ROSEMARY M. COLLYER, United States District Judge.
Ryan Noah Shapiro sues the Federal Bureau of Investigation (FBI) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the Privacy Act (PA), 5 U.S.C. § 552a, to compel the release of records concerning "Occupy Houston," an offshoot of the protest movement and New
Ryan Noah Shapiro is a doctoral candidate in the Department of Science, Technology, and Society at the Massachusetts Institute of Technology. Compl. [Dkt. 1] ¶2. In early 2013, Mr. Shapiro sent three FOIA/PA requests to FBI for records concerning Occupy Houston, a group of protesters in Houston, Texas, affiliated with the Occupy Wall Street protest movement that began in New York City on September 17, 2011. Id. ¶¶ 8-13. Mr. Shapiro explained that his "research and analytical expertise . . . [concerns] conflicts at the nexus of American national security, law enforcement, and political dissent," and that he planned to "disseminate . . . urgent information [regarding Occupy Houston] to the public." Mot. to Dismiss or for Summ. J. (MSJ) [Dkt. 9], Decl. of David M. Hardy (Hardy Decl.) [Dkt. 9-1], Ex. A (Request No. 1205920-000) [Dkt. 9-2] at 2.
By letters dated January 4, 2013, Mr. Shapiro sent two requests to FBI seeking materials related to the Occupy protests in Houston, Texas.
See Request No. 1205920-000 at 1 (alterations and emphasis in original). Mr. Shapiro stated that the alleged assassination plan was discussed in other FBI documents, which had been released through a prior FOIA request. See id. at 1. He attached five pages from the aforementioned FBI documents to his request, all of
Mr. Shapiro's second request for records, which FBI designated Request No. 1206188-000, asked for:
See Hardy Decl., Ex. E (Request No. 1206188-000) [Dkt. 9-2] at 1 (emphasis in original). Mr. Shapiro stated that Request No. 1206188-000 was intended to include any assassination plots against leaders of Occupy Wall Street in Houston. Id. at 1. Again, he characterized the request as presented under FOIA and PA, demanded that FBI search its ELSUR indices, among other indices, and sought expedited processing and a fee waiver. Id. at 1-2, 5-7, 9-10.
On February 28, 2013, FBI responded to both Requests with similar letters. Each letter stated that FBI had searched its Central Records System (CRS), and those searches had not located any "main file records responsive to the FOIA" request. See Hardy Decl., Ex. B [Dkt. 9-2] at 1 & Ex. F [Dkt. 9-2] at 1. FBI informed Mr. Shapiro that he either could provide additional information, for which FBI would conduct an additional search, or could appeal its response to DOJ's Office of Information Policy (OIP) within sixty days.
Mr. Shapiro chose to appeal. See Hardy Decl., Ex. C [Dkt. 9-2] & Ex. G [Dkt. 9-2]. It appears from the record that OIP never decided the appeal on Request No. 1205920-000 before it closed the file on June 26, 2013. Hardy Decl. ¶ 9 & n.3. Conversely, with respect to Request No. 1206188-000, it is clear that OIP affirmed FBI's response and informed Mr. Shapiro of its decision on May 24, 2013. Hardy Decl., Ex. I [Dkt. 9-2].
FBI subsequently reexamined the search that it had conducted for records responsive to Request No. 1206188-00. While FBI first had interpreted Request No. 1206188-000 as seeking only law enforcement responses to protests in Houston related to Occupy Wall Street, it revised its interpretation and conducted an additional search for all records referring to Occupy Houston. The additional search produced twelve pages of responsive records. On June 24, 2013, FBI informed Mr. Shapiro that it was releasing, in part, four of the twelve pages of responsive records, and entirely withholding the remaining eight pages. FBI cited FOIA Exemptions (b)(1), (b)(3), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(E) as the bases for withholding information contained in these records. Hardy Decl. ¶ 15; see also Hardy Decl., Ex. J [Dkt. 9-2].
Mr. Shapiro submitted a third, dual FOIA/PA Request to FBI on February 3, 2013. This Request sought "any and all records that were prepared, received, transmitted, collected and/or maintained by . . . FBI, the Terrorist Screening Center, the National Joint Terrorism Task Force, or any Joint Terrorism Task Force relating or referring to the information source redacted (by . . . FBI) and highlighted (by [Mr. Shapiro]) in" a five-page document which Mr. Shapiro attached to
Id. at 12-16. As before, Mr. Shapiro asked that the ELSUR indices be searched, and that he receive expedited processing and a fee waiver. Id. at 2, 5, 9-10. This letter was labelled by FBI as Request No. 1205920-001. See Hardy Decl., Ex. L [Dkt. 9-2].
FBI responded on March 8, 2013, telling Mr. Shapiro that the records sought under Request No. 1205920-001 pertained to another individual, and that "disclosure of third party information is considered an unwarranted invasion of privacy." Id. at 1. FBI further explained that records containing third-party information are exempt from disclosure unless there is "proof of death or a privacy waiver from the individual[] involved." Id. FBI also advised Mr. Shapiro that he had sixty days from the date of the letter to appeal to OIP. Id.
By letter dated March 13, 2013, Mr. Shapiro appealed FBI's response to Request No. 1205920-001. See Hardy Decl., Ex. M [Dkt. 9-2]. Before OIP reached a decision regarding Mr. Shapiro's appeal,
In total, FBI identified seventeen pages of responsive records, producing five of
Mr. Shapiro filed the instant lawsuit on April 29, 2013. He alleges that FBI violated FOIA by: (1) failing to search adequately for, and produce records responsive to, each of his Requests; (2) invoking FOIA exemptions improperly; (3) failing to respond timely with a determination on his appeals;
FBI asserts two bases for dismissing this suit. First, FBI contends that because it conducted adequate searches and released all non-exempt records, this case is moot. Second, FBI claims that Mr. Shapiro has failed to state a claim under FOIA.
FBI asserts that the Court lacks jurisdiction because Mr. Shapiro's claims are moot, i.e., FBI conducted adequate searches and released all non-exempt records. A motion to dismiss for mootness is properly brought under Federal Rule of Civil Procedure 12(b)(1). Flores ex rel. J.F. v. District of Columbia, 437 F.Supp.2d 22, 27 (D.D.C.2006). Because FBI did not release all responsive documents to Mr. Shapiro, and redacted information from documents that were released, the Court finds that his claims are not moot and that the motion to dismiss under Rule 12(b)(1) is without merit.
FBI also contends that Mr. Shapiro failed to state a FOIA claim because it has searched for records and released all that are not exempt from disclosure. A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face. A complaint must be sufficient to "give the defendant fair notice of what the. . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (alteration in original) (internal quotation marks and citation omitted).
FBI's motion to dismiss for failure to state a claim ignores the admitted facts, as alleged in the Complaint, that Mr. Shapiro requested documents that have been located but not released or not released in full. He contests FBI's claim that FOIA exemptions apply. While the merits of his allegations are to be determined, Mr. Shapiro clearly has stated a claim. The Court finds that the motion to dismiss for failure to state a claim is without merit.
FBI also contends that it is entitled to summary judgment because there is no genuine dispute as to any material fact and it is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment, a court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "[t]he mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505.
FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir.1993); Rushford v. Civiletti, 485 F.Supp. 477, 481 n. 13 (D.D.C. 1980), aff'd, Rushford v. Smith, 656 F.2d 900 (D.C.Cir.1981). In a FOIA case, a court may award summary judgment solely on the basis of information provided by the agency in affidavits or declarations when the affidavits or declarations describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); see also Vaughn
At the outset, the Court notes that FBI has not filed a traditional itemized Vaughn index. However, the Hardy Declarations, taken together, are "sufficiently specific, detailed, and separable to satisfy [FBI's] burden under Vaughn because the [Declarations] provide[ ] `a reasonable basis to evaluate [each] claim of privilege.'" Hodge v. FBI, 764 F.Supp.2d 134, 141 (D.D.C.2011) (quoting Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C.Cir.2006)), aff'd, 703 F.3d 575 (D.C.Cir.2013); see also Keys v. U.S. Dep't of Justice, 830 F.2d 337, 349 (D.C.Cir.1987) (explaining that the Circuit's "post-Vaughn opinions make clear" that a Vaughn index is evaluated in terms of its function rather than form).
FOIA requires federal agencies to release government records to the public upon request, subject to nine listed exceptions. See 5 U.S.C. § 552(b); Wolf v. CIA, 473 F.3d 370, 374 (D.C.Cir.2007). To prevail in a FOIA case, the plaintiff must show that an agency has (1) improperly (2) withheld (3) agency records. U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989); United We Stand Am., Inc. v. IRS, 359 F.3d 595, 598 (D.C.Cir.2004). FOIA authorizes suit only against federal agencies and limits the remedy for the improper withholding of records to injunctive relief. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980); see also 5 U.S.C. § 552(a)(4)(B) & (f)(1). A district court may only order the agency to produce erroneously withheld records. See, e.g., Kennecott Utah Copper Corp. v. U.S. Dep't of the Interior, 88 F.3d 1191, 1203 (D.C.Cir.1996) (finding FOIA only calls for releasing records to a complainant, not publication in the Federal Register). Once all requested records have been produced, there is no longer a case or controversy and a FOIA action becomes moot. See Armstrong v. Exec. Office of the President, 97 F.3d 575, 582 (D.C.Cir.1996).
An agency defending a FOIA case must show that its search for responsive records was adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt information. See Sanders v. Obama, 729 F.Supp.2d 148, 154 (D.D.C.2010), aff'd, Sanders v. U.S. Dep't of Justice, No. 10-5273 (D.C.Cir. Apr. 21, 2011). The adequacy of a search is measured by a standard of reasonableness and depends on the individual circumstances of each case. Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C.Cir.1990). The question is not whether other responsive records may exist, but whether the search itself was adequate. Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C.Cir. 1994).
Thus, to rebut a challenge to the adequacy of a search, an agency need only show that "the search was reasonably calculated to discover the requested documents, not whether it actually uncovered every document extant." SafeCard Servs.,
An agency may prove the reasonableness of its search through a declaration by a responsible agency official, so long as the declaration is reasonably detailed and not controverted by contrary evidence or evidence of bad faith. Military Audit Project, 656 F.2d at 738. An agency affidavit can demonstrate reasonableness by "setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched." Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C.Cir.1999). Agency declarations are accorded "a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." SafeCard, 926 F.2d at 1200 (internal quotation marks and citation omitted); see also id. at 1201 ("Mere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search for them."). An affiant who is in charge of coordinating an agency's document search efforts is the most appropriate person to provide a comprehensive affidavit in FOIA litigation. Id. Further, declarations that contain hearsay in recounting searches for documents are generally acceptable. Kay v. FCC, 976 F.Supp. 23, 34 n. 29 (D.D.C.1997), aff'd, 172 F.3d 919 (D.C.Cir.1998) (Table).
Once an agency has provided adequate affidavits, a plaintiff must demonstrate the lack of a good faith search. See Maynard v. CIA, 986 F.2d 547, 560 (1st Cir.1993). If the record raises substantial doubt as to the reasonableness of the search, especially in light of "well-defined requests and positive indications of overlooked materials," then summary judgment may be inappropriate. Founding Church of Scientology of Washington, D.C. v. NSA, 610 F.2d 824, 837 (D.C.Cir. 1979). However, FOIA "was not intended to reduce government agencies to full-time investigators on behalf of requesters." Judicial Watch, Inc. v. Export-Import Bank, 108 F.Supp.2d 19, 27 (D.D.C.2000) (internal quotation marks and citation omitted). Agencies are not required to "organize documents to facilitate FOIA responses," Goulding v. IRS, Civ. No. 97-C-5628, 1998 WL 325202, at *5 (N.D.Ill. June 8, 1998) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 162, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975)); see also Blakey v. Department of Justice, 549 F.Supp. 362, 366-67 (D.D.C.1982) ("FOIA was not intended to compel agencies to become ad hoc investigators for requesters whose requests are not compatible with their own information retrieval systems."), aff'd, 720 F.2d 215 (D.C.Cir.1983) (Table), and FOIA does not require agencies to create or retain documents, Moore v. Bush, 601 F.Supp.2d 6, 15 (D.D.C.2009). Further, an agency is not required to undertake a search that is so broad as to be unduly burdensome. Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 891 (D.C.Cir.1995). "[I]t is the requester's responsibility to frame requests with sufficient particularity. . . ." Judicial Watch, 108 F.Supp.2d at 27 (internal quotation marks and citation omitted). An agency's search must be evaluated in light of the request made. The agency is "not obliged to look beyond the four corners of the request for leads to the location of responsive documents." Kowalczyk v.
The Hardy Declarations make clear that FBI conducted good faith and reasonable searches of its records systems likely to possess records responsive to Mr. Shapiro's requests.
With respect to Request No. 1205920-000, FBI searched ELSUR and conducted a text search of ECF for the term "Occupy Houston" as it relates to the assassination plot alleged in Mr. Shapiro's request. Id. ¶¶ 32-33. Mr. Hardy states that FBI does not ordinarily conduct a text search of ECF, but did so here because it provided a more comprehensive search of CRS. Id. ¶ 32. None of these searches turned up responsive records. Id. ¶ 33.
In its search related to Request No. 1205920-001, Mr. Hardy states that FBI "again" reviewed the passages highlighted by Mr. Shapiro and contacted the "appropriate unit [that] handles the reports referenced" therein. Id. ¶ 34. This search resulted in the identification of five pages of responsive records.
As for Request No. 1206188-000, FBI searched CRS and conducted a text search of ECF using the term "law enforcement responses and Occupy Houston." Id. ¶ 35. Drawing on a similar FOIA request from 2011, FBI also searched for the following terms: "Occupy Movement/Northern California," "Occupy Oakland," "Occupy San Francisco," "Occupy Cal," "Occupy UC Davis," "OWS," "Occupy Wall," "Occupy Movement," "Occupy Encampments," "Occupy Encampment," "Occupy McPherson," "Occupy Zuccotti Park," "Occupy New York City," "Occupy DC," "Occupy Portland," "Occupy Sacramento," "Occupy Salt Lake City," "Occupy Seattle," "Occupy Atlanta," "Occupy San Jose," "Occupy Boston," "Occupy Los Angeles," "Occupy Indianapolis," "Occupy Baltimore," "Occupy St. Louis," "Occupy Cincinnati," "Occupy Providence," "Occupy Austin," "Occupy Denver," "Occupy Eugene," "Occupy Philadelphia," "Occupy Buffalo," "Occupy Las Vegas," "Occupy Charlotte," "Occupy Pittsburgh," "Occupy Dallas," "Occupy Houston," "Occupy Chicago," "Occupy Washington," "Occupy Washington DC," and "Occupy K."
Mr. Shapiro claims that FBI's searches were inadequate. He accuses FBI of "ignor[ing] all of the leads that were turned up by the documents," failing to produce documents that were referenced in the unredacted portions of the records he received from FBI (i.e., an "IIR," and an email referenced on an "iWatch Report"), insufficiently describing the search conducted for Request No. 1205920-001, and using the "patently unreasonable" search term "law enforcement responses and Occupy Houston" in connection with Request No. 1206188-000. Opp'n at 31-32. As revealed by Mr. Hardy's Supplemental Declaration, many of Mr. Shapiro's claims are factually inaccurate.
Mr. Hardy states that FBI did, in fact, conduct follow-on searches. Supp. Hardy Decl. ¶¶ 8-12. For instance, he affirms that FBI initially searched for "law enforcement responses and Occupy Houston" in connection with Request No. 1206188-000, but subsequently used the broader search term: "Occupy Houston." Id. ¶ 11. He also states that FBI released to Mr. Shapiro the "IIR and iWatch Report that are mentioned in Shapiro-11 and 13," Supp. Hardy Decl. ¶ 8, and that any additional documents would have been located through FBI searches if they had been indexed, id. ¶¶ 9-10.
Likewise, Mr. Shapiro's claim that the Hardy Declaration insufficiently describes the search undertaken for Request No. 1205920-001 is without merit upon review of the Supplemental Declaration. Mr. Hardy initially stated that FBI "reviewed the highlighted portions of [Mr. Shapiro's] request again and contacted the appropriate unit [that] handles the reports referenced in the FBI document attached to [Mr. Shapiro's] request." Hardy Decl. ¶ 34. In his Supplemental Declaration, Mr. Hardy clarifies that RIDS "contacted the appropriate unit" in relation to the IRR and iWatch Report, which apparently were referenced in the documents that Mr. Shapiro attached to Request No. 1205920-001 and highlighted. Supp. Hardy Decl. ¶ 10. Mr. Hardy adds that "[a]ny other additional documents would have been located through ... FBI's reasonable search of the CRS as described" in his initial Declaration.
Following a reasonable search, an agency may lawfully withhold records that are exempt from release under FOIA. "[A]lthough FOIA strongly favors prompt disclosure, its nine enumerated exemptions are designed to protect those legitimate governmental and private interests that might be harmed by release of certain types of information." August v. FBI, 328 F.3d 697, 699 (D.C.Cir.2003) (internal quotation marks and citation omitted). This is because "disclosure, not secrecy, is the dominant objective of the Act." Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). Consequently, the exemptions are narrowly construed. Tax Analysts, 492 U.S. at 151, 109 S.Ct. 2841.
Information concerning matters of national security is exempt from disclosure under FOIA Exemption 1 so long as the information satisfies the substantive and procedural criteria set forth in an Executive Order. See 5 U.S.C. § 552(b)(1). The Executive Order applicable to the instant litigation is Executive Order 13,526, which President Obama issued on December 29, 2009. See Exec. Order. No. 13,526, 75 Fed.Reg. 707 (Dec. 29, 2009).
Id. § 1.1(a). In reviewing classification determinations under Exemption 1, the D.C. Circuit has repeatedly stressed that "substantial weight" must be accorded agency affidavits concerning the classified
Mr. Shapiro does not dispute that the Hardy Declaration establishes that Mr. Hardy is a proper classifying authority, see Hardy Decl. ¶ 2, or that the information redacted is "under the control of the United States Government," id. ¶ 47. Nor does Mr. Shapiro quibble with Mr. Hardy's sworn averment that the withheld information falls within subsection (c) of section 1.4 because it concerns "`intelligence activities (including covert action), intelligence sources or methods, or cryptology.'" Id. ¶ 48 (quoting Exec. Order No. 13,526, § 1.4(c)). Instead, Mr. Shapiro challenges the adequacy of the Hardy Declaration's description of withheld information, both in terms of the context and nature of the information, as well as the consequences that reasonably will flow from disclosure.
Relying primarily on King v. United States Department of Justice, 830 F.2d 210 (D.C.Cir.1987), Mr. Shapiro identifies several alleged deficiencies in the Hardy Declaration. Mr. Shapiro contends that the Hardy Declaration does not provide sufficient context for the redactions. He also suggests that FBI's limited reliance on Exemption 1 means, a fortiori, that "additional context can be provided without harming national security." Opp'n at 5. Further, Mr. Shapiro argues that the Hardy Declaration's description of the withholding of intelligence activities, methods, and sources already has been found to be inadequate under King, see 830 F.2d at 222 & n. 93 (deeming insufficient a short, generic paragraph addressing the meaning of intelligence methods or activities), so that Mr. Hardy's description of the potential harm to national security resulting from disclosure is so categorical that it neither "correlate[s] particular reasons with particular redactions," Opp'n at 7 (citing Branch v. FBI, 658 F.Supp. 204, 208 (D.D.C.1987)), nor establishes a "`logical nexus between disclosure ... and damage to the national security,'" Opp'n at 8 (alteration in original) (quoting King, 830 F.2d at 223). Finally, Mr. Shapiro accuses FBI of cutting-and-pasting language from affidavits prepared for other FOIA lawsuits, instead of preparing a case-specific declaration. See Opp'n at 9-16 (comparing the initial Declaration to affidavits produced in four other FOIA lawsuits). Mr. Shapiro concludes that the size and location of the redactions constitute contrary record evidence that the withheld information might concern "detailed intelligence activities." Hardy Decl. ¶ 53.
Mr. Shapiro's argument pulls King from its moorings and generally misreads D.C. Circuit precedent. Although King reproved affidavits premised on "[c]ategorical description[s] of redacted material coupled with categorical indication[s] of anticipated consequences of disclosure," id. at 224, it neither indicated that a limited invocation of Exemption 1 necessarily undermines withholding information nor suggested that all précis of withheld information are insufficient. Rather, the D.C. Circuit directed that an agency need only provide "as much information as possible without thwarting the exemption's purpose." Id. (emphasis added). More recently, the D.C. Circuit has underscored the deferential nature of judicial review in FOIA cases involving matters of national security. Once an agency supports a national security exemption with statements that:
Larson v. Dep't of State, 565 F.3d 857, 865 (D.C.Cir.2009) (emphasis added). To be sure, conclusory affidavits with "vague or sweeping" statements are insufficient. Id. at 864. But, where the agency's affidavit satisfies the Larson standard, the Circuit has "consistently deferred to executive affidavits predicting harm to the national security[] and ... found it unwise to undertake searching judicial review." Id. at 865 (internal quotation marks and citation omitted).
Contrary to Mr. Shapiro's contentions, the Hardy Declaration is sufficiently detailed for these purposes. It defines what constitutes an intelligence activity or method, Hardy Decl. ¶ 49, and describes with reasonable detail the information withheld so as to demonstrate that Exemption 1 applies without revealing the exact information at issue, id. ¶ 50. Mr. Hardy also reports that he determined that the withheld information was properly classified "Secret" because its unauthorized disclosure reasonably could be expected to cause serious damage to national security,
In reality, Mr. Shapiro's issue with the Hardy Declaration is that it does not reveal the information he wants. See Opp'n at 8 (faulting the Hardy Declaration because its "description of the agency's invocation of Exemption 1 contains no specific reference to the subjects of Mr. Shapiro's requests ..."). But that is the point of Exemption 1. See Supp. Hardy Decl. ¶ 15 ("To further explain the material that is being protected by Exemption (b)(1) would reveal the very nature of the information... FBI is trying to protect."). Disclosure of matters of national security is uniquely within the purview of the Executive Branch. That FBI did not disclose what might appear to be minor details about plots against Occupy Houston leadership or law enforcement's response to Occupy Houston protests is not consequential. What may seem like minor details to a person outside law enforcement, in reality, "may reveal more information than their apparent insignificance suggests because, much like a piece of jigsaw puzzle, [each detail] may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself...." Larson, 565 F.3d at 864 (alterations in original); Hardy Decl. ¶ 54 (stating that "each piece of information was evaluated with careful consideration given to the impact that disclosure of this information will have on other sensitive information contained elsewhere in the United
Exemption 3 protects records that are "specifically exempted from disclosure by statute ... if that statute ... requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or ... establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5. U.S.C. § 552(b)(3)(A). If the relevant statute was enacted after October 28, 2009, the enactment date of the OPEN FOIA Act of 2009, then the statute must specifically cite Exemption 3. Id. § 552(b)(3)(B).
Exemption 3, therefore, is unlike other FOIA exemptions. "[I]ts applicability depends less on the detailed factual contents of specific documents; the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within that statute's coverage." Goland, 607 F.2d at 350; Ass'n of Retired R.R. Workers v. U.S. R.R. Ret. Bd., 830 F.2d 331, 336 (D.C.Cir.1987). FBI "need only show that the statute claimed is one of [the] exemption[s] as contemplated by Exemption 3 and that the withheld material falls within the statute." Larson, 565 F.3d at 868 (citing Fitzgibbon v. CIA, 911 F.2d 755, 761-62 (D.C.Cir. 1990)).
The statute relevant to this discussion is the National Security Act of 1947, 50 U.S.C. §§ 3001 et seq., as amended by the Intelligence Reform and Terrorism Prevention Act of 2004, Pub.L. 108-458, 118 Stat. 3638 (2004). The National Security Act provides that the "Director of National Intelligence
FBI also has demonstrated that the withheld information falls within the National Security Act. FBI invoked Exemption 3 in conjunction with Exemption 1 which, as discussed supra, concerns intelligence activities and methods. The Hardy Declarations have provided sufficient information to show that Exemption 3 applies for the same reason that Exemption 1 applies, as the withheld information "relate[s] to intelligence sources and methods utilized in the investigations at issue." Supp. Hardy Decl. ¶ 16.
Mr. Shapiro counters that Sims, 471 U.S. 159, 105 S.Ct. 1881, 85 L.Ed.2d 173, and ACLU, 628 F.3d 612, require FBI to connect the sources and methods it wishes to protect to "foreign intelligence," Opp'n at 18, which he contends it has not done. Yet, neither Sims nor ACLU stands for this proposition. "Sims itself actually involved domestic educational institutions and researchers." Fitzgibbon, 911 F.2d at 764-65. It "unequivocally held that the Director of Central Intelligence may protect all intelligence sources, regardless of their provenance." Id. at 762 (emphasis added). ACLU does not hold differently. FBI's invocation of Exemption 3 was proper.
FBI withheld information under Exemption 6, which protects from disclosure "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). The Exemption 6 analysis has two components: (1) whether the information at issue is contained in personnel, medical, or similar files and (2) whether disclosure would constitute a clearly unwarranted invasion of personal privacy. "The term `similar files' is broadly interpreted, such that Exemption 6 protects from disclosure all information that `applies to a particular individual' in the absence of a public interest in disclosure." Lardner v. Dep't of Justice, 638 F.Supp.2d 14, 23 (D.D.C.2009) (quoting U.S. Dep't of State v. Wash. Post Co., 456 U.S. 595, 602, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982)), aff'd, 398 Fed.Appx. 609 (D.C.Cir.2010). The threshold is "fairly minimal," and "[a]ll information which `applies to a particular individual' is covered by Exemption 6, regardless of the type of file in which it is contained." Wash. Post Co. v. U.S. Dep't of Health & Human Servs., 690 F.2d 252, 260 (D.C.Cir. 1982) (quoting Wash. Post, 456 U.S. at 602, 102 S.Ct. 1957).
Exemption 6 requires a court to balance the individual's privacy rights against the basic purpose of FOIA—"to open agency action to the light of public scrutiny." Rose, 425 U.S. at 372, 96 S.Ct. 1592
Here, FBI withheld certain records otherwise responsive to Mr. Shapiro's Requests on the ground that Exemption 6 applies. Hardy Decl. ¶¶ 63-72. Specifically, FBI withheld the names and identifying information of the following individuals: (1) federal and state law enforcement officers and personnel, id. ¶¶ 65-67; (2) third parties who provided information to FBI, id. ¶¶ 68-69; (3) third parties mentioned in the responsive records, id. ¶ 70; and (4) a non-FBI federal employee, id. ¶¶ 71-72. Mr. Shapiro only challenges FBI's decision to withhold the names and identifying information of third parties who provided information to FBI, and only does so to the extent that FBI relies on Exemption 7(C). Accordingly, Mr. Shapiro has waived any argument as to the applicability of Exemption 6. See CSX Transp., Inc. v. Commercial Union Ins., Co., 82 F.3d 478, 482-83 (D.C.Cir.1996); see also Hopkins v. Women's Div., Bd. of Global Ministries, 238 F.Supp.2d 174, 178 (D.D.C.2002).
FOIA Exemption 7 protects 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 cause certain enumerated harms. 5 U.S.C. § 552(b)(7). In order to withhold materials properly under Exemption 7, an agency must establish both that the records at issue were compiled for law enforcement purposes, and that the material satisfies the requirements of one of the six subparts of Exemption 7. See Pratt v. Webster, 673 F.2d 408, 413 (D.C.Cir.1982). Thus, the D.C. Circuit has established a two-part, objective test whereby the government can show that its records are law enforcement records:
King, 830 F.2d at 229-30 (alterations in original) (internal quotation marks and citations omitted). The upshot of this two-part test is that, in assessing whether records were compiled for law enforcement purposes, the "focus is on how and under what circumstances the requested files
Mr. Shapiro contends that the Hardy Declaration does not satisfy either prong of Pratt. He argues that FBI has not established that it actually conducted an investigation into criminal acts, specified the particular individual or incident that was the object of its investigation, adequately described the documents it is withholding under Exemption 7, or sufficiently connected the withheld documents to a specific statute that permits FBI to collect information and investigate crimes. Mr. Shapiro further alleges that FBI has failed to state a rational basis for its investigation or connection to the withheld documents, which he describes as overly-generalized and not particular.
On the latter point, the Court agrees. Mr. Hardy's averments are too generalized for purposes of Exemption 7. He states that any responsive records located by FBI "concern documents compiled as a result of assistance FBI rendered to various state and local law enforcement agencies which were investigating potential criminal activity by protestors [sic] involved with the `Occupy' movement in Houston." Supp. Hardy Decl. ¶ 18. Further, Mr. Hardy states that FBI maintained the records pursuant to FBI's "general investigative authority per 28 U.S.C. §§ 533 and 534," and its "lead role in investigating terrorism and in the collection of terrorism threat information," Supp. Hardy Decl. ¶ 17 (internal quotation marks and citation omitted). He adds that FBI, acting in concert with state and local law enforcement agencies, compiled these records while assessing the protests for potential terrorist threats, including domestic terrorism in violation of 18 U.S.C. § 2331, and other criminal activity, such as advocating the overthrow of the government in violation of 18 U.S.C. § 2385. Id. ¶¶ 18, 20. At no point does Mr. Hardy supply specific facts as to the basis for FBI's belief that the Occupy protestors might have been engaged in terroristic or other criminal activity. Cf. Quinon v. FBI, 86 F.3d 1222, 1229 (D.C.Cir.1996) (rejecting FBI's invocation of Exemption 7 where the affidavits proffered in support of FBI's motion for summary judgment "simply allude to `certain events,' which [FBI] fail[s] to describe or characterize"). Neither the word "terrorism" nor the phrase "advocating the overthrow of the government" are talismanic, especially where FBI purports to be investigating individuals who ostensibly are engaged in protected First Amendment activity.
Accordingly, the Hardy Declarations do not provide enough specificity such that the Court can say that FBI has established a "colorable claim of rationality," Pratt, 673 F.2d at 420, between the object of its investigation and its asserted law enforcement duties, id. at 421. FBI will be directed to explain its basis for withholding information pursuant to Exemption
If a record contains information that is exempt from disclosure, any reasonably segregable information must be released after redacting the exempt portions, unless the non-exempt portions are inextricably intertwined with exempt portions. 5 U.S.C. § 552(b); see Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C.Cir.1999). A court errs if it "simply approve[s] the withholding of an entire document without entering a finding on segregability, or the lack thereof." Powell v. U.S. Bureau of Prisons, 927 F.2d 1239, 1242 n. 4 (D.C.Cir.1991) (internal quotation marks and citation omitted). Mr. Shapiro argues that FBI failed to release reasonably segregable material.
Certain redacted materials were provided to Mr. Shapiro and other materials were withheld in full. See Hardy Decl. ¶ 38 (FBI sought to achieve "maximum disclosure" by releasing all material in the public domain and all reasonably segregable material); id. ¶¶ 39-41 (explaining FBI's description of documents by Bates number and by the applicable FOIA exemption). Mr. Hardy explains that material that was withheld was exempt from disclosure or was so intertwined with protected material that segregation was not possible. Hardy Decl. ¶ 43; Supp. Hardy Decl. ¶ 13. Mr. Shapiro claims that FBI has "analyze[d] the segregability of the redacted documents . . . in conclusory fashion." Opp'n at 32. The Court disagrees. It has reviewed FBI's declarations and finds that these submissions adequately specify "which portions of the document[s] are disclosable and which are allegedly exempt." See Vaughn, 484 F.2d at 827.
For the reasons set forth above, Defendant's Motion to Dismiss or for Summary Judgment, Dkt. 9, will be granted in part and denied in part. The Court will grant Mr. Shapiro's Motion to File a Surreply, Dkt. 15, and deny as moot his Motion for Oral Argument, Dkt. 14. A memorializing Order accompanies this Opinion.
