Am. Civil Liberties Union v. FBI, No. 14-11759, 2016 WL 4411492 (D. Mass. Aug. 17, 2016) (Burroughs, J.)

Am. Civil Liberties Union v. FBI, No. 14-11759, 2016 WL 4411492 (D. Mass. Aug. 17, 2016) (Burroughs, J.)

Re: Requests for records concerning Massachusetts Joint Terrorism Task Force

Disposition: Granting in part and denying in part defendants' motions for summary judgment

• Litigation Consideration Adequacy of Search: The court holds that "the FBI conducted an adequate, reasonable search for responsive records." The court relates that "[plaintiff] has not disputed the adequacy of this search nor alleged bad faith."
  
  However, the court holds that, "[u]nlike the FBI, the USAO has not conducted any search or produced any [responsive documents]." The court rejects the USAO's "arguments . . .: (1) that the Department of Justice . . . is the proper party to this action and the DOJ can decide which component – in this case the FBI – searches for and produces documents; (2) that its production would be duplicative of documents in the FBI's possession; and (3) that a search would be unduly burdensome." Taking these contentions in order, the court finds that USAO's first argument "ignores the DOJ's decentralized FOIA regime." "Both the FBI and USAO received separate FOIA requests, and therefore each must independently fulfill its FOIA obligations." The court finds that USAO's second argument fails because USAO's declarant "acknowledges in his declaration that the Boston USAO has responsive documents[,]" but "does not possess the personal knowledge needed to establish that the USAO's records are duplicative of the records produced by the FBI." Moreover, the court finds that "[t]he fact that the documents may have originated with the FBI is irrelevant." "The FOIA does not exempt from disclosure records that were originated elsewhere." The court finds that "[the] referral process recognizes that the non-originating component still has an obligation to search for and locate responsive documents, but that the originating component may be better suited to make disclosure determinations." Finally, the court finds that defendant's third argument fails because "USAO has not established that a search would be unduly burdensome." The court explains that "[USAO] does not sufficiently explain the burden that a search would impose on the USAO." "It does not describe the potential time, expense, or scope associated with the allegedly burdensome search." The court finds that "USAO cannot avoid a search simply because the documents are hard copy and may be located in different locations."
   
• Litigation Considerations, Vaughn Index/Declaration: The court holds that "the FBI's withholding of documents under Exemptions 1, 6, and 7(C) is unchallenged and therefore affirmed." The court finds that, "[i]n accordance with the statutory requirements of FOIA, the Hardy Declaration contains an adequate description of, and justification for, the information withheld pursuant to these exemptions."
   
• Exemption 7(E): "[T]he Court finds that the FBI has improperly withheld certain materials under Exemption 7(E)." First, "[t]he Court finds that the FBI has not satisfied its burden of demonstrating that Exemption 7(E) applies to [certain] staffing and budget materials." The court finds that "[t]he FBI has not made the threshold showing that the withheld information, none more recent than 2014, would disclose 'techniques and procedures' for law enforcement investigations or prosecutions." "The historic, generic staffing and budget information withheld by the FBI, such as the number of parking spots allocated to the Massachusetts JTTF or the maximum overtime pay, does not disclose how the Massachusetts JTTF actually goes about investigating crimes." Second, the court holds that "[t]he total number of open investigations is . . . too generic to constitute a technique or procedure of law enforcement; it does not disclose how the FBI's Boston Field Office investigates crimes or disclose any investigative trends." "The more specific data . . . however, does disclose how the FBI's Boston Field Office goes about investigating crimes . . . [and] shows what activities trigger a full investigation as opposed to a preliminary investigation or assessment, as well as what types of cases the FBI is focusing on." Therefore, the court finds that "[t]he FBI may not use Exemption 7(E) to withhold the total number of active/open investigations . . ., but it may use Exemption 7(E) to withhold the more granular data[.]"