Huddleston v. Federal Bureau of Investigation
Filing
137
MEMORANDUM OPINION AND ORDER. It is therefore ORDERED that Plaintiff's Motion to Permit Counsel to View Evidence (Dkt. 91 ) is DENIED. Signed by District Judge Amos L. Mazzant, III on 11/29/2023. (baf, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
BRIAN HUDDLESTON,
Plaintiff,
v.
FEDERAL BUREAU OF
INVESTIGATION and UNITED STATES
DEPARTMENT OF JUSTICE,
Defendants.
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§ Civil Action No. 4:20-cv-00447
§ Judge Mazzant
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MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Motion to Permit Counsel to View Evidence
(Dkt. #91). Having considered the motion and the relevant pleadings, the Court finds that
Plaintiff’s Motion to Permit Counsel to View Evidence (Dkt. #91) should be DENIED.
BACKGROUND
Plaintiff’s Motion to Permit Counsel to View Evidence (Dkt. #91) arises in the context of
Freedom of Information Act (“FOIA”) litigation. The Court will not belabor on the case’s
background here, because it has already been discussed in detail in the Court’s Memorandum
Opinion and Order from September 29, 2022 (the “Prior Order”) (Dkt. #70).
On September 29, 2022, the Court entered the Prior Order requiring Defendants the
Federal Bureau of Investigation (the “FBI”) and the Department of Justice to “produce the
information it possesses related to Seth Rich’s laptop and responsive to Plaintiff’s FOIA requests”
(Dkt. #70).
On November 14, 2022, the Huddleston filed a motion for clarification regarding the Prior
Order (Dkt. #77). The Court granted Huddleston’s motion in part and denied it in part (Dkt. #77;
Dkt. #136). Further, the Court denied a related motion for clarification or reconsideration that the
FBI filed (Dkt. #73; Dkt. #136). The Court specifically found that:
With the exception of Seth Rich’s work laptop, the DVD, the tape drive, and the
compact disk containing images of Seth Rich’s personal laptop, which are
responsive to Huddleston’s FOIA requests, the Court finds the Government
properly withheld or redacted information responsive to Huddleston’s requests in
accordance with the FOIA’s exemptions.
(Dkt. #136 at p. 24). The FBI submitted an FD-302 document for in camera, ex parte review to
demonstrate that the FBI was not playing “hot potato” with the personal laptop and that
Exemptions 7(D) and 7(E) apply to the personal laptop (Dkt. #84 at p. 2, Dkt. #85). The Court
accepted the document for in camera review following an unopposed motion by the FBI to submit
the document for in camera review (Dkt. #82).
Although Huddleston did not oppose the Court’s in camera review of the document, he
filed a motion on January 13, 2023 requesting that his counsel view the document. (Dkt. #91) On
January 6, 2023, the FBI filed its response (Dkt. #98). On February 6, 2023, Huddleston filed his
reply (Dkt. #99).
LEGAL STANDARD
The Court cannot find a legal standard or case governing when a requesting party’s counsel
may review a document withheld under FOIA, which an agency has submitted for an in camera, ex
parte review for the purpose of determining whether other documents should be withheld under
FOIA. Neither party has provided such a legal standard (Dkt. 91; Dkt. #98; Dkt. #99). However,
the Court has found legal standards for two analogous situations.
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First, a court may review records withheld under a FOIA exemption in camera, ex parte
under certain circumstances to determine whether those records have been properly withheld. 5
U.S.C. § 552(a)(4)(B); Shapiro v. U.S. Dep’t of Just., 239 F. Supp. 3d 100, 110–11 (D.D.C. 2017).
“[I]n camera filings are at odds with the ʻstrong presumption in favor of public access to judicial
proceedings,’ . . . and ex parte proceedings deprive the Court of the ʻbenefit of criticism and
illumination’ that comes with the arguments of opposing counsel.” Shapiro, 239 F. Supp. 3d at 110–
11. “[I]n camera, ex parte filings are at times necessary to permit the Court to perform its role of
ensuring that the agency has appropriately invoked a FOIA exemption without requiring the agency
publicly to disclose the very records or information it seeks to protect.” Id. at 111 (citing Barnard v.
Dep't of Homeland Sec., 598 F.Supp.2d 1, 16 (D.D.C. 2009)). “But before accepting such a filing,
the Court ʻmust both make its reasons for doing so clear and make as much as possible of the in
camera submission available to the opposing party,’ and to the public.” Id. (citation omitted).
Second, a court may review an affidavit ex parte in the context of FOIA under certain
circumstances. See Perioperative Servs. & Logistics, LLC v. U.S. Dep’t of Veterans Affairs, 57 F.4th
1061, 1065 (D.C. Cir. 2023). In FOIA cases, “ʻ[the government] knows the contents of the withheld
records while the [plaintiff ] does not; and the courts have been charged with the responsibility of
deciding the dispute without altering that unequal condition, since that would involve disclosing
the very material sought to be kept secret.’” Id. (quoting Arieff v. Dep’t of the Navy, 712 F.2d 1462,
1471 (D.C. Cir. 1983)). Therefore, “ʻ[t]he [judicial] task’ in a FOIA case ʻcan often not be
performed by proceeding in the traditional fashion.’” Id. (quoting Arieff, 712 F.2d at 1471). “[A]
district court may receive an ex parte affidavit if and only if ʻ(1) the validity of the government's
assertion of exemption cannot be evaluated without information beyond that contained in the
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public affidavits and in the records themselves, and (2) public disclosure of that information would
compromise the secrecy asserted.’ Id. (quoting Arieff, 712 F.2d at 1471).
The Court finds that the first situation more analogous to this case. The only difference
between the first situation and this case is that the document submitted for in camera review is not
the same as the challenged records (See Dkt. #85). Even though the document under in camera, ex
parte review is different than those that Huddleston has challenged under FOIA, the FBI has still
withheld the document under in camera, ex parte review under FOIA (See Dkt. #39, Ex. 1 at pp. 187–
88). The standard from the second situation attempts to prevent the disclosure of secret
information within the challenged records (as opposed to information only within a document
under in camera review). See Perioperative Servs. & Logistics, LLC, 57 F. 4th at 1065. However, this
standard does not consider the potential disclosure of secret information within a document under
in camera, ex parte review, but not within the challenged records. See id.
Therefore, the Court will apply the standard from the first situation. The Court will allow
an in camera, ex parte filing where it permits the Court to perform its role of ensuring that the agency
has appropriately invoked a FOIA exemption without requiring the agency publicly to disclose
records or information that it seeks to protect. Shapiro, 239 F. Supp. 3d at 111. Further, the Court
interprets this standard to extend to records or information outside of the challenged records
(including the document under in camera review).
ANALYSIS
Huddleston argues that the Court should permit his counsel, as a matter of due process, to
view the entire FD-302 document pursuant to an “attorney eyes only” protective order (Dkt. #91
at p. 4). He requests that the Court issue such a protective order and release a copy of the FD-302
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document with all improper redactions removed because “the FBI has redacted publicly available
information on the grounds of privacy” (Dkt. #91 at p. 4). Huddleston also raises an issue with the
FBI potentially submitting unsworn and unauthenticated evidence ex parte via the FD-302
document (Dkt. #91 at p. 4).
In response, the FBI states that the Court has the see-through redacted version of the FD302 document and it “is in the best position to determine whether or not the document has been
improperly withheld” (Dkt. #98 at p. 1). It claims the “justification for the withholding and
asserted exemptions are apparent on the face of the document itself” (Dkt. #98 at p. 1).
As an initial matter, the Court does not need to consider whether an in camera review of the
FD-302 document is appropriate. The FBI’s motion to submit the document for in camera review
was unopposed (Dkt. #82). Thus, both parties agree that the in camera review is appropriate (See
Dkt. #82). The only remaining issue for the Court is whether the ex parte nature of the in camera
review is appropriate.
The Court has reviewed the redacted portions of the FD-302 document and concludes that
that it contains sensitive material that cannot be made public without thereby disclosing
information that the agency withheld in response to Huddleston’s FOIA requests (Dkt. #85).
Further, the Court finds that no redactions within the FD-302 document were improper.
(Dkt. #85).
The FBI withheld this document under FOIA Exemptions 6, 7(C), 7(D), and 7(E)
(Dkt. #39, Ex. 1 at pp. 187–88). However, the Court has partially granted summary judgment in
favor of the FBI, finding that the FBI properly withheld the FD-302 document (among many
others) (Dkt. #70; Dkt. #136 at p. 24). The Court is not persuaded by Huddleston’s arguments (See
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Dkt. #91; Dkt. #99). Therefore, the Court will not reconsider the Prior Order with respect to the
FD-302 document.
Contrary to Huddlston’s arguments that some of the redacted information may have made
its way into the public domain, the FBI may still validly withhold that information under
Exemptions 6 and 7(C). “[T]hat otherwise private information may have been at one time or in
some way in the ʻpublic’ domain does not mean that a person irretrievably loses his or her privacy
interests in it.” Halloran v. Veterans Admin., 874 F.2d 315, 322 (5th Cir. 1989) (rejecting district
court’s conclusion that because individual had participated in the investigation, no invasion of
privacy could occur because their information was already “known to the public”); see also D.O.J.
v. Reps. Comm. for Freedom of Press, 489 U.S. 749, 761–62 (1989) (“[O]ur cases have recognized the
privacy inherent in the nondisclosure of certain information even where the information may have
been at one time public”). Thus, even when an individual’s private information has been publicly
disseminated in the past, the individual “still retain[s] substantial interests in preventing the
further dissemination of the information.” Halloran, 874 F.2d at 322 n.10 (citing Bast v. D.O.J.,
665 F.2d 1251, 1255 (D.C. Cir. 1981) (“[R]enewed publicity brings with it a renewed invasion of
privacy. The renewed intrusion is subject, in its own right, to FOIA protection, [and thus]
implicate[s] legitimate privacy interests under the 7(C) exemption.”)).
In the context of FOIA, courts often evaluate evidence in camera and ex parte. See, e.g.,
Shapiro, 239 F. Supp. 3d at 110–11; Perioperative Servs. & Logistics, LLC, 57 F.4th at 1065; Arieff,
712 F.2d at 1471. Neither the Court nor the parties can identify a case where a court has considered
whether to review in camera, ex parte a document withheld under a FOIA exemption to determine
whether different documents have been validly withheld under a FOIA exemption (See Dkt. 91;
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Dkt. #98; Dkt. #99). Despite this lack of guidance in either direction, the Court does not find this
circumstance sufficient to act as an exception to FOIA exemptions and require the disclosure of
statutorily withheld information. 1 See 5 U.S.C. § 552(b).
For the reasons discussed above, the Court will not allow Huddleston’s counsel to view the
FD-302 document.
CONCLUSION
.
It is therefore ORDERED that Plaintiff’s Motion to Permit Counsel to View Evidence
(Dkt. #91) is DENIED.
IT IS SO ORDERED.
SIGNED this 29th day of November, 2023.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
1
This analysis remains true even if the document withheld under FOIA is unsworn.
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