Amit P. Mehta, United States District Judge.
This dispute concerns a Freedom of Information Act ("FOIA") request directed to Defendant the Federal Bureau of Investigations ("FBI") for information concerning an investigation of an alleged pre-election bribe offer made to a former congressional candidate, Plaintiff James Jett. Before the court are the parties' second round of cross-motions for summary judgment. The parties continue to dispute whether the FBI (1) performed an adequate search in response to Jett's request and (2) properly asserted exemptions to withhold certain documents responsive to that request. Jett claims the search is inadequate in light of inconsistencies in the FBI's representations regarding the scope of its searches, which documents its searches uncovered, and which documents
After thorough review of the parties' briefs and the underlying record, the court concludes that limited discovery is necessary to determine whether the FBI performed an adequate search within the meaning of FOIA. Specifically, Jett will be allowed to engage in discovery to determine whether an additional, separate search of the FBI's Electronic Surveillance Indices database is necessary to reach any records responsive to Jett's FOIA request and satisfy the FBI's search obligations. With respect to the materials the FBI has produced thus far, however, the court concludes the FBI properly withheld certain portions of the requested investigative files. Accordingly, the court grants in part and denies in part the FBI's Motion for Summary Judgment, denies Jett's Cross-Motion for Summary Judgment, and grants Jett's Rule 56(d) Motion for Limited Discovery.
Because the factual and procedural history of this case already is set forth in the court's first summary judgment decision, see Jett v. Fed. Bureau of Investigation, 139 F.Supp.3d 352, 357-58 (D.D.C. 2015), the court here recites only what is necessary to resolve the narrow issues that remain.
In 2012, while running for a seat to represent Florida in the United States House of Representatives, James Jett reported to the FBI that two intermediaries purportedly working on behalf of one of Jett's opponents ("the Intermediaries") had offered him bribes to withdraw his candidacy. Id. The FBI began an investigation, at the start of which Jett secretly recorded telephone conversations with the Intermediaries. Id. The investigation came to an abrupt end, however, when Jett inexplicably revealed the FBI's investigation to its targets. Id.
Shortly after losing the election, Jett sent the FBI a FOIA request for information pertaining to the short-lived bribe investigation. See id. at 358. He requested, among other things, "FBI investigative reports, copies of telephonic tape recordings made from [his] personal telephone at the request of the FBI, interview reports of any individuals involved, follow-up investigative reports by any FBI agents, and/or written transcriptions of any recorded conversations between [himself] and the suspects involved in the case." Id. Additionally, Jett specifically requested that the FBI search its Central Records System ("CRS"). Id. The FBI produced some records in response to Jett's request but withheld others, leading Jett to seek this court's review of the adequacy of the FBI's search and the legitimacy of its justifications for redactions and withholdings of certain responsive materials. See Compl., ECF No. 1.
In the first round of summary judgment briefing, the FBI represented that it had fully complied with FOIA by searching the CRS using "a three-way phonetic breakdown" of Jett's name only; the agency did not search for records using the names of the Intermediaries or the opponent who allegedly made the bribe offer. See Def.'s Mot. for Summ. J., ECF No. 10 [hereinafter Def.'s First Mot.], Decl. of David M. Hardy, ECF No. 10-2 [hereinafter First Hardy Decl.], ¶¶ 22, 34-36. That search yielded 66 pages of responsive documents, of which the FBI produced one page in full and 59 pages in part. Id. ¶ 25. Three of the
On September 30, 2015, after the benefit of in camera review of the responsive materials, the court granted in part and denied in part both parties' motions. See Jett, 139 F.Supp.3d at 368. The court ruled, among other things, that the FBI's search was deficient insofar as the agency (1) had categorically declined to search for the names of third parties that Jett had provided as part of his FOIA request, and (2) did not search its Electronic Surveillance Indices database ("ELSUR indices"), in which the FBI maintains electronic and telephonic recordings, despite the FBI knowing responsive records were likely to be found there, given Jett's participation in recorded phone calls during the investigation. See id. The court's Order required the FBI to remedy the deficiencies in its search and submit a subsequent status report reflecting its compliance with the court's opinion. See id. On October 28, 2015, the FBI filed a Motion for Reconsideration, which the court denied on January 8, 2016. See Jett v. Fed. Bureau of Investigation, No. 14-276, 22016 WL 107912 (D.D.C. Jan. 8, 2016).
On December 30, 2015, before the court had ruled on the FBI's Motion for Reconsideration, the FBI sent Jett additional, partially redacted materials responsive to Jett's FOIA request. See Def.'s Renewed Mot. for Summ. J., ECF No. 31 [hereinafter Def.'s Second Mot.], at 3. The FBI did not, however, explain to Jett the origin of these records at the time it sent them. Then, after the court denied the Motion for Reconsideration, the FBI performed additional searches of the CRS using the names of the third-parties supplied by Jett to comply with the court's September 2015 Order, but found no new records. See Notice of Filing, ECF No. 29, Third Decl. of David M. Hardy, ECF No. 29-1 [hereinafter Third Hardy Decl.] ¶¶ 8, 13.
Now before the court are the parties' renewed cross-motions for summary judgment regarding whether the FBI (1) has remedied the deficiencies in its search for documents responsive to Jett's FOIA request and (2) has properly withheld portions of the records it disclosed on December 30, 2015.
The court reviews de novo whether an agency has complied with its obligations under FOIA. 5 U.S.C. § 552(a)(4)(B).
On a motion for summary judgment, a court must enter judgment in favor of the moving party if that party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is "genuine" only if a reasonable fact-finder could find for the
An agency performs an "adequate search" and may be awarded summary judgment when it performs a search "reasonably calculated to uncover all relevant documents." Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The agency bears the burden of proving that it performed an adequate search, and it may rely on sworn affidavits or declarations to make that showing. See SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). The court may grant summary judgment to the agency based on those materials if they are reasonably specific and contradicted by neither other record evidence nor evidence of agency bad faith. See Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); Beltranena v. Clinton, 770 F.Supp.2d 175, 181-82 (D.D.C. 2011). FOIA plaintiffs can rebut an agency's declarations and affidavits by demonstrating, with "specific facts," that there remains a genuine issue as to whether the agency performed an adequate search for documents responsive to the plaintiff's request. See Span v. U.S. Dep't of Justice, 696 F.Supp.2d 113, 119 (D.D.C. 2010) (internal quotation marks omitted).
Discovery is only appropriate in a FOIA case "when a plaintiff raises a sufficient question as to the agency's good faith in processing documents in response to a FOIA request." Competitive Enter. Inst. v. Office of Science & Tech. Policy, 185 F.Supp.3d 26, 27 (D.D.C. 2016). Any affidavits or declarations the agency submits are presumed to be submitted in good faith, and it takes more than speculation for a plaintiff to rebut that presumption. SafeCard Servs., 926 F.2d at 1200. Instead, the plaintiff must advance evidence of government wrongdoing or affirmative bad faith — such as serious inconsistences in the agency's representations of the scope and completeness of its searches — before the court will allow any discovery. See Competitive Enter. Inst., 185 F.Supp.3d at 27.
The agency also bears the burden of proving that it withheld certain materials responsive to a plaintiff's FOIA request pursuant to a statutory exemption from disclosure. Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice, 746 F.3d 1082, 1088 (D.C. Cir. 2014). Once more, to make this showing, the agency may rely on affidavits and declarations. "If the agency's affidavits `provide specific information sufficient to place the documents within the exemption category, if this information is not contradicted in the record, and if there is no evidence in the record of agency bad faith, then summary judgment is appropriate without in camera review of the documents.'" Am. Civil Liberties Union v. U.S. Dep't of Def., 628 F.3d 612, 626 (D.C. Cir. 2011) (quoting Larson v. U.S. Dep't of State, 565 F.3d 857, 870 (D.C. Cir. 2009)).
Lastly, even when an exemption applies to shield one portion of a document responsive to the FOIA request, the agency is required to disclose "[a]ny reasonably segregable portion" of that document. See 5 U.S.C. § 552(b). "It is neither consistent with the FOIA nor a wise use of increasingly burdened judicial resources to rely on in camera review of documents as the principal tool for review of segregability disputes." Mead Data Cent., Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 262 (D.C. Cir. 1977) (footnote omitted). Instead, agencies enjoy a presumption of compliance with this obligation, absent contrary evidence submitted by the plaintiff.
The FBI seeks summary judgment on the ground that it has fully complied with the court's September 2015 Order. The Third and Fourth Declarations of FBI Section Chief David M. Hardy
Jett challenges the adequacy of the FBI's search and its justifications for withholding portions of those materials released on December 30, 2015. The court addresses each of Jett's contentions in turn.
Jett's primary contention is that the FBI cannot claim it performed an adequate search in compliance with its statutory obligations. Jett challenges both the timeline in which the FBI made its searches and whether the searches the FBI ran reached all records responsive to Jett's FOIA request.
First, Jett takes issue with the FBI's representation that its searches after the court's September 2015 Order denying summary judgment produced no new, responsive materials. Jett specifically points to the agency's production of new, responsive materials on December 30, 2015, which came after the court denied the FBI's first Motion for Summary Judgment. See Pl.'s Mem. in Supp. of Pl.'s Renewed Mot. for Summ. J., ECF No. 34 [hereinafter Pl.'s Second Mem.], at 3-4. Put another way, Jett claims that the FBI's assertion that it found no new documents after searching the CRS and the ELSUR indices for Jett's name and the third-party names Jett provided cannot be squared with the agency's production of new documents on December 30, 2015.
Second, Jett challenges the FBI's representation that only a single search inquiry was needed to identify all responsive records located within the CRS and the ELSUR indices. To support this argument, Jett cites declarations made by Hardy in other FOIA cases brought in this District Court, in which Hardy states that the CRS and the ELSUR indices are separate databases and that, in each case, the FBI ran separate inquires in each database to locate all responsive records. See id. at 2, 7. Accordingly, Jett avers, the FBI has previously represented it must conduct separate searches — one in each database — to reach records in both the CRS and ELSUR indices, which contradicts the FBI's recent representations here.
Jett requests limited discovery to address these perceived factual disputes in the FBI's representations, or, in the alternative, that the court summarily deny the FBI's motion and schedule an evidentiary trial. See id. at 4.
Thus, the Third and Fourth Hardy Declarations resolve any perceived inconsistency between the FBI's statements that it ran searches using the third-party names Jett provided, pursuant to the court's September 2015 Order, yet recovered no new documents after conducting those searches. See Third Hardy Decl. ¶¶ 8-13; Fourth Hardy Decl. ¶¶ 6-8. The materials produced to Jett by letter on December 30, 2015, were not the product of a new search pursuant to the court's Order, but rather, late-delivered documents responsive to the original searches the FBI ran before the court entered any summary judgment order in this case. The court is satisfied with the FBI's explanation.
The court is not satisfied, however, with the FBI's explanation regarding the protocol used to search the ELSUR indices in this case. The FBI seeks to have this court enter summary judgment in its favor as to whether it performed an "adequate search" on the ground that its search of materials through the Automated Case Support system ("ACS") flagged responsive
Third Hardy Decl. ¶ 7. Thus, the FBI submits, its most recent searches of the CRS for the third-party names Jett provided constitute an "adequate search" within the meaning of FOIA because that single search — conducted through the ACS and Sentinel — was reasonably expected to locate responsive material in both the CRS and ELSUR indices. Id. ¶ 14.
The notion that a search of the CRS via ACS and Sentinel will also locate any responsive records in the ELSUR indices is inconsistent with the position the FBI has taken in both this litigation and other FOIA lawsuits before this District Court. In the initial round of summary judgment briefing in this case, Jett specifically asserted that the FBI's search of the CRS was inadequate because it would not reach all responsive records. The FBI rebuffed that argument by claiming it had performed an "adequate search" despite declining to search the ELSUR indices:
Def.'s First Reply at 4 (citation omitted). Thus, at the outset of this litigation, the FBI represented to the court that its search for records in the CRS did not encompass a search of the ELSUR indices because Jett did not specifically request such a search. Indeed, it was this representation that led the court to deny summary judgment to the FBI earlier in this case and order the FBI to search the ELSUR indices for both Jett's name and the third-party names Jett had provided. Jett, 139 F.Supp.3d at 367-68. The court understood, based on past statements by Hardy, that the CRS and ELSUR indices were distinct databases that required separate searches. Id. at 367 ("As the FBI's affiant here, David Hardy, acknowledged in a declaration filed in another case, any responsive records within the ELSUR database would not be captured by a search of the CRS database.") (citing Shapiro v. U.S. Dep't of Justice, 37 F.Supp.3d 7, 21 (D.D.C. 2014) (explaining that the FBI performed an adequate FOIA search by searching both the CRS and ELSUR indices, the latter of which is "a separate system of records from CRS ... and [files therein] cannot be retrieved through either the General Index [used to access the CRS] or CRS")); see also Def.'s Mot. for Summ. J., Hardy Decl., ¶¶ 20, 22-23, 25, Nolen v. U.S. Dep't of Justice, 146 F.Supp.3d 89 (D.D.C. 2015) (No. 14-1590) (explaining that the "ELSUR indices are published as a separate records system in
The FBI now takes the position that any search performed using ACS and Sentinel will retrieve responsive records from both the CRS and ELSUR indices. Consequently, Hardy states, Jett's demand and the court's order for a separate search of the ELSUR indices reflect an outmoded understanding of the FBI's systems, despite stemming from Hardy's own past representations:
Third Hardy Decl. ¶ 7 (citation omitted). These few sentences are the only effort the FBI has made to explain its dramatic change in position regarding the scope of its searches. Yet, those sentences give rise to more questions than answers. If, since 1995, the ELSUR indices could be searched using the same application used to search the CRS, then why in 2013 and 2010 did Hardy submit declarations that suggest a single search is not adequate to identify responsive records in both databases? What change in "practice" occurred "circa February 2015" that caused Hardy's earlier declarations to become "obsolete?" Why did Hardy's First Declaration in this case leave the impression that the FBI had not searched the ELSUR indices, when, according to Hardy's Third Declaration, it in fact had done so? And, why did the FBI make no effort to correct the court's apparent misunderstanding?
These unanswered questions and the inconsistencies in the FBI's statements, not only within this case but also across different cases over the course of years, give
Jett also challenges the FBI's legal basis for withholding in full or in part portions of the materials disclosed to him on December 30, 2015, and asks the court to review those materials in camera to determine whether further disclosures are warranted. See Pl.'s Second Mem. at 2.
Jett received 21 partially redacted pages and one partially redacted media disc on December 30, 2015. See Fourth Hardy Decl. ¶ 9.
FOIA Exemption 6 allows the government to withhold materials responsive
Here, the FBI invokes both Exemption 6 and Exemption 7(C) in order to justify withholding information pertaining to "various investigative personnel and third parties mentioned in the FBI's files," as well as "the names and identifying information for FBI Special Agents and support personnel, non-FBI federal law enforcement personnel, state and local law enforcement personnel, and third parties who were merely mentioned, of investigative interest, or FBI informants." See Def.'s Second Opp'n at 9, 12; Fourth Hardy Decl. ¶¶ 10-12. The parties do not dispute whether the redacted materials are law enforcement records. Accordingly, the court begins its analysis with whether the FBI satisfied its burden of proof for invoking Exemption 7(C).
The Hardy Declarations, in combination, provide specific information sufficient to place the withheld materials squarely within the bounds of Exemption 7(C). See Am. Civil Liberties Union, 628 F.3d at 626. The FBI cites the Fourth Hardy Declaration in support of its invocation of Exemption 7(C). That declaration, in turn, cross-references and incorporates the First Hardy Declaration's explanation for invoking Exemption 7(C) with respect to the initial set of materials disclosed to Jett. See Fourth Hardy Decl. ¶¶ 10-12 (incorporating by reference First Hardy Decl. ¶¶ 37-41). The court has already held that those paragraphs of the First Hardy Declaration are sufficiently detailed to satisfy the FBI's burden of proving that the "strong privacy interests of those named in the FBI's files" outweigh any countervailing public interest in their disclosure. See Jett, 139 F.Supp.3d at 361. Jett advances no evidence that the FBI engaged in illegal activity or acted in bad faith. See id.
Thus, the court finds the FBI appropriately invoked Exemption 7(C) to redact and withhold the names and identifying information of third parties and law enforcement
FOIA Exemption 7(E) allows the government to shield law enforcement records or information if its release "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(7)(E). This jurisdiction's precedent "sets a relatively low bar for the agency to justify withholding information under FOIA Exemption 7(E)." Ortiz v. U.S. Dep't of Justice, 67 F.Supp.3d 109, 122 (D.D.C. 2014) (internal quotation mark omitted).
Here, the FBI claims Exemption 7(E) to justify its redactions and withholding of "information about its transitions through various stages of investigation and which investigative techniques were chosen for certain situations." See Def.'s Second Opp'n at 15. The agency fears that disclosure of this material would "risk criminals learning to predict the timing and structure of the FBI's investigations, ... allowing them to better plan their illegal activities to avoid detection or disruption." Id.
Once more, the FBI's affidavits provide specific information sufficient to place the withheld materials squarely within the bounds of Exemption 7(E). See Am. Civil Liberties Union, 628 F.3d at 626. The Fourth Hardy Declaration states that the four-page document the FBI withheld pursuant to Exemption 7(E) contains a questionnaire that, though perhaps publicly known in a generic sense, becomes sensitive when filled out with content related to a specific investigation, as is the case here. See Fourth Hardy Decl. ¶ 13. Additionally, the questionnaire lists "other potential techniques, the specific purpose of the technique utilized, internal reviewing procedures, sensitive threshold requirements, factors weighed in granting or denying the application, and a detailed description of the specific actions to be performed with this technique." Id. Hardy states that disclosure of these materials would risk providing criminals "with an inside look at the FBI's `playbook,'" as it could assist criminals in structuring an attack so as to avoid triggering certain FBI responses or detection of criminal activity. See id. Thus, the FBI presents, in presumed good faith, that the materials it has withheld would disclose sensitive FBI techniques that risk circumvention of the law, and Jett advances no argument or evidence to rebut that presumption. See Am. Civil Liberties Union, 628 F.3d at 626. These declarations are sufficient to pass the low hurdle of Exemption 7(E).
The court concludes the FBI properly withheld four pages of the responsive materials released on December 30, 2015, pursuant to Exemption 7(E).
Jett asserts that in camera review is necessary to determine whether the FBI's redactions and withholdings actually accounted for and separated out segregable, factual information. See Pl.'s Second Mem. at 10. However, the FBI has satisfied its obligation to show that it released all reasonably segregable, nonexempt information by outlining its review process in detail in the Fourth Hardy Declaration. See Sussman, 494 F.3d at 1117. That declaration explains that RIDS reviewed the
For the foregoing reasons, the court grants in part and denies in part the FBI's Renewed Motion for Summary Judgment. The court grants the FBI's Motion insofar as it pertains to the agency's justifications for its redactions of the materials produced on December 30, 2015. The FBI's Motion is denied, however, as to the adequacy of its search.
In addition, the court denies Jett's Renewed Motion for Summary Judgment but grants Jett's Rule 56(d) Motion for Limited Discovery. Jett may conduct discovery for the limited purpose of determining whether the FBI has the capability of simultaneously searching for records in the CRS and ELSUR indices, such that it performed an adequate search in this case, or whether the FBI must conduct separate searches in each database to reach all responsive records.
This matter will proceed as follows. The parties shall meet and confer and submit a Joint Status Report on or before March 24, 2017, that specifies the date on which Jett, through his counsel, will conduct a telephonic discovery deposition of the FBI's Declarant, David M. Hardy. Within five days of the deposition, the parties shall file another Joint Status Report that (1) proposes a schedule for a third round of summary judgment briefing, if necessary, and (2) includes any other information in this matter of which the court should be aware.