Property of the People, Inc. v. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PROPERTY OF THE PEOPLE, INC., et
al.,

Plaintiffs,
v. Civil Action No. 17-1193 (JEB)
DEPARTMENT OF JUSTICE,

Defendant.

MEMORANDUM OPINION

While the media continues to cover investigations of former President Donald Trump’s

businesses, non-profit Plaintiffs in this Freedom of Information Act case hunt different game.

They seek records discussing Trump’s connection with a two-decades-old gambling

investigation by the Federal Bureau of Investigation. After the Department of Justice withheld

certain documents, Plaintiffs sued. In competing Motions for Summary Judgment, the parties

now wrangle with a number of FOIA exemptions as applied to diverse document categories. To

aid its decisionmaking, the Court completed its own in camera review, and it now delivers a

miscellany of rulings: it will affirm the Government’s nondisclosure of some records, order the

release of others, and require some further segregability analysis on still more.

I. Background

Although extended by the COVID-19 pandemic, the procedural history of this case is not

complicated. Plaintiffs — government-transparency organization Property of the People,

investigative reporter Jason Leopold, and PhD candidate Ryan Shapiro — filed a FOIA request

with the FBI on March 16, 2017, for records “mentioning or referring to” Donald John Trump

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from June 14, 1946, through June 15, 2015. See ECF No. 1 (Compl.), ¶¶ 1–3, 10–11. They also

requested records relating to several FBI case files, which they believed contained documents

referring to Trump by name. Id., ¶ 11. After acknowledging receipt of the request, DOJ issued a

Glomar response, refusing to confirm or deny the existence of law-enforcement records

responsive to Plaintiffs’ requests. See Property of the People v. DOJ, 310 F. Supp. 3d 57, 62–63

(D.D.C. 2018); ECF No. 12–1 (First Declaration of David M. Hardy), ¶ 8. An unsuccessful

administrative appeal of that response prompted Plaintiffs to file this suit on June 18, 2017. See

Compl., ¶ 14.

After this Court rejected both the propriety of Defendant’s Glomar response and

Plaintiffs’ cross-motion for summary judgment, Property of the People, 310 F. Supp. 3d at 73,

the parties began a long exchange of documents and status reports drawn out by pandemic-

related delays. All told, DOJ identified 4,205 responsive pages, releasing more than half that

number (at least in part) to Plaintiffs. See ECF No. 55 (Def. MSJ) at 1. It withheld 1,554 pages

in part and 988 pages in full, invoking FOIA Exemptions 3, 6, 7(A), 7(C), 7(D), and 7(E) in its

most recent Motion for Summary Judgment. Id. at 1, 7–29. Narrowing the dispute, Plaintiffs in

their latest Cross-Motion contest the applicability of those exemptions with respect to only 116

pages. See ECF No. 57 (Pl. MSJ & Opp.) at 7–30; ECF No. 62 (Pl. Reply) at 2–29

Following the completion of briefing, the Court, in an effort to better understand the

withholdings at issue, ordered DOJ to submit clean and redacted copies of all disputed

documents for in camera review. See Minute Order (2/24/21). Having now completed its

review, the Court is ready to rule.

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II. Legal Standard

Summary judgment must be granted 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); see also Anderson v. Liberty Lobby, 477 U.S. 242, 247–48 (1986); Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the

substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at

895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Holcomb, 433 F.3d at

895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion”

by “citing to particular parts of materials in the record” or “showing that the materials cited do

not establish the absence or presence of a genuine dispute, or that an adverse party cannot

produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).

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

See Brayton v. Off. of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). In a

FOIA case, a court may grant summary judgment based solely on information provided in an

agency’s affidavits or declarations when they “describe the justifications for nondisclosure with

reasonably specific detail, demonstrate that the information withheld logically falls within the

claimed exemption, and are not controverted by either contrary evidence in the record nor by

evidence of agency bad faith.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)

(citation omitted). Such affidavits or declarations “are accorded a presumption of good faith,

which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of

other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting

Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). “FOIA expressly

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places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine

the matter de novo.’” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S.

749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).

III. Analysis

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

action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)

(citation omitted). The statute promotes these aims by providing that “each agency, upon any

request for records which (i) reasonably describes such records and (ii) is made in accordance

with published rules[,] . . . shall make the records promptly available to any person.” 5 U.S.C.

§ 552(a)(3)(A). The Government need not, however, turn over requested information that falls

into one of nine statutorily created exemptions from FOIA’s broad directive. Id. § 552(b)(1)–(9).

This Court can compel the release of any records that do not satisfy the requirements of at least

one exemption. See Reporters Comm., 489 U.S. at 755.

A “veritable avalanche of FOIA-related precedent” guides this Court’s determination of

whether the Government has carried its burden of establishing that a given exemption applies.

Ullah v. CIA, 435 F. Supp. 3d 177, 182 (D.D.C. 2020). In order to show that certain information

is exempt from FOIA, “an agency may file ‘affidavits describing the material withheld and the

manner in which it falls within the exemption claimed.’” Bin Ali Jaber v. U.S. Dep’t of Def.,

293 F. Supp. 3d 218, 224 (D.D.C. 2018) (quoting King v. U.S. Dep’t of Justice, 830 F.2d 210,

217 (D.C. Cir. 1987)). Ultimately, “when an agency seeks to withhold information, it must

provide a relatively detailed justification, specifically identifying the reasons why a particular

exemption is relevant.” Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (quoting King,

830 F.2d at 219). “[A]n agency’s justification for invoking a FOIA exemption is sufficient if it

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appears ‘logical’ or ‘plausible.’” Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370,

374–75 (D.C. Cir. 2007)).

Even where a particular exemption applies, FOIA requires that “[a]ny reasonably

segregable portion of a record shall be provided to any person requesting such record after

deletion of the portions which are exempt.” 5 U.S.C. § 552(b). While DOJ is “entitled to a

presumption that [it] complied with the obligation to disclose reasonably segregable material,”

Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013) (alteration in original) (citation omitted), this

presumption of compliance does not obviate the Government’s obligation to fully explain its

decisions on segregability. See Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242,

261–62 (D.C. Cir. 1977). To do so, the agency must provide “a ‘detailed justification’ and not

just ‘conclusory statements’ to demonstrate that all reasonably segregable information has been

released.” Valfells v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C. 2010) (quoting Mead Data, 566

F.2d at 261). “[R]easonable specificity” can be established through a “combination of the

Vaughn index and [agency] affidavits.” Johnson v. Exec. Off. for U.S. Att’ys, 310 F.3d 771, 776

(D.C. Cir. 2002) (internal quotation marks and citation omitted).

Here, Plaintiffs have challenged a bevy of DOJ’s withholdings, justified by Exemptions

3, 6, 7(A), 7(C), 7(D), and 7(E). For clarity, the Court proceeds through each exemption

seriatim, analyzing like documents together.

A. Exemption 3

Exemption 3 covers records “specifically exempted from disclosure by statute” provided

that such statute either “(i) requires that the matters be withheld from the public in such a manner

as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or

refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3)(A). Defendant has

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cited this exemption in withholding two categories of documents: 1) “six (6) []related documents

concerning the production of confidential documents in response to a Federal Grand Jury

subpoena” under Federal Rule of Criminal Procedure 6(e); and 2) “six (6) related documents

seeking an order from a court authorizing limited disclosure of the [Title III] related information”

under Title III of the Omnibus Crime Control and Safe Streets Act of 1968. See ECF No. 58

(Def. Reply & Opp). at 5–6 (second alteration in original) (citation omitted); see also ECF No.

55-3 (Def. Exhs.), Exh. X (Vaughn Index) at 1870–91, 1656–74. The Court looks at each

separately.

1. Federal Rule of Criminal Procedure 6(e)

There is no disagreement that Federal Rule of Criminal Procedure 6(e) qualifies as a

“statute” under Exemption 3. See Pl. Reply at 20; Def. Reply & Opp. at 5; see also Fund for

Const. Gov’t v. Nat’l Archives & Recs. Serv., 656 F.2d 856, 867–68 (D.C. Cir. 1981) (finding

Rule 6(e)’s disclosure ban “falls within” Exemption 3). That Rule, furthermore, prohibits the

disclosure of “matter[s] occurring before the grand jury.” Fed. R. Crim. P. 6(e)(2)(B). At issue

then is whether disclosure of the grand-jury documents here would reveal such matters. See

Fund for Const. Gov’t, 656 F.2d at 869. As the D.C. Circuit recently explained, “Rule 6(e) does

not draw a veil of secrecy over all matters occurring in the world that happen to be investigated

by a grand jury. Instead, the touchstone is whether the information sought would reveal

something about the grand jury’s identity, investigation, or deliberation.” Labow v. U.S. DOJ,

831 F.3d 523, 528 (D.C. Cir. 2016) (cleaned up) (citation omitted).

The Court’s in camera review demonstrates that the information Plaintiffs seek would

indeed reveal much about the grand jury’s activity here. The six documents contain

“information that identifies specific records subpoenaed by a federal grand jury; and copies of

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specific records,” ECF No. 55-2 (First Declaration of Michael G. Seidel), ¶ 67, disclosure of

which “would reveal the recipient of the Federal Grand Jury subpoena and the identity of the

subjects of the Federal Grand Jury investigation.” ECF No. 59-1 (Second Declaration of

Michael G. Seidel), ¶ 16. Such information “tend[s] to reveal some secret aspect of the grand

jury’s investigation,” especially “the strategy or direction of the investigation.” Hodge, 703 F.3d

at 580 (quoting Senate of P.R. ex rel. Judiciary Comm. v. DOJ, 823 F.2d 574, 582 (D.C. Cir.

1987)). For that reason, DOJ properly withheld these items.

2. Title III of the Omnibus Crime Control and Safe Streets Act of 1968

Title III governs the lawful interception and recording of communications by federal law-

enforcement agencies. “In enacting Title III, Congress sought to regulate comprehensively both

the use of electronic surveillance as an investigative tool and the disclosure of materials obtained

through such surveillance.” Lam Lek Chong v. U.S. Drug Enf’t Admin., 929 F.2d 729, 732

(D.C. Cir. 1991). As before, Plaintiffs do not dispute that Title III qualifies as a statute under

Exemption 3. See Pl. MSJ & Opp. at 18; Pl. Reply at 19. The Government seeks to withhold

“Court-ordered lawful interception[s] and recording[s].” Def. MSJ at 9 (citation omitted).

Plaintiffs concede that any “details of information gathered through the use of lawful recording”

are properly redacted. See Pl. Reply at 20 (citation omitted).

The problem here is somewhat unusual. The documents at issue are 2006 filings by the

Government and resulting court orders concerning the release of Title III material to another law-

enforcement agency that was conducting an investigation related to the surveillance. In the

nineteen pages at issue, there is very little discussion of the information that was intercepted. As

a result, the Court would typically order the release of most of the material. All of the pleadings

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and orders, however, were sealed by the issuing federal court. If they remain sealed, this Court

has no power to order their release.

The Government, which did not mention this issue in briefing, must first determine if the

sealing orders remain in effect. If so, it cannot release the documents. If the orders are no longer

extant, then the Government must release the material unrelated to the actual interceptions,

although, pursuant to Exemption 7(C), discussed infra, it may redact all names of individuals and

other identifying information mentioned in the documents.

B. Exemption 7(A)

Exemption 7(A) permits an agency to withhold “records or information compiled for law

enforcement purposes” when production of such records “could reasonably be expected to

interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). In evaluating the

applicability of the exemption, the Court must balance FOIA’s “goal of broad disclosure,”

Milner v. Dep’t of Navy, 562 U.S. 562, 571 (2011) (citation omitted), with Exemption 7(A)’s

recognition of “law enforcement agencies[’] . . . legitimate needs to keep certain records

confidential, lest the agencies be hindered in their investigations.” NLRB v. Robbins Tire &

Rubber Co., 437 U.S. 214, 224 (1978). This Court must also “give deference to an agency’s

predictive judgment of the harm that will result from disclosure of information.” CREW v. DOJ,

746 F.3d 1082, 1098 (D.C. Cir. 2014).

DOJ here has redacted a single case number written on a newspaper article about Trump

and his criticism of then-Governor of Pennsylvania Ed Rendell. See Pl. MSJ & Opp. at 13;

Vaughn Index at 1021. Plaintiffs argue only that Justice has not shown that disclosure of that

case number would interfere with ongoing enforcement proceedings. See Pl. MSJ & Opp. at 16–

17; Pl. Reply at 17–18.

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 According to the Government, the redacted case number directly implicates “an ongoing

investigation with charges currently pending,” where disclosure may “negatively impact the

integrity of the ongoing investigation and cause harm to the pending prosecution.” Second

Seidel Decl., ¶ 12. While “the Government must be somewhat obscure in its public filings about

the effect of disclosure so as not to risk spilling the very information it seeks to keep secure,”

Cable News Network, Inc. v. FBI, 298 F. Supp. 3d 124, 129 (D.D.C. 2018), DOJ here has

provided substantive explanations for how disclosure may allow an individual currently under

investigation to “analyze the information in the documents pertinent to the investigation” and

identify potential witnesses or “counteract evidence developed by investigators.” First Seidel

Decl., ¶ 104. It has thus met its burden in showing that disclosure could interfere with ongoing

enforcement proceedings.

C. Exemptions 6 and 7(C)

Exemption 6 protects “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). Exemption 7(C) excludes from disclosure “records of information compiled for law

enforcement purposes . . . to the extent that the production of such law enforcement records or

information . . . could reasonably be expected to constitute an unwarranted invasion of personal

privacy.” Id. § 552(b)(7)(C). Both provisions require agencies and reviewing courts to “balance

the privacy interests that would be compromised by disclosure against the public interest in

release of the requested information.” Beck v. DOJ, 997 F.2d 1489, 1491 (D.C. Cir. 1993)

(quoting Davis v. DOJ, 968 F.2d 1276, 1281 (D.C. Cir. 1992)).

Although both exemptions require agencies and reviewing courts to undertake the same

weighing of interests, the balance tilts more strongly toward nondisclosure in the context of

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Exemption 7(C) because “Exemption 7(C)’s privacy language is broader than the comparable

language in Exemption 6.” Reporters Comm., 489 U.S. at 756. Courts have accordingly held

that Exemption 7(C) “establishes a lower bar for withholding material” than Exemption 6.

ACLU v. DOJ, 655 F.3d 1, 6 (D.C. Cir. 2011); see also Beck, 997 F.2d at 1491. It governs here

(rather than Exemption 6) because the documents were indeed compiled for law-enforcement

purposes. See 5 U.S.C. § 552(b)(7)(C); id. § 552(b)(6).

The documents, which were largely withheld in full, include “[h]andwritten interview

notes for a third party individual,” Vaughn Index at 19–33, 35–39, 41–43; “FBI Form[s] FD-302

documenting interview[s] with third party individual[s],” id. at 299–304, 307–10, 4203–05;

“[r]eports documenting information provided by a third party individual” or “related to third

party individuals of investigative interest,” id. at 70–73, 75, 86, 90, 398–401; “documents

gathered from a third party,” id. at 2690–91; the name of the Port Director of the Los Angeles

International Airport on a letter responding to a FOIA request, id. at 192; Pl. MSJ & Opp. at 11;

and “FBI Electronic Communication (EC) documenting information gathered for the captioned

investigation.” Vaughn Index at 1967.

The Court begins with an inquiry into “whether disclosure of the files would compromise

a substantial, as opposed to de minimis, privacy interest,” for “if no significant privacy interest is

implicated FOIA demands disclosure.” Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224,

1229 (D.C. Cir. 2008) (cleaned up) (citation omitted). “[T]hird parties who may be mentioned in

investigatory files, as well as . . . witnesses and informants who provided information during the

course of an investigation,” Nation Mag., Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 894

(D.C. Cir. 1995), have a substantial privacy interest “in not being associated with an

investigation.” Kimberlin v. Dep’t of Justice, 139 F.3d 944, 949 (D.C. Cir. 1998). “The same is

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true for government officials involved in the investigation.” Ball v. U.S. Marshal Serv., No. 19-

1230, 2021 WL 254070, at *3 (D.D.C. Jan. 26, 2021) (citing Lesar v. U.S. DOJ, 636 F.2d 472,

487–88 (D.C. Cir. 1980)). To the extent, then, that individuals can be identified via information

contained in the documents at issue, there is little question that “[t]he privacy interest at stake is

substantial.” SafeCard Servs., Inc., 926 F.2d at 1205.

The countervailing public interest presented by Plaintiffs in no way overcomes the

privacy interest third parties have in keeping their identities unassociated with federal

investigations. Under D.C. Circuit precedent, unless information identifying third parties “is

necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal

activity, such information is exempt from disclosure.” Id. at 1206; see also Nation Mag., 71 F.3d

at 896 (where that is not the case, “to the extent any information contained in 7(C) investigatory

files would reveal the identities of individuals who are subjects, witnesses, or informants in law

enforcement investigations, those portions of responsive records are categorically exempt from

disclosure under Safecard.”). As there is no evidence of such misconduct here, Defendant’s

withholdings fit well within the ambit of Exemption 7(C) where individuals can be identified.

Plaintiffs have no argument with this, conceding that DOJ may withhold specifically

identifying information like names, titles, employment information, or aliases. See Pl. Reply at

2, 12, 16, 21. But this does not entirely answer the inquiry under 7(C). The exemption protects

not only actual identities, but also other information that may reveal the identity of an individual

without naming him explicitly. See, e.g., Nation Mag., 71 F.3d at 896 (looking to whether

release would “reveal the identities of individuals”). The Court must thus determine whether

disclosure of these documents without specific names, titles, and addresses would still allow

identification of individuals and “compromise a substantial . . . privacy interest.” Multi Ag

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Media LLC, 515 F.3d at 1229. Because the documents contain identifying details revealed in

interviews, the Court finds that even with the redactions supported by Plaintiffs, release would

invade the interest third-party individuals have in remaining unassociated with federal

investigations. DOJ, therefore, appropriately invoked 7(C).

That does not answer Plaintiffs’ rejoinder that some information in these records is surely

segregable. See Pl. Reply at 5, 8, 14, 16. But the Court’s in camera review reveals that the

information here is fully intertwined with the content of the records. “[T]he non-exempt

information cannot be reasonably segregated without either compromising the purpose of the

FOIA exemptions or offering meaningless words or phrases.” Blixseth v. U.S. Immigrations &

Customs Enf’t, No. 19-1292, 2020 WL 210732, at *7 (D.D.C. Jan. 14, 2020) (citing Mays v.

DEA, 234 F.3d 1324, 1327 (D.C. Cir. 2000)). The Government’s withholdings are appropriate.

D. Exemption 7(D)

Exemption 7(D) excludes from disclosure “records or information compiled for law

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

or information . . . could reasonably be expected to disclose the identity of a confidential

source . . . [who] furnished information on a confidential basis.” 5 U.S.C § 552(b)(7)(D). “[T]he

exemption is thus properly invoked only where a source provided information based upon an

express grant of confidentiality or ‘in circumstances from which such an assurance could

reasonably be inferred.’” Montgomery v. IRS, 330 F. Supp. 3d 161, 170 (D.D.C. 2018) (quoting

Dep’t of Justice v. Landano, 508 U.S. 165, 172 (1993)).

The Government has invoked 7(D) to withhold in their entirety two subpoenas and an

attachment “issued for the purpose of rendering assistance to a foreign government.” Second

Seidel Decl., ¶ 5; see also Vaughn Index at 45–46, 49–50, 51. It claims that disclosure would

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reveal a confidential relationship with a foreign government, and that “the foreign government at

issue expressly requested its relationship with the FBI to be kept confidential.” Second Seidel

Decl., ¶ 5. Plaintiffs retort that “it is unclear how disclosure of the subpoena would reveal that

the FBI is assisting any foreign government with an investigation since the FBI typically issues

subpoenas in connection with its own investigations.” Pl. Reply at 10.

While Plaintiffs’ complaint is understandable, DOJ has met its burden. “Exemption 7(D)

differs from other FOIA exemptions in that its applicability depends not on the specific factual

contents of a particular document; instead, the pertinent question is whether the information at

issue was furnished by a ‘confidential source’ during the course of a legitimate criminal law

investigation.” Lesar, 636 F.2d at 492. Here, the Government has provided affidavits supporting

its claim that the foreign government at issue “provided information under an express assurance

of confidentiality” during the course of a cooperative investigation. See Landano, 508 U.S. at

172 (citation omitted); see also First Seidel Decl., ¶ 112; Second Seidel Decl., ¶ 5. It has thus

done more than make “bald assertion[s] that express assurances were given,” Billington v. U.S.

Dep’t of Justice, 233 F.3d 581, 584 (D.C. Cir. 2000), and it has demonstrated the agency’s policy

and practice with regard to foreign governments as well as specific facts as to this government

and its confidential relationship.

Through its review, the Court concludes that release of the documents at issue would

directly violate that assurance of confidentiality. Further, it finds nothing of value to segregate

given the length of the documents and the interwoven nature of the information. DOJ thus

appropriately withheld these documents.

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 E. Exemption 7(E)

The Government has last partially withheld three pages of surveillance records under

Exemption 7(E), which authorizes the withholding of law-enforcement records that contain

techniques for law-enforcement investigations. See Vaughn Index at 3960, 4018, 4020; see also

5 U.S.C. § 552(b)(7)(E). On the pages at issue, Defendant has redacted the dates of three

instances of physical surveillance as well as the surveillance logs themselves for two separate

occasions.

This Court recently explained the factors it considers under 7(E):

In order for the Government to invoke the “techniques and
procedures” prong of 7(E), it must demonstrate that its withholdings
meet three basic requirements. First, it must show that the
documents were in fact “compiled for law enforcement purposes”
and not for some other reason. 5 U.S.C. § 552(b)(7)(E). Second,
the Government must establish that the records contain law-
enforcement techniques and procedures that are “generally
unknown to the public.” Nat’l Whistleblower Ctr. v. Dep’t of Health
& Human Servs., 849 F. Supp. 2d 13, 36 (D.D.C. 2012) (quoting
Albuquerque Publ’g Co. v. Dep’t of Justice, 726 F. Supp. 851, 857
(D.D.C. 1989)). Finally, it must demonstrate that disclosure “could
reasonably be expected to risk circumvention of the law.” Id.
(quoting 5 U.S.C. § 552(b)(7)(E)).

Blixseth, 2020 WL 210732, at *6 (first citation modified).

There is no dispute that the records here meet the first requirement: surveillance logs sit

in the heartland of law-enforcement records. DOJ’s luck runs out at the second hurdle. All

parties agree that physical surveillance in the form of a law-enforcement agent watching an

individual and reporting her movements is generally known to the public. See Pl. Reply at 22;

First Seidel Decl., ¶ 125; Second Seidel Decl., ¶ 20 (“Physical surveillance is indeed a well-

known technique.”).

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 This should be the end of the matter, but the Government claims that 7(E) also protects

“the non-public details of when/where/how the FBI conducted the surveillance in this particular

investigation.” Second Seidel Decl., ¶ 20. In Defendant’s view, releasing the dates and logs

from surveillance over twenty years ago “would allow current and future subjects of FBI

investigations and other potential criminals to develop and utilize countermeasures to defeat or

avoid different types of surveillances.” First Seidel Decl., ¶ 125. The Court need not turn to the

out of circuit precedent invoked by Plaintiffs, see Pl. Reply at 23, to reject this argument.

Although 7(E) “sets a relatively low bar for [agencies] to justify withholding[s],” Blackwell v.

FBI, 646 F.3d 37, 42 (D.C. Cir. 2011), DOJ’s explanation here fails to demonstrate “that release

of [these] document[s] might increase the risk ‘that a law will be violated or that past violators

will escape legal consequences.’” Pub. Employees for Envtl. Responsibility, 740 F.3d at 205

(quoting Mayer Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009)). Having reviewed

these logs, the Court finds nothing that bad actors could make use of, and the Government has

generally agreed that logs memorializing the physical surveillance of a subject to report his

movements is not the kind of law-enforcement technique protected by 7(E). Defendant’s

withholdings under Exemption 7(E) are improper, and the relevant documents should be

disclosed. That said, any names, addresses, or identifying information may be redacted under

7(C).

IV. Conclusion

For these reasons, the Court will grant in part and deny in part Defendant’s Motion for

Summary Judgment, and it will grant in part and deny in part Plaintiffs’ Cross-Motion for

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Summary Judgment. A separate Order that issues contemporaneously will set forth how the

parties should proceed.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: April 29, 2021

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