Reporters Committee for Freedom of the Press v. Federal Bureau of Investigation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

THE REPORTERS COMMITTEE FOR _ )
FREEDOM OF THE PRESS, et al, )
)
Plaintiffs, )
)
Vv. ) Civil Case No. 15-1392 (RJL)
)
FEDERAL BUREAU OF )
INVESTIGATION, ef al, ) F T L ie D
)
Defendants. ) MAR 2 0 2020
Clerk, U.S. District & Bankruptey
MEMORANDUM OPINION Courts for the District of Columbia

(MarchZ® 2020) [Dkts. #48, #49]

The Reporters Committee for Freedom of the Press (*RCFP”) and the Associated
Press (“AP”) (collectively, “plaintiffs’) brought suit against the Federal Bureau of
Investigation (“FBI”) and the U.S. Department of Justice (“DOJ”) (collectively,
defendants”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to compel
defendants to release records concerning the FBI’s alleged practice of impersonating
members of the news media. After this Court adjudicated cross-motions for summary
judgment in the suit and that decision was on appeal, plaintiff RCFP filed a new suit against
defendants regarding new FOIA requests seeking similar but distinct records. When the
first suit was remanded, I consolidated these two suits. Before the Court are Defendants’
Motion for Summary Judgment [Dkt. #48] and Plaintiffs’ Cross-Motion for Summary
Judgment [Dkt. #49] regarding whether, under applicable FOIA exemptions, the FBI

properly withheld records newly found on remand as well as records found as a result of
the new FOIA requests. On consideration of the pleadings, relevant law, and the entire
record herein, the Court will GRANT defendants’ motion and DENY plaintiffs’ motion.
BACKGROUND

Over the course of six years, plaintiffs have sent four FOIA requests to the FBI for
records pertaining to its alleged practice of impersonating members of the news media in
criminal investigations. This story begins in June 2007, when law enforcement
investigated a series of anonymous bomb threats at Timberline High School near Seattle,
Washington, and ultimately identified the person responsible for the bomb threats. See
Pls.’ Combined Statement of Material Facts as to Which There Is No Genuine Issue and
Response to Defendants’ Statement of Material Facts (“Pls.’ Facts”).§55 [Dkt. #49-2],!
Years later, in October 2014, documents surfaced that showed how the FBI had identified
the person responsible at Timberline: by posing as an AP reporter and sending a website
link for a fake news article to a social media account associated with the threats. /d. 4 58.
When the account owner clicked on the link, it delivered a Computer and Internet Protocol
Address Verifier (“CIPAV”) to the suspect’s computer and allowed the FBI to identify the
user. /d. When these documents surfaced, news organizations, lawmakers, and the public
were concerned about the implications on freedom of the press that might arise when law

enforcement impersonates news media. /d. 4] 61-64.

' Unless noted otherwise, all docket references in this opinion are to Case No. 15-cv-1392.

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A. The 2014 Requests
In two separate letters on October 31, 2014, RCFP submitted two FOIA requests to
the FBI:

[A]ll records concerning the FBI’s utilization of links to what are or appear
to be news media articles or news media websites to install data extraction
software, remote access search and surveillance tools, or the “Computer and
Internet Protocol Address Verifier” (CIPAV).

Compl., Ex. B at 1 [Dkt. #1-2].

[A]jll records concerning the FBI’s guidelines and policies concerning
undercover operations or activities in which a person may act as a member
of the news media, including, but not limited to, the guidelines and policies
relating to the criminal and national security undercover operations review
committees and the Sensitive Operations Review Committee; guidelines and
policies concerning the use of investigative methods targeting or affecting
the news media, including, but not limited to, sensitive Title III applications;
and all guidelines and policies concerning sensitive investigative matters
involving the activities of the news media or relating to the status,
involvement, or impact of an investigation upon the news media.

Compl., Ex. C at 1 [Dkt. #1-3].
In a letter on November 6, 2014, the AP submitted one similar FOJA request to the
FBI seeking three categories of records:

Any documents referring to the decision to create the fake AP news article
in the Timberline High School case. In particular, | seek correspondence
between the FBI’s Seattle office and FBI headquarters about the case. | also
seek a copy of the internal review carried out by the FBI and a copy of the
Web link sent by the FBI to suspect in 2007.

An accounting of the number of times, between Jan. 1, 2000 and Nov. 6,
2014, that the Federal Bureau of Investigation has impersonated media
organizations or generated media-style material (including but not limited to
emails, webpages or links) to deliver malicious software to suspects or
anyone else caught up in an investigation.
Any documents [—] including training material, review and policy briefings

[—] dealing with the creation and deployment of bogus news stories or

media-style material in an investigative context.
Compl., Ex. A at | [Dkt. #1-1].

B. The First Suit

After the FBI failed to comply with these requests, plaintiffs RCFP and the AP filed
a suit alleging that defendants failed to comply with statutory deadlines, wrongfully
withheld agency records, and failed to conduct a reasonable search. See Compl. {{ 58-74
[Dkt. #1]. After plaintiffs filed suit, the FBI completed a two-part search that generated
267 pages of records, of which the FBI released 186 pages in full or in part and withheld
81 pages in full pursuant to FOIA Exemptions 1, 3, 5, 6, 7(C), and 7(F). See Decl. of
David. M. Hardy (‘First Hardy Decl.”) § 32 [Dkt. #18-1]. After two supplemental
productions, the parties cross-moved for summary judgment.

On February 23, 2017, I granted summary judgment to defendants in full, RCFP v.
FBI, 236 F. Supp. 3d 268 (D.D.C. 2017), holding that the search was adequate, id. at 275—
76, that the FBI had properly justified its withholdings based on applicable FOIA
exemptions, id. at 277-79, and that the FBI reasonably segregated information that may be
disclosed, id. at 279-80.

Plaintiffs appealed this Court’s ruling only as to the adequacy of the FBI’s search.
On December 15, 2017, our Circuit Court identified three deficiencies in the FBI’s prior
search efforts and reversed and remanded the case. RCFP v. FBI, 877 F.3d 399, 408 (D.C.

Cir. 2017). In short, it concluded that the FBI Director’s Office was “intimately involved”
in the agency’s response to publicity surrounding the Timberline incident in 2014 and
therefore should be, but was not, searched for responsive records. /d. at 406-07.
C. The 2017 Requests

On December 5, 2017, while plaintiffs’ appeal was pending before our Circuit,
RCFP submitted another FOIA request to the FBI for six categories of records. See
Compl., Ex. A at 1-2, RCFP v. FBI, No. 18-cv-345 (D.D.C. Feb. 14, 2018) [Dkt. #1-1].
The first two categories are identical to those RCFP had previously requested except that
they sought records from after November 1, 2014, the FBI’s previous cutoff date for the
search:

All records consisting of, reflecting, referencing, or discussing the FBI’s

utilization of links to what are or appear to be news media articles or news

media websites to install data extraction software, remote access search and

surveillance tools, or the “Computer and Internet Protocol Address Verifier”

(“CIPAV’”), since November 1, 2014.

All records consisting of or reflecting the FBI’s guidelines and policies

concerning undercover operations or activities in which a person may act as

a member of the news media, since November 1, 2014.
Id. at 1. The latter four categories were new and related to a report that the Office of the
Inspector General (“OIG”) for the Department of Justice released in September 2016:

The FBI’s Interim Policy Notice (PN) 0907N, adopted on or about June 7,

2016, and titled “Undercover Activities and Operations—Posing as a

Member of the News Media or Documentary Film Crew” (the “Interim
Policy Notice”)... ..

The “comments” provided by the FBI to the Department of Justice Office of
the Inspector General in response to a draft of the IG Report, ...

Any and all records consisting of, referencing, or discussing FBI efforts to
inform its employees about the Interim Policy Notice.
Any and all revisions, updates, or modifications to the Interim Policy Notice
since June 8, 2016.

Id. at 1-2.
D. The Second Suit

After the FBI again failed to comply with the requests, RCFP sued defendants on
February 14, 2018, alleging that the FBI and DOJ failed to comply with statutory deadlines,
improperly withheld responsive records, and failed to conduct an adequate search. Compl.
9 33-54, RCFP v. FBI, No. 18-cv-345 (D.D.C. Feb. 14, 2018) [Dkt. #1]. RCFP noticed
its new suit as related to the earlier one, see Notice of Related Case, RCFP v. FBI, No. 18-
cv-345 (D.D.C. Feb. 14, 2018) [Dkt. #2], and then moved to consolidate the two actions,
see Mot. to Consolidate Cases, RCFP v. FBIJ, No. 18-cv-345 (D.D.C. Mar. 9, 2018) [Dkt.
#11]. On February 11, 2019, I granted the consolidation motion and instructed the parties
to file all further filings in this docket. See 2/11/2019 Min. Order, RCFP v. FBI, No. 18-
345 (D.D.C.).

After our Circuit Court’s remand, the FBI searched for additional records responsive
to the 2014 Requests and records responsive to the 2017 Request. See Defs.’ Statement of
Material Facts as to Which There Is No Genuine Issue (“Defs.’ Facts”) 9] 32-33 [Dkt. #48-
2); Pls.’ Facts 9] 32-33. The search generated 611 pages of records, 13 of which were
responsive to the 2014 Requests, 246 of which were responsive only to both the 2014 and
2017 Requests, and 352 of which were responsive only to the 2017 Request. Pls.’ Facts
468. The FBI released 328 pages in full or in part and withheld 283 pages in full (including

201 pages withheld as duplicative) pursuant to FOIA Exemptions 1, 3, 5, 6, 7(C), and 7(E).

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Defs.’ Facts, Ex. L, Third Decl. of David M. Hardy (“Third Hardy Decl.) 9§ 5, 86 [Dkt.
#48-3],

Plaintiffs and defendants now move for summary judgment in both cases. See
Defs.’ Mot. for Summ. J. (‘“Defs.’ Mot.”) [Dkt. #48-1]; Pls.’ Cross-Mot. for Summ. J.
(“Pls.” Cross-Mot.”) [Dkt. #49-1].

STANDARD OF REVIEW

Summary judgment is warranted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “FOIA cases typically and appropriately are decided on motions for
summary judgment.” See Campbell v. Dep’t of Justice, 133 F. Supp. 3d 58, 63 (D.D.C.
2015) (internal quotation marks omitted), “Courts review an agency’s response to a FOIA
request de novo.” Id.

“To prevail on summary judgment, an agency must demonstrate that it conducted a
search reasonably designed to uncover responsive documents, that any materials withheld
fall into a FOIA statutory exemption, and that it disclosed all reasonably segregable,
nonexempt material.” /d. at 64. “An agency withholding responsive documents from a
FOIA release bears the burden of proving the applicability of claimed exemptions.” ACLU
v. Dep't of Def, 628 F.3d 612, 619 (D.C. Cir. 2011). An agency usually does so by
submitting an affidavit. Jd “If an agency’s affidavit describes the justifications for
withholding the information with specific detail, demonstrates that the information
withheld logically falls within the claimed exemption, and is not contradicted by contrary

evidence in the record or by evidence of the agency’s bad faith,” summary judgment is

ih
warranted. /d, “[A]n agency’s justification for invoking a FOIA exemption is sufficient if
it appears ‘logical’ or ‘plausible.’” /d. (internal quotation marks omitted).

Additionally, for FOIA requests made after June 30, 2016, agency withholdings
must meet an additional “foreseeable harm” standard codified in the FOIA Improvement
Act of 2016. See Pub. L. No. 114-185, § 6, 130 Stat. 538, 544-45. Under this standard,
an agency should withhold information that technically falls within one of FOJA’s
exemptions only if “the agency reasonably foresees that disclosure would harm an interest
protected by” a statutory exemption in 5 U.S.C. § 552(b), or if “disclosure is prohibited by
law.” 5 U.S.C. § 552(a)(8)(A). Though our Circuit Court has not yet weighed in on this
new requirement, my colleagues agree that agencies must at least “group together like
records” and “explain the foreseeable harm of disclosure for each category.” See, e.g.,
Rosenberg v. Dep't of Def., 342 F. Supp. 3d 62, 78 (D.D.C. 2018); accord Judicial Watch,
Inc. v. Dep’t of Commerce, 375 F. Supp. 3d 93, 99 (D.D.C. 2019); Ctr. for Investigative
Reporting v. Customs & Border Protection, No. 18-cv-2901, 2019 WL 7372663, at *10
(D.D.C. Dec. 31, 2019); Judicial Watch, Inc. v. Dep’t of Justice, No. 17-cv-832, 2019 WL
4644029, at *4 (D.D.C. Sept. 24, 2019).

Finally, even if parts of a document are exempt from disclosure, FOIA mandates
that any “reasonably segregable portion of a record” be released. 5 U.S.C. § 552(b).

ANALYSIS
I. Law of the Case and Collateral Estoppel
At the outset, defendants argue that plaintiffs’ claim that the FBI did not properly

withhold records under applicable FOIA exemptions is precluded under both the law of the

8
case doctrine and collateral estoppel. Defs.’ Mot. at 9-14.? After I granted summary
judgment to defendants the first time and upheld the FBI’s withholdings under Exemptions
1, 3, 5, 6, 7(C), and 7(E), plaintiffs did not seek appellate review of this Court’s rulings on
those withholdings. See Br. for Pls.-Appellants at 14, No. 17-5042 (D.C. Cir. June 26,
2017); RCFP, 877 F.3d at 402. Defendants seize on this fact, but unfortunately for them,
it is of no moment. The applicability of FOIA exemptions is a fact-specific inquiry that
depends on analyzing each individual record or category of records withheld. Here, the
records at issue are too distinct from the records at issue in my previous ruling for either
the law of the case doctrine or collateral estoppel to apply.

Under the law of the case doctrine, “the same issue presented a second time in the
same case in the same court should lead to the same result.” LaShawn A. v. Barry, 87 F.3d
1389, 1393 (D.C. Cir. 1996) (en banc) (emphasis omitted). “[A] legal decision made at
one stage of litigation, unchallenged in a subsequent appeal when the opportunity to do so
existed, becomes the law of the case for future stages of the same litigation... .”
Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C. Cir,
1987).

At issue here are the agency’s withholdings of two types of documents: (1) records

responsive to the 2014 Requests that were found after our Circuit’s remand required

defendants to search the FBI Director’s Office; and (2) records searched for and found in

* Defendants assert that their rationales for withholding documents under Exemptions |, 3, 5, 6, and 7(C),
as well as most of their rationales for withholding documents under Exemption 7(E), are the same as in the
previous litigation. See Defs.” Mot. at 10-11 & n.5.

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response to the 2017 Request. See Compl., RCFP v. FBI, No. 18-cv-345; Pls.’ Cross-Mot.
at 12. In my February 23, 2017 opinion, I did not consider the applicability of FOIA
Exemptions 1, 3, 5, 6, 7(C), and 7(E) to any of these documents, to say the least. See
RCFP, 236 F. Supp. 3d at 272-74. Even still, defendants argue that “the vast majority of
withholdings in [their] supplemental production are supported by the same rationales that
supported the withholdings in the earlier proceedings.” Defs.’ Mot. at 10-11. Although
RCFP has acknowledged the similarity between the FOIA requests and the rationales for
the withholding of responsive records, see Mot. to Consolidate at 2, RCFP v. FBI, No. 18-
cv-345, the cases defendants cite do not stand for the proposition that law of the case
applies where the agency has withheld new documents based on the same or similar
rationales that the Court has endorsed with respect to other documents. See Yunes v. Dep't
of Justice, 263 F. Supp. 3d 82, 85, 88 (D.D.C. 2017) (applying law of the case doctrine to
not disturb court’s prior decision that certain records were properly withheld when court
considered withholding of one additional record); Charles v. Office of the Armed Forces
Med. Examiner, 979 F. Supp. 2d 35, 41-42 (D.D.C. 2013) (adopting as law of the case the
court’s previous rulings regarding applicability of FOIA exemptions while considering the
remaining issue of segregability of records). Indeed, I found no cases that stand for such a
proposition. Because this Court has never held that any of the records at issue here were
properly withheld, the law of the case doctrine has no application.

Defendants’ collateral estoppel argument is no more meritorious. For collateral
estoppel to apply, (1) “the same issue now being raised must have been contested by the

parties and submitted for judicial determination in the prior case”; (2) “the issue must have

10
been actually and necessarily determined by a court of competent jurisdiction in that prior
case”; and (3) “preclusion in the second case must not work a basic unfairness to the party
bound by the first determination.” Yamaha.Corp. of Am. v. United States, 961 F.2d 245,
254 (D.C. Cir. 1992). The party invoking issue preclusion “bears the burden of establishing
that the conditions for its application have been satisfied.” /n re Subpoena Duces Tecum,
439 F.3d 740, 743 (D.C. Cir. 2006).

While “[c]ourts routinely enforce issue preclusion in the FOIA context,” Defs.’ Mot.
at 12, it does not apply under these circumstances. The key to collateral estoppel in the
FOIA context is that the documents withheld, not the rationales for the withholdings, be
the same. See Lardner v. Dep’t of Justice, 638 F. Supp. 2d 14, 23 (D.D.C. 2009). In Martin
v. Department of Justice, 488 F.3d 446 (D.C. Cir. 2007), our Circuit Court upheld the
district court’s application of collateral estoppel where the plaintiff sought disclosure of
the same report for which the agency’s withholding had already been litigated and decided.
Id. at 454-55, In Roman v. National Reconnaissance Office, 952 F. Supp. 2d 159 (D.D.C.
2013), the district court applied collateral estoppel where the plaintiff sought to relitigate
the withholding of documents that were “identical to the documents” at issue in the earlier
case. /d. at 164-65. And in LaRouche v. Department of Treasury, 112 F. Supp. 2d 48
(D.D.C. 2000), the district court applied collateral estoppel where the plaintiff sought two
documents that had already been litigated and held to be protected from disclosure in a
separate case. Jd. at 55-56.

Defendants attempt to rely on National Treasury Employees Union vy, IRS, 765 F.2d

1174 (D.C. Cir. 1985), but it does not extend as far as defendants want. There, the court

11
applied collateral estoppel to FOIA requests for the same tax form but for successive years.
See id. at 1175, 1177. Whereas the documents there were exactly the same, the documents
here are different. “[I]fthe relevant facts in the two cases are separable, even though they
be similar or identical, collateral estoppel does not govern the legal issues which recur in
the second case.” Comm’r of Internal Revenue v. Sunnen, 333 U.S. 591, 601 (1948).

A valid rationale for withholding one set of documents does not necessarily apply
equally to every other set of documents. See Elec. Frontier Found. v. Dep’t of Justice, 141
F. Supp. 3d 51, 56 (D.D.C. 2015); Hall v. CIA, 668 F. Supp. 2d 172, 187 (D.D.C. 2009),
To justify its withholdings under FOJA exemptions, an agency “must provide a relatively
detailed justification, specifically identifying the reasons why a particular exemption is
relevant and correlating those claims with the particular part of a withheld document to
which they apply.” Mead Data Cent., Inc. v. Dep't of Air Force, 566 F.2d 242, 251 (D.C.
Cir. 1977). In its affidavit, the agency must “describe the documents and the justifications
for nondisclosure with reasonably specific detail [and] demonstrate that the information
withheld logically falls within the claimed exemption.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981). Adopting defendants’ position that collateral estoppel
applies where the agency’s rationales for withholding documents are the same, regardless
of what the specific documents are, would violate our Circuit’s long held requirement that

agencies justify withholdings with details specific to the documents at issue. See Mead

12
Data Cent., 566 F.2d at 251. Put simply, their position would endorse judicial laziness.
That I cannot do.’
II. Applicability of FOIA Exemptions

Under FOIA, agencies are required to produce requested information unless it falls
into one of nine statutory exemptions. See 5 U.S.C. § 552(b); Murphy v. Exec. Office for
U.S. Attorneys, 789 F.3d 204, 206 (D.C. Cir. 2015). When documents are withheld, the
agency bears the burden of demonstrating the documents were properly withheld. See
ACLU, 628 F.3d at 619. Agencies often produce a Vaughn index, see Vaughn v. Rosen,
484 F.2d 820 (D.C. Cir. 1973), and provide information in affidavits or declarations to
meet this burden. The FBI here withheld information in full and in part citing FOIA
Exemptions 1, 3, 5, 6, 7(C), and 7(E). Plaintiffs challenge the applicability of many of the
FBI’s withholdings under Exemptions 5, 6, 7(C), and 7(E). I address each of these claimed
exemptions in turn,

a. Exemption 5

The FBI partially withheld 99 pages of material under FOIA Exemption 5, which
exempts from disclosure “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). Exemption 5 “incorporates the traditional privileges that the

Government could assert in civil litigation against a private litigant” such as “the

> Because I conclude that law of the case and collateral estoppel do not apply, I need not address plaintiffs’
alternative arguments that the new “foreseeable harm” requirement Congress imposed in the FOJA
Improvement Act of 2016 is an intervening change in the law that precludes applying these doctrines. See
Pls.’ Cross-Mot. at 15, 18.

13
deliberative process privilege.” Baker & Hostetler LLP v. Dep’t of Commerce, 473 F.3d
312, 321 (D.C. Cir. 2006). The deliberative process privilege includes “documents and
other materials that would reveal ‘advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are
formulated.’” Jn re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). The deliberative
process privilege serves several purposes, including “to assure that subordinates within an
agency will feel free to provide the decisionmaker with their uninhibited opinions and
recommendations without fear of later being subject to public ridicule or criticism” and “to
protect against confusing the issues and misleading the public by dissemination of
documents suggesting reasons and rationales for a course of action which were not in fact
the ultimate reasons for the agency’s action.” Coastal States Gas Corp. v. Dep’t of Energy,
617 F.2d 854, 866 (D.C. Cir. 1980).

Plaintiffs contend that defendants have failed to provide sufficient detail for the
Court to determine whether the deliberative process privilege applies to six categories of
withheld documents. I disagree. Two requirements are essential to the applicability of the
deliberative process privilege: “the material must be predecisional and it must be
deliberative.” In re Sealed Case, 121 F.3d at 737. To be predecisional, documents must
have been “generated before the adoption of an agency policy.” Coastal States Gas Corp.,
617 F.2d at 866. To be deliberative, documents must “reflect|] the give-and-take of the
consultative process.” Jd. An agency seeking to withhold information under the
deliberative process privilege must provide a specific description in its Vaughn index of

each individual document and the role it plays in the decisionmaking process. For each

14
document, the agency must show “(1) what deliberative process is involved, (2) the role
played by the documents in issue in the course of that process, and (3) the nature of the
decisionmaking authority vested in the office or person issuing the disputed document[s],
and the positions in the chain of command of the parties to the documents.” Hardy v.
Bureau of Alcohol, Tobacco, Firearms & Explosives, 243 F. Supp. 3d 155, 168 (D.D.C.
2017) (first quoting Senate of P.R. v. Dep’! of Justice, 823 F.2d 574, 585-86 (D.C. Cir.
1987); then quoting Arthur Andersen & Co. v. IRS, 679 F.2d 254, 258 (D.C. Cir. 1982)).
First, the FBI withheld an email chain providing recommended revisions to a draft
letter to the editor of the New York Times. Third Hardy Decl. | 50. According to David
M. Hardy, the Section Chief of the Record/Information Dissemination Section of the FBI’s
Information Management Division, these emails “‘precede[d] former FBI Director Comey’s
letter” and “contain detailed discussions and proposals leading to the decision about how
the FBI would respond” to inquiries concerning the FBI’s Timberline Investigation. Jd.
451. The FBI has sufficiently “pinpoint[ed] an agency decision or policy to which the
document[s] contributed,” Senate of P.R., 823 F.2d at 585: the decision of how to respond
to public inquiries about the FBI’s impersonation of news media. Plaintiff counters that
deliberations “about how to present an already decided policy to the public” cannot be
protected by the deliberative process privilege. Pls.’ Cross-Mot. at 25-26. But multiple
members of this court, including myself, have disagreed: if documents are “generated as
part of a continuous process of decision making” such as “how to respond to on-going
inquiries” from the press or Congress, they are predecisional and deliberative. Judicial

Watch, Inc. v. Dep't of Homeland Sec., 736 F. Supp. 2d 202, 208 (D.D.C. 2010); see also

15
Judicial Watch, Inc. v. Dep't of Treasury, 796 F. Supp. 2d 13, 31 (D.D.C. 2011); Judicial
Watch, Inc. v. Dep’t of Homeland Sec., 880 F. Supp. 2d 105, 111-12 (D.D.C. 2012). Mr,
Hardy further explains that disclosing email discussions like this one would cause agency
personnel to “be less candid and more circumspect in expressing their thoughts, which
would impede the fulsome discussion of issues necessary to reach a well-reasoned
decision.” Third Hardy Decl. § 48. This foreseeable harm is among those Exemption 5
seeks to prevent. See Machado Amadis v. Dep’t of Justice, 388 F. Supp. 3d 1, 20 (D.D.C.
2019). I therefore conclude that this email chain was properly withheld.

Second, the FBI withheld drafts of the Office of the Inspector General’s report
regarding the FBI’s impersonation of a journalist in a criminal investigation. Third Hardy
Decl. §50. Mr. Hardy stated that these documents “precede[d] the final [OIG] report” and
“reflect advice and information that FBI and OIG shared” regarding the report. /d. 4] 52.
While true that drafts are not automatically exempt, see Judicial Watch, Inc. v. U.S. Postal
Service, 297 F. Supp. 2d 252, 260 (D.D.C. 2004), drafts “are commonly found exempt
under the deliberative process exemption” because they precede the final decision. People
for the Am. Way Found. v. Nat'l Park Serv., 503 F. Supp. 2d 284, 303 (D.D.C. 2007).
According to Deborah Waller, OIG’s Government Information Specialist and FOIA
Officer, disclosure of these drafts would be harmful because they would “reveal the thought
and decision-making processes of the OIG and may not reflect the agency’s final
decisions.” Decl. of Deborah M. Waller (“Waller Decl.”) 9] 14, 16 [Dkt. #48-4]. I

conclude that these drafts were properly withheld.

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Third, the FBI withheld filled-in copies of blank, fillable forms that FBI personnel
used to submit comments on the OIG draft report. Third Hardy Decl. 4] 50. Like the draft
reports themselves, these comment forms “precede|d] the final [OIG] report.” Jd. § 52.
These documents contain agency personnel’s “recommendations, opinions, and proposed
language” regarding the OIG’s draft report on the Timberline incident. Fourth Decl. of
David M. Hardy (“Fourth Hardy Decl.”) 9 17 [Dkt. #51-1]; see also Third Hardy Decl.
452. Although these forms contain “comments as to the factual accuracy” of the report,
see Pls.’ Reply in Opp. to Defs.’ Mot. for Summ. J. (“Pls.’ Reply”) at 10 [Dkt. #53],
sometimes even “purely factual material may so expose the deliberative process” that it
falls under Exemption 5. Mead Data Cent., 566 F.2d at 256. The Court is satisfied that
any factual comments are so intrinsically linked to the FBI personnel’s recommendations
and opinions regarding the OIG draft report that disclosure could expose the deliberative
process. /d. As to what harm the agency foresees, Mr. Hardy predicts that “FBI employees
would hesitate to offer their candid and conscientious opinions to superiors or coworkers
if they knew their opinions of the moment might be made a matter of public record at some
future date.” Third Hardy Decl. § 49; see also Fourth Hardy Decl. § 18 (‘Disclosing any
of the information” withheld would cause “employees [to] come to fear their unrefined
opinions could become subject to public disclosure through the FOIA.”). I therefore
conclude that these comment forms were properly withheld.

Fourth, the FBI withheld drafts of PowerPoint slides concerning undercover
operations. Third Hardy Decl. 4] 50. According to Mr. Hardy, these drafts “precede[d] a

potential final PowerPoint presentation regarding FBI’s policies and procedures” and

17
“reflect preliminary proposals and recommendations about how to ultimately instruct FBI
personnel about conducting undercover operations.” /d. 4 53. As previously noted, drafts
“are commonly found exempt under the deliberative process exemption” because they
precede the final decision. People for the Am. Way Found., 503 F. Supp. 2d at 303. Like
drafts of the OIG report, the agency reasonably foresees harm, as disclosure would “reveal
the thought and decision-making processes of the OIG and may not reflect the agency’s
final decisions.” Waller Decl. §§ 14, 16. I conclude these drafts were also properly
withheld.

Fifth, the FBI withheld an OIG memorandum discussing preliminary conclusions
and recommendations regarding the Timberline investigation. Third Hardy Decl. 4 50.
According to Ms. Waller, the memorandum accompanied the OIG’s final report but
contained references to predecisional communications between the Inspector General and
the FBI that preceded the final report. Waller Decl. § 19. These communications played
a part in the process by which OIG reached its final conclusions regarding the FBI’s
impersonation of a journalist. /d. Contrary to plaintiffs’ suggestion that the withheld
discussion contains a “final opinion” of the agency, see Pls.” Reply at 11, Ms. Waller
explained that the withheld information referenced predecisional discussions and
commentary that may not have been ultimately adopted by the agency and would reveal
decisionmaking processes. See Waller Decl. {] 19-20. This foreseeable harm is one of
the harms the deliberative process privilege is designed to prevent. See Coastal States Gas

Corp., 617 F.2d at 866. I conclude that this information was properly withheld.

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Sixth, the FBI withheld emails between FBI attorneys and other FBI personnel
“discussing matters pertaining to the application of an investigative technique,”
implementation of Policy Notice 0907N regarding certain undercover investigations, and
a DOJ OIG report “concerning information discussing the FBI’s handling of the Timberline
School Investigation.” Third Hardy Decl. § 50. According to Mr. Hardy, these emails
“precede[d] the FBI’s Policy Notice 0907N” and “reflect{] internal advice and
recommendations” regarding policy changes in the approval process for undercover
investigations involving impersonation of the news media. /d. § 54. He anticipates that
disclosure of such communications would cause FB] employees and attorneys to “hesitate
to offer their candid and conscientious opinions to superiors or coworkers,” thereby
“degrad[ing] the quality of agency decisions by depriving the decision-makers of fully-
explored options developed from robust debate.” Jd. | 49. This harm is foreseeable and
one that Exemption 5 was designed to protect against. See Cause of Action Inst. v. Dep’t
of Justice, 330 F. Supp. 3d 336, 355 (D.D.C. 2018). I thus conclude these emails were
properly withheld.

Withholding these six categories of documents readily satisfies the purposes
underlying Exemption 5 of FOIA. To say the least, agency personnel should not be “forced
to operate in a fishbowl” where their comments and contributions to an agency
decisionmaking process may become part of discovery in a case at any time. Mapother v.
Dep't of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). I would, however, join the chorus of
members of this court in rejecting the Government’s position, see Defs.’ Opp. to Pls.” Mot.

for Summ. J. at 7~9 [Dkt. #51], that general assertions of harm to the deliberative process

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are sufficient to satisfy the “heightened standard” of the FOIA Improvement Act’s
“foreseeable harm” requirement, see, e.g., Cir. for Investigative Reporting, 2019 WL
7372663, at *9. They are not. The Government would be wise in the future to heed such
rulings.

b. Exemption 6 and 7(C)

The FBI also withheld names and/or identifying information of various persons
from 196 pages of records under FOIA Exemptions 6 and 7(C). See Defs.’ Facts, Ex. K,
Index at 1-26 [Dkt. #48-3]. Exemption 6 exempts from disclosure “personnel and medical
files and similar files the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Similarly, Exemption 7(C) exempts
from disclosure “records or information compiled for law enforcement purposes,” the
disclosure of which “could reasonably be expected to constitute an unwarranted invasion
of personal privacy.” Jd. § 552(b)(7)(C). These exemptions reflect a balance between “the
privacy interests that would be compromised by disclosure” and “the public interest in
release of the requested information.” Sussman v. Dep't of Justice, 494 F.3d 1106, 1115
(D.C. Cir. 2007).

The FBI has asserted Exemptions 6 and 7(C) for records containing names and/or
identifying information for (1) FBI special agents and support personnel, (2) non-FBI
federal government personnel, (3) third parties of investigative interest, (4) third parties
merely mentioned, and (5) local law enforcement personnel. Plaintiffs do not contest the
withholding of names and identifying information of third parties, i.e., the third and fourth

categories. Pls.’ Cross-Mot. at 31 & n.6. Plaintiffs instead “‘contest[] the reflexive

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withholding” of FBI personnel, federal government employees outside the FBI, and local
law enforcement. Pls.’ Reply at 15; see also Pls.’ Cross-Mot. at 29-33.

First, the FBI withheld names and identifying information for FBI special agents
and support personnel from 181 pages of records. Third Hardy Decl. 460. Generally, law
enforcement and support personnel have an “extremely strong privacy interest” in not
having their identifying information disclosed in connection with any particular
investigative matter. Brown v. FBI, 873 F. Supp. 2d 388, 404 (D.D.C. 2012). This is
because disclosure could often “subject them to annoyance or harassment in either their
official or private lives.” Lesar v. Dep’t of Justice, 636 F.2d 472, 487 (D.C. Cir. 1980).
Mr. Hardy explained that publicity regarding which agents are working on any particular
investigation “may seriously prejudice their effectiveness” and may result in “unnecessary,
unofficial questioning as to their assistance,” including by individuals who “may carry a
grudge” and thus “seek revenge” on the agents and staff involved. Third Hardy Decl. 4 60.
Additionally, FBI employees possess security clearances that give them access to classified
material and systems; identifying certain FBI employees would subject them to attention,
targeting, and/or exploitation by “criminal elements, terrorists, and foreign intelligence
services.” Jd. § 63. On the other side, plaintiffs have shown little public interest in
disclosing the names or identifying information of FBI personnel. Knowing the specific
names and contact information of personnel will do little, to say the least, to “inform the
public about the FBI’s use of th[e] tactic” of impersonating members of the new media,
Pls.’ Cross-Mot. at 33. Mr. Hardy’s justifications for withholding names and identifying

information for FBI personnel, see Third Hardy Decl. {[] 60, 63, readily satisfy the
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“foreseeable harm” requirement. See Banks v. Dep’t of Justice, 813 F. Supp. 2d 132, 144
(D.D.C. 2011). I therefore conclude that names and identifying information of FBI
personnel were properly withheld.

Next, the FBI withheld the name of a government employee outside the FBI in one
record. Third Hardy Decl. § 66. Mr. Hardy explained that disclosure of this individual’s
identity could subject him or her “to unauthorized inquiry and harassment and would
constitute a clearly unwarranted invasion of his/her personal privacy.” /d. Finally, the FBI
withheld names and identifying information for local law enforcement personnel who aided
the FBI in its investigation from two pages of records. /d. 469. Mr. Hardy explained that
publicity about the identities of these law enforcement personnel would subject them to
“unnecessary, unwarranted harassment” and make them targets for compromise. Jd. The
same concerns about publicizing the names of FBI personnel apply to the names of non-
FBI federal government and local law enforcement personnel. See Schoenman v. FBI, 763
F. Supp. 2d 173, 198-99 (D.D.C. 2011). Plaintiffs have failed to show how the release of
any of these names or identifying information will help the public determine whether FBI
officials engaged in illegal or unconstitutional activity by impersonating journalists. See
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991). Like information
about FBI personnel, the justifications for withholding information about non-FBI and
local law enforcement personnel, see Third Hardy Decl. 4] 66, 69, readily satisfy the
“foreseeable harm’ requirement. See Banks, 813 F. Supp. 2d at 144. I similarly conclude

that such information is properly withheld under Exemptions 6 and 7(C).

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c. Exemption 7(E)

The FBI finally withheld eight categories of records under FOJA Exemption 7(E),
which exempts from disclosure “records or information compiled for law enforcement
purposes” where their production “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). Exemption 7(E) protects
information that would “train potential violators to evade the law,” “instruct them how to
break the law,” or “increase the risks that a law will be violated or that past violators will
escape legal consequences.” Mayer Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir.
2009) (emphasis omitted).

The FBI asserted Exemption 7(E) with respect to 1) operational directives;
2) undercover operations; 3) the identity and/or location of FBI or joint units, squads, or
divisions; 4) internal FBI secure fax numbers and phone numbers; 5) sensitive
investigative techniques and procedures; 6) targets of pen registers or trap and trace
devices; 7) collection and analysis of information; and 8) sensitive file numbers and/or
subfile names. See Third Hardy Decl. §§ 73-81. Plaintiffs challenge only defendants’
withholding of the first, second, and seventh categories: FBI operational directives
(including internal guidelines and policies), undercover operations, and collection and
analysis of information. See Pls.’ Cross-Mot. at 35 & n.8.

As a preliminary matter, to withhold documents under Exemption 7(E), the agency

must first show “that the records were compiled for a law enforcement purpose.” Kay v.

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FCC, 976 F. Supp. 23, 36 (D.D.C. 1997). “Agencies classified as law enforcement
agencies receive a special deference in their claims of law enforcement purpose.” Pinson
v. Dep't of Justice, 313 F. Supp. 3d 88, 113 (D.D.C. 2018). FBI investigatory records are
law enforcement records when the investigation is “related to the enforcement of federal
laws.” Jefferson v. Dep't of Justice, 284 F.3d 172, 177 (D.C. Cir. 2002). I easily conclude
that the records the FBI withheld here were compiled for a law enforcement purpose, as
impersonating journalists is a law enforcement technique. Whether the withheld records
fall within the specific parameters of Exemption 7(E), however, is another issue.

First, the FBI withheld information relating to operational directives in 32 pages of
responsive records. See Third Hardy Decl. § 73; Index at 1-23. According to Mr. Hardy,
this material “comprises operational directives that provide information and instruct FBI
employees on the proper use of certain sensitive non-public FBI procedures, techniques,
and guidance for conducting investigations.” Third Hardy Decl. § 73. Such information
could “provide a ‘roadmap’ or ‘guidance’ to those looking to circumvent the law,” Am.
Immigration Lawyers Ass'n v. Dep’t of Homeland Sec., 852 F. Supp. 2d 66, 79 (D.D.C.
2012), and is therefore-at the heart of the Exemption 7(E) protection. Plaintiffs respond
that the FBI’s impersonation of journalists in the Timberline investigation and other
operations is public knowledge and that the FBI cannot shield information under
Exemption 7(E) regarding “use of a technique that is known to the public.” Pls.’ Cross-
Mot. at 36-37. However, the fact that a law enforcement technique is generally known,
RCFP y. FBI, 369 F. Supp. 3d 212, 223 (D.D.C. 2019), does not mean its specific

procedures or applications are known or that disclosing them would not risk compromising

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specific investigations. Exemption 7(E) protects “confidential details of . . . program[s]”
if only their “general contours [a]re publicly known.” Sussman v. U.S. Marshals Serv., 494
F.3d 1106, 1112 (D.C. Cir. 2007). An agency may still properly withhold portions of
documents that “relate to law enforcement procedures not known to the public,” including
ordinary manuals that “include confidential details of law enforcement programs.” Jaffe
v. CIA, 573 F. Supp. 377, 387 (D.D.C. 1983). Mr. Hardy foresees that “[r]eleasing such
information would not only provide sensitive, unknown investigative techniques, [but] it
would also reveal sensitive unknown uses of these specific techniques and procedures” that
would allow “criminals [to] predict how and when the FBI will respond to certain
suspicious/criminal activities, and the investigative techniques the FBI is mostly likely to
employ in those situations.” Third Hardy Decl. 4 73. I agree and therefore conclude this
information was properly withheld.

The FBI also withheld information about undercover operations from 10 pages of
responsive records. See Third Hardy Decl. § 74; Index at 1-23. According to Mr. Hardy,
the withheld information consists of “non-public details relat[ing] specifically to the FBI’s
Seattle Timberline Investigation and FBJ undercover operations in general.” Third Hardy
Decl. § 74. Transparency about specific details of FBI policy could help criminals to
discern the ruse and avoid detection in their criminal enterprises. See Skinner v. Dep’t of
Justice, 744 F. Supp. 2d 185, 215 (D.D.C. 2010). The Court is satisfied that the FBI’s
procedures relate to techniques and methods for surreptitiously investigating potential
criminals and engaging in undercover operations. Further, Mr. Hardy explains that “if

specific investigative techniques or procedures are made public, the very criminals and

25
terrorist groups who seek harm to U.S. interests can use the information to their advantage,
learn FBI tactics in gathering information, and develop countermeasures to avoid
detection.” Third Hardy Decl. § 72. He further describes how, “[i]f the FBI were to
disclose these non-public details about how it conducts undercover operations and release
details of specific techniques used during its undercover operations, it... would jeopardize
future use of undercover operations by the FBI in similar cases or under similar
circumstances.” Fourth Hardy Decl. § 14. I conclude this information was properly
withheld.

Finally, the FBI withheld material regarding the FBI’s collection and analysis of
information on one page of responsive records. Third Hardy Decl. 479. This information
concerned an FBI undercover operation and discussed the FBI’s sources and methods of
collecting and analyzing information. /d. “Knowing what information is collected, how it
is collected, and more importantly, when it is not collected, is information that law
enforcement might reasonably expect to lead would-be offenders to evade detection.”
Soghoian v. Dep't of Justice, 885 F. Supp. 2d 62, 75 (D.D.C. 2012). It is true that, typically,
“the agency must at least provide some explanation of what procedures are involved and
how they would be disclosed.” Citizens for Responsibility & Ethics in Wash. v. Dep’t of
Justice, 746 F.3d 1082, 1102 (D.C. Cir. 2014). Here, Mr. Hardy’s statement that this
information relates to the FBI’s methods of collecting and analyzing information is
sufficient, as any further information would disclose the very sources and methods the FBI

seeks to keep confidential.

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Under Exemption 7(E), the agency finally must “establish that releasing the
withheld materials would risk circumvention of the law.” PHE, Inc. v. Dep’t of Justice,
983 F.2d 248, 250 (D.C. Cir. 1993). The FBI has clearly done so. Here, “[t]he information
withheld under Exemption 7(E) is extremely descriptive, detailed and specific in nature”
and “comprises a fuller picture of the current uses of FBI techniques not known to the
public.” Fourth Hardy Decl. § 15. While any one piece of information might not
compromise the FBI’s techniques or procedures, “pieces of information can be
assembled—in mosaic fashion—to provide a framework to determine how, when, under
which circumstances, certain te[ch]niques are employed.” Jd. 4 16. Disclosing this
information to the public, including to criminals, would allow criminals to “develop
countermeasures to avoid detection” and “to nullify the effectiveness of the techniques.”
Id. This Court is thus satisfied that the withheld information falls properly under
Exemption 7(E).

III. Segregability of Records

Finally, plaintiffs contest the FBI’s segregation of responsive records. Under FOIA,
even if an agency establishes that information in a document is exempt from disclosure, an
agency must “disclose all reasonably segregable, nonexempt portions of the requested
record(s).”” Assassination Archives & Res. Ctr. v. CIA, 334 F.3d 55, 58 (D.C. Cir. 2003);
see also 5 U.S.C. § 552(b). Plaintiffs argue that the FBI has not adequately explained why
it could not reasonably segregate and disclose some material in 82 pages the FBI withheld
in full. Pls.’ Cross-Mot. at 21. The FBI released 328 pages in full or in part and withheld

283 pages in full (including 201 pages withheld as duplicative). Third Hardy Decl. ¥[¥ 5,
27
86. Mr. Hardy declared that “each responsive page was individually examined to identify
non-exempt information that could be reasonably segregated from exempt information for
release.” Jd. § 85. He further stated that “[e]very effort was made to provide Plaintiffs
with all material in the public domain and with all reasonably segregable non-exempt
information in the responsive records,” id. § 27, and that “the only information withheld
by the FBI consists of information that would trigger reasonably foreseeable harm to one
or more interests protected by the cited FOIA exemptions,” id. 4 85. “Agencies are entitled
to a presumption that they complied with the obligation to disclose reasonably segregable
material.” Sussman, 494 F.3d at 1117. Upon review of the FBI’s declarations and Vaughn

index, I conclude that the FBI has fulfilled its duty to reasonably segregate the records.

CONCLUSION
For all the foregoing reasons, defendants’ Motion for Summary Judgment is
GRANTED and plaintiffs’ Cross-Motion for Summary Judgment is DENIED. A separate
Order consistent with this decision accompanies this Memorandum Opinion.

°

Al

RICHARD JG40
United States District Judge

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