The New York Times Company et al v. Federal Bureau of Investigation

Filing 15

FILING ERROR - DEFICIENT DOCKET ENTRY - REPLY MEMORANDUM OF LAW in Support re: 8 MOTION for Summary Judgment. Document filed by Charles Savage, The New York Times Company. (McCraw, David) Modified on 4/18/2011 (ldi).

Case 1:10-cv-07920-RPP Document 13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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THE NEW YORK TIMES COMPANY and
:
CHARLES SAVAGE,
:
:
Plaintiffs,
:
:
v.
:
:
FEDERAL BUREAU OF INVESTIGATION,
:
:
Defendant.
:
:
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ECF CASE
10 Civ. 7920 (RPP)

DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND IN
SUPPORT OF DEFENDANT’S CROSS-MOTION FOR SUMMARY
JUDGMENT AND MOTION TO DISMISS FOR
LACK OF SUBJECT MATTER JURISDICTION

PREET BHARARA
United States Attorney for the
Southern District of New York
Attorney for Defendant
86 Chambers Street, Third Floor
New York, New York 10007
Telephone: [phone]
Facsimile: [phone]
TOMOKO ONOZAWA
Assistant United States Attorney
– Of Counsel –

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TABLE OF CONTENTS
PRELIMINARY STATEMENT .....................................................................................................1 
STATEMENT OF FACTS ..............................................................................................................2 
A. 

Plaintiffs’ FOIA Requests and Complaint ...............................................................2 
1. 
2. 

Assessment Statistics Request .....................................................................3 

3. 
B. 

SIRT Request ...............................................................................................2 

Plaintiffs’ Complaint ....................................................................................4 

FBI’s Production of Responsive Documents ...........................................................4 
1. 

The FBI’s Release of Documents Responsive to the SIRT Request ...........4 

2. 

The FBI’s Release of Documents Responsive to the Assessment
Statistics Request .........................................................................................5 

ARGUMENT ...................................................................................................................................5 
POINT I−DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’
FOIA CLAIMS ................................................................................................................................5 
A. 

Legal Standards for FOIA and Summary Judgment ................................................5 

B. 

The FBI Conducted an Adequate Search .................................................................6 

C. 

The FBI Properly Withheld Personal Identifying Information Under
Exemptions 6 and 7(C) ............................................................................................7 
1. 

The Use of Identifiers Will Not Serve the Public Interests
Identified by Plaintiffs .................................................................................8 

2. 

The Identifiers Are Not Reasonably Segregable From the Full
Names of the FBI Special Agents ..............................................................10 

POINT II−THIS COURT LACKS SUBJECT MATTER JURISDICTION OVER PLAINTIFFS’
FOIA CLAIM WITH RESPECT TO THE ASSESSMENT STATISTICS REQUEST BECAUSE
THAT CLAIM IS MOOT ..............................................................................................................12 
A. 

Legal Standard for 12(b)(1) Motion ......................................................................12 

B. 

Plaintiffs’ FOIA Claim as to the Assessment Statistics Request is Moot
Because the FBI Has Re-Released the Document Without the Contested
Exemptions ............................................................................................................13 

CONCLUSION ..............................................................................................................................14 

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TABLE OF AUTHORITIES

Cases 
Associated Press v. DOJ,
549 F.3d 62 (2d Cir. 2008) ...................................................................................................... 6, 8
Associated Press v. DOJ,
No. 06 Civ. 1758 (LAP), 2007 WL 737476 (S.D.N.Y. Mar. 7, 2007).................................... 7, 8
Canning v. U.S. Dep’t of Justice,
567 F. Supp. 2d 104 (D.D.C. 2008) .......................................................................................... 12
Carney v. U.S. Dep’t of Justice,
19 F.3d 807 (2d Cir. 1994) .......................................................................................................... 6
Center for Nat’l Sec. Studies v. U.S. Dep’t of Justice,
331 F.3d 918 (D.C. Cir. 2003) .................................................................................................... 6
Dep’t of the Air Force v. Rose,
425 U.S. 352 (1976) .................................................................................................................... 9
DiModica v. United States Dep’t of Justice,
No. 05 Civ. 2165 (GEL), 2006 WL 89942, (S.D.N.Y. Jan. 11, 2006) ...................................... 14
Dixon v. Admin. Appeal Dep’t Office of Info. and Privacy,
No. 06 Civ. 6069 (LAK), 2008 WL 216304 (S.D.N.Y. Jan. 22, 2008) .................................... 13
Ercole v. U.S. Dep’t of Transp.,
No. 07 Civ. 2049, 2008 WL 4190799 (E.D.N.Y. Sept. 10, 2008) ............................................ 13
Ferguson v. FBI,
89 Civ. 5071 (RPP), 1995 WL 329307 (S.D.N.Y. June 1, 1995) ............................................... 2
Fisher v. Fed. Bureau of Investigation,
94 F. Supp. 2d 213 (D. Conn. 2000) ......................................................................................... 14
Forest Service Employees for Envtl. Ethics v. U.S. Forest Serv.,
524 F.3d 1021 (9th Cir. 2008) ..................................................................................................... 9
Garcia v. DOJ, Office of Info. & Privacy,
181 F. Supp. 2d 356 (S.D.N.Y. 2002) ......................................................................................... 6
Grand Cent. P’ship, Inc. v. Cuomo,
166 F.3d 473 (2d Cir. 1999) ........................................................................................................ 6

ii

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Halpern v. FBI,
181 F.3d 279 (2d Cir. 1999) ........................................................................................................ 6
Judicial Watch, Inc. v. FDA,
449 F.3d 141 (D.C. Cir. 2006) .................................................................................................... 7
Kalwasinski v. Fed. Bureau of Prisons,
08 Civ. 9593 (PAC), 2010 WL 2541363 (S.D.N.Y. Mar. 12, 2010) ........................................ 11
Kissinger v. Reporters Comm. for Freedom of Press,
445 U.S. 136 (1980) .................................................................................................................. 13
Lahr v. Nat’l Transp. Safety Board,
569 F.3d 964 (9th Cir. 2009) ....................................................................................................... 9
Lead Industries Ass’n, Inc. v. Occupational Safety and Health Admin.,
610 F.2d 70 (2d Cir. 1979) ........................................................................................................ 11
Luckett v. Bure,
290 F.3d 493 (2d Cir. 2002) ...................................................................................................... 12
Mead Data Central, Inc. v. United States Dep’t of Air Force,
566 F.2d 242 (D.C. Cir. 1977) ............................................................................................ 11, 12
NAACP Legal Def. & Educ. Fund, Inc. v. HUD,
07 Civ. 3378 (GEL), 2007 WL 4233008 (S.D.N.Y. Nov. 30, 2007) .......................................... 2
Nat’l Archives and Records v. Favish,
541 U.S. 157 (2004) .................................................................................................................... 8
NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214 (1978) .................................................................................................................... 5
Phifer v. City of New York,
289 F.3d 49 (2d Cir. 2002) ........................................................................................................ 12
Radcliffe v. I.R.S.,
536 F. Supp. 2d 423 (S.D.N.Y. 2008) ......................................................................................... 2
Robinson v. Overseas Military Sales Corp.,
21 F.3d 502 (2d Cir. 1994) ........................................................................................................ 12
Sherman v. U.S. Dep’t of the Army,
244 F.3d 357 (5th Cir. 2001) ....................................................................................................... 8
Sussman v. U.S. Marshals Serv.,
494 F.3d 1106, 1117 (D.C. Cir. 2007) ...................................................................................... 11

iii

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Sussman v. U.S. Marshals Serv.,
734 F. Supp. 2d 138 (D.D.C. 2010) .......................................................................................... 12
U.S. Dep’t of Justice v. Tax Analysts,
492 U.S. 136 (1989) .................................................................................................................. 13
U.S. Dep’t of State v. Washington Post Co.,
456 U.S. 595 (1982) .................................................................................................................... 7
Ward v. Bank of New York,
455 F. Supp. 2d 262 (S.D.N.Y. 2006) ....................................................................................... 13
Weisberg v. U.S. Dep’t of Justice,
705 F.2d 1344 (D.C. Cir. 1983) .................................................................................................. 7
Wood v. FBI,
432 F.3d 78 (2d Cir. 2005) .......................................................................................................... 8
Statutes 
5 U.S.C. § 522 ........................................................................................................................ passim
5 U.S.C. § 552(a) ............................................................................................................ 5, 6, 11, 13
5 U.S.C. § 552(b) .................................................................................................................. 5, 7, 10
5 U.S.C. § 552(b)(2) ................................................................................................................. 4, 13
5 U.S.C. § 552(b)(6) ........................................................................................................... 4, 7, 8, 9
5 U.S.C. § 552(b)(7)(C) .......................................................................................................... 4, 7, 8
5 U.S.C. § 552(b)(7)(D) .................................................................................................................. 4
5 U.S.C. § 552(b)(7)(E) ............................................................................................................ 4, 13
5 U.S.C. §552 (b)(7)(A) .................................................................................................................. 4
5 U.S.C. §552(b)(3) ........................................................................................................................ 4
Rules 
12(b)(1) ................................................................................................................................. 1, 2, 12
Fed. R. Civ. P. 56 ........................................................................................................................ 1, 6

iv

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PRELIMINARY STATEMENT
Defendant the Federal Bureau of Investigation (the “FBI” or the “Government”) by its
attorney, Preet Bharara, United States Attorney for the Southern District of New York,
respectfully submits this memorandum of law in opposition to Plaintiffs’ motion for summary
judgment seeking release of selected documents under the Freedom of Information Act, 5 U.S.C.
§ 522 (“FOIA”), and in support of its cross-motion for summary judgment as to these same
documents and its motion to dismiss under Federal Rule of Civil Procedure 12(b)(1).
Plaintiffs seek the release of the following records under FOIA: (1) copies of FBI
Shooting Incident Review Team (“SIRT”) reports prepared by the FBI; and (2) statistics on the
aggregate results of investigative “assessments” conducted by the FBI pursuant to Attorney
General Guidelines that went into effect in December 2008 (“Assessment Statistics”). Plaintiffs
only challenge the exemptions invoked by the Government to withhold information from both
categories of documents.
With respect to the SIRT reports, Plaintiffs object to the Government’s withholding of the
full names of the FBI Special Agents listed in the reports, and assert that the Government has an
obligation under FOIA to redact the names so that only the agents’ initials remain. However, not
only do the agents’ full names fall squarely within the protections of Exemptions 6 and 7(C), but
the SIRT reports also contain sufficient information for Plaintiffs’ stated purpose of “ensur[ing]
adequate public oversight of the FBI.” Moreover, releasing only the agents’ initials will not
further advance Plantiffs’ stated interest because it would be impossible to verify whether the
same agent was involved in more than one shooting incident, and to monitor how the FBI has
handled cases involving subsequent incidents by that agent. See infra Point I.C. Finally,
because the information requested by Plaintiffs is not reasonably segregable, the FBI should not

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be saddled with the burdensome task of re-processing over 2,000 pages of SIRT Reports to
display only the agents’ initials.
With respect to the Assessment Statistics, although Plaintiffs initially disputed the
Government’s withholdings under Exemptions 2 and 7(E), Plaintiffs’ FOIA claim as to that
category of documents is now moot because the Government has released the Assessment
Statistics without those exemptions. See infra, Point II.B.
As set forth below, and in the accompanying Declaration of David M. Hardy dated March
25, 2011 (“Hardy Decl.”),1 the Government has met its burden of demonstrating that the FBI
names redacted from the SIRT reports are exempt from disclosure under FOIA, and that the
Court lacks jurisdiction to consider Plaintiff’s FOIA claim with respect to the Assessment
Statistics because that claim is moot. The Court accordingly should grant both the Government’s
cross-motion for summary judgment on Plaintiffs’ FOIA claims with respect to the SIRT
Request and the Assessment Statistics Request, and the Government’s Rule 12(b)(1) motion to
dismiss Plaintiffs’ FOIA claim with respect to the Assessment Statistics Request.
STATEMENT OF FACTS
A.

Plaintiffs’ FOIA Requests and Complaint
1.

SIRT Request

On November 3, 2009, plaintiff Charles Savage (“Savage”), on behalf of plaintiff The
1

The Government is not submitting a Statement pursuant to Local Civil Rule 56.1, in
accordance with the general practice in this Circuit. See Radcliffe v. I.R.S., 536 F. Supp. 2d 423,
432 (S.D.N.Y. 2008) (noting agency’s burden on summary judgment can be satisfied “by
affidavits or declarations”); NAACP Legal Def. & Educ. Fund, Inc. v. HUD, 07 Civ. 3378
(GEL), 2007 WL 4233008, at *1 n.1 (S.D.N.Y. Nov. 30, 2007) (granting government’s summary
judgment motion as “properly made” without Rule 56.1 statement); Ferguson v. FBI, 89 Civ.
5071 (RPP), 1995 WL 329307, at *2 (S.D.N.Y. June 1, 1995) (noting “general rule in this
Circuit” that Local Civil Rule 56.1 statements should not be submitted in FOIA cases), aff’d, 83
F.3d 41 (2d Cir. 1996). If the Court wishes the Government to submit such a Statement, we will
do so promptly.

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New York Times Company, e-mailed a FOIA request to FBI, requesting copies of all SIRT
reports “completed between January 1, 1999, and the present.” Hardy Decl. ¶ 5 & Ex. A (the
“SIRT Request”). By e-mail dated July 8, 2010, Plaintiffs amended the SIRT Request by
expanding the timeframe for SIRT reports to “[January 1, 1993] to the present,” and by reducing
the scope of the request to include only the summaries of the SIRT reports, any electronic
communications completed by the review panel containing its findings regarding each shooting
incident, and any section of the SIRT report that contained investigator concerns. Hardy Decl.
¶¶ 10, 37 n.8 & Ex. F.
SIRT reports are generated when an FBI Special Agent or an FBI Task Force Officer is
involved in a shooting incident while performing work as part of an FBI-led task force. Id. ¶ 3
n.1. These shooting incidents must be reported to the FBI’s Inspection Division, which conducts
an investigation into the shooting. Id. After the investigation is completed, the findings are
presented to and reviewed by the FBI’s Shooting Incident Review Group, which then assesses
whether to take any action against the employee/shooter, and/or identifies and addresses other
areas of concern. Id.
2.

Assessment Statistics Request

On November 4, 2009, plaintiff Savage e-mailed a second FOIA request to the FBI,
requesting “statistics on the aggregate results of assessments the FBI has conducted using the
new authorities provided by the AG Guidelines that were put into effect in December 2008,” and
referred to in an FBI response to a question from Senator Russell Feingold during a March 25,
2009 Senate Judiciary Committee Hearing. Hardy Decl. ¶ 22 & Ex. Q (the “Assessment
Statistics Request”).
As part of its central mission of protecting national security, the FBI proactively gathers
information from available sources to identify threats and activities, and to support appropriate
intelligence analysis. Id. ¶ 3 n.2. This type of investigative activity is known as an

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“assessment.” Id. Assessments may be used when the FBI obtains an “allegation or
information” or an “articulable factual basis” concerning crimes or threats to national security,
and the matter can be investigated or resolved through relatively non-intrusive methods
authorized in assessments. Id. After checking investigative leads in this manner and concluding
that further investigation is unwarranted, the FBI can avoid having to proceed to more formal
levels of investigative authority. Id. See also Domestic Investigations and Operations Guide,
Section 5, available at
http://www.foia2.fbi.gov/diog/domestic_investigations_and_operations_guide_part2.pdf.
3.

Plaintiffs’ Complaint

After pursuing their administrative appeals under FOIA, see Hardy Decl. ¶¶ 8-9, 26-28,
Plaintiffs filed the instant lawsuit on October 18, 2010, seeking orders “compelling the FBI” to
produce the statistics requested in the Assessment Statistics Request and to produce documents
requested in the SIRT Request. Compl. ¶¶ 33, 41.
B.

FBI’s Production of Responsive Documents
1.

The FBI’s Release of Documents Responsive to the SIRT Request

On November 18, 2010, December 17, 2010, December 20, 2010, January 25, 2011, and
February 16, 2011, the FBI released a total of 2,158 pages responsive to the SIRT Request to
plaintiff Savage, with notations in the documents indicating information withheld pursuant to
Exemptions 2, 3, 6, 7(A), 7(C), 7(D), and 7(E). Hardy Decl. ¶¶ 17-21 & Exs. L-P; see also 5
U.S.C. §§ 552(b)(2), (b)(3), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(E). Plaintiffs do
not challenge the agency’s withholding of information under Exemptions 2, 3, 7(A), 7(D) or
(7E), but challenge only the agency’s withholding of FBI agents’ names under Exemptions 6 and
7(C). See Mem. of Law in Support of Pls.’ Mot. for Summ. J. (“Pls.’ Mem.”) at 2, 6, 19-23.

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2.

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The FBI’s Release of Documents Responsive to the Assessment Statistics Request

On December 1, 2010, the FBI released to plaintiff Savage two pages responsive to the
Assessment Statistics Request, with notations indicating where it had withheld information under
Exemptions 2 and 7(E). See Hardy Decl. ¶ 29 & Ex. W; see also 5 U.S.C. § 552(b)(2), (b)(7)(E).
Upon further review, however, the FBI determined that the information withheld under
Exemptions 2 and 7(E) could be released, and re-released the two pages to plaintiff Savage on
March 7, 2011, with those exemptions removed. See Hardy Decl. ¶ 30 & Ex. X. Plaintiffs
object only to the FBI’s withholding of information under Exemptions 2 and 7(E). See Pls.’
Mem. at 6, 8-18. However, because Plaintiffs’ summary judgment motion was filed on February
25, 2011, before the two pages were re-released on March 7, 2011, Plaintiffs’ FOIA claim with
respect to the Assessment Statistics Request is now moot. See infra, Point II.B.
ARGUMENT
POINT I
DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT
ON PLAINTIFFS’ FOIA CLAIMS
A.

Legal Standards for FOIA and Summary Judgment
FOIA was enacted to “ensure an informed citizenry, . . . needed to check against

corruption and hold the governors accountable to the governed.” NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 242 (1978). The statute requires each federal agency to make
available to the public an array of information, and sets forth procedures by which requesters
may obtain such information. See 5 U.S.C. § 552(a). At the same time, FOIA exempts nine
categories of information from disclosure, while providing that “[a]ny reasonably segregable
portion of a record shall be provided . . . after deletion of the portions which are exempt under
this subsection.” Id. § 552(b). FOIA thus “calls for broad disclosure of [g]overnment records,
while maintaining a balance between the public’s right to know and the government’s legitimate

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interest in keeping certain information confidential.” Associated Press v. DOJ, 549 F.3d 62, 64
(2d Cir. 2008) (citations and internal quotation marks omitted); Center for Nat’l Sec. Studies v.
U.S. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003).
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is the procedural
vehicle by which most FOIA actions are resolved. See, e.g., Grand Cent. P’ship, Inc. v. Cuomo,
166 F.3d 473, 478 (2d Cir. 1999); Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir.
1994). “In order to prevail on a motion for summary judgment in a FOIA case, the defendant
agency has the burden of showing that its search was adequate and that any withheld documents
fall within an exemption to FOIA.” Carney, 19 F.3d at 812. “Affidavits or declarations . . .
giving reasonably detailed explanations why any withheld documents fall within an exemption
are sufficient to sustain the agency’s burden.” Id. (footnote omitted); see also Halpern v. FBI,
181 F.3d 279, 291 (2d Cir. 1999) (same). Although this Court reviews de novo the agency’s
determination that requested information falls within a FOIA exemption, see 5 U.S.C.
§ 552(a)(4)(B); Halpern, 181 F.3d at 287, the declarations submitted by the agency in support of
its determination are “accorded a presumption of good faith,” Carney, 19 F.3d at 812 (citation
and internal quotation marks omitted).
B.

The FBI Conducted an Adequate Search2
The FBI’s searches were “‘reasonably designed to identify and locate responsive

documents.’” Garcia v. DOJ, Office of Info. & Privacy, 181 F. Supp. 2d 356, 368 (S.D.N.Y.
2002). As detailed in the Hardy Declaration, in response to Plaintiffs’ SIRT Request, the FBI
first searched its Central Records System, but found no responsive records. See Hardy Decl. ¶¶
2

Although Plaintiffs do not challenge the adequacy of the FBI’s searches, see Pls.’ Mem.
at 6, the Government has included a brief discussion of the searches here because “[i]n order to
prevail on a motion for summary judgment in a FOIA case, the defending agency has the burden
of showing that its search was adequate and that any withheld documents fall within an
exemption to the FOIA.” Carney, 19 F.3d at 812.

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31-36, 37. The FBI then contacted its Inspection Division to search for and assemble all SIRT
summaries and electronic communications from 1993 to the present. Id. ¶ 37. The search
yielded numerous responsive reports and electronic communications. Id. The FBI also located a
summary report, entitled “Shooting Database Review,” of shootings that occurred between 1993
and 2009. Id. In response to Plaintiffs’ Assessment Statistics Request, the FBI contacted the
Office of Congressional Affairs to search for and retrieve the questions for the record arising
from the March 25, 2009 Senate Judiciary Committee of Oversight Hearing concerning the FBI.
Id. ¶ 38. As a result of the search, the FBI identified two pages of responsive materials. Id.
Accordingly, the FBI has met its burden of undertaking a search that was “reasonably calculated
to uncover all relevant documents.” Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351
(D.C. Cir. 1983).
C.

The FBI Properly Withheld Personal Identifying Information Under Exemptions 6
and 7(C)
The FBI has withheld the complete names of FBI Special Agents who were listed in the

SIRT Reports. See Hardy Decl. ¶ 45 & Ex. Y. “Exemption 7(C) and Exemption 6 are
specifically aimed at protecting the privacy of personal information in government records.”
Associated Press v. DOJ, No. 06 Civ. 1758 (LAP), 2007 WL 737476, at *4 (S.D.N.Y. Mar. 7,
2007), aff’d, 549 F.3d 62 (2d Cir. 2008). Exemption 6 exempts from disclosure records or
information in “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).3
Exemption 7(C), which applies only to information contained in law enforcement records, “is
more protective of privacy than Exemption 6, because [Exemption 7(C)] applies to any
3

Exemption 6 does not merely apply to “files ‘about an individual,’” but applies more
broadly to “bits of personal information, such as names and addresses,” contained in otherwise
releasable documents. Judicial Watch, Inc. v. FDA, 449 F.3d 141, 152 (D.C. Cir. 2006); see also
U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 602 (1982).

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disclosure that ‘could reasonably be expected to constitute’ an invasion of privacy that is
‘unwarranted.’” Associated Press, 2007 WL 737476 at *4; see also Associated Press, 549 F.3d
at 65.
1.

The Use of Identifiers Will Not Serve the Public Interests Identified by Plaintiffs

In determining whether personal information is exempt from disclosure under these
provisions, the Court must balance the public’s need for this information against the individual’s
privacy interest. Wood v. FBI, 432 F.3d 78, 86 (2d Cir. 2005); see also Sherman v. U.S. Dep’t of
the Army, 244 F.3d 357, 361 n.6 (5th Cir. 2001) (“[T]he manner in which courts analyze the
applicability of exemption 7(C) is the same as that used with respect to exemption 6.”). Where
privacy concerns are present, the party requesting the information must “establish a sufficient
reason for the disclosure” by: (1) showing that the “public interest sought to be advanced is a
significant one, an interest more specific than having the information for its own sake”; and (2)
showing that the “information is likely to advance that interest.” Nat’l Archives and Records v.
Favish, 541 U.S. 157, 172 (2004). Unless both prongs are met, “the invasion of privacy is
unwarranted.” Id.
Plaintiffs do not dispute that the SIRT reports were compiled for law enforcement
purposes and therefore meets the threshold test for Exemption 7(C). See Pls.’ Mem. at 19; see
also Hardy Decl. ¶ 42 (explaining how SIRT reports fall within the FBI’s law enforcement
duties). Plaintiffs also agree that the FBI Agents named in the SIRT Reports have cognizable
privacy interests under Exemptions 6 and 7(C), and that such privacy interests warrant protection
through the withholding of their complete names. See Pls.’ Mem. at 19; see also Hardy Decl. ¶¶
45-46. Indeed, as the Hardy Declaration explains, FBI Special Agents’ investigations of criminal
law violations and national security cases put them in contact with various members of society.
Id. ¶ 46. Given that individual targets of law enforcement actions can carry long-standing
grudges against individual agents, releasing an agent’s identity in connection with a particular

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investigation could trigger hostility towards that agent, and therefore constitute an unwarranted
invasion of the agent’s personal privacy. Id.; see Lahr v. Nat’l Transp. Safety Board, 569 F.3d
964, 977 (9th Cir. 2009) (observing that “the directly applicable precedents nonetheless establish
that ‘FBI agents have a legitimate interest in keeping private matters that could conceivably
subject them to annoyance or harassment’”) (citing cases). However, Plaintiffs contend that
“the appropriate balance between privacy and disclosure is struck by redacting the names so that
the initials remain (the ‘Identifier’).” Pls.’ Mem. at 19.
Plaintiffs’ argument fails because they have not and cannot establish a nexus between the
use of Identifiers and the purported public interest. In Dep’t of the Air Force v. Rose, 425 U.S.
352 (1976), law review editors researching disciplinary systems and procedures at military
service academies sought case summaries of United States Air Force Academy honor and ethics
hearings that were triggered by suspected violations of the Academy’s Honors and Ethics Codes.
Id. at 355, 358-59. Although the Court noted that the public had a “genuine and significant”
interest in understanding how the codes operated and how they affected the training of future Air
Force officers, the Court also made clear, and the parties agreed, that such summaries should be
produced for in camera review after “redacting the records so as to delete personal references
and all other identifying information . . . to safeguard affected persons in their legitimate claims
of privacy.” Id. at 355, 358, 370 n.8. See also Lahr, 569 F.3d at 979 (denying plaintiff’s request
for release of names of FBI agents appearing in documents related to National Transportation
Safety Board investigation of plane crash, because “[plaintiff] already possesses the substance of
the eyewitnesses’ reports and the FBI agents’ thoughts as they are expressed in the released
memoranda and emails,” such that releasing the names was “insufficient to override the . . .
agents’ privacy interests”); Forest Service Employees for Envtl. Ethics v. U.S. Forest Serv., 524
F.3d 1021, 1027-28 (9th Cir. 2008) (holding that, under Exemption 6, the Forest Service was not

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required to release an unredacted copy of agency’s investigative report of forest fire with the
names of all agency employees identified in the report, where “the identities of the employees
alone will shed no new light on the Forest Service’s performance of its duties beyond that which
is already publicly known,” and “would not appreciably further the public’s important interest in
monitoring the agency’s performance during that tragic event”).
Likewise, in this case, the SIRT Reports already contain specific and detailed information
about FBI shooting incidents and recommended courses of action, and therefore provide
sufficient information for Plaintiffs’ stated purpose of “maintaining public accountability of the
FBI” by assessing the FBI Special Agents’ use of force and agency recommendations regarding
that use of force. Pls.’ Mem. at 19; Hardy Decl. ¶ 47 & Ex. Y. To the extent the interests
extend further “to track whether the same agent has been involved in more than one shooting
incident and to monitor how the agency has handled cases involving subsequent incidents by the
same agent” or to discern “a pattern involving the same agent or agents,” see Pls.’ Mem. at 19,
22, redacting the first name and the last name to release only the first letter of each name will not
advance those interests. The SIRT Reports contain the first and last name of the agents and in
some instances, only the agent’s last name. See Hardy Decl. ¶ 48. Considering the likelihood
that multiple agents will have the same initials or last names beginning with the same letter, there
is no way to verify that the Identifiers would link the same agent to more than one incident. Id.
2.

The Identifiers Are Not Reasonably Segregable From the Full Names of the FBI
Special Agents

Moreover, even assuming that the first letters of the Special Agents’ first and last names
are non-exempt under FOIA, the FBI has satisfied its obligation to release “[a]ny reasonably
segregable portion of a record . . . after deletion of portions which are exempt.” 5 U.S.C. §
552(b).

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As a preliminary matter, “[a]gencies are entitled to a presumption that they complied with
the obligation to disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494
F.3d 1106, 1117 (D.C. Cir. 2007). If the party requesting the information rebuts this
presumption, it is the Government’s burden to show that “no segregable, nonexempt portions
were withheld.” Id. (citing 5 U.S.C. § 552(a)(4)(B)). “A determination of whether non-exempt
information in a record is reasonably segregable turns on the intelligibility of the record after the
removal of the exempt information and the burden that removing the exempt material would
impose on the agency.” Kalwasinski v. Fed. Bureau of Prisons, 08 Civ. 9593 (PAC), 2010 WL
2541363, at *9 (S.D.N.Y. Mar. 12, 2010) (citing cases); see also Lead Industries Ass’n, Inc. v.
Occupational Safety and Health Admin., 610 F.2d 70, 85 (2d Cir. 1979) (“A determination of
which if any portion of an otherwise exempt document are nonexempt must begin with a
consideration of the nature of the document as a whole.”). As the Second Circuit has instructed,
“[i]f the proportion of nonexempt factual material is relatively small and is so interspersed with
exempt material that separation by the agency and policing of this by the courts would impose an
inordinate burden, the material is still protected because, although not exempt, it is not
‘reasonably segregable,’ under the final clause of § 552(b).” Id. at 86 (citing Mead Data
Central, Inc. v. United States Dep’t of Air Force, 566 F.2d 242, 260-61 (D.C. Cir. 1977)).
The FBI’s redaction of the Special Agents’ full names complies with FOIA’s mandate to
provide all reasonably segregable material. Moreover, Plaintiffs have not and cannot rebut the
presumption that the FBI has met this obligation. As set forth in the Hardy Declaration, the FBI
would have to undertake a highly burdensome task of reprocessing the approximately 2,000
pages of SIRT Reports by carefully displaying the first letters of the first and last names only,
which are clearly “interspersed” with the remainder of the protected name, and unlike entire
phrases or paragraphs, are not reasonably segregable. Hardy Decl. ¶ 48. See Sussman v. U.S.

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Marshals Serv., 734 F. Supp. 2d 138, 146 (D.D.C. 2010) (holding that entire phrases around
redacted names and other identifying information were segregable from the exempt information).
In addition, in considering the SIRT Reports as a whole, the Identifiers clearly would not link the
same agent to more than one shooting incident, and therefore would not add additional
meaningful information to an already intelligible record of FBI shooting incidents and
recommendations on courses of action. See Canning v. U.S. Dep’t of Justice, 567 F. Supp. 2d
104, 110 (D.D.C. 2008) (“The agency is not required to ‘commit significant time and resources
to the separation of disjointed words, phrases, or even sentences which taken separately or
together have minimal or no information content.’”) (quoting Mead Data Central, Inc., 566 F.2d
at 261, n.55). Accordingly, the FBI properly withheld the names of the FBI Special Agents
under Exemptions 6 and 7(C).
POINT II
THIS COURT LACKS SUBJECT MATTER JURISDICTION
OVER PLAINTIFFS’ FOIA CLAIM WITH RESPECT TO THE
ASSESSMENT STATISTICS REQUEST BECAUSE THAT
CLAIM IS MOOT
A.

Legal Standard for 12(b)(1) Motion
Plaintiffs carry the burden of establishing that subject matter jurisdiction exists over their

complaint. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994). In
considering challenges to subject matter jurisdiction under Rule 12(b)(1), the Court may consider
evidence extrinsic to the pleadings. See Phifer v. City of New York, 289 F.3d 49, 55 (2d Cir.
2002) (noting that in challenges to subject-matter jurisdiction, a court “may consider materials
extrinsic to the complaint”). See also Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002) (“In
resolving the question of jurisdiction [on a motion made pursuant to Rule 12(b)(1)], the district
court can refer to evidence outside the pleadings and the plaintiff asserting subject matter
jurisdiction has the burden of proving by a preponderance of the evidence that it exists.”).

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B.

Filed 03/25/11 Page 18 of 19

Plaintiffs’ FOIA Claim as to the Assessment Statistics Request is Moot Because the
FBI Has Re-Released the Document Without the Contested Exemptions
This Court lacks subject matter jurisdiction over an action if the underlying controversy

is moot. Ward v. Bank of New York, 455 F. Supp. 2d 262, 266 (S.D.N.Y. 2006) (citing cases).
Here, “FOIA confers jurisdiction on the district courts ‘to enjoin the agency from withholding
agency records and to order the production of any agency records improperly withheld.’” U.S.
Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).
Hence, “federal jurisdiction is dependent on a showing that an agency has (1) ‘improperly’ (2)
‘withheld’ (3) ‘agency records.’” Id. (quoting Kissinger v. Reporters Comm. for Freedom of
Press, 445 U.S. 136, 150 (1980)). Unless each of the three criteria is met, “a district court lacks
jurisdiction to devise remedies to force an agency to comply with the FOIA’s disclosure
requirements.” Id.
As previously noted, on March 7, 2011, the FBI re-released two pages that were
responsive to Plaintiffs’ Assessment Statistics Request after disclosing material previously
withheld under Exemptions 2 and 7(E). Hardy Decl. ¶ 30 & Ex. X. Because Plaintiffs can no
longer argue that the FBI has “improperly withheld agency records,” the FBI’s release of
information responsive to the Assessment Statistics Request moots Plaintiffs’ claim as to that
request and deprives the district court of jurisdiction to devise further remedies for that request.
See, e.g., Dixon v. Admin. Appeal Dep’t Office of Info. and Privacy, No. 06 Civ. 6069 (LAK),
2008 WL 216304, at *4 (S.D.N.Y. Jan. 22, 2008) (dismissing FOIA claim for lack of subject
matter jurisdiction because defendant’s release of materials sought in FOIA request “moots
[plaintiff’s] current claim since the only relief that he seeks in the operative pleading is the
disclosure of those materials”); Ercole v. U.S. Dep’t of Transp., No. 07 Civ. 2049, 2008 WL
4190799, at *8 (E.D.N.Y. Sept. 10, 2008) (dismissing FOIA claim for lack of subject matter
jurisdiction because plaintiff “eventually received the requested documents,” and “[a]ny requests

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for relief by this Court to ‘enjoin’ defendant and ‘order the production’ of plaintiff’s FOIA
requests would be rendered moot”); DiModica v. United States Dep’t of Justice, No. 05 Civ.
2165 (GEL), 2006 WL 89942, at *3-4 (S.D.N.Y. Jan. 11, 2006) (dismissing FOIA claim for lack
of subject matter jurisdiction because complaint sought a court order commanding defendant to
respond to plaintiff’s FOIA request, and defendant had sent plaintiff the responsive document);
Fisher v. Fed. Bureau of Investigation, 94 F. Supp. 2d 213, 218 (D. Conn. 2000) (dismissing
FOIA claim for lack of subject matter jurisdiction because plaintiff “has been provided all
documents necessary to satisfy his FOIA[] requests”). As a result, this Court should grant the
Government’s motion to dismiss Plaintiffs’ claim as to the Assessment Statistics Request for
lack of subject matter jurisdiction.
CONCLUSION
For the foregoing reasons, this Court should deny Plaintiffs’ motion for summary
judgment and grant the Government’s cross-motion for summary judgment and its motion to
dismiss for lack of subject matter jurisdiction.
Dated:

New York, New York
March 25, 2011
PREET BHARARA
United States Attorney for the
Southern District of New York,
Attorney for Defendant
By:

/s/ Tomoko Onozawa
TOMOKO ONOZAWA
Assistant United States Attorney
86 Chambers Street, Third Floor
New York, New York 10007
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

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