Bonner v. FBI, No. 21-2166, 2024 WL 216705 (S.D.N.Y. Jan. 19, 2024) (Engelmayer, J.)

Bonner v. FBI, No. 21-2166, 2024 WL 216705 (S.D.N.Y. Jan. 19, 2024) (Engelmayer, J.)

Re:  Request for records concerning detention of Palestinian citizen in wake of September 11, 2001 and still held today at Guantanamo Bay

Disposition:  Denying plaintiff’s motion for reconsideration; granting defendant’s motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Exemption 3:  “The Court reaffirms the determination in [its] August 9 Decision, which was made with care and sensitivity to the importance of the issues at hand, that Exemption 3 applies to the withholdings at issue.”  The court relates that “[plaintiff] argues that the CIA’s assertions that much information withheld under personal privacy exemptions is also properly withheld under Exemption 3 exposes a flaw in the Court’s reasoning in accepting the agencies’ Exemption 3 claims.”  “The Court and the agencies, [plaintiff] asserts, have conflated ‘raw intelligence’ with information relating to intelligence sources and methods, whereas only the latter is properly withheld under Exemption 3 and the NSA.”  “This argument is only barely tethered to a new development:  the CIA’s supplemental assertions.”  “And on its own terms, it fails to win [plaintiff] relief, for reasons largely articulated in the August 9 Decision.”  “[Plaintiff] is correct that the NSA does not exempt from disclosure all raw intelligence, regardless of whether the intelligence at issue tends to reveal ‘intelligence sources and methods.’”  “But the August 9 Decision nowhere thusly misconstrued the NSA.”  “Nor did the Government in pursuing exemption.”  “On the contrary, it is [plaintiff] who errs in broadly arguing that disclosing information provided from a known source cannot possibly lead to the disclosure of intelligence sources and methods.”  “Depending on the context, it may well do so.”  “Such is the case here.”  “As the Government has stated in its public filings, ‘the precise contours of what [the subject] did and did not tell the FBI agents who prepared the notebook and summaries [ ] not only “constitute[s] intelligence in and of itself,” but also “reveal[s] the sources and methods of the government’s acquisition” of that particular intelligence.’”  “As the Government’s filings reveal, the information redacted here, although constituting raw intelligence, also necessarily reveal[s] [the subject] as the (or a) source of that raw intelligence; as such, disclosure of this information would necessarily disclose an intelligence source (not to mention methods by which that information came to be procured from that source).”

• Procedural Requirements:  The court relates that “[i]n disputing this outcome, [plaintiff] separately argues that permitting the intelligence revealed by [the source] to be withheld under Exemption 3 would collapse differences between that exemption and FOIA Exemptions 1, and/or Exemptions 6 and 7.”  The court finds that “[t]hat argument is not a valid basis for reconsideration.”  “And as a legal proposition, it is wrong.”  “There is ample authority that material can be properly withheld pursuant to multiple FOIA exemptions.”  “[Plaintiff] does not cite any statutory provision or case authority to the effect that multiple exemptions cannot apply to particular material.”  “The Court reaffirms the determination in the August 9 Decision, which was made with care and sensitivity to the importance of the issues at hand, that Exemption 3 applies to the withholdings at issue.”

• Litigation Considerations; Waiver and Discretionary Disclosure, Waiver:  The court relates that “[plaintiff] argues that [a separate state secrets case] undermines the August 9 Decision’s determination that the Government had not waived Exemption 3’s applicability by means of an official disclosure.”  The court finds that, “[a]t the threshold, this too is not an appropriate basis for reconsideration.”  “The [other] decision was decided March 3, 2022, almost one year before [plaintiff] moved for summary judgment.”  “[Plaintiff] could have raised this argument in his briefing on summary judgment, and indeed did so, citing [the other case] to this same effect in his reply in support of summary judgment.”  “The Court’s rejection of [plaintiff’s] reading of [the other case] does not warrant a motion for reconsideration.” 
  
  “In any event, that precedent does not bear [plaintiff’s] construction.”  “At issue in the other case] was a motion to quash a subpoena based on the state-secrets privilege.”  “[The other case] did not, however, announce a blanket rule to the effect that statements of former contractors, even those with firsthand knowledge of events, invariably constitute official disclosures so as to waive Exemption 3’s applicability.”  “Quite the contrary, the Supreme Court did not make any holding as to the official disclosure doctrine, instead adverting to this separate area of doctrine as merely instructive.”  “The Court, in fact, cautioned:  ‘FOIA doctrine is only an (imperfect) analogy, and nothing in this opinion should be taken to suggest that the waiver standards in that area apply directly to the state secrets privilege.’”
   
• Exemption 1; Exemption 3:  The court relates that “[t]he CIA argues that all or some of the information within 711 redactions made by the FBI pursuant to Exemptions 6 and 7 is also exempt under Exemptions 1 and 3.”  “The Court’s considered assessment is that the CIA’s supplemental claims of withholding equally and on the same grounds satisfy Exemption 3 as did the prior withholdings.”  “Accordingly, the Court grants summary judgment in favor of the Government on these claims, and denies [plaintiff’s] cross-motion for summary judgment.”
   
• Exemption 6; Exemption 7(C):  The court relates that “[s]ixty of the FBI’s claims under Exemptions 6 and 7(C) and/or FOIA Exemption 7(E) relate to materials as to which the CIA did not make a claim under Exemption 3.”  The court finds that “[plaintiffs’] initial brief on summary judgment stated that he ‘does not challenge these few redactions [including all those made under Exemption 6 and 7(C)] except to the extent they may withhold previously disclosed information.’”  “[Plaintiff] did not make any specific claim to that effect then, or in the recent round of briefing.”  “Accordingly, the Court grants summary judgment to the Government on the FBI’s proposed withholdings under Exemptions 6 and 7(C).”
   
• ​​​​​​​Exemption 7(E):  The court relates that there are “two disputed redactions at issue – those as to which the FBI invokes solely Exemption 7(E).”  “[Plaintiff] asserts that ‘the FBI interrogation techniques and information about a plot to use a weapon of mass destruction are discussed in a variety of public sources and cannot properly be redacted.’”  The court finds that “[a]n agency, however, ‘does not have to release all details concerning law enforcement techniques just because some aspects of them are known to the public.’”  “Here, the FBI maintains that disclosure of the redacted information would ‘reveal law enforcement techniques and procedures because it would identify methods used in the collection and analysis of information gleaned through interviews, including the way the FBI strategically collects information and the methodologies employe[d] to analyze it once collected.’”  “It asserts that, although the fact that the FBI conducts interviews is publicly known, the ‘details about how it collects and analyzes information obtained through interviews’ and ‘how it did so in its interviews of [the subject]’ are non-public.”  “[Plaintiff] bears the burden of proof on this issue.”  “However, he has not adduced any evidence supporting that the details of the FBI’s interrogation techniques, or the fruits of these techniques or the analyses of them, are generally known to the public.”  “Because the FBI, through its submissions, has plausibly demonstrated ‘that the information withheld logically falls within the claimed exemption,’ . . . the Court finds summary judgment warranted in the FBI’s favor on this point.”