” the appropriate temporal scope of the FBI’s request would
have been 2007 to the start date of the FBI’s search. See Physicians for Human Rights, 675 F.
Supp. 2d at 164 (ordering documents to be produced that were generated as of the start date of
the search).
In short, because the Hardy declaration does not adequately describe the NGIC’s search
for records and because the FBI misconstrued Plaintiff’s FOIA request, the FBI has not met its
burden of showing “that it made a good faith effort to conduct a search for the requested records
using methods reasonably expected to produce the requested information.” Rimmer, 700 F.3d at
255. The Court, therefore, denies the FBI’s motion for summary judgment with respect to the
adequacy of the search. 
B. Withholding Materials Under FOIA Exemptions

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The FBI maintains that all documents withheld or partially released were properly
withheld under FOIA exemptions to disclosure and that no reasonably segregable, nonexempt
information was withheld. Def. Br. at 15, 27; Hardy Dec. ¶ 47.    Plaintiff has not challenged the
FBI’s withholding of material under specific exemptions.4 However, the Sixth Circuit has held
that the defendant agency bears the burden of demonstrating that records were lawfully withheld
pursuant to a FOIA exemption.

See Rimmer, 700 F.3d at 255 (“To prevail on summary

judgment, the government must show . . . that any withholding of materials was authorized
within a statutory exemption.” (citations and quotation marks omitted)).
therefore analyze the FBI’s claimed exemptions.

The Court will

For the reasons that follow, the Court

concludes that the FBI has met its burden of showing that the withholding of materials was
authorized under applicable FOIA exemptions.
1. Exemption 5
The FBI relied on FOIA Exemption 5, and in particular the deliberative process privilege,
to withhold handwritten notes by an FBI analyst, as well as information, assessments, gang
member identification forms, and a police report solicited and obtained by the NGIC from law
enforcement agencies. Hardy Dec. ¶¶ 27, 28; see also Vaughn index. The FBI asserts that the
various inter-agency or intra-agency documents were properly withheld under the deliberative
process privilege of Exemption 5, because such documents were predecisional and would reveal
the NGIC’s decision-making process.

Def. Br. at 16.

The FBI also argues that various

4

The Court notes that at oral argument on January 16, 2014, Plaintiff asserted, for the first time,
opposition to Defendant’s withholding of materials. Arguments raised for the first time at a
hearing or oral argument are not properly before the Court. See Van Sickle v. Automatic Data
Processing, Inc., 952 F. Supp. 1213, 1221 (E.D. Mich. 1997) (noting that summary judgment
was inappropriate on an issue raised for the first time at a hearing, because the opposing party
did not have an opportunity to respond);   White v. FedEx Corp., No. 04–00099, 2006 WL
618591, at *2 (N.D. Cal. Mar. 13, 2006) (“The Court will not consider any arguments or
evidence raised for the first time at the hearing.”).
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memoranda from outside law enforcement agencies fall under the ambit of Exemption 5, because
the outside agencies were communicating with NGIC as part of the consultative process, and
because the memos were predecisional and reflected the deliberative, consultative inter-agency
process. Id. at 17-19.
Exemption 5 prevents disclosure of “inter-agency or intra-agency memorandums or
letters which 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). The Sixth Circuit has explained the requirements to invoke the
deliberative process privilege:
To come within [Exemption 5] on the basis of the deliberative process privilege, a
document must be both “predecisional,” meaning it is “received by the
decisionmaker on the subject of the decision prior to the time the decision is
made,” and “deliberative,” the result of a consultative process. Although this
privilege covers recommendations, draft documents, proposals, suggestions, and
other subjective documents that reflect the opinions of the writer rather than the
policy of an agency, the key issue in applying this exception is whether disclosure
of the materials would “expose an agency’s decisionmaking process in such a way
as to discourage discussion within the agency and thereby undermine the agency's
ability to perform its functions.”
Rugiero, 257 F.3d at 550 (citations omitted).
The Court concludes that the FBI properly withheld documents under Exemption 5. The
documents withheld are intra-agency or inter-agency memos; the handwritten notes of the FBI
analyst are an intra-agency memo, Hardy Dec. ¶ 27, and the outside law enforcement agencies
that submitted records were acting as consultants to the FBI for the purpose of collecting and
providing gang-related information. Id. ¶ 28; see Dep’t of Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 10-11 (2001) (holding that records submitted by outside
consultants to the agency may fall under the deliberative process privilege, if “the consultant
does not represent an interest of its own, or the interest of any other client, when it advises the
agency that hires it.”).
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Furthermore, all the intra-agency and inter-agency memos were prepared and submitted
prior to the FBI’s issuance of its decision in the 2011 report. Hardy Dec. ¶¶ 27, 28. Therefore,
the documents, which were “received by the decisiomaker on the subject of the decision prior to
the time the decision is made,” were predecisional. See Rugiero, 257 F.3d at 550 (citation and
quotation marks omitted).
Finally, the memos were “the result of a consultative process,” or deliberative. See id.
The intra-agency notes reflected the thoughts of the FBI analyst, and the law enforcement
memos were prepared in consultation with the FBI on the subject of gang reports, detailed gang
intelligence, and reports of gang-related criminal activity. Hardy Dec. ¶¶ 27, 28; Vaughn index.
The Hardy declaration certifies that disclosure of the information would reveal NGIC’s
deliberative process. Hardy Dec. ¶ 28. The Court concludes that the FBI has sufficiently shown
that such materials are exempt from disclosure under FOIA Exemption 5.  
2. Exemptions 6 and 7(C)
The FBI relied on FOIA Exemptions 6 and 7(C) to withhold names and identifying
information regarding FBI agents and staff, state and local law enforcement and other personnel,
third parties of investigative interest, and third parties mentioned in law enforcement and other
reports. Hardy Dec. ¶¶ 32-38; Vaughn index. The FBI argues that these records were properly
withheld, because the records would have impinged on substantial privacy interests of
individuals named in the records, without any substantial public interest in disclosure. Def. Br.
at 22-23.
Title 5 U.S.C. § 552(b)(6) exempts from disclosure “personnel and medical files and
similar files the disclosure of which would constitute a clearly unwarranted invasion of personal
privacy.”

Title 5 U.S.C. § 552(b)(7)(C) exempts from disclosure “records or information

19

compiled for law enforcement purposes, but only to the extent that the production of such law
enforcement records or information . . . could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” Because the names and identifying information of
the individuals in the records withheld under Exemption 6 appeared in FBI documents compiled
for a law enforcement purpose — preparing the NGIC report — it is appropriate to apply the
more protective standard of Exemption 7(C) to the withholding of this information. Rimmer,
700 F.3d at 256-257 (“Because it is undisputed that all the redactions at issue were contained in
FBI records compiled for the purpose of law enforcement, the district court correctly applied the
more protective standards of Exemption 7(C) to both the government’s Exemption 6 and
Exemption 7(C) redactions.”). In applying Exemption 7(C), courts have balanced the invasion of
privacy against the public interest in disclosure. See, e.g., id.; Nat’l Ass’n of Retired Fed.
Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989).   
The Court concludes that the individuals whose identifying information was redacted
from the above-mentioned documents have a substantial privacy interest in avoiding disclosure
of their identity. First, the FBI agents and staff, as well as law enforcement personnel, have an
interest in avoiding publicity that could expose them to harassing or hostile actions. Hardy Dec.
¶¶ 33, 35-36.

Furthermore, third parties of investigative interest or whose names were

mentioned in law enforcement reports have an interest in avoiding being publicly linked to a law
enforcement investigation. Hardy Dec. ¶¶ 37, 38; see also SafeCard Servs., Inc. v. S.E.C., 926
F.2d 1197, 1205 (D.C. Cir. 1991) (noting that the privacy interest at stake in disclosing the
identity of targets of law enforcement investigations is substantial). The Court further concludes
that there is no substantial public interest in disclosure of this identifying information; the
identities of these individuals do not reveal anything about the workings of the government, and

20

they are not probative of any agency’s behavior or performance. Id.; see also Horner, 879 F.2d
at 879. The FBI has sufficiently shown that these materials are exempt from disclosure under
Exemptions 6 and 7(C). 
3. Exemption 7(D)
The FBI relied on FOIA Exemption 7(D) to withhold information provided by
confidential law enforcement sources or under an implied assurance of confidentiality. Hardy
Dec. ¶¶ 40-43; Vaughn index. The FBI argues that these records were withheld because they
would have exposed identifying information of confidential sources. Def. Br. at 23-24. The FBI
argues that this exemption applies both to individuals acting as confidential sources, and to law
enforcement agencies and individuals who would not have provided the information to NGIC
without an expectation of confidentiality. Id. at 24-25.
Exemption 7(D) exempts from disclosure:
records or information compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records or information . . .
could reasonably be expected to disclose the identity of a confidential source,
including a State, local, or foreign agency or authority or any private institution
which furnished information on a confidential basis, and, in the case of a record or
information compiled by criminal law enforcement authority in the course of a
criminal investigation or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential source.
5 U.S.C. § 552(b)(7)(D).
A confidential source may be an individual, a state, local, or foreign agency, or a private
institution. United States Dep’t of Justice v. Landano, 508 U.S. 165, 172 (1993). “[T]he
question is not whether the requested document is of the type that the agency usually treats as
confidential, but whether the particular source spoke with an understanding that the
communication would remain confidential.” Id. (emphasis in original). “A source should be
deemed confidential if the source furnished information with the understanding that the FBI
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would not divulge the communication except to the extent the Bureau thought necessary for law
enforcement purposes.” Id. at 174. An expectation of confidentiality may arise from express
assurances of confidentiality, but if there were no express assurances of confidentiality, the
specific factual circumstances of a case may lead to an inference of an implied assurance of
confidentiality. Id. at 179. However, if no express assurances of confidentiality were received,
the agency must “assess confidentiality based on the particular circumstances applicable to each
source.” Rugiero, 257 F.3d at 552.
The Hardy declaration indicates that the FBI withheld information provided by law
enforcement agencies after concluding that such information had been provided under
circumstances where assurances of confidentiality either were express or could be inferred.
Hardy Dec. ¶ 42.

Many of the law enforcement bulletins and reports that were marked

“confidential” or “for law enforcement dissemination only,” id., and the Court concludes that
these markings indicate that the law enforcement agency submitted such communications to the
FBI with the understanding that the communications would remain confidential. See Meserve v.
United States Dep’t of Justice, No. 04-1844, 2006 WL 2366427, at *10 (D.D.C. Aug. 14, 2006)
(concluding that a notice affixed to a state law enforcement document stating that the date in the
document “is only to be used for criminal justice purposes” reasonably demonstrated that the
state provided the document under an implied assurance of confidentiality).

Such

communications are protected from disclosure under Exemption 7(D). See Landano, 508 U.S. at
172.
There were also some law enforcement bulletins and identification forms that were not
marked as “confidential,” but were withheld under Exemption 7(D). Hardy Dec. ¶ 42; see also
Vaughn index. These documents include one intelligence bulletin, a police report, and the gang

22

member identification forms. Hardy Dec. ¶ 42. The Hardy declaration indicates that such
documents can be deemed confidential, because the law enforcement agencies would not have
supplied such information to the FBI if they had known the information would be publicly
disclosed; the Hardy Declaration also notes that the police report was about an open and ongoing
investigation. Id.
The Supreme Court has cautioned that “it is unreasonable to infer that all FBI criminal
investigative sources are confidential.” Landano, 508 U.S. at 179. To demonstrate an implied
assurance of confidentiality, the FBI should point to “more narrowly defined circumstances that
will support the inference,” such as the nature of the investigation at issue. Id.
In this case, the Court concludes that the FBI has met its burden of showing that the
intelligence bulletin, police report, and gang member identification forms contained implied
assurances of confidentiality. The Hardy declaration explains, “we can infer that these law
enforcement agencies [providing the documents] did not intend or expect that this cooperative
exchange of detailed and singular law enforcement information and intelligence, which was
provided to the FBI solely for purposes of furthering NGIC’s research, would be publicly
disclosed by the FBI.” Hardy Dec. ¶ 42; see also id. ¶ 43 (asserting that confidentiality must be
maintained under the circumstances of the instant investigation to maintain confidential sources
as a future means of obtaining information and to facilitate law enforcement inter-agency
cooperation). The Court finds this analysis persuasive, and concludes that the nature of the
investigation — ongoing research into the possibly gang-related criminal activities of members
of an organization — supports a conclusion that the state and local law enforcement agencies
submitted the bulletins, identification forms, and police report under an implied assurance of
confidentiality. See Landano, 508 U.S. at 179 (noting that an investigation of a possibly gang-

23

related shooting was probative of an implied assurance of confidentiality). The FBI has met its
burden of showing that these materials are protected under Exemption 7(D).
4. Exemption 7(E)
Finally, the FBI relied on FOIA Exemption 7(E) to withhold records that would reveal
techniques, procedures, and guidelines for law enforcement and investigative techniques. Hardy
Dec. ¶ 45; Def. Br. at 26.
Exemption 7(E) exempts from disclosure:
records or information compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement 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.
5 U.S.C. § 552(b)(7)(E).
The Hardy declaration explains that describing the internal law enforcement techniques
and guidance revealed by these records, including in the declaration or in the Vaughn index,
“would expose the very information that the FBI has protected under Exemption 7(E).” Hardy
Dec. ¶ 45. The Hardy Declaration also states that the FBI relied on Exemption 7(E) to withhold
documents produced as a result of searching the Investigative Data Warehouse (“IDW”); the
IDW is “a centralized repository for counterterrorism and investigative data that allows
authorized users to query the information using advanced software tools.” Id. ¶ 46. The
declaration asserts that disclosure of the printouts and reports would reveal how IDW data is
organized and searched, which is an internal FBI technique. Id.
The Court concludes that the FBI has met its burden of demonstrating that the records
were properly withheld under Exemption 7(E), including an explanation of why further details
regarding the internal law enforcement techniques may not be exposed in this litigation. See
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Jones v. FBI, 41 F.3d 238, 249 (6th Cir. 1994) (concluding that the FBI properly withheld, under
Exemption 7(E), lawful investigative techniques not generally known to the public that could
result in suspects’ steps to avoid detection); American Civil Liberties Union of Michigan v. FBI,
No. 11-13154, 2012 WL 4513626, at *9 (E.D. Mich. Sept. 30, 2012) (noting that no showing of
harm is required for the withholding of law enforcement techniques or procedures, because such
materials “receive categorical protection from disclosure” (citation omitted)).
Finally, the Court has reviewed the Vaughn index and concludes that the index
sufficiently describes each document that was withheld or released in part and explains the
exemptions applicable to each document or portion of a document. The index contains a
reasonably detailed description of each document, including information such as the type of
document, the date of the document, and a brief description of its substance. The documents that
were withheld in full contain sufficient descriptions of the documents to clarify why each
document as a whole was subject to a FOIA exemption. Furthermore, the Hardy declaration
certifies:
The FBI carefully examined the documents and determined that the information
withheld from plaintiff in this case, if disclosed, could reasonably be expected to
reveal information that is protected by the deliberative process privilege; would
improperly invade personal privacy interests; would disclose the identities of
confidential sources and the information provided by them; and/or would disclose
techniques and procedures for law enforcement investigations. Documents that
were withheld in full were determined to be wholly exempt based on Exemption 5
or 7(E), alone or in combination with the other cited exemptions, without any
non-exempt information that could reasonably be segregated and released to
plaintiff.
Hardy Dec. ¶ 47. The Court concludes that the FBI has sufficiently described “the process by
which it determined that all reasonably segregable material had been released.” Rugiero, 257
F.3d at 553.

25

Because the FBI has shown that the withheld documents were protected from disclosure
by applicable FOIA exemptions, the Court grants the FBI’s motion for summary judgment with
respect to the withholding of records. 

V.

CONCLUSION

For the reasons stated above, the Court denies the FBI’s motion for summary judgment
with respect to the adequacy of the search and grants the FBI’s motion with respect to the
withholding of materials.
The Court further concludes that additional briefing is required as to how the case should
proceed at this juncture.

Each party shall file a supplemental brief discussing this issue.

Plaintiff’s supplemental brief is due on or before March 5, 2014. The FBI’s supplemental brief
is due on or before March 12, 2014. Each brief shall not exceed 10 pages, exclusive of
attachments.
SO ORDERED.
Dated: February 25, 2014
Flint, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on February 25, 2014.
s/Deborah J. Goltz
DEBORAH J. GOLTZ
Case Manager

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