Citizens for Responsibility and Ethics in Washington v. United States Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY
AND ETHICS IN WASHINGTON

Plaintiff,

v. Civil Action No. 13-1159 (GK)

UNITED STATES DEPARTMENT
OF JUSTICE

Defendant.

MEMORANDUM OPINION

Plaintiff Citizens for Responsibility and Ethics in

Washington ("Plaintiff" or "CREW") brings this action against the

Federal Bureau of Investigation ("FBI"), a component of the United

States Department of Justice ("Defendant" or "DOJ"), under the

Freedom of Information Act ("FOIA"), 5 u.s.c. § 552. This matter

is currently before the Court on the Parties' Cross-Motions for
\
Summary Judgment.

CREW seeks records concerning drone and Unmanned Aerial

Vehicle ("UAV") use by the FBI from January 1, 2009, onward. The

FBI conducted a search for records responsive to CREW' s FOIA

request, produced documents to CREW, and provided a Vaughn index

of FOIA's several exemptions. CREW challenges the FBI' s

application of FOIA Exemptions 1, 3, 4, 5, and 7(E) to withhold

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 certain responsive information. CREW also alleges that the FBI

failed to segregate and release all non-exempt information

responsive to CREW's FOIA request.

Upon consideration of Defendant's Motion for Summary Judgment

("Def. 's Mot.") [Dkt. No. 17], Plaintiff's Cross-Motion for

Summary Judgment ("Pl. ' s Mot." ) [Dkt. No. 19], Defendant's

Opposition and Reply ("Def. 's Opp'n") [Dkt. No. 23]; Plaintiff's

Reply ("Pl.' s Reply") [Dkt. No. 25] , supplemental memoranda, and

the entire record herein, and for the reasons stated below,

Plaintiffs' Motion for Summary Judgment shall be denied and

Defendant's Motion for Summary Judgment shall be granted.

I . BACKGROUND

A. FOIA

FOIA was enacted by Congress "to ensure an informed citizenry,

vital to the functioning of a democratic society." Critical Mass

Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872

(D.C. Cir. 1992) ("Critical Mass III"), cert. denied, 507 U.S. 984

(1993) (citing FBI v. Abramson, 456 U.S. 615, 621 (1982)). "In

enacting FOIA, Congress struck the balance it thought right- -

generally favoring disclosure, subject only to a handful of

specified exemptions--and did so across the length and breadth of

E~FeaeraI Government." Milner v. Dep' t of the Navy, 562 U.S.

562, 571 n.5 (2011). FOIA's "basic purpose reflect[s] a general

philosophy of full agency disclosure unless information is

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exempted under clearly delineated statutory language." Dep' t of

the Air Force v. Rose, 425 U.S. 352, 360-361 (1976) (internal

citations and quotation marks omitted) .

When an agency receives a request for records, the agency

must conduct a sufficient search within the scope of the request.

5 U.S.C. § 552(a) (3). The agency then must furnish the information

in a timely manner, unless the information is precluded from

disclosure by one of FOIA's nine exemptions. Id. § 552(b). FOIA's

"goal is 'broad disclosure'" and thus "the exemptions must be

'given a narrow compass."' Milner, 562 U.S. at 563 (citing U.S.

Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989)). The

Government always bears the burden of proving that exemptions apply

to any responsive information that it withholds. 5 U.S.C.

§ 552(a) (4) (B).

B. Factual Background

1. CREW'S FOIA Request

On June 26, 2013, CREW submitted a FOIA request for documents

("FOIA Request"), Def.'s Ex. A [Dkt. No. 17-2], to the FBI. CREW'S

request sought four categories of documents:

1. Records sufficient to show the source or sources of all

drones used by the FBI from January 1, 2009, to the present;

2. Records suf f-iClent to show the funding source for all

drones used by the FBI from January 1, 2009, to the present,

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•.. ·

including specific appropriations and non-appropriated

sources of funds used for this purpose;

3. Records sufficient to show who provided the FBI with any

training to enable the FBI to use drones; and

4. Records reflecting or discussing any policy concerning the

FBI' s use of drones for any purpose, including but not

limited to the legal justification for such use, and any

memos of understanding between the FBI or DOJ and any other

government agency or entity.

FOIA Request at 1.

CREW also requested that the FBI expedite the processing of

CREW's request pursuant to 5 U.S.C. § 552(a) (6) (E) (i) and 28 C.F.R.

§§ 16.5(d) (1) (ii), (iv). FOIA Request at 4-5. CREW explained that

there was particular urgency to inform the public about the FBI's

use of drones to conduct domestic surveillance and that it was a

matter of widespread and exceptional media interest. Id. The FBI

denied CREW's request for expedition by letter on July 3, 2013.

See Def.'s Ex. D [Dkt. No. 17-2].

Plaintiff filed its Complaint ( "Compl.") in this matter on

July 30, 2013 [Dkt. No. 1]. On February 4, 2014, the Court ordered

that the FBI process at least 1,500 pages of responsive records

per month [Dkt. No. 12]. Between November 27, 2013, and May 30,

2014, the FBI made six interim releases and one supplemental

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release of records. See Defendant's Statement of Material Facts

("Def.'s Statement of Facts") , 4 [Dkt. No. 17].

On June 16, 2014, the parties filed a Joint Status Report in

which the FBI informed the Court that it had finished processing

CREW's FOIA request. See Joint Status Report, 2 [Dkt. No. 14]. In

total, the FBI identified 6,720 non-duplicative pages of

responsive documents, of which it released 1,970 in whole or in

part. The rest were withheld in their entirety as exempt under

several of FOIA's exemptions. Id.; see also 5 u.s.c. § 552(b).

c. Procedural Background

On October 15, 2014, DOJ filed its Motion for Summary Judgment

("Def.'s Mot.") [Dkt. No. 17]. On January 5, 2015, CREW filed its

Opposition and Cross-Motion for Summary Judgment ( "Pls.' Mot.")

[Dkt. No. 19]. On February 13, 2015, DOJ filed its Opposition and

Reply ("Def.'s Opp'n") [Dkt. No. 23] On March 23, 2015, CREW filed

its Reply ("Pl.'s Reply") [Dkt. No. 25]. CREW filed a Supplemental

Memorandum ("Supp. Mem.") [Dkt. No. 26] on March 31, 2015, and DOJ

filed a Response on April 14, 2015 ("Supp. Response") [Dkt. No.

27] .

Defendant contends that the FBI released all responsive

records to CREW's FOIA request and properly withheld information

pursuant to FOIA exemptions 1, 3, 4, 5, 6, 7(C), and 7(E). CREW

challenges the FBI's application of FOIA Exemptions 1, 3, 4, 5,

and 7(E) only. It does not challenge withholdings under Exemptions

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6 or 7(C). CREW also alleges that the FBI failed to segregate and

release non-exempt information responsive to CREW'S FOIA request.

II. STANDARD OF REVIEW

A. Summary Judgment

Summary judgment should be granted only if the moving party

has shown that there is no genuine dispute of material fact and

that the moving party is entitled to judgment as a matter of law.

See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,

325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991

(D. C. Cir. 2002) . "A fact is material if it 'might affect the

outcome of the suit under the governing law,' and a dispute about

a material fact is genuine 'if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.'"

Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "FOIA

cases typically and appropriately are decided on motions for

summary judgment." Defs. of Wildlife v. U.S. Border Patrol, 623 F.

Supp. 2d 83, 87 (D.D.C. 2009).

"To prevail on summary judgment [against a FOIA challenge] ,

the defending 'agency must show beyond material doubt [] that it

has conducted a search reasonably calculated to uncover all

relevant documents.'" Morley v. CIA, 508 F. 3d 1108, 1114 (D. C.

Cir. 2007) (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d

1344, 1351 (D.C. Cir. 1983)). "Summary judgment may be based on

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affidavit, if the declaration sets forth sufficiently detailed

information 'for a court to determine if the search was adequate. '"

Students Against Genocide v. Dep't of State, 257 F.3d 828, 838

(D.C. Cir. 2001) (quoting Nation Magazine v. U.S. Customs Serv.,

71 F.3d 885, 890 (D.C. Cir. 1995)).

If an agency denies disclosure of responsive records, either

in whole or in part, based upon FOIA exemptions, it then "bears

the burden of proving the applicability of claimed

exemptions." Arn. Civil Liberties Union v. U.S. Dep't of Def., 628

F.3d 612, 619 (D.C. Cir. 2011). "The government may satisfy its

burden . by submitting appropriate declarations and, where

necessary, an index of the information withheld [(known as a

"Vaughn index")]." Arn. Immigration Lawyers Ass'n v. U.S. Dep't of

Homeland Sec., 852 F. Supp. 2d 66, 72 (D.D.C. 2012) (citing Vaughn

v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973)).

There is no set formula for a Vaughn index or declarations,

but they must "provide[] a relatively detailed justification [for

any nondisclosure] , specifically identif [y] the reasons why a

particular exemption is relevant and correlat[e] those claims with

the particular part of a withheld document to which they apply."

Judicial Watch, Inc. v. Food & Drug Adrnin., 449 F.3d 141, 146 (D.C.

Cir. 2006) (quoting Mead Data Cent., Inc. v. Dep't of Air Force,

566 F.2d 242, 251 (D.C. Cir. 1977)). But, "exemptions from

disclosure must be narrowly construed and conclusory and

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generalized allegations of exemptions are unacceptable." Morley,

508 F.3d at 1114-15 (internal quotation marks and citations

omitted).

III. ANALYSIS

A. Sufficiency of the Search for Responsive Records

As mentioned above, to prevail in a summary judgment motion,

an agency "must demonstrate that it has conducted a search

reasonably calculated to uncover all relevant documents." See

Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551 (D.C.

Cir. 1994) (quoting Weisberg, 745 F.2d at 1485).

DOJ has detailed the steps the FBI took in conducting the

search, the databases searched, and additional measures taken. See

Def.' s Mot. at 4-5. The Declaration of David M. Hardy ("Hardy

Deel.") [Dkt. No. 17-1] provides additional details regarding the

steps the FBI undertook in conducting its search for documents.

CREW does not challenge the reasonableness of the FBI's search for

responsive documents and the Court concludes that the FBI's search

was reasonable and adequate.

B. FOIA Exemptions

CREW argues that DHS improperly withheld and redacted

documents under various FOIA exemptions. The Court will consider

each exemption in turn. For all of FOIA's exemptions, the burden

of proof lies with DOJ to show proper application of the Exemption.

5 U.S.C. § 552 (a) (4) (B). The Court makes a presumption of good

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faith on behalf of agency affidavits purporting to meet DOJ' s

burden. Negley v. FBI, 169 Fed. Appx. 591, 594 (D.C. Cir. 2006).

"Ultimately, an agency's justification for invoking a FOIA

exemption is sufficient if it appears 'logical' or 'plausible."'

Am. Civil Liberties Union, 628 F.3d at 619 (quoting Larson v. Dep't

of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). Thus, "summary

judgment may be granted on the basis of agency affidavits if they

contain reasonable specificity of detail rather than merely

conclusory statements, and if they are not called into question by

contradictory evidence in the record or by evidence of agency bad

faith." Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980)

1. FOIA Exemption 1

FOIA Exemption 1 precludes disclosure of documents that are

"(A) specifically authorized under criteria established by an

Executive order to be kept secret in the interest of national

defense or foreign policy and (B) are in fact properly classified

pursuant to such Executive order." 5 u.s.c. § 552(b) (1).

It is undisputed that the requirements for classifying

information relevant to this request are contained in Executive

Order 13,526 ("E.O. 13,526"). See Def.'s Mot. at 7-8 (citing Exec.

Order No. 13,526, 75 FR 707 (Dec. 29, 2009) (codified at 32 C.F.R.

Parts 2001 and 2003)); Pl.'s Mot. at 13. Executive Order 13,526

provides that information may be classified if:

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 (1) an original classification authority is classifying
the information;

(2) the information is owned by, produced by or for, or
is under the control of the United States Government;

( 3) the information falls within one or more of the
categories of information listed in section 1.4 of [E.O.
13,526]; and

(4) the original classification authority determines
that the unauthorized disclosure of the information
reasonably could be expected to result in damage to the
national security, which includes defense against
transnational terrorism, and the original classification
authority is able to identify or describe the damage.

E.O. 13,526 § 1.1.

The FBI withheld two categories of classified information

pursuant to FOIA Exemption 1: (1) intelligence activities,

sources, and methods (E.O. 13, 526 § 1.4 (c)); and (2) foreign

relations or foreign activities (E.O. 13,526 § 1.4(d)). See Hardy

Deel. ~ 40.

a. Intelligence Activities, Sources and Methods

Information that "pertains" to "intelligence activities

(including covert action) , intelligence sources or methods, or

cryptology," which, if disclosed, could cause damage to the

national security, is eligible for classification. E.O. 13,526 §

1.4(c). Our Court of Appeals has noted that "'pertains' is 'not a

very demanding verb.'" Judicial Watch, Inc. v. U. s. Dep' t of

Defense, 715 F.3d 937, 941 (D.C. Cir. 2013) (quoting Judicial

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Watch, Inc. v. U.S. Dep't of Defense, 857 F. Supp. 2d 44, 60

(D.D.C. 2012)).

"Intelligence" includes foreign intelligence and

counterintelligence, as defined by Executive Order 12,333. E.O.

13,526 § 6.l(x). "Foreign Intelligence" is defined as "information

relating to the capabilities, intentions, or activities of foreign

governments or elements thereof, foreign organizations, foreign

persons, or international terrorists." Exec. Order No. 12,333, 46

FR 59941 (December 4, 1981), § 3.5(e), as amended by Exec. Order

Nos. 13,284 (January 23, 2003), 13,355 (August 27, 2004) and 13,470

(July 30, 2008). "Counterintelligence" is defined as "information

gathered and activities conducted to identify, deceive, exploit,

disrupt, or protect against espionage, other intelligence

activities, sabotage, or assassinations conducted for or on behalf

of foreign powers, organizations, or persons, or their agents, or

international terrorist organizations or activities." Id. at

§ 3.5(a). By definition, "intelligence" requires a foreign

component.

DOJ argues that the information withheld under Exemption 1

would "reveal the actual intelligence activities and methods used

by the FBI against specific targets of foreign counterintelligence

investigations or operations; would identify a target of a foreign

counterintelligence investigation; and/or would disclose the

intelligence gathering capabilities of the activities or methods

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directed at specific targets." Def.' s Mot. at 10; Hardy Deel. ~ 42.

DOJ further states that these activities and methods are still

used by the FBI and the information is related to the development

of sources and methods related to UAV technology. Def.' s Mot ..

at 10.

DOJ also contends that disclosure of this information could

reasonably be expected to cause harm to national security for

several reasons. Id. First, disclosure would reveal current

intelligence-gathering methods being used by the FBI. Second,

disclosure would reveal current specific targets of the FBI' s

national security investigations. Third, disclosure would reveal

criteria and priorities assigned by the FBI to conduct intelligence

and counterintelligence investigations. Fourth, disclosure would

reveal the capabilities and limitations of the UAVs used, which

would diminish their usefulness as an intelligence asset. Fifth,

disclosure would reveal operational partners of the FBI who are

intelligence sources. Finally, disclosure would reveal information

about FBI UAV intelligence-gathering methodology. Id.; Hardy Deel.

~ 43.

CREW counters that "the domestic use of drones by the FBI

does not constitute an 'intelligence activity'- or

'intelligence sources or methods' within the meaning of E.O.

13,526." Pl. 's Mot. at 13 (emphasis in original). CREW's first

objection is in response to DOJ's statement that the intelligence

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activities and methods at issue here are "used by the FBI against

specific targets o[f] foreign counterintelligence investigations

or operations[.]" Pl.'s Mot. at 14 (quoting Hardy Deel. ~ 42).

CREW emphasizes that its FOIA request does not concern FBI drone

use abroad--only domestic use --and therefore does "not implicate,

much less compromise, foreign intelligence activities and

methods." Id. at 15. CREW also argues that former FBI Director

Robert Mueller's statements to Congress are inconsistent with the

FBI's statement in this case that some of the Exemption 1 documents

withheld relate to foreign counterintelligence investigations. See

Pl.'s Reply at 2; see also Pl.'s Mot. at 3-4 (describing Director

Mueller's Congressional testimony and the FBI's follow-up

responses) .

First, despite CREW'S assertions, its FOIA Request relates to

"all drones used by the FBI" (emphasis added) , without

differentiating between foreign and domestic use. 1 FOIA Request at

1. Second, Director Mueller's testimony is not inconsistent with

the FBI' s statement that withheld documents relate to foreign

counterintelligence investigations. In response to written follow-

1 Even if Plaintiffs were only seeking information limited to
a-ome-st-rc--dron-e-u-s-e-,-crn-d-evE:m-i-f aome S c:Lc-use_d_i_d-mJt-imp-1-Tc-crte
foreign intelligence, it is unlikely that information about
domestic use can be separated from information about foreign use.
The two overlap and revealing information about domestic sources
and methods would necessarily reveal the sources and methods for
foreign use, which is classified and exempt.
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up questions after the Congressional hearing, the FBI reported

that it had used "UA[V]S in eight criminal cases and two national

security cases." Pl.'s Mot. at 4 (citing Ex. A, Responses of the

Federal Bureau of Investigation to Questions for the Record Arising

from the June 19, 2013, Hearing Before the Senate Committee on the

Judiciary Regarding "Oversight of the FBI" ("Hearing Responses")

[Dkt. No. 19-2]). "National security cases" is a broad category

and by no means excludes foreign counterintelligence activities.

In addition, the FBI's statutory duties include protecting

the United States from terrorism and threats to national security,

as well as furthering the foreign intelligence objectives of the

United States. Def.'s Opp'n at 2 (citing Hardy Deel. ~ 66); see

also FBI, Quick Facts, www.fbi.gov/about-us/quick-facts (last

visited November 17, 2015). It logically follows that the FBI's

use of drones relate to issues of national security and the

intelligence activities of the United States.

CREW next argues that the FBI's domestic drone program does

not constitute an "intelligence activity, source, or method."

Pl.'s Mot. at 15. CREW contends that "[u]sing drones to locate

victims of kidnapping and search and rescue operations has nothing

to do with 'securing . . . data pertaining to foreign governments

or the national defense and security of the United States." Id.

(emphasis added in Pl.'s Mot.) (quoting CIA v. Sims, 471 U.S. 159,

171 (1985)).

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 Sims does not support CREW's argument. First, the quote is

not from the Supreme Court itself, but rather from a Senate

hearing. See Sims, 471 U.S. at 171. When the quote above is read

in context, it is clear that "data" is meant to be synonymous with

"information," and is not meant to limit the type or form of

information. See id. at 170-71. The omitted portion of the Sims

quote refers to "all possible data," and the Supreme Court's

holding takes an expansive view of what constitutes an

"intelligence source." Id. at 170-171 (emphasis added) (CIA

gathers "intelligence from almost an infinite variety of diverse

sources") . Sims simply does not support a narrow reading of

"intelligence activities."

CREW thus fails to rebut Defendant's claims of exemption.

Defendant has, as discussed above, explained how the withheld

information relates to intelligence activities and sources that,

if disclosed, could reasonably be expected to cause harm to the

United States' national security interests. The Court holds that

DOJ has carried its burden and that these documents were properly

exempted from production.

b. Foreign Relations or Foreign Activities

Next, CREW argues that the documents were improperly withheld

under Exemption 1 because they do not pertain to the foreign

activities of the United States. Pl.'s Mot. at 13 (quoting Judicial

Watch, 715 F.3d at 941).

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 As discussed above, although CREW characterizes its FOIA

request as pertaining exclusively to the FBI' s domestic drone

program, any such limitation is absent from the FOIA Request

itself. See Id. ; FOIA Request. While the FBI' s public comments

describe its drone use as supporting "missions related to

kidnappings, search and rescue operations, drug interdictions, and

fugitive investigations," the FBI also stated that drones have

been used in "two national security cases." Hearing Responses at 7.

In short, the FBI's comments do not rule out the possibility of

drone use pertaining to foreign activities or foreign relations.

DOJ claims that the information withheld "contains sensitive

intelligence information gathered by the United States either

about or from a foreign country." Def.'s Mot. at 11 (quoting Hardy

Deel. ~ 4 6) . DOJ states that disclosure "could jeopardize the

fragile relationships that exist between the United States and

certain foreign governments." Def.'s Mot. at 11. DOJ lists several

additional harms that can be expected from disclosure of

information concerning foreign relations or foreign activities of

the United States. See Def.'s Mot. at 11-12; Hardy Deel. ~~ 46-

47.

CREW also fails to rebut DOJ's claims of exemption for foreign

activities. DOJ has asserted that the documents implicate foreign

relations and/or foreign activities, and have adequately described

the potential harms that would result from disclosure.

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 2. FOIA Exemption 3

FOIA Exemption 3 precludes release of information that has

been:

specifically exempted from disclosure by [another]
statute [that] (i) requires that the matters be
withheld from the public in such a manner as to leave no
discretion on the issue; or (ii) establishes particular
criteria for withholding or refers to particular types
of matters to be withheld.

5 U.S.C. § 552(b) (3). In determining whether Exemption 3 properly

applies, the Court conducts a two-part test that considers: whether

"[1] the statute in question [is] a statute of exemption as

contemplated by exemption 3 . . [and whether] [2] the withheld

material satisf [ies] the criteria of the exemption statute."

Fitzgibbon v. CIA, 911 F.2d 755, 761 (D.C. Cir. 1990) (citing Sims,

471 U.S. at 167).

Defendant has withheld documents under Exemption 3 based on

Section 102A(i) (1) of the National Security Act of 1947 ("NSA"),

50 U.S.C. § 3024 (i) (1). The NSA states that "[t] he Director of

National Intelligence shall protect intelligence sources and

methods from unauthorized disclosure." Id. CREW does not contest

that Section 102A ( i) ( 1) of the NSA is. an Exemption 3 statute for

purposes of FOIA. It contends only that the withheld material does

not contain intelligence sources and methods and therefore does

not fall within Section 102A(:j_) (1). Pl. 's Mot. at 16.

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 CREW' s argument is similar to its objections under

Exemption 1, namely that the protection afforded "intelligence

sources and methods" by the NSA relates only to "information the

Agency needs to perform its statutory duties with respect to

foreign intelligence." Id. at 16-1 7 (emphasis added in Pl. 's Mot.)

(quoting Sims, 471 U.S. at 170). CREW alleges that the documents

it seeks relate only to domestic drone. use, and therefore are

beyond the scope of the NSA's authority to withhold documents. Id.

at 17.

The mere fact that the FBI uses a drone domestically does not

mean that the use does not involve foreign intelligence or counter-

intelligence. Mr. Hardy has affirmatively stated here that the

information withheld would "reveal the actual intelligence

activities and methods used by the FBI against specific targets of

foreign counterintelligence investigations or operations." See

Def.'s Mot. at 10 (emphasis added) (citing Hardy Deel. ~ 42). As

discussed above in Section III.B.l.a, CREW has not successfully

rebutted this.

Thus, the Court concludes that DOJ has provided sufficient

details justifying application of Exemption 3 and that the

information was properly withheld under Section 102A(i) (1) of the

NSA.

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 3. FOIA Exemption 4

FOIA Exemption 4 permits an agency to withhold "trade secrets

and commercial or financial information obtained from a person"

that are "privileged or confidential." 5 U.S.C. § 552(b) (4). Such

information is exempt only if it meets all three requirements: It

must be (1) commercial, financial, or a trade secret; (2) obtained

from a person; and (3) privileged or confidential. See Pub. Citizen

Health Research Group v. Food & Drug Admin., 704 F.2d 1280, 1290

(D.C. Cir. 1983); COMPTEL v. Fed. Commc'ns Comm'n, 910 F. Supp. 2d

100, 114-115 (D.D.C. 2012).

DOJ has withheld two subcategories of commercial information:

(1) solicitation-related material and (2) operator manuals and a

vendor training schedule. CREW contends that the Government

improperly withheld information under Exemption 4 because the

information is not confidential.

Our Court of Appeals, sitting en bane, has distinguished

between tests of confidentiality under Exemption 4 based on whether

the information was submitted to the government voluntarily or

involuntarily. See Critical Mass III, 975 F.2d at 879. In Critical

Mass III, our Court of Appeals held that voluntarily submitted

information subject to a FOIA request is confidential under

Exemption 4 when the information "is of a kind that would

customarily not be released to the public by the person from whom

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it was obtained." Id. ; see also Baker & Hostetler LLP v. U. s. Dep' t

of Commerce, 473 F.3d 312, 320 (D.C. Cir. 2006).

On the other hand, where commercial or financial information

is submitted to the government involuntarily or on a mandatory

basis, it is considered confidential only if "disclosure would be

likely either (1) to impair the Government's ability to obtain

necessary information in the future; or (2) to cause substantial

harm to the competitive position of the person from whom the

information was obtained." Ctr. for Auto Safety v. Nat'l Highway

Traffic Safety Admin., 244 F.3d 144, 147-48 (D.C. Cir. 2001)

(quoting Critical Mass III, 975 F.2d at 878). Less protection is

provided for involuntarily submitted information because

disclosure does "not seriously threaten[]" the Government's future

access to the information. Id. at 148. In addition, "[t]he court

will generally defer to the agency's predictive judgments as to

the repercussions of disclosure." Jurewicz v. U. s. Dep' t of Agric.,

741 F.3d 1326, 1331 (D.C. Cir. 2014) (citing United Techs. Corp.

v. Dep't of Def., 601 F.3d 557, 563 (D.C. Cir. 2010)) (internal

quotation marks omitted) .

The parties agree that the information at issue under

Exemption 4 was submitted involuntarily for purposes of the

Critical Mass III framework. See Pl.'s Mot. at 19-20; Def.'s Opp'n

at 8 n. 5. Applying the involuntarily submitted information

standard, DOJ argues that the information, if released, would cause

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substantial competitive harm to the vendors, as well as impair the

government's ability to obtain necessary information in the

future, and is therefore confidential.

a. Contract Solicitation Materials

The first category of information withheld under Exemption 4

is comprised of a vendor's solicitation for a contract proposal.

Def. 's Mot. at 15 (citing Hardy Deel. ~ 56) . The solicitation

includes a Firm Fixed Pricing Summary Sheet, Conditions on

Estimate, and a "Commercial U.S. Conditions UAS Products 7

Services" statement. Hardy Deel. ~ 56.

DOJ focuses on the fact that the vendor does not typically

release this information to the public and that on each page, the

vendor included a footer stating: "This proposal includes [vendor

name] , proprietary or confidential data that shall not be disclosed

outside the Government, nor shall it be duplicated or used by the

recipient, in whole or in part, for any purpose other than to

evaluate this proposal. Furthermore, this material is exempt from

disclosure under FOIA because it contains trade secrets and/or

commercial or financial information that is privileged or

confidential. 11 Id. But the DOJ' s emphasis is misplaced, as it

reflects the standard for voluntarily (not customarily released to

the public), rather than involuntarily (substantial competitive

harm), submitted information. See Critical Mass III, 975 F.2d at

879.

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:·.

DOJ next argues that release of the information would impair

the FBI' s ability to obtain similar information from vendors in

the future. Def.'s Opp'n at 8 (citing Second Declaration of David

Hardy ~ 8 ("Second Hardy Deel.") [Dkt. No. 23-2] ) . Mr. Hardy states

that withholding the information under Exemption 4 "encourages all

future submitters to furnish useful commercial or financial

information to the government without hesitation, and it also

provides the government with an assurance that the required

submissions will be reliable." Second Hardy Deel. ~ 8 (c) . The Court

finds this argument unpersuasive, as DOJ has not sufficiently

explained how disclosure will make future contract solicitation

submissions less reliable.

DOJ's next argument is that this information, if released,

would "cause substantial harm to the vendor's competitive

position." Def.'s Opp'n at 7. DOJ explains that the information

would provide potential competitors "with key inside information

that would undercut the vendor's position in the market because

this vendor sells this type of equipment and services only to law

enforcement entities." Id. at 7-8 (emphasis added). DOJ fails to

fully explain the relevance of the fact that the vendor exclusively

sells this type of equipment to law enforcement entities.

A declaration from the.vendor, submitted in camera, provides

more detail regarding the potential competitive harm. See Second

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Vendor Declaration ~~ 7-13 ("Second Vendor Deel.") , 2 Ex. A to

Second Hardy Deel. (in camera submission). The vendor argues that

the pricing information, if disclosed, would enable commercial

customers to determine the vendor's unit pricing and enable the

customers to bargain down the prices more effectively. Second

Vendor Deel. ~ 7. Prices given to the government are often lower

than those offered to commercial customers, and if the pricing

information were disclosed, commercial customers would seek price

concessions similar to those given to the government. Id. ~~ 5-7.

The pricing information would also help the vendor's

competitors underbid it on future government solicitations. Id.

~ 7. The vendor states that it competes with several other

manufacturers to obtain contracts with the government and that the

equipment unit price is a critical factor. If the unit price were

revealed, competitors could underbid the vendor by simply lowering

their unit price below the vendor's. Id. ~~ 9-10.

The vendor makes similar arguments with regard to the training

information and commercial terms and conditions included in the

contract document. Id. ~~ 11-13. The vendor contends that release

of this information would enable competitors to determine what

2 Exhibit A to the Second Hardy Declaration contains two
declarations by the vendor, which share the same title and are not
distinguishable by pagination or paragraph numbers. The first
vendor declaration will therefore be referred to as "First Vendor
Deel.," and the second as "Second Vendor Deel.").
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..
training the vendor offers at what price, and what conditions the

pricing is based on. This would enable competitors to undercut

prices, as well as offer potentially more advantageous terms and

conditions. Id.

The Court agrees that public release of this information would

cause serious competitive harm to the vendor. The vendor must

diligently protect this information at every juncture. The vendor

requires non-disclosure agreements from third-party commercial

intermediaries, confidentiality agreements from employees, and

does not share this information with competitors or the public. It

would put the vendor at a distinct disadvantage in bid

solicitations if its pricing information were made public.

The Court concludes that disclosure of the contract

solicitation documents would cause substantial harm to the

competitive position of the vendor. Therefore, the documents are

considered confidential for purposes of Exemption 4 and were

properly withheld.

b. Operator Manuals and Training Documents

DOJ also withheld a second category of documents under

Exemption 4, comprised of operator manuals a,nd vendor training

documents. See Def .'s Mot. at 16. The manuals contain "a

comprehensive overview of the design, operation, capabilities, and

maintenance" of the UAVs, including characteristics that are

unique to the vendor's UAVs. Id. (quoting Hardy Deel. ~ 58). The

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vendor asserts that disclosure would seriously and adversely

affect its competitive position because a competitor could utilize

the information to improve the designs of its products to better

compete with the vendor on future products. Id. (citing Hardy Deel.

~ 58). The vendor again asserts that the training manuals would

also permit competitors to determine what training the vendor

provides and at what price, which could be used to compete with

the vendor in the future. See First Vendor Deel. ~~ 9-10.

CREW's two objections are that the Hardy declaration "merely

parroted the [vendor's] response" and that UAV operator manuals

and training documents are already in the public domain. Pl.' s

Mot. at 21.

Regarding CREW's first objection, the fact that DOJ relies on

.the statements of the vendor regarding anticipated competitive

harm is no reason to disregard DOJ' s arguments. CREW does not

challenge the substance--that competitive harm will result from

disclosure--of the vendor and DOJ's assertions.

With regard to its second objection, CREW does not assert

that the withheld materials are the same as those in the public

domain, see Pl.'s Mot. at 21-22, but do point to different UAV

manuals and training documents which are in the public domain.

However, the existence of those manuals and training documents do

not indicate that the vendor's sensitive information is already

public, nor does it necessarily diminish the vendor's concerns of

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competitive harm. Plaintiffs have not shown that the manuals are

identical, or even comparable. Indeed, the manuals CREW cites are

published by the United States Army and the Australian Government's

Civil Aviation Safety Authority, not commercial entities. Id. Nor

are they specific to any particular vendor or equipment.

For these reasons, the public documents Plaintiff refers to

in no way suggest that the withheld documents are already public,

nor do they eliminate the vendor's competitive harm concerns.

DOJ has sufficiently shown substantial competitive harm to

the vendor if its manuals and training documents were to become

public, and the Court concludes that the documents are therefore

confidential. Thus, DOJ has met its burden of showing why Exemption

4 applies to the UAV manuals and training documents.

4. FOIA Exemption 5

FOIA Exemption 5 protects from disclosure "inter-agency or

intra-agency memorandums or letters which would not be available

by law to a party other than an agency in litigation with the

agency." 5 U.S.C. § 552(b) (5). Courts have construed this language

to exempt those documents "normally privileged in the civil

discovery context," including those protected by the attorney work

product and attorney client privileges. NLRB v. Sears, Roebuck &

Co., 421 U.S. 132, 149 (1975); see also Martin v. Dep't of Justice,

488 F.3d 446, 455 (D.C. Cir. 2007). In addition, "[t]he privilege

. extends to all situations in which an attorney's counsel is

-26-
sought on a legal matter." Coastal States Gas Corp. v. Dep't of

Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). Therefore, "it is clear

that an agency can be a 'client' and agency lawyers can function

as 'attorneys' within the relationship contemplated by the

privilege." Id. at 863.

The FBI withheld documents pursuant to the deliberative

process privilege, which protects intra- and inter-agency

documents that are both "predecisional and deliberative." Mapother

v. Dep't. of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). A

document is predecisional if "it was generated before the adoption

of an agency policy" and it is deliberative if "it reflects the

give-and-take of the consultative process." Judicial Watch v. Food

& Drug Admin., 449 F.3d 141, 151 (D.C. Cir. 2006) (quoting Coastal

States, 617 F.2d at 866).

CREW first challenges the Exemption 5 withholdings on the

ground that DOJ failed to give consideration to "whether any of

the withheld documents contain information actually incorporated

into a final agency decision," because to the extent the "documents

reflect information in the final [agency documents] , the

privilege would no longer apply." Pl.'s Mot. at 24. CREW fails to

cite any case law in either its Motion or its Reply in support of

this statement. See id. at 23-24; Pl.'s Reply at 8-9. Given the

complete lack of support for the proposition that draft or

predecisional documents that reflect information in the agency's

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final decision are no longer privileged, 3 this argument must be

·rejected.

CREW next argues that, for the documents withheld on the

grounds of deliberative process privilege, any segregable factual

information is not protected by Exemption 5 and should have been

released. See Pl.'s Mot. at 24. This argument claims that the FBI

failed to properly segregate and release non-exempt portions of

the documents, and will be addressed in Section III.B.6, along

with Plaintiff's other segregability arguments.

DOJ has sufficiently explained what documents it has withheld

and why. DOJ described in detail that the documents ref le ct an

ongoing dialogue within the agency during the development of

various policy and program issues. The Court concludes that the

documents clearly fall within the scope of the deliberative process

privilege and were properly withheld under Exemption 5.

5. FOIA Exemption 7(E)

FOIA Exemption 7(E) precludes disclosure of responsive
.
documents, records or information that has been:

compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement
records or information (E) would disclose
techniques and procedures for law enforcement
investigations or prosecutions, or would disclose

3 Plaintiff appears to argue the inverse in its Reply, stating that
"where the drafts 'became final documents that reflect agency
decisions, '" they "therefore fall within the exemption." Pl. 's
Reply at 9 (quoting Def.'s Opp'n at 12). Plaintiff provides no
support for this argument and its earlier contrary argument.
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 guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law.

5 u.s.c. § 552 (b) (7).

Information withheld under Exemption 7 must "first meet a

threshold requirement: that the records were compiled for law

enforcement purposes." Elec. Privacy Info. Ctr. v. U.S. Dep't of

Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015) (quoting Pub.

Emps. for Envtl. Responsibility v. U.S. Section, Int'l Boundary &

Water Comm'n, U.S.-Mexico, 740 F.3d 195, 202-03 (D.C. Cir. 2014))

("Public Emps."). It is undisputed that the information withheld

by the FBI was compiled for law enforcement purposes and meets the

threshold requirement. See Pl.'s Mot. at 25; Def.'s Opp'n at 13.

There is some disagreement in the courts as to the proper

reading of Exemption 7 (E). As discussed above, Exemption 7 (E)

covers "techniques and procedures for law enforcement

investigations or prosecutions" as well as "guidelines for law

enforcement investigations or prosecutions." 5 u.s.c.
§ 552(b} (7) (E) (emphases added). The final clause of the exemption

requires that an agency demonstrate that the disclosure of the

records at issue "could reasonably be expected to risk

circumvention of the law." Id. The "risk circumvention of the law"

requirement ·clearly applies to records containing "guidelines,"

because the requirement follows directly after the phrase "would

disclose guidelines for law enforcement investigations or

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prosecutions." However, there is some disagreement over whether

the requirement also applies to records containing "techniques and

procedures." Id.

The Second Circuit has held that the "risk circumvention of

the law" requirement applies only to guidelines, and DOJ urges

this Court to adopt a similar reading. See Allard K. Lowenstein

Int'l Human Rights Project v. Dep't of Homeland Sec., 626 F.3d

678, 681-82 (2d Cir. 2010); Def.'s Mot. at 25-26. By contrast, in

Blackwell v. FBI, our Court of Appeals applied the "risk

circumvention of the law" requirement to techniques and

procedures, as well as guidelines. 646 F13d 37, 41-42 (D.C. Cir.

2011) . Although the Blackwell Court did so without any discussion

of the applicability of the requirement, the Court of Appeals

acknowledged the Blackwell holding in Public Emps., and did not

question it. 740 F.3d at 205 n.4. The Court did comment that it

was not clear that, "given the low bar posed by the 'risk

circumvention of the law' requirement, . . . the difference matters

much in practice." Id.

Of course, this Court is bound to follow the precedent of our

Court of Appeals, and therefore the Court must apply the "risk

circumvention of the law" requirement to techniques and

procedures, as well as guidelines. 4

4 Although this Court is bound by precedent, the Court agrees that
a plain reading of the statute suggests that the "risk
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 Exemption 7(E) 's requirement that disclosure risk

circumvention of the law "sets a relatively low bar for the agency

to justify withholding." Blackwell, 646 F.3d at 42. "To clear that

relatively low bar, an agency must demonstrate only that release

of a document might increase the risk 'that a law will be violated

or that past violators will escape legal consequences.'" Public

Emps., 740 F.3d at 205 (quoting Mayer Brown LLP v. IRS, 562 F.3d

1190, 1193 (D.C. Cir. 2009)); see also Blackwell, 646 F.3d at 42

(the Exemption looks for "the chance of a reasonably expected

risk.")

The FBI withheld several categories of documents under

Exemption 7 (E), only some of which CREW challenges. The first

category that CREW challenges is the withholding of information

regarding UAV operational capabilities and equipment

specifications. Pl.' s Mot. at 26-27. These documents contain

"information specific to the development of UAV[s] as an effective

investigative technical tool for national security and criminal

investigations." Def.'s Mot. at 28. DOJ states that disclosure of

these documents could reasonably be expected to increase the risk

of circumvention of the law because the information would provide

circumvention of the law" requirement applies only to guidelines.
Because the Court finds the documents were properly withheld even
under the "risk circumvention of the law" requirement, the parties'
dispute over the proper reading of Exemption 7(E) does not affect
the outcome.
-31-
key details on various law enforcement techniques and procedures.

Def.'s Mot. at 28-29.

CREW does not dispute that disclosure of the non-public

operational capabilities and equipment specifications would

increase the risk of circumvention of the law. Rather, CREW argues

that the FBI has failed to show that the operational capabilities

and equipment specifications withheld are not already generally

known to the public. See Pl.'s Mot. at 26. CREW provides examples

of websites describing the capabilities of the Predator B drone

used by the Air Force, as well as articles and surveys discussing

drone operational capabilities, to support its argument that

operational capabilities and limitations of drones are already

widely known and therefore not subject to Exemption 7 (E) . Id.

at 26-27.

This argument assumes that all drones are alike. While drones

may generally face similar challenges across the board (i.e.

weather or flight control issues), it does not logically follow

that all of their capabilities and limitations are similar, or

that to know one is to know them all. DOJ explicitly states that

the information withheld contains "non-public investigative

techniques and procedures." Def .'s Opp'n at 15 (citing Hardy Deel.

~~ 76-78) (emphasis in original). The public information cited by

CREW does not raise doubts about the veracity of DOJ's claim.

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 The next category CREW challenges is "information regarding

the specific types of equipment, systems, software, hardware,

control devices, and other details showing the capabilities,

limitations, and technological advancements of certain UAVs, as

well as the identity of UAV vendors and suppliers." Def.'s Mot. at

28; see also Pl.'s Mot. at 28.

CREW again argues that specifics about the drone equipment

government agencies use, as well as their capabilities and

limitations, are widely available and therefore not subject to

Exemption 7(E). Pl.'s Mot. at 28. This argument is rejected for

the same reasons discussed above.

CREW also argues that vendor and supplier identities are not

law enforcement techniques within the meaning of Exemption 7(E).

Id. DOJ's argument is that disclosure of the vendor would, due to

the vendor's niche market, reveal the equipment and services

provided to the FBI. This would "effectively reveal knowledge about

the FBI's surveillance capabilities . . and limitations." Def.'s

Opp'n at 19 (citing Second Hardy Deel. ~ 8(c) & n.4). Consequently,

DOJ argues, criminals and foreign entities would have key

information that could be used in countermeasure efforts. Id. at

18-19. "If the FBI were forced to use compromised equipment it

would have an immeasurable, negative effect on current and/or

future investigations and law enforcement response capability of

the FBI." Id. at 18. The Court agrees.

-33-
 The third and fourth categories of documents that CREW

challenges are comprised of information regarding UAV training,

pilot qualifications, and funding details. See Pl.'s Mot. at 29.

CREW argues that DOJ "merely parrot[s] the language of Exemption

7(E)" and therefore DOJ fails to meet its burden of proving that

the information is properly exempt. Id. CREW also argues that the

FBI's justifications rely on "overblown claims of harm" that are

not commensurate with the information CREW seeks. Pl.'s Reply at

12.

In its Opposition, DOJ explained that releasing information

about training and the associated equipment procedures "is

tantamount to releasing information about the actual employment of

the procedures and techniques themselves." Def.'s Opp'n at 19. The

Court agrees that the training and equipment information, if

disclosed, would reveal law enforcement techniques and procedures,

which, as discussed previously, could reasonably be expected to

risk circumvention of the law.

Similarly, DOJ argues that releasing funding information and

details as to how and what the FBI is acquiring as part of its UAV

program is tantamount to releasing information about UAV

capabilities, program sophistication, vendor identity, and the

scope and direction of the UAV program. Id. at 19-20; Hardy Deel.

~ 82. The funding details include "funding account numbers, bank

routing numbers, purchase order numbers, specific contractual

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terms and conditions, product numbers or codes, product

descriptions including parts, repair requests, and product

pricing, purchase order approval procedures, and funding

allocation and budgeting details." Hardy Deel. ~ 81. DOJ has

properly withheld this information under Exemption 7(E).

The final category of information CREW challenges is

described as "non-public details regarding UAV use and

tradecraft." Def.'s Mot. at 32; see also Pl.'s Mot. at 30. DOJ

explains that the FBI' s tradecraft "constitutes the body of

techniques and procedures it employs to administer and operate its

UAV program for law enforcement and national security purposes."

Def.'s Opp'n at 20.

This is essentially an umbrella exemption that DOJ uses as a

catch-all justification for withholding information. DOJ concedes

that this rationale is not used to withhold any information that

was not already withheld under Exemption 7(E) on another basis.

Rather, all the information otherwise withheld pursuant to

Exemption 7 (E) is also withheld on the basis of "UAV use and

tradecraft." Id. at 20-21. The justification for this is that "each

piece of non-public information detailing the FBI's UAV program

has a functional nexus to the administration and operation of the

UAV program." Id. at 20. DOJ argues that releasing any of the non-

public details regarding the FBI's UAV use and tradecraft "could

enable potential targets of the FBI to assemble information about

-35-
the program to reverse engineer the FBI's use and capabilities,

neutralizing or significantly degrading the FBI's ability to use

the technique." Id. at 21.

The Court finds this exemption too broad and in conflict with

the Supreme Court's mandate that FOIA' s exemptions should be

narrowly construed. See Milner v. Dep't of Navy, 562 U.S. 562, 563

(2011) (FOIA's "goal is broad disclosure" and thus "the exemptions

must be given a narrow compass") (internal quotation marks and

citation omitted). DOJ's argument that every detail relating to

FBI's tradecraft is exempt from disclosure because of the

possibility that it could be compiled with other information is

both vague and attenuated. This is not to say that tradecraft

information can never be withheld, but Defendant has not met its

burden here.

Despite the Court's rejection of DOJ's tradecraft argument,

it finds that DOJ sufficiently explained its reasons for

withholding other categories of documents and has shown that ·

disclosure would increase the risk of circumvention of the law.

The Court therefore concludes that the documents were properly

withheld under Exemption 7(E).

6. Segregability

CREW argues that the FBI has failed to segregate and release

all non-exempt information responsive to its FOIA Request. See

Pl.'s Mot. at 30-32. FOIA requires that "[a]ny reasonably

-36-
segregable portion of a record shall be provided to any person

requesting such record after deletion of the portions which are

exempt." 5 U.S.C. § 552(b). "[N]on-exempt portions of a document

must be disclosed unless they are inextricably intertwined with

exempt portions." Elliott v. U.S. Dep't of Agric., 596 F.3d 842,

851 (D.C. Cir. 2010) (quoting Mead Data Cent., Inc. v. U.S. Dep't

of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)). To demonstrate

that all reasonably segregable material has been released, the

agency must provide a "detailed justification" for its non-

segregability. Mead Data, 566 F.2d at 261. "However, the agency is

not required to provide so much detail that the exempt material

would be effectively disclosed." Johnson v. Exec. Office for U.S.

Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002).

DOJ has explained that the FBI examined each responsive page

individually to identify non-exempt information and "re-reviewed

all pages to ensure that all segregable non-exempt information has

been released." Def.'s Opp'n at 22 (quoting Hardy Deel. ~ 30). For

pages that were withheld in full, DOJ asserts that any non-exempt

information was so intertwined with exempt material such that it

could not be reasonably segregated. Id. at 22-23.

"Agencies 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) (citing Boyd v. Criminal Div. of U.S. Dep't of Justice, 475

-37-
F.3d 381, 391 (D.C. Cir. 2007)). "If the requester successfully

rebuts this presumption, the burden lies with the government to

demonstrate that no segregable, nonexempt portions were withheld."

Id. (citing 5 U.S.C. § 552 (a) (4) (B)).

CREW argues that the FBI's "blanket assertion" that it has

re-reviewed all pages to ensure all the segregable non-exempt

information was released is inadequate to meet its burden of proof.

Pl.'s Mot. at 31. CREW cites Chesapeake Bay Found. v. U.S. Army

Corps of Eng' rs, 671 F. Supp. 2d 101 (D.D.C. 2009), but the facts

of that case are easily distinguishable. In Chesapeake Bay, the

agency did not specifically address segregability and not a single

document was released in part. See id. at 103, ·109, 109 n.1. That

is not the case here.

As discussed above, an agency is not required to provide so

much detail that the exempt material is in effect disclosed. Our

Court of Appeals held in Johnson that a comprehensive Vaughn index,

along with an affidavit that a line-by-line segregability review

of each document withheld in full, was sufficient to fulfill the

agency's obligation to show that further segregability was not

feasible. See Johnson, 310 F.3d at 776; Like the agency in Johnson,

DOJ has provided a detailed Vaughn index and an affidavit asserting

that each responsive document was re-reviewed for segregability.

See Def.'s Mot. at 33 (citing Hardy Deel. ~ 30).

-38-
 CREW also argues that the documents withheld under

Exemption 5 specifically contain segregable information that

should be released. CREW contends that the documents contain

factual information that is not privileged, and therefore outside

the scope of the exemption. See Pl.'s Mot. at 24, 31.

Absent a claim that disclosure would jeopardize state

secrets, "memoranda consisting only of compiled factual material

or purely factual material contained in deliberative memoranda and

severable from its context" are generally discoverable in civil

litigation, and by analogy, are also not protected by Exemption 5.

Envtl. Prot. Agency v. Mink, 410 U.S. 73, 87-88 (1973) (emphasis

added) (superseded by statute on other grounds, Freedom of

Information Act, Pub. L. No. 93-502, 88 Stat. 1561, as recognized

in CIA v. Sims, 471 U.S. 159, 189 n.5 (1985)).

CREW does not allege that any of the withheld documents

contain compiled factual material and identifies only one example

of "purely factual" information it believes improperly withheld.

Plaintiff alleges that Certificates of Waiver or Authorization

("COAs") contain purely factual information. Pl.'s Mot. at 31-32.

The Federal Aviation Administration (FAA) describes a COA as:

an authorization issued by the Air Traffic Organization
to a public operator for a specific UA[V] activity. After
a complete application is submitted, FAA conducts a
comprehensive operational and technical review. If
necessary, provisions or limitations may be imposed as
part of the approval to ensure the UA[V] can operate

-39-
 safely with other airspace users. In most cases, FAA
will provide a formal response within 60 days from the
time a completed application is submitted.

Pl.'s Mot. at 6 (quoting Certificates of Waiver or Authorization

(November 14, 2014), available at https://www.faa.gov/about/

office_org/headquarters_offices/ato/service_units/systemops/aaim

/organizations/uas/coa/) .

While COAs may contain some factual information, it is not

clear that they contain "purely factual material." Mink, 410 U.S.

at 88. CREW has not alleged what the purely factual material is

likely to be, or why it thinks the COAs contain it. Pl.'s Mot. at

31-32. Consequently, CREW has not shown that the COAs are the type

of factual information that is outside the scope of Exemption 5 as

described in Mink. Al though CREW asserts the existence of a "myriad

[of] factual issues" that call into question the FBI's claim of

proper segregation, it provides only the single example of COAs.

Id. That one somewhat vague assertion is not sufficient to rebut

the presumption that the FBI complied with its obligation to

disclose reasonably segregable material.

-40-
IV. CONCLUSION

For the foregoing reasons, Plaintiffs' Motion for Summary

Judgment shall be denied, and DOJ's Motion for Summary Judgment

shall be granted. An Order shall accompany this Memorandum Opinion.

February 9, 2016 Glady8Kes~
United States District Judge

Copies to: attorneys on record via ECF

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