Boundaoui v. FBI, No. 17-4782, 2024 WL 2019532 (N.D. Ill. May 3, 2024) (Durkin, J.)

Boundaoui v. FBI, No. 17-4782, 2024 WL 2019532 (N.D. Ill. May 3, 2024) (Durkin, J.)

Re:  Request for records concerning “Operation Vulgar Betrayal” (“OVB”)

Disposition:  Granting in part and denying in part defendant’s motion for partial summary judgment; granting in part and denying in part plaintiff’s motion for partial summary judgment

• Litigation Considerations, In Camera Inspection & Summary Judgment:  “The Court conducted an in camera review of the 101 documents in the sample set agreed upon by the parties.”  “When conducting the in camera review, the Court reviewed the Government’s withholdings and redactions for all claimed exemptions and compared each document with the Vaughn index.”  “Based on this review and with the exception of one issue discussed below regarding Exemptions 7(C) and 6, the Court finds that the withholdings and redactions in the sample set were proper and that the Government has fully discharged its obligations under FOIA.”  “The Court extrapolates this conclusion from the sample set to the larger set of all OVB files.”  “As discussed above, Plaintiff does not challenge the Government’s use of exemptions 1, 3, 5, 7(A), 7(D), and 7(F) or that the Government properly withheld sealed records.”  “As to these exemptions and the sealed records, the Court grants the Government’s motion for partial summary judgment for two reasons.”  “First, the Court found during its in camera review that the Government properly applied these exemptions and properly withheld sealed documents.”  “Second, Plaintiff does not dispute these issues and ‘[f]ailure to respond to an argument . . . results in waiver.’”
  
  The court also holds that “Plaintiff’s identification of minor inconsistencies does not warrant ordering the Government to re-review approximately 33,120 pages worth of documents.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  The court relates that “[t]he Government provided a declaration from [the Acting Section Chief for the FBI’s Record/Information Dissemination Section] which stated that ‘the FBI first-level reviewer [ ] conducted a line-by-line review of every page within the entire production at the time of processing’ and that ‘an expert or supervisor also conducted a line-by-line review of every processed page to verify [that] the asserted exemptions [were] correct and to ensure that no further segregable information [could] be released.’”  The court finds that “[t]his declaration, taken together with the detailed Vaughn index, was sufficient to show with reasonabl[e] specificity that the documents could not be further segregated.”  “In addition, and as discussed above, the Court reviewed the sample in camera and verified that the documents had been properly withheld or redacted, and that all reasonably segregable information had been released.”  “Plaintiff argues that the Government failed to justify its withholding of documents outside the sample set.”  “But the parties agreed to limit summary judgment to a manageable sample set.”  “And representative sampling is commonly accepted in FOIA cases.”  Finally, “Plaintiff contends that [certain] minor inconsistencies somehow invalidate all of the other redactions but fails to cite any precedent supporting this position.”  “The Government reviewed approximately 33,120 pages over approximately 20 months and identification of a small number of minor inconsistencies does not warrant ordering the Government to review the documents again.”
   
• Exemption 6; Exemption 7, Threshold; Exemption 7(C):  The court concludes that “the public interest in disclosing the race, ethnic information, and nationality of people investigated by the Government as part of OVB outweighs the privacy interests in withholding it.”  First, the court notes that “[b]ecause Plaintiff does not dispute that the Government compiled the relevant documents and information for law enforcement purposes, . . . the Government need ‘satisfy only the lower withholding standard contained in Exemption 7(C).’” 
  
  “Regarding the public interest, Plaintiff does not seek all information redacted under Exemption 7(C).”  “She seeks only ‘the race, ethnic information, and nationality’ of people who were investigated by the Government as part of OVB.”  “She seeks this information in order ‘to compile a statistical assessment,’ and she contends that this will further the public interest by shedding light on the extent to which OVB ‘targeted Arabs and Muslims.’”  The court finds that “Plaintiff’s stated public interest falls within ‘the core purpose of FOIA . . . to expose what the government is doing.’” 
  
  “Regarding the privacy interest, Plaintiff points out that the Government did not categorically redact all racial identifiers for each document.”  “In response, the Government explains that ‘information related to race, ethnicity, or nationality is evaluated on a case-by-case basis, sensitive to context and amount of detail and that the FBI redacts such information only where its analysis concludes disclosure would risk identifying the individual.’”  “In effect, the Government has already conducted its own balancing test and redacted identifiers only where it determined that the identifier posed harm to privacy interests.”  “But district courts determine the propriety of redactions ‘de novo,’ and the Court need not defer to the Government’s analysis.” 
  
  “Having reviewed the sample set of documents in camera, the Court finds that disclosure of only the race, ethnic information, and nationality of the subjects who were investigated as part of OVB will not increase the risk that these subjects can be personally identified.”  “The documents will remain largely and properly redacted under Exemption 7(C) such that the release of these identifying characteristics will not marginally change the extent to which the documents at issue expose the identity of the subjects.”  “Further, Plaintiff seeks this information to compile a statistical analysis and where ‘[d]isclosure of the [subject’s] . . . nationality would result in the assembly of mere statistics[,] [i]t is unlikely that [the subject] could be identified based on [the] data set[ ].’”
   
• Exemption 7(E):  The court holds that “[t]he Government met [its] bar.”  “First, the Government demonstrated that disclosure might create a risk of circumvention of the law.”  “[The Government’s declaration] set[s] forth seventeen discrete categories of information withheld pursuant to Exemption 7(E).”  “For each category, the Government specifically explained how disclosure would give criminals insight into investigation techniques and would logically aid criminals in circumventing the law.”  “For example, the Government explained that disclosure of database information ‘would give criminals insight into the available tools and resources the FBI uses to conduct criminal and national security investigations’ which would ‘expose possible intelligence gaps’ and would ‘allow criminals to make informed decisions . . . to exploit these [gaps].’”  “Or that disclosure of specific surveillance details ‘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 surveillance operations.’”  “Second, in the Vaughn index, the Government included a chart that listed each of the seventeen categories withheld pursuant to Exemption 7(E).”  “The chart was broken down by page number for each of the 101 sample documents and specified which of the seventeen categories justified the withholdings on each page.”  “As part of the in camera review, the Court compared the Vaughn index with each of the 101 documents.”  “The Court verified the accuracy of the Vaughn index and finds that the Government’s withholdings under Exemption 7(E) were proper.”  The court finds that “far from conclusory, the [Government’s] Declaration and Vaughn index were detailed and specific.”  “And the Court verified by in camera review that the withholdings were not overbroad.”