Accuracy in Media, Inc. v. DOD, No. 14-1589, 2024 WL 1833851 (D.D.C. Apr. 26, 2024) (Alikhan, J.)

Accuracy in Media, Inc. v. DOD, No. 14-1589, 2024 WL 1833851 (D.D.C. Apr. 26, 2024) (Alikhan, J.)

Re:  Requests for records concerning September 11, 2012 attacks on U.S. Embassy in Benghazi, Libya

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiffs’ cross-motion for summary judgment

• Exemption 7(A):  “The court concludes that the FD-302s were properly withheld pursuant to Exemption 7(A), thereby warranting summary judgment for the FBI without the need to address the other grounds raised.”  “Plaintiffs do not appear to contest that the FBI compiled the records for law enforcement purposes or that the Benghazi investigation remains ongoing, so the court will only briefly touch on these requirements.”  “[One defendant’s declarant] averred that the FD-302s and interview notes were compiled for law enforcement purposes.”  “He also stated that the investigation of the Benghazi attacks ‘remains ongoing.’”  “Specifically, he explained that ‘[t]he FBI continues to pursue all logical leads to identify and investigate those individuals who helped perpetuate, assist, or otherwise support the 2012 attack.’”  “[Another defendant’s declarant] similarly testified that the relevant FD-302s were compiled during the FBI’s investigation of the attacks in Benghazi and that the investigation is ‘ongoing.’”  “Plaintiffs present no evidence to contradict these statements, nor do they point to anything in the record suggesting bad faith on the part of the government.”  “Accordingly, the court credits the government’s declarations, and it finds that the records were compiled for law enforcement purposes and that the relevant investigation is ongoing.”  “That leaves the question whether disclosure of the records ‘could reasonably be expected to interfere with’ the ongoing investigation.”
  
  The court then finds that “[t]he FBI properly invoked categorical withholding here.”  “It defined its category functionally, characterizing the FD-302s as ‘Evidentiary/Investigative Materials.’”  “[Defendant’s declarant] explained that this category encompasses records gathered through witness interviews, and he further stated that the search was conducted on a document-by-document basis, and each covered record was placed within the functional category.”  “The question, then, is not whether the disclosure of any specific portions of the FD-302s would interfere with the ongoing criminal investigation, but whether the FBI sufficiently explained how categorical disclosure would interfere with the investigation.”  “It did.”  “[Defendant’s declarant] explained that the FD-302s ‘document the FBI's investigation of the potential crimes and/or possible threats to national security’ related to the Benghazi attacks.”  “He further explained that a document-by-document description would ‘undermine’ the FBI investigation because disclosure could reveal ‘leads the FBI is pursuing and the scope of the investigation.’”  “This, in turn, could enable the suspected ‘groups or individuals to change their behavior and avoid scrutiny.’”  “More specifically, the FBI predicts that the disclosure of persons ‘of investigative interest’ in the matter could lead to witness tampering and the destruction of evidence.”  “‘Such predictive judgments of harm are entitled to deference . . . especially where, as here, the investigation concerns matters of national security.’”  “The interference that the agency warns of – potential witness tampering, destruction of evidence, and revelation of the scope of investigation – is within the heartland of exemption 7(A).”  “Because there is a ‘rational link’ between the disclosure of the FD-302s and the threat of interference, the government’s categorical approach is appropriate.”
   
• Waiver and Discretionary Disclosure, Waiver; Exemption 7(A):  The court relates that “Plaintiffs also argue that some of the information contained within the FD-302s has already been made public, thus undercutting the FBI’s warnings of potential interference.”  The court holds that “Plaintiffs have not established the conditions required to invoke official acknowledgement.”  “Although [defendant] acknowledged that ‘some information pertaining to the Benghazi attacks has been made public,’ he clarified that the ‘FBI has not disclosed the identities of the individuals’ who were interviewed as part of the government’s investigation.”  “Nor has the FBI revealed the ‘focus and content’ of the FD-302 interview reports.”  “Thus, the information requested does not match what the government has previously disclosed.”  “It does not matter that three members of the security team . . . have publicized their recounting of events.”  “These are statements by third parties, not the ‘official and documented disclosure’ required by the official acknowledgement doctrine.”  “Finally, at the core, public statements by third parties about the attacks do not undercut the FBI’s invocation of Exemption 7(A) because the FBI does not seek to obscure the underlying events – instead, it seeks to protect its investigation and future law enforcement proceedings.”  “Public accounts of the attacks thus do not undermine the FBI’s concerns of interference with an open investigation.”