Shapiro v. Central Intelligence Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RYAN NOAH SHAPIRO,

Plaintiff,

v. Case No. 1:14-CV-00019 (CRC)

CENTRAL INTELLIGENCE AGENCY, et.
al.,
Defendants.

MEMORANDUM OPINION

Doctoral student Ryan Shapiro wants to know if the United States government was

complicit in Nelson Mandela’s arrest and imprisonment by South Africa’s apartheid-era regime. To

that end, Shapiro filed Freedom of Information Act requests with the Central Intelligence Agency,

the National Security Agency, the Department of Defense’s Defense Intelligence Agency, and the

Federal Bureau of Investigation seeking virtually every document in their sprawling files that

mentions or references Mandela. After refusing to narrow his request in any meaningful way,

Shapiro has filed suit challenging each agency’s response. The Court has previously ruled on

motions filed by the CIA and NSA, and they, along with the DIA, continue to review and release

responsive records. Now before the Court is a motion to dismiss or, alternatively, for summary

judgment filed by the FBI, and a cross-motion for summary judgment filed by Shapiro.

Shapiro raises a laundry list of objections to the FBI’s search and non-disclosure of

responsive material under a variety of FOIA exemptions. For the reasons explained below, the

Court will uphold the large majority of the challenged withholdings, but will reserve judgment in

part and deny judgment in part to each side with respect to several withholdings whose

appropriateness remains in dispute.
I. Background

Ryan Shapiro describes himself as a student of “the political functioning of national security

and the policing of dissent.” Pl.’s First Am. Compl. (“Compl.”) ¶ 2. A serial FOIA requester,

Shapiro submitted FOIA requests to the CIA, NSA, DIA, and FBI in December 2013, soon after

Nelson Mandela’s death. Id. at ¶ 21. In the FBI request, he sought “disclosure of any and all

records that were prepared, received, transmitted, collected and/or maintained by the FBI, the

Terrorist Screening Center, the National Joint Terrorism Task Force, or any Joint Terrorism Task

Force relating or referring to deceased individual Rolihlahla Mandela, (aka Nelson Mandela, aka

Madiba, aka Tata).” Compl., Ex. 2 (“FOIA Request”) at 1. Of particular interest to Shapiro were

the 27 years Mandela spent in prison at the hands of South Africa’s apartheid government and the

surrounding rumors that the CIA was somehow involved in the arrest that led to his incarceration.

Id. at 2. Shapiro requested that the FBI search “all electronic and paper/manual indices, filing

systems, and locations,” including “all of its directorates” and at least thirty enumerated “filing

systems, indices, and locations” for responsive records. Id. at 4–5. The request also encompassed

emails and publicly available records. Id. at 2, 6. The FBI granted Shapiro’s request for expedited

processing on December 19, 2013. Compl. ¶ 35.

The FBI—including its headquarters, field offices, and attaché offices abroad—uses the

aptly named Central Records System to house the records it compiles and maintains in the “course

of fulfilling its integrated . . . functions as a law enforcement, counterterrorism, and intelligence

agency[.]” Def.’s Mem. Supp. Mot. Summ. J. (“MSJ”), Decl. of David M. Hardy (“First Hardy

Decl.”) ¶ 19. Many of the records relevant here are contained in the FBI’s case files. When a case

file is opened, it is assigned a Universal Case File Number (“UCFN”), comprised of three

components: the Central Record System’s file classification number, an abbreviation for the office

that created it, and the assigned individual case file number for that subject matter. Id. at ¶ 20. The

2
FBI also maintains a Universal Index that allows records to be quickly retrieved via index

searching. Id. at ¶ 24. The FBI conducted index searches to comb through multiple case-

management systems for responsive records. Id. at ¶¶ 30–34. Since May 2014, the FBI has

processed 1,519 responsive pages and made 18 rolling releases to Shapiro. Def.’s Statement of

Material Facts (“SMF”) ¶ 2. These pages were located in 11 “main” files (i.e., files names with

corresponding to the requested subject matter) and 177 “cross-references” (i.e., files concerning

other, unrelated subjects but that contain records referencing the requested subject matter). Id. at

¶¶ 6,8. Of the pages processed, the FBI released 1,244, in full or in part, and withheld 272 pages in

full. Id. The FBI relied on the following FOIA exemptions when redacting information or

withholding pages from release: 1, classified information; 3, information protected by another

statute; 5, privileged information; 6 and 7(C), personal privacy; 7(A), pending law enforcement

proceedings; 7(D), confidential source information; 7(E), law enforcement investigative techniques

and procedures; and 7(F), personal safety of individuals involved in law enforcement activities.1

See First Hardy Decl. ¶ 38. The application of these exemptions will be discussed in greater detail

below. With production complete as of summer 2016, the FBI now moves to dismiss Shapiro’s

complaint, and alternatively, for summary judgment. It maintains that its search was adequate and

that it has sufficiently justified its withholdings under the relevant FOIA exemptions. Shapiro also

moves for summary judgment, challenging the FBI’s withholdings and its responsiveness

determinations. Pl.’s Mem. Supp. Cross-Mot. Summ. J. (“Cross-MSJ”) 1.

1
During summary-judgment briefing, the FBI explained that its invocation of Exemption
7(F) was at the bequest of the Drug Enforcement Administration (“DEA”). After revisiting the
issue, the DEA agreed to release a two-word redaction. See Def.’s Reply MSJ (“Reply”) 11; id.,
Third Decl. of David M. Hardy (“Third Hardy Decl.”) ¶ 42 (citing Def.’s Reply, Ex. B). The
application of Exemption 7(F) is therefore moot and need not be discussed. See Arizonians for
Official English v. Arizona, 520 U.S. 43, 64–67 (1997).
3
II. Legal Standard

“FOIA cases typically and appropriately are decided on motions for summary judgment.”

Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). In deciding a

motion for summary judgment, the Court assumes the truth of the non-movant’s evidence and

draws all reasonable inferences in the non-movant’s favor. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986). “It is well settled in Freedom of Information Act cases as in any others that

summary judgment may be granted only if the moving party proves that no substantial and material

facts are in dispute and that he is entitled to judgment as a matter of law.” Lamb v. Millennium

Challenge Corp., 2017 WL 74690, at *4 (D.D.C. Jan. 6, 2017) (internal quotation omitted); see also

Fed. R. Civ. P. 56(a).

Congress created FOIA “to pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.” ACLU v. DOJ, 655 F.3d 1, 5 (D.C. Cir. 2011) (quoting U.S.

Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)). Despite this broad mandate, FOIA

contains a set of exceptions to the general obligation to provide government records to the public.

See 5 U.S.C. § 552(b). These exemptions are in place “to balance the public’s interest in

governmental transparency against the ‘legitimate governmental and private interests [that] could be

harmed by release of certain types of information.’” United Techs. Corp. v. U.S. Dep’t of Defense,

601 F.3d 557, 559 (D.C. Cir. 2010) (quoting Critical Mass Energy Project v. Nuclear Reg.

Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc)). FOIA “mandates a strong presumption in

favor of disclosure,” and its “statutory exemptions, which are exclusive, are to be ‘narrowly

construed.’” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting

Rose, 425 U.S. at 361).

The government therefore bears the burden to establish that the claimed FOIA exemptions

apply to each document for which they are invoked. ACLU v. U.S. Dep’t of Defense, 628 F.3d

4
612, 619 (D.C. Cir. 2011). It may satisfy this burden through declarations that describe the

justifications for its withholdings in “specific detail, demonstrat[ing] that the information withheld

logically falls within the claimed exemption[.]” Id. But agency affidavits will not warrant

summary judgment if the plaintiff puts forth contrary evidence or demonstrates the agency’s bad

faith. Id.

III. Discussion

The Court will address Shapiro’s objections to the FBI’s claimed exemptions in sequential

order, and will then turn to his responsiveness challenge.

A. Exemptions 1 and 3 Generally

FOIA Exemption 1 protects classified information. Records are protected if “specifically

authorized under criteria established by an Executive order to be kept secret in the interest of

national defense or foreign policy and . . . [if they are] properly classified pursuant to such

Executive order.” 5 U.S.C. § 522(b)(1). Exemption 3 protects records that are exempted from

disclosure by statute if that statute:

(A)(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; and
(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009,
specifically cites to this paragraph.

5 U.S.C. § 522(b)(3). In evaluating an agency’s reliance on Exemption 1, “substantial weight” is

given to “an agency’s affidavit concerning the details of the classified status of the disputed

record.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Thus, “little proof or

explanation is required beyond a plausible assertion that information is properly classified[.]”

Shapiro v. DOJ, 2017 WL 908179, at *13 (D.D.C. Mar. 6, 2017) (quoting Morley v. CIA, 508 F.3d

1108, 1124 (D.C. Cir. 2007)). Exemption 3, by contrast, “differs from other FOIA exemptions in

5
that its applicability depends less on the detailed factual contents of specific documents; [rather] the

sole issue for decision is the existence of a relevant statute and the inclusion of withheld material

within that statute’s coverage.” Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978). Courts will

thus require an agency to demonstrate the exemption’s applicability by providing “the kind of

detailed, scrupulous description of the withheld documents that enables [them] to perform a

searching de novo review.” Shapiro, 2017 WL 908179 at *14 (quoting Church of Scientology of

Ca., Inc. v. Turner, 662 F.2d 784, 786 (D.C. Cir. 1980)).

The FBI applied both these exemptions, often in combination with one another, when

withholding information in response to Shapiro’s FOIA request. See First Hardy Decl. ¶ 38. Its use

of Exemption 1 relies on Executive Order 13,526, which governs the classification and protection

of information affecting national security—such as intelligence activities, sources and methods,

cryptology, and foreign relations or foreign activities. Id. at ¶¶ 40, 46–52. Similarly, the FBI

invoked Exemption 3 pursuant to the National Security Act of 1947, 50 U.S.C. § 3024(i)(1). Id.

The NSA was enacted before 2009 and leaves no discretion to agencies regarding non-disclosure of

“all sources of intelligence that provide, or are engaged to provide, information the Agency needs to

perform its statutory duties with respect to foreign intelligence.” CIA v. Sims, 471 U.S. 159, 169–

70 (1985). Therefore, if the FBI were to establish that the information withheld here pertains to

intelligence sources and methods covered by the NSA, Exemption 3 would be properly applied.

In support of both exemptions’ applicability, the FBI offers a series of declarations from

Record and Information Dissemination Section Chief David M. Hardy and ex parte, in camera

submissions regarding the classification process, the classification status of the withheld material,

and the content contained therein. With respect to Exemption 1’s classification requirement, Hardy

avows personal familiarity with the records at issue, and, in his role as an original classification

authority, was responsible for determining “that the information withheld pursuant to Exemption

6
[1] is under the control of the United States Government, is classified and requires a classification

marking at the ‘Secret’ level since the unauthorized disclosure of the information reasonably could

be expected to cause serious damage to national security.” First Hardy Decl. ¶ 42. Additionally, he

confirms that the “procedural requirements of E.O. 13526 [were] followed” in classifying the

documents. Id. In his opposition to the FBI’s motion, Shapiro questioned the classification of

documents over 25 years old, prompting the FBI to “re-review[] the approximately 100 pages citing

Exemption 1.” Def.’s Reply MSJ (“Reply”); Third Decl. of David M. Hardy (“Third Hardy Decl.”)

¶ 6. On the basis of this additional review, the agency determined that declassification was

warranted for four pages, which it subsequently released, and that the remaining pages still

qualified for “Secret”-level classification. Id. The Court is therefore satisfied with the FBI’s

“plausible assertion that information [was] properly classified[.]” Shapiro, 2017 WL 908179 at

*13.

Turning to Exemption 3, the FBI applied this exemption to redact information that would

either “reveal classified intelligence sources and methods [also] protected by Exemption 1 . . . [or]

unclassified intelligence sources and methods [that] were employed as law enforcement techniques,

procedures or guidelines[.]” First Hardy Decl. ¶ 57; see Sims, 471 U.S. at 176 (holding that the

NSA covers unclassified information regarding intelligence sources and methods). Reacting to the

FBI’s somewhat conclusory declarations regarding intelligence sources and methods, Shapiro

questions whether the content of the information is actually protected by the NSA. Having now

carefully examined the FBI’s submissions (both public and in camera), the Court is assured that the

withheld information falls well within E.O. 13,526 and the National Security Act’s scope of

protection, and was, therefore, properly excluded from the released records.

7
 B. Exemption 5

Exemption 5 permits agencies to withhold “inter-agency or intra-agency memorandums or

letters that 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). This exemption encompasses the deliberative process privilege,

which protects government materials that are both (1) pre-decisional and (2) deliberative. See Tax

Analysts v. IRS, 117 F.3d 607, 616 (D.C. Cir. 1997). To be pre-decisional, an agency should show

“what deliberative process is involved, and the role played by the documents at issue in the course

of that process[.]” Heggestad v. DOJ, 182 F. Supp. 2d 1, 7 (D.D.C. 2000). Information is

deliberative if “it makes recommendations or expresses opinions on legal or policy matters.”

Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975). Congress intended for this exemption “to

encourage frank discussion of policy matters, prevent premature disclosure of proposed policies,

and avoid public confusion that may result from disclosure of rationales that were not ultimately

grounds for agency action.” Petrucelli v. DOJ, 51 F. Supp. 3d 142, 161 (D.D.C. 2014).

The FBI relied on Exemption 5 to withhold an entire ten-page draft Operations Plan

concerning preparations for sending a U.S. delegation to South Africa for former President

Mandela’s funeral.2 First Hardy Decl. ¶ 61. The FBI argues that the plan is accurately labeled as a

draft because it required further information surrounding the funeral arrangements before it could

be finalized, and therefore, is pre-decisional. See id. In a later declaration, the FBI—for the first

time—asserts that the plan qualifies as deliberative because it discusses “the FBI and American

Embassy’s statutory interests and responsibilities regarding any U.S. involvement in the event of a

funeral for Nelson Mandela.” Third Hardy Decl. ¶ 8. In particular, the FBI explains that it “is

2
The FBI also invoked FOIA Exemption 7(E) to justify withholding this document, which
the Court addresses below. See infra Section III.G & n.8.
8
outlining its potential actions at a future event and how they relate to not only the American

Embassy but to South African State officials . . . and is soliciting input and recommendations from

these and other agencies.” Id.

Shapiro rejoins that the FBI has not established that the operational plan is “deliberative,”

and, thus, Exemption 5 does not apply. The Court tends to agree. It is not apparent, based on the

FBI’s declaration alone, how a security plan for attending a funeral relates to any “legal or policy

issues.” Logistical details around funeral arrangements are far from the “conclusions,

recommendations, or opinions” that Congress intended to protect under the exemption. Playboy

Enters., Inc. v. DOJ, 677 F.2d 931 (D.C. Cir. 1982). And while the FBI might have been waiting

for other agencies or foreign governments to supply information before finalizing its plan, that does

not necessarily transform it from a fact-based plan (with a few missing details) into an evaluative

analysis involving legal or policy discussions across different entities. Moreover, it is unclear from

the record what the FBI meant by “the FBI and American Embassy’s statutory interests and

responsibilities,” and much less, why they would involve legal and policy issues. Based on the

FBI’s rather vague explanations, the Court cannot determine if Exemption 5 is justified and

therefore will reserve judgment on this issue and order the agency to submit the Operational Plan

for in camera review.

C. Exemption 7 Generally

Under Exemption 7, agencies can withhold “records or information compiled for law

enforcement purposes, but only to the extent that the production of such law enforcement records or

information” would create certain statutorily enumerated harms. 5 U.S.C. § 552(b)(7). To properly

invoke this exemption, an agency must first satisfy a two-part test crafted by the D.C. Circuit to

show that the records are law enforcement records: First, the agency should identify the person or

incident that is the focus of the investigation and specify the “connection between that individual or

9
incident and a possible security risk or violation of federal law[,]” and, second, the agency must

show that its “investigatory activities are realistically based on a legitimate concern that federal

laws have been or may be violated or that national security may be breached.” Shapiro v. DOJ, 37

F. Supp. 3d 7, 28 (D.D.C. 2014) (citing Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982 and

quoting King v. DOJ, 830 F.2d 210, 229–30 (D.C. Cir. 1987)) (internal quotation marks omitted).

“This inquiry, while necessarily deferential, is not vacuous.” Shapiro, 37 F. Supp. 3d at 28 (quoting

King, 830 F.2d at 229–30).

The FBI offers a series of declarations from Mr. Hardy to support its position that the

relevant documents were compiled for law enforcement purposes. Initially, Hardy explained that

several of the records were compiled during “multiple FBI criminal investigations of threats made

against Mandela” and recited that the remaining records were created in “furtherance of FBI’s law

enforcement and national security missions.” First Hardy Decl. ¶ 63. Shapiro objects to the latter

justification as too generic to carry the FBI’s burden of proving that each withheld document

related to a law enforcement purpose. Pl.’s Cross-MSJ 11 (citing Campbell v. DOJ, 164 F.3d 20,

33 (D.C. Cir. 1998)). The FBI, in response, points to its in camera, ex parte declarations to provide

the missing details, which it believes are too sensitive to reveal on the public record. See Third

Hardy Decl. ¶ 10. After carefully reviewing these documents, the Court finds that the FBI has

sufficiently established that the withheld documents were compiled for law enforcement purposes

and are based on legitimate concerns regarding potential violations of the law or threats to national

security.

D. Exemption 7(A)

Exemption 7(A) requires agencies to show that information compiled for law enforcement

purposes “could reasonably be expected to interfere with enforcement proceedings” in order to

withhold it. 5 U.S.C. § 552(b)(7)(A). The FBI invoked this exemption to redact “names, personal

10
identifying information, file numbers, and activities of third parties” from three pages of records

pertaining to active, ongoing investigations: Mandela 520-521, which concern “a fugitive from

justice in an ongoing domestic terrorism case who has not yet [been] apprehended[,]” and Mandela

1160, which “concerns the subject of an ongoing domestic terrorism investigation.” First Hardy

Decl. ¶ 77.

Shapiro challenges these withholdings by arguing that the FBI has failed to adequately

explain the harm that would be caused by disclosing the redacted information because the

information might already be publically available. Pl.’s Reply Cross-MSJ (“Reply”) 2–3. But,

contrary to Shapiro’s arguments, the FBI has offered sufficient explanations: It stated that

disclosing the redacted material in Mandela-1160 could “expose potential leads and/or suspects the

FBI identified” in relation to an on-going domestic terrorism investigation and releasing the

concealed information in Mandela 520–521 could harm the “on-going investigation by impeding

the FBI’s efforts to locate the fugitive.” Third Hardy Decl. ¶¶ 12–13. The agency also clearly

indicated that it withheld information related to a fugitive, not just the individual’s fugitive status

which might be publicly known, and Shapiro has not offered any evidence to discredit these

explanations. The Court, therefore, finds that “[t]he [FBI’s] declarations, viewed in light of the

appropriate deference to the executive on issues of national security,” satisfy its burden in justifying

withholdings under Exemption 7(A). See Ctr. for Nat. Sec. Studies v. DOJ, 331 F.3d 918, 926–27

(D.C. Cir. 2003) (“[B]oth the Supreme Court and this Court have expressly recognized the

propriety of deference to the executive in the context of FOIA claims which implicate national

security.”).

E. Exemption 7(C)

An agency may also withhold “records or information compiled for law enforcement

purposes” if their production “could reasonably be expected to constitute an unwarranted invasion

11
of personal privacy.” 5 U.S.C. § 552(b)(7)(C). “Exemption 7(C) requires the agency and the

reviewing court to weigh the public interest in the release of information against the privacy interest

in nondisclosure.” Schrecker v. DOJ, 349 F.3d 657, 661 (D.C. Cir. 2003) (citing United States DOJ

v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 762 (1989)). While the D.C. Circuit

has “consistently supported nondisclosure of names or other information identifying individuals

appearing in law enforcement records, including investigators, suspects, witnesses, and

informants[,]” it has instructed that the privacy interest at issue “may be diminished where the

individual is deceased.” Schrecker, 349 F.3d at 661. An agency must, therefore, make “a

reasonable effort to ascertain life status.” Id. at 662.

Shapiro argues that the FBI has failed to justify its invocation of Exemption 7(C) to redact

personal information concerning six categories of individuals: FBI special agents and support

personnel, non-FBI government personnel, local law enforcement, third parties mentioned in

criminal investigative files, third parties who were of investigative interest to the FBI, and third

parties who provided information to the FBI during the course of an investigation.3 First Hardy

Decl. ¶¶ 68–75.4 Shapiro objects to the 7(C) redactions on two main grounds: (1) the FBI has not

made reasonable efforts to determine if the relevant individuals are still alive and (2) when

balancing interests, the FBI did not take into account the fact that individuals who had been

3
The FBI also invoked Exemption 6 to justify these redactions because both exemptions
require the agency to balance an individual’s privacy interest against the public’s interest in
disclosure. The Court focuses its analysis on Exemption 7(C) because “[it] is more protective of
privacy than Exemption 6” and thus establishes a lower bar for withholding material. ACLU, 655
F.3d at 6 (“Although the [defendant] relied on both exemptions . . . we need only consider whether
it properly invoked Exemption 7(C).”).
4
Redacted personal information includes, but is not limited to, “dates of birth, social
security numbers, addresses, employment and/or position, telephone numbers, and/or other personal
information.” First Hardy Decl. at 34 n.28.
12
convicted of crimes might have a diminished privacy interest as compared to individuals that were

merely investigated by the FBI. Pl.’s Cross-MSJ 14–15. In support of his position, Shapiro points

to a specific redaction that he believes references two individuals, the Bankston twins, who were

convicted of the 1973 murder of Black Muslim leader James Shabazz and passed away decades

ago. See Pl.’s Reply 4–5; Pl.’s Cross-MSJ, Ex. 19–20 (redacted record and article referencing

Bankston twins’ conviction).

To Shapiro’s first point, the FBI responds that it uses two methods to determine an

individual’s “life status”: “It checks each name against a current list of deceased individuals from

various walks of life (i.e. former special agents, public figures, politicians, notorious individuals)

. . . [and it] uses information within the file itself to determine if an individual is alive or deceased.”

Third Hardy Decl. ¶ 14. While Shapiro urges the Court to require the FBI to search for each

individual in a Social Security database, it is not apparent from the record that the FBI had the

means to do so. And, even if it did, it would still be unreasonable to require it to look for

individuals’ social security numbers considering the large volume of responsive records and names.

See Schrecker, 349 F.3d at 664 (“To require the Government to shoulder such a potentially onerous

task—with dubious prospects of success—goes well beyond the ‘reasonable effort’ demanded in

this context”). Given agencies’ “systemic and case-specific exercise[] of discretion and

administrative judgment and expertise, [this] is hardly an area in which the courts should attempt to

micro manage the executive branch[.]” Schrecker, 349 F.3d at 662. Accordingly, the Court finds

that the FBI has met “its obligation to take basic steps to investigate information that could affect

the privacy interests at stake[.]” Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 775–76

(D.C. Cir. 2002).

Shapiro’s second argument is more persuasive. In its declarations, the FBI discusses the

public interest at stake when disclosing personal information of various types of individuals. For

13
the fifth category of challenged redactions (individuals of investigative interest) the FBI states that

“being identified as a subject of a criminal investigation carries a strong negative connotation and a

stigma.” First Hardy Decl. ¶ 73. Therefore, disclosing criminal suspects’ names could “subject

them to harassment or embarrassment, as well as undue public attention.” Id. Such a privacy

interest differs in degree though when that individual was not merely suspected, but publicly

charged and convicted of a crime, such as in the example offered by Shapiro. If Shapiro’s

supposition that the Bankston twins’ surname was redacted is correct, the FBI would need to justify

why revealing their surname in conjunction with the fact that were convicted of crimes implicates

privacy concerns that outweigh the public’s interest in transparency. See ACLU, 655 F.3d at 7

(“This is not to say that a convicted defendant has no privacy interest in the facts of his

conviction. . . . But it is to say that those interests are weaker than for individuals who have been

acquitted or whose cases have been dismissed. . . . And they are plainly substantially weaker than

the privacy interests of individuals who have been investigated but never publicly charged at all.”

(citations omitted)). It might be that a convicted individual’s privacy interest would still win out,

but the FBI needs to take the public nature of his or her conviction into account when conducting

the balancing, which it has failed to establish that it did here. Cf. Am. Immigration Lawyers Ass'n

v. Exec. Office for Immigration Review, 830 F.3d 667, 675 (D.C. Cir. 2016).

The FBI has, therefore, failed to meet its burden to demonstrate why Exemption 7(C)

applies to the specific redaction challenged by Shapiro, and to other redactions related to

individuals who have been convicted of offenses.5 Accordingly, the Court will deny both motions

5
Shapiro argues that the FBI has failed to meet its burden with respect to all 7(C)
redactions. But the Court declines to go that far. In its declarations, the FBI has adequately
explained why the names and personal information of government personnel, FBI agents, law
enforcement, and informants merit protection.
14
for summary judgment on this issue. It will direct the FBI to weigh the private and public interests

at stake when an individual’s name is being released in connection with his conviction for an

offense, and, depending on the outcome, either release the requested information within 45 days or

renew its summary judgment motion with a supplemental declaration justifying its position.

F. Exemption 7(D)

The next law-enforcement-related exemption relied on by the FBI, Exemption 7(D), shields

information that “could reasonably be expected to disclose the identity of a confidential

source . . . and, in the case of a record or information compiled by a criminal law enforcement

agency conducting a lawful national security intelligence investigation, information furnished by a

confidential source.” 5 U.S.C. § 522(b)(7)(D). “There is no general presumption that a source is

confidential within the meaning of Exemption 7(D) whenever a source provides information to a

law enforcement agency in the course of a criminal investigation.” Petrucelli, 51 F. Supp. 3d at 168

(quoting DOJ v. Landano, 508 U.S. 165, 181 (1993)) (internal quotation marks omitted). Instead,

an agency must establish a source’s confidentiality on a case-by-case basis, either by showing that

the source “provided information under an express assurance of confidentiality or in circumstances

from which such an assurance could be reasonably inferred.” Williams v. FBI, 69 F.3d 1155, 1159

(D.C. Cir. 1995) (per curiam) (quoting Landano, 508 U.S. at 170–74). Probative evidence of an

express grant of confidentiality includes “declarations from the agents who extended [them],

contemporaneous documents from the FBI files reflecting [their existence], evidence of a consistent

policy of expressly granting confidentiality to certain designated sources during the relevant time

period, or other such evidence that comports with the Federal Rules of Evidence.” Petrucelli, 51 F.

Supp. 3d at 168–69.

The FBI redacted six categories of information based on Exemption 7(D): (1) confidential-

source file numbers, unique designations used in reference to information provided by a particular

15
source; (2) confidential-source symbol numbers, identifiers assigned to sources operating under an

express grant of confidentiality; (3) information provided by source-symbol-numbered informants;

(4) names, identifying data, and information provided by sources operating under an implied

assurance of confidentiality; (5) information supplied by foreign government agencies operating

under an express assurance of confidentiality; and (6) names, identifying data, and information

provided by non-source-symbol-numbered informants operating under an express assurance of

confidentiality. First Hardy Decl. ¶ 38. Shapiro challenges the withholding of information in all of

these categories save the first.

With regards to the second and third categories, Shapiro argues that the FBI has not

established that revealing a single source number alone (without disclosing additional information)

would create a risk of exposing the source’s identity. Pl.’s Reply 9. Turning to the 7(D) analysis,

the FBI has established that these sources are confidential: permanent source symbols are assigned

“in sequential order to confidential informants who report information to the FBI on a regular basis

pursuant to an express assurance of confidentiality.” Third Hardy Decl. ¶ 17. And while Shapiro

alleges that only repetitive references to a source number or the combination of a source number

with the content of the information the source provided would risk exposure, the FBI’s declaration

confirms that, because a confidential source symbol is unique to an informant, by disclosing this

number “persons knowledgeable of the FBI’s investigations could ascertain their identity.” Third

Hardy Decl. ¶ 18. In light of the FBI’s expertise in source management and retention, this

establishes a reasonable expectation of disclosure that Shapiro has failed to overcome. Therefore,

the Court finds that the FBI’s 7(D)-2 and 3 redactions are properly applied.

The fifth and sixth categories of redactions are likewise justified because the FBI has

provided probative evidence that sources were granted express assurances of confidentiality. With

respect to foreign government agencies, the FBI has explained that it “has many agreements with

16
foreign governments under which security and/or criminal law enforcement information is

exchanged.” First Hardy Decl. ¶ 88. The particular foreign government agency that the FBI sought

to protect via its redactions requested that its identity, relationship with FBI, and the information it

provided be classified and withheld. Id. The FBI confirmed that its request was honored “under

applicable information sharing agreements” and that this information only became declassified

because the documents were older than twenty-five years. Third Hardy Decl. ¶ 23. While the

relationship might now be declassified, the fact remains that the foreign government agency was

given an express assurance of confidentiality when the information was exchanged. Furthermore,

the only reason the FBI did not provide evidence of the information-sharing agreement itself was

that “[t]he release of official United States Government documents revealing the existence of such a

confidential relationship with a long-term foreign government partner . . . reasonably could be

expected to strain relations between the United States and the foreign government and lead to

negative diplomatic, political, or economic repercussion.” Id. This showing sufficiently establishes

that an express grant of assurance existed between the parties, thus, warranting the exemption. The

FBI has likewise established that it provided express assurances of confidentiality to other third-

party sources, whose information it redacted from responsive records. These sources were

identified with a “T-1” designation within the responsive records, which the FBI explains is an

“indicat[ion] [that] the information provided by this source was provided with the express assurance

of confidentiality.” The Court again concludes that this is sufficiently probative evidence of an

express grant of confidentiality, and will therefore uphold the 7(D)-6 redactions. See Petrucelli, 51

F. Supp. 3d at 169 (finding that the phrase “Protect Identity” which appeared after the source’s

name was “probative evidence that the sources did in face receive express grants of

confidentiality”).

17
 The final category of redactions challenged by Shapiro corresponds to sources that provided

information under an implied assurance of confidentiality. “When no express assurance of

confidentiality exists, courts consider a number of factors to determine whether the source

nonetheless spoke with an understanding that the communication would remain confidential.” Roth

v. DOJ, 642 F.3d 1161, 1184 (D.C. Cir. 2011) (internal quotation omitted). “These factors include

the character of the crime at issue, the source’s relation to the crime, whether the source received

payment, and whether the source has an ongoing relationship with the law enforcement agency and

typically communicates with the agency only at locations and under conditions which assure the

contact will not be noticed.” Id. (internal quotation omitted). Shapiro challenges the FBI’s

assertions that such implied assurances existed at the time the information was provided.

Before delving into this analysis, it is important to recognize the limited scope of Exemption

7(D)-4’s application to the redacted records here. The vast majority of the 7(D)-4 redactions were

applied in conjunction with either Exemption 1, 3, 6, and 7(C). See First Hardy Decl. ¶ 86. In fact,

of the 16 pages that bear 7(D)-4 redactions, only one is not also covered by another statutory

exemption: Mandela-687.6 Because the Court has already upheld the application of these

overlapping exemptions, it will confine its discussion to Mandela-687, a report summarizing

information provided by an FBI informant regarding the South African government’s position on

the location of Mandela’s detention following his arrest. Given the nature of the records, the FBI

needed to rely on information found within the file itself to determine whether a source was likely

6
The FBI applied Exemption 7(D)-4 to the following pages: Mandela-460, 488, 529, 686,
687, 1190, 1191, 1496, 1497, 1498, 1499, 1501, 1502, 1503, 1504, 1505. First Hardy Decl. ¶ 86
n.36. Exemption 1 covers 460, 488, 686, 1497, 1499, 1502, 1503, 1504, 1505. Id. at 20 n.18.
Exemption 3 covers 460, 488, 1190, 1191, 1496, 1499, 1502, 1503, 1504, 1505. Id. at 26 n.22.
And Exemptions 6 and 7(C) cover 460, 488, 529, 1190, 1191, 1496, 1497, 1498, 1499. Id. at 29–36
nn.25–31.
18
to have believed his or her participation in an investigation would remain confidential. See Third

Hardy Decl. ¶ 20. This limited the amount of information available to the FBI when making its

determination. See id. Typically, in those instances “where an FBI Special Agent has indicated

that an individual is sufficiently situated whether by their proximity to information or their actual

access to information,” the FBI employs a practice of redacting their information pursuant to an

implied assurance of confidentiality. Id. The FBI justifies this practice because proximity or access

to targets of investigative or national security interest likely exposed these sources “to potential

significant harms that last through today, should their association and cooperation with the FBI be

publicly disclosed.” First Hardy Decl. ¶ 86. Finally, in the FBI’s experience, “the identities of

these sources and the singular information they provided would only be provided with the belief

that their cooperation with the FBI would not be revealed.” Id.

The source in Mandela-687, for example, had “provided detailed, reliable, and accurate

information previously.” Id. In examining the disclosed portions of the record, the Court can see

that the source had provided information regarding Mandela’s then-current whereabouts and had

offered an opinion as to what the South African government intended to do with him. Pl.’s Reply,

Ex. 3 (Mandela-686-88). It would be reasonable for the FBI to infer that this type of information

and analysis of the apartheid government’s plans and intentions came from a source with a high-

level political connection or “ready access” to areas of national security interest. In addition, such a

source might bear significant risks if their identity was revealed, including “disastrous effect on [the

source’s] career,” risk of retaliation, and threats to the source’s family. First Hardy Decl. ¶ 86. All

of these inferences would support a finding that the Mandela-687 source would only provide

information if the source believed his or her identity would stay confidential. Because Shapiro has

not offered any evidence to challenge these logical conclusions, the Court will uphold the FBI’s

application of the 7(D)-4 redaction to Mandela-687.

19
 G. Exemption 7(E)

FOIA Exemption 7(E) authorizes agencies to withhold “records or information compiled for

law enforcement purposes [that] would disclose techniques and procedures for law enforcement

investigations or prosecutions, or would disclose guidelines for law enforcement investigations or

prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.”

5 U.S.C. § 552(b)(7)(E). “Satisfying the exemption is a ‘relatively low bar’ in this Circuit.”

Bigwood v. Dep’t of Defense, 132 F. Supp. 3d 124, 152 (D.D.C. 2015) (quoting Blackwell v. FBI,

646 F.3d 37, 42 (D.C. Cir. 2011)). An agency need only “demonstrate logically how the release of

the requested information [may] create” a risk of circumvention. Blackwell, 646 F.3d at 42

(internal quotation omitted). And “where an agency specializes in law enforcement, its decision to

invoke Exemption 7 is entitled to deference.” Barnard v. Dep’t of Homeland Sec., 598 F. Supp. 2d

1, 14 (D.D.C. 2009) (quoting Campbell, 164 F.3d at 32).

The FBI applied Exemption 7(E) in a categorical fashion based on the type of information it

was redacting. Shapiro challenges the following categories of redactions:7 (1) sensitive details

regarding security at special events, such as Mandela’s visits to the United States; (3) the

investigative focus of a particular investigation; (5) the methods the FBI uses to collect and analyze

information obtained for investigative purposes; (6) database identifiers or the format of database

entries; (8) sensitive file numbers or sub-file names that are created through a combination of a

classification number, designation for the originating office, and case number; and (10) dates

investigations were initiated or investigation types. Pl.’s Cross-MSJ 27–28. The majority of

Shapiro’s grievances are easily dismissed.

7
The following numbers track the FBI’s categorization of the redactions. The missing
numbers were not challenged by Shapiro, and need not be addressed here.
20
 With respect to sensitive security details for special events in the past, Shapiro argues they

have no bearing on techniques used today and, therefore, disclosing them would not risk

circumvention of the law. The FBI has unequivocally confirmed though that “[it] only withheld

security details still in use today or similar in nature to methods used today for protection.” Third

Hardy Decl. ¶ 27. Release of such details could therefore “potentially risk the lives of individuals

providing protection as well as those seeking protection.” First Hardy Decl. ¶ 91. For example,

“determining a pattern in the FBI’s use of certain types of vehicles or travel preferences could

present a problem,” by “allowing criminals to predict the actions of security personnel.” Id. The

FBI’s assurances thus demonstrate a sufficient nexus between its withholdings and the risk of

circumvention to justify the use of the exemption.8

The explanations offered by the FBI likewise justify its withholdings of information related

to the subjects and tools of its investigations under 7(E)-3 and 7(E)-5. Given the wide swath of

records uncovered that mention Mandela (often merely in passing), the FBI redacted material

concerning the subject of investigations when it “reveal[ed] details of these investigations, the

priority the FBI place[d] on the investigations, [or] when combined with other public information

. . . could reveal the volume of information gathered in relation to a particular area of crime or a

subject.” Third Hardy Decl. ¶ 28. Disclosing this information, the FBI asserts, “would allow a

criminal to gauge the FBI’s strengths and weaknesses within certain areas of the criminal arena and

8
The FBI also invoked Exemption 7(E)-1, in conjunction with Exemption 5, to withhold (in
full) a draft Operations Plan concerning preparations for sending a U.S. delegation to South Africa
for former President Mandela’s funeral. Third Hardy Decl. ¶ 9. The Court concluded that the
FBI’s application of Exemption 5 might not be justified for reasons discussed earlier in the opinion.
See supra Section III.B. Because the Court generally upholds the application of Exemption 7(E) to
protect sensitive security details that “are still in use today or similar in nature to methods used
today,” it will request that the FBI indicate what information would fall within this protection when
submitting the full ten-page plan for in camera review.
21
structure their activities in a manner that avoids detection and disruption by the FBI.” First Hardy

Decl. ¶ 92. Shapiro contends that there is no risk of circumvention when details are revealed from

the “yellowing pages of long-closed FBI files.” Pl.’s Reply 10. Even crediting his unfounded

assertion that all these files are “long-closed,” Shapiro has failed to offer any evidence that this

information would not remain relevant to deciphering the patterns of the FBI’s investigations and

its current strengths and weaknesses. With respect to the collection and analysis of information

used for investigative purposes, the FBI redacted information on 13 pages that would reveal “how

and from where [it] collects information and methodologies[.]” First Hardy Decl. ¶ 94. It did so

because disclosing the information “would enable subjects of FBI investigations to circumvent

similar currently used techniques.” Id. (emphasis added). Criminals could use this information, in

the FBI’s view, “to educate themselves about the techniques employed . . . allow[ing] [them] to take

countermeasures to circumvent the effectiveness of these techniques to continue to violate the law

and engage in intelligence, terrorist, and criminal activities.” Id. Exposing the methods used to

collect information, along with the focus of those investigations, would also purportedly “reveal

resource allocations to that particular area of crime.” Third Hardy Decl. ¶ 27. These facially

logical explanations of why disclosure of information regarding closed cases could reveal

“currently used” law enforcement techniques are sufficient to defeat Shapiro’s obsolescence

argument.9

9
Shapiro points to three specific redactions as examples of unwarranted 7(E) withholdings.
After a close examination of Mandela 52, 62, and 78, however, the Court is even more convinced
that these redactions fall well within Exemption 7(E)’s protection. Each redaction seems to
describe a particular observation or result of a fingerprint examination. Disclosing such
information could, therefore, reasonably disclose information about how the FBI analyzes
fingerprints and what sort of details a fingerprint examination could reveal to a criminal hoping to
avoid forensic detection.

22
 Shapiro next attacks the FBI’s decision to withhold the names of its investigative databases

and investigative details, such as the type of investigation and the date it was initiated, from the

records it released.10 He argues that at least one database name had already been disclosed in a

prior FOIA response, and alternatively, that the FBI has not established that these names are not

generally known to the public. Pl.’s Cross-MSJ 30–31. The FBI rejoins that the name of the

database alone is not the issue, but rather the “nexus of publicly available information with specific

records.” Third Hardy Decl. ¶ 30. Unveiling this nexus “would reveal what specific types of

information are considered relevant to these databases as well as the methods for input of data

[which] could enable criminals to employ countermeasures to avoid detection.” First Hardy Decl.

¶ 95. And an understanding of which databases are used to track different types of crimes or

investigations and the sort of details they maintain, for instance, could provide a criminal

mastermind a deeper insight into how the FBI conducts its investigative activities. See Gosen v.

U.S. Citizenship & Immigration Servs., 75 F. Supp. 3d 279, 290 (D.D.C. 2014) (upholding the

government’s redaction of database names). Likewise, if the FBI were to reveal the type of

investigation or the date it commenced, individuals would potentially discern “the type of activities

that would trigger a full investigation as opposed to a preliminary one . . . which would allow

[them] to adjust their behavior” to avoid detection. First Hardy Decl. ¶ 99. For these types of

withholdings, the FBI is relying on a “mosaic” argument to justify its redactions: The idea that

“bits and pieces of data may aid in piecing together bits of other information even when the

individual piece is not of obvious importance in itself.” Sims, 471 U.S. at 178. So that “[w]hat

may seem trivial to the uninformed, may appear of great moment to one who has a broad view of

10
Shapiro also questions the application of this exemption to a database entry of an
individual’s date of birth. The FBI also justified this redaction, however, under Exemptions 6 and
7(C), which the Court previously addressed and upheld. See supra Section III.E. There is no need
then for the Court to decide if 7(E) -6 was properly applied to Mandela-1032.
23
the scene and may put the questioned item of information in its proper context.” Ctr. for Nat. Sec.

Studies, 331 F.3d at 928–29. The FBI is concerned that releasing hundreds of these files at once,

each with bits of information disclosed, would provide someone a holistic view of the FBI’s

investigatory techniques, processes, and priorities. See Third Hardy Decl. ¶ 41. Finding this

explanation generally convincing, the Court will again defer to the FBI’s reasoned judgment in

areas of national security and counterterrorism, and concludes that the FBI has passed the “low bar”

imposed by 7(E). Cf. United States v. Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989) (“Things that did

not make sense to the District Judge would make all too much sense to a foreign counter-

intelligence specialist who could learn much about this nation's intelligence-gathering capabilities

from what these documents revealed about sources and methods.”); see also Shapiro, 2017 WL

908179 at *11 (“Plaintiffs’ request must be construed as part of a larger mosaic. Understood in that

manner, aggregate information about the number of files or documents that bear a designation for

[terrorism] may shed considerable light on the overall resources that a particular office . . . is

devoting to investigating related crimes.”).

Lastly, Shapiro spends many pages challenging the FBI’s redaction of sensitive file numbers

from over 80 pages of released records.11 Many of these arguments and the FBI’s responses to

them were presented to and thoroughly analyzed by Judge Moss in an opinion published earlier this

month. See Shapiro, 2017 WL 908179 at *9–12. As in that case, this Court is also unpersuaded by

the majority of Plaintiff’s arguments because the FBI has shown that releasing this information

could “provide[] a birds-eye view of FBI resource allocation and thus, FBI vulnerabilities and

capabilities.” Third Hardy Decl. ¶ 33. The Court also recognizes, however, that in the case of

11
Almost all of these exemptions were applied in conjunction with Exemptions 1 and 3.
From the Court’s comparison, the only redactions that are covered solely by Exemption 7(E)-8 are
Mandela-1216, 1217, and 1517. See First Hardy Decl. ¶ 98 n.45.
24
decades-old investigations, like those potentially at play here, “the FBI needs to do more to explain

how its disclosure of information revealing the originating office for that investigation or any other

information, poses a present day threat of circumvention of the law.” Id. at *12. Accordingly, the

Court cannot discern on the present record if Mandela-1216, 1217, and 1517 relate to active,

recently closed, or decades-old investigations. It will therefore deny both motions for summary

judgment as to these three redacted pages, and order the FBI to either release the records without

redactions or renew its summary judgment motion along with a supplemental declaration presenting

“additional evidence and explanation regarding the specific risk posed by disclosure of [these] file

numbers.” Id.

H. Non-Responsiveness Determinations

Shapiro’s final point of contention rests with the FBI’s definition of a responsive record for

purposes of FOIA. Pl.’s Cross-MSJ 44. In Shapiro’s opinion, a single (or a few) pages from a

larger compilation of documents cannot form the entirety of a responsive record. Rather, once the

FBI has found a reference to the subject of a FOIA request in a multi-topic document—whether it

be a book, manual, memorandum, or case file—it is under an obligation to mark the entire

document responsive and release it to the requester subject only to statutorily authorized

exemptions. In support of his view, Shapiro has identified several examples of a series of records

released by the FBI that are missing pages. See id. at 44–45 (listing Mandela 532-543, 1175-1186,

1177-1178, 516-517, 456-57, 458-460 as examples). To illustrate, Mandela 532-543 are pages

discussing the United States’ Communist Party support for Mandela and the African National

Congress, and they appear to the Court to be part of a larger memorandum reporting on the

activities of the Communist Party’s various leaders and regional offices. See Pl.’s Cross-MSJ, Ex.

3 (Mandela 532). Shapiro asserts that the entire memorandum should be considered one responsive

record because all of the pages belong to a larger compilation. The FBI cannot, therefore, simply

25
withhold pages 4 and 5 from it (which appear to be missing) unless it establishes that a FOIA

exemption applies to those specific pages. Pl.’s Cross-MSJ 44–45 (“The document skips from page

3 (Mandela-534) to page 6 (Mandela-535)”).

The FBI takes a different view. The agency chiefly takes issue with Shapiro’s framing of its

responsiveness determinations and his proposed definition of a responsive record. In conducting

the search relevant here, the FBI applied search terms from Shapiro’s request, which led to

responsive results contained on pages within larger documents, such as “memorandums, booklets,

handouts, intelligence information reports,” that “merely mention[ed] the subject of the FOIA

request in the context of other topics[.]” Third Hardy Decl. ¶ 43. Relying on long-standing practice

and guidance from the DOJ’s Office of Information Policy, the FBI “consider[ed] only the pages

mentioning the subject of the request and any pages necessary for context to constitute the

‘responsive record’ for FOIA purposes.” Id. Consequently, from the FBI’s perspective, the

“missing pages” Shapiro alludes to are not part of a responsive record, and the FBI is not obligated

by FOIA to release them.

Both parties rely on the D.C. Circuit’s recent decision in Am. Immigration Lawyers Ass’n v.

Exec. Office for Immigration Review (“AILA”), 830 F.3d 667 (D.C. Cir. 2016), to support their

positions. See Pl.’s Cross-MSJ 44–45; Def.’s Reply 11–13. In AILA, the agency responding to the

FOIA request had located responsive records, but had redacted information from email chains,

often no more than a sentence, that it deemed was unrelated and unresponsive to the request. Id. at

677. The D.C. Circuit held the redactions to contravene FOIA, which “compels disclosure of the

responsive record—i.e., as a unit—except insofar as the agency may redact information falling

within a statutory exemption.” Id. (citing 5 U.S.C. § 552(a)(3)(A), (b)). It reasoned that “nothing

in the statute suggests that the agency may parse a responsive record to redact specific information

within it even if none of the statutory exemptions shields that information from disclosure. To the

26
contrary, in expressly allowing for—and only for—“deletion of the portions” of a responsive record

which are exempt, the statute reinforces the absence of any authority to delete portions of a

responsive record which are not exempt.” Id. at 677–78 (internal quotation omitted). Yet AILA

does not resolve the issue in dispute here: Namely, what constitutes a responsive record to begin

with. See id. at 678 (“Here, the parties have not addressed the antecedent question of what

constitutes a distinct ‘record’ for FOIA purposes, and we have no cause to examine the issue.”).

What AILA does do is provide helpful guidance to inform the Court’s analysis. First, the

AILA court grounded its analysis upon the agency’s own definition of a responsive record. Id.

Second, it noted that the FOIA itself does not contain a functional definition of “record” by which

agencies can conform their practices. See id.; McGehee v. CIA, 697 F.2d 1095, 1114 (D.C. Cir.),

on reh’g sub nom. McGehee v. CIA, 711 F.2d 1076 (D.C. Cir. 1983). Rather, throughout the

history of FOIA, government entities have effectively defined what a record is when “undertak[ing]

the process of identifying records that are responsive to a request.” AILA, 830 F.3d at 678.

Relatedly, while FOIA and the courts might not have defined a record, the DOJ’s Office of

Information Policy has provided a helpful set of criteria for “agencies to take into account when

determining whether it is appropriate to divide [documents that cover multiple, unrelated topics]

into discrete ‘records.’” Id. (citing DOJ, OIP Guidance: Determining the Scope of a FOIA Request,

FOIA Update, Vol. XVI, No. 3 (1995), https://www.justice.gov/oip/blog/foia-update-oip-guidance-

determining-scope-foia-request). Those criteria include the requester’s intent, maintaining the

integrity of the released documents, the scope of the request, the agency’s own knowledge

regarding storage and maintenance of documents, efficiency, cost, resource allocation, and

maintaining the public’s trust in transparency. And last but not least, AILA set a minimum bar for

what cannot be considered a discrete, non-responsive record: a single (or perhaps a few) sentences

within an otherwise responsive paragraph. Id. at 679.

27
 Applying these broad principles to the facts of this case, the Court concludes that the FBI’s

practice is consistent with the D.C. Circuit’s guidance. The FBI’s search returned responsive

material and information, some of which was found in document compilations covering multiple,

unrelated topics. See Third Hardy Decl. ¶ 43. It located the responsive pages related to Shapiro’s

FOIA request, and included additional pages, as necessary, to provide context. Id. This set of

documents (i.e. pages) became the responsive record, which the FBI then reviewed for statutory

exemptions. The FBI easily clears AILA’s minimum hurdle because it did not withhold single

sentences, or even paragraphs, as non-responsive from within the results of its search. But rather,

relying on its own knowledge of its documents and DOJ OIP guidance, it determined that “it was

appropriate to divide a document [covering multiple, unrelated topics] into discrete ‘records.’”

AILA, 830 F.3d at 678. What is more, the FBI’s practice is also in keeping with practical

considerations. If an agency was forced to turn over a full manual or entire report every time a

single page contained a responsive term, the amount of time, labor, and cost that would be required

to review this purportedly “responsive” material for exemptions would be exponential, hindering

the agency’s ability to process multiple requests efficiently or allocate its resources effectively.

This does not put an end to the Court’s inquiry though. As with most challenges under

FOIA, the FBI here bears the burden of justifying its actions—such as when crafting a search

reasonably calculated to uncover responsive records, properly applying exemptions, or segregating

non-exempt material. The identification of or definition of a responsive record in a particular case

is no different: The burden will first rest with the agency to justify its actions when singling out a

responsive record from a greater compilation of documents. If satisfactory, the agency’s

explanation will merit a presumption of good faith. The requester, however, remains free to

challenge the agency’s explanation by offering evidence of positive indicia that the responsive

material was inappropriately withheld or of bad faith on the part of the agency. The agency will

28
then have an opportunity to respond to the requester’s allegations, and the Court will review their

arguments on the merits. In this case, Shapiro has brought several documents to the Court’s

attention as to which he challenges the FBI’s responsiveness determination. Without further details

in the record about how the FBI determined which pages within these documents were responsive,

the Court is unable to resolve this issue. Therefore, the Court will deny both motions for summary

judgment as to this issue and will order the FBI to, within 45 days, release the missing pages from

the particular records identified by Shapiro or renew its summary judgment motion along with a

supplemental declaration explaining its determinations in light of the analysis above.

IV. Conclusion

For the foregoing reasons, the Court will grant in part, reserve judgment in part, and deny in

part the FBI’s motion for summary judgment, and reserve judgment in part and deny in part

Shapiro’s cross-motion for summary judgment. A separate Order accompanies this Memorandum

Opinion.

CHRISTOPHER R. COOPER
United States District Judge

Date: March 31, 2017

29