Buzzfeed Inc. v. DOJ, No. 19-1977, 2023 WL 6847008 (D.D.C. Oct. 17, 2023) (Sullivan, J.)

Buzzfeed Inc. v. DOJ, No. 19-1977, 2023 WL 6847008 (D.D.C. Oct. 17, 2023) (Sullivan, J.)

Re:  Request for communications between Los Angeles FBI field office and several DNA and genetic testing businesses

Disposition:  Granting defendants’ motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court relates that “[defendants’] First Declaration explains that the FBI searched its records systems, using key terms from Plaintiff’s FOIA request to find responsive documents.”  “When that search turned up empty, the FBI conducted a targeted search of specialized offices and personnel that the FBI identified as most likely to have responsive records, including consulting its Federal DNA Database Unit, DNA Casework Unit, and National Acquisition Programs Unit.”  “Plaintiff does not challenge the adequacy of Defendants’ search . . . and the Court determines that this search was sufficient to meet Defendants’ FOIA obligation.”

• Exemption 4:  The court relates that “‘[e]mail chain discussions concerning DNA forensic assistance for pending FBI investigations’” “were ‘withheld under a combination of Exemptions 4, 6, 7(A), 7(C), or 7(E).’”  Regarding Exemption 4, “the Court concludes that the agencies properly withheld the emails under FOIA Exemption 4.”  The court relates that “Plaintiff claims that Defendants do ‘not even state what information in these records specifically is exempt under Exemption 4.’”  “[T]he Court disagrees with Plaintiff’s argument that the agencies have not adequately described the documents to determine whether Exemption 4 may apply.”  “Although the Vaughn Index description of the documents is minimal, the declarations submitted in support of the agencies’ Motion for Summary Judgment help to clarify what information is contained in the emails at issue and whether that information is ‘commercial.’”  “In [the FBI’s] First Declaration, [it] describes the documents as ‘confidential contractual and transactional documents and communications, including terms, conditions, privacy agreements, and procedural guidelines, and details relating to advancements for use of genetic genealogy services for law enforcement investigation purposes.’”  “[The FBI] further details the information provided to the agencies as ‘specific pricing and financial information,’ which may ‘include reference to case specific services.’”  “In [the FBI’s] Second Declaration, [it] reiterates these claims and states that the ‘multiple unfolding email communications’ contain ‘specific details on the forensic genetic genealogy assistance provided to the FBI,’ including ‘proprietary forensic applications, advancements, and testing statistics.’”  “These descriptions, although general, contain ‘reasonably specific detail’ to establish that the information described in the emails is commercial.”  “They describe the forensic company(s) furnishing propriety information and details about their services for the purpose of obtaining contracts with the FBI.”  “The commercial nature of these discussions is clear.”  “The descriptions are also detailed enough to establish that the information was provided ‘by a person.’”  “As described above, the communications include case-specific details that the FBI provided to the genetic company(s) and propriety information about the company(s’) services, which were provided to the agencies in response.”  “As [the FBI] explains in [its] Second Declaration, the agencies are not claiming Exemption 4 over every page of the email chains, but rather limit their assertion of this Exemption to pages that discuss ‘proprietary forensic genealogy specifics.’”  “Since the agencies are not claiming Exemption 4 protection over information that they provided in the email correspondence and the propriety data described in [the FBI’s] Second Declaration was provided to the agencies by the genetic company(s’) employee(s), [defendant’s] description of the emails is sufficient to determine that the information was supplied ‘by a person.’”
  
  Additionally, “the Court concludes that the information contained in the contested documents is ‘confidential’ within the meaning of Exemption 4 because it was both treated as private by the company(s) who furnished the information and provided to the agencies under the assurance of privacy by the FBI.”  “Plaintiff . . . claim[s] that Defendants have ‘failed to provide a foundation sufficient to show that the genetic companies [the FBI] communicated with have confidentiality policies in place that prohibit the release of the specific information redacted . . . .’”  “[The FBI’s] First Declaration states that the genetic company(s) asserted that the ‘information provided to the FBI had not been made available to the public,’ ‘[c]ompany personnel are prohibited under the company’s confidentiality policy from disclosing this type of information,’ and that the company(s’) ‘confidentiality and privacy policies do not allow acknowledgement of working with any particular customer unless the customer first publicly acknowledges the relationship.’”  “In [the FBI’s] Second Declaration, [it] acknowledges that this information was provided after the FBI ‘sent a submitter notice to the forensic genealogy company(s) asking for their confidentiality policies’ and that as part of that notice, the FBI ‘provided the forensic genealogy company(s) with proposed material for release, including the email communications [withheld].’”  “Both of these statements were corroborated by the ex parte, in camera materials submitted by Defendants, which emphasized from personal knowledge that the documents at issue contain proprietary details about the company(s’) capabilities, which are held in strict confidence within the company(s) and with their customers, both potential and actual.”  The court finds that “the evidence establishes that the company(s) provided the information to the agencies under an assurance of privacy.”  “In [the FBI’s] First Declaration, [it] states that the ‘FBI submitted contractor solicitations under the condition that the contractor services requested would remain confidential even if the service contract is not accepted.’”
  
  Finally, “the Court rejects Plaintiff’s argument that Defendants ‘failed to address the disputed records with the level of specificity the D.C. Circuit requires and has therefore failed to prove foreseeable harm.’”  “In [the FBI’s] Second Declaration, [it] specifies that the release of the information in the emails would ‘place [the genetic company(s)] at a competitive disadvantage by competitors having access to confidential pricing and financial information.’”  “The in camera, ex parte materials confirm this concern and elaborate that this harm is especially acute in the context of the services provided because competitors are vying for contracts with the same potential customers, so releasing information about the company(s’) pricing, existing customers, and propriet[ar]y genetic services will place the company(s) at a competitive disadvantage.”  “These claims link the release of the information contained in the emails – pricing, existing customer, and propriet[ar]y services details – with the harm expected to occur – a competitive disadvantage in the market for genetic processing services.”  “There is nothing overly speculative about the risks of harm to the company(s) if this information is disclosed.”
  
  Addressing a smaller category of documents, withheld “‘pricing,’ ‘terms of service,’ or ‘contractual specifications’ for the company(s’) services[,]” the court finds that “[t]hese descriptions, alongside the in camera, ex parte materials describing confidentiality, and the foreseeable harm analysis conducted in the Exemption 4 section above, suffice to establish that these . . . documents were properly withheld either in full or in part under Exemption 4.”
   
• Exemption 7(A):  “[T]he Court concludes that the agencies properly withheld the emails under Exemption 7(A).”  The court relates that plaintiff “limits its challenge to information pertaining to ‘cold cases’ identified by the FBI.”  First, the court finds that “[the FBI’s] Second Declaration explains that the cold cases include ‘kidnapping, murder, violent gang criminal enterprises, and serial killer investigations,’ which ‘will continue to be actively pursued until resolved.’”  “[The FBI] also specifies that ‘[t]he material in [the emails] discussing propriet[ar]y forensic genealogy advancements for use in law enforcement investigations’ concerned these cold case investigations, ‘where the FBI determined the forensic genealogy company(s) could provide additional leads to potentially resolve these cold cases.’”  “Accordingly, not only have Defendants established that they continue to ‘gather evidence for a possible future criminal case’ in these investigations, but also they show that the information furnished to them by the company(s) has brought them closer to identifying suspects for prosecution.”  “This description of the ‘cold cases’ and how the emails relate to their progress is sufficient to inform the Court’s analysis and establish that these investigations meet the latter two requirements for FOIA Exemption 7(A).”
  
  Second, the court finds that “[t]he declarations and Vaughn Index provide sufficient specificity to establish Exemption 7(A).”  “[I]n [the FBI’s] First Declaration, [it] avers that the 7(A) Exemption in this case was invoked ‘in a limited fashion to protect specific details’ pertaining to resolving cold cases, and that ‘release of this information would reveal . . . the existence of unknown investigations for which the FBI is seeking specialized services.’”  “Turning to the potential for interference, [the FBI’s] First Declaration asserts that release of the information in the emails ‘would provide criminals with information about the government’s investigation/enforcement strategies in ongoing matters, allow them to predict and potentially thwart these strategies, and/or allow them to discover/tamper with witnesses and/or destroy evidence.’”  “[It] further specifies that ‘[c]riminals who are potential suspects of these crimes could seek to avoid detention by changing their behaviors if they learn cold cases are being reinvestigated.’”  “Since the materials identify specific cold cases ‘for which the FBI is seeking specialized services,’ this inherently reveals to those perpetrators, ‘the scope, direction, [and] focus’ of these investigations.”  “Additionally, as noted in the previous section, the fact that the FBI believed ‘the forensic genealogy company(s) could provide additional leads to potentially resolve these cold cases,’ and the record shows that contracts were drawn up to retain the services of such company(s) . . . the emails provide a roadmap to the FBI’s ongoing investigations in these identified cold cases.”  “Thus, the potential for the type of interference identified by the FBI can be reasonably expected.”
   
• Exemption 7(E):  “[T]he Court concludes that the emails were properly withheld under FOIA Exemption 7(E).”  The court relates that “Plaintiff challenges Defendants’ use of Exemption 7(E) with regard to the category ‘strategy utilizing particular evidence.’”  “First, it claims that Defendants’ declarations are ‘too generic to support its withholdings’ and fail to ‘fully explain what information falls into this category.’”  The court finds that “[the FBI] explains that the information at issue is ‘specific propriet[ar]y forensic genealogy testing innovations, advancements, and specific details on forensic law enforcement capacities that the private company(s) offer’ as well as ‘investigation details,’ including ‘details on evidence collection and the evidence gathered for pending investigations.’”  “This information does more than ‘imply’ that the information in the category at issue refers to the company(s’) capabilities.”  “It also explains that the information contains details about law enforcement’s evidence collection in specific cases.”  “This explanation is detailed enough to determine what is included in the category ‘strategy utilizing particular evidence.’”  “Additionally, it is irrelevant whether the category also includes ‘other evidence-gathering techniques or to evidence beyond DNA’ because all ‘techniques and procedures for law enforcement investigations or prosecutions’ are covered by the Exemption if they ‘could reasonably be expected to risk circumvention of the law.’”  “Plaintiff’s second challenge to Defendants’ use of 7(E) for the category ‘strategy utilizing particular evidence’ is that the Exemption ‘does not protect law enforcement techniques and procedures that are well known to the public.’”  “While this is correct, [defendant’s] Second Declaration emphasizes that the information contained in the emails goes beyond the public’s general knowledge about DNA evidence and the FBI’s use of such evidence.”  “Specifically, [defendant] highlights that the information provided by the company(s) details the ‘innovations’ and ‘advancements’ in this field.”  “Additionally, while the public may know generally that the FBI collects and analyzes DNA, it does not follow that the public is aware of the specific ‘details on evidence collection and the evidence gathered for pending investigations.’”
  
  “Turning to whether the release of this category of information could lead to circumvention of the law, the Court is persuaded that such a risk exists.”  “In [the FBI’s] Second Declaration, [it] notes that revealing particular details for pending investigations ‘would reveal the scope of the investigation and tip off potential targets.’”  “[It] also notes that the information about the genealogy company(s’) capabilities ‘would provide criminals with information concerning the FBI’s investigation and enforcement strategies in ongoing matters, allowing them to predict and potentially thwart these strategies[ ] . . . or destroy evidence.’”  “The connection between revealing details of an ongoing investigation and jeopardizing that investigation were explained in the section discussing Exemption 7(A) and remain true here.”  “Additionally, the Court agrees that there is a logical connection between releasing details about the advancements in forensic evidence processing available to the FBI and fear that the details of such advancements could lead future suspects to potentially ‘thwart’ those strategies.”
  
  “Finally, although not challenged by Plaintiff, Defendants also invoke Exemption 7(E) over the category of information containing ‘internal FBI secure email and IP addresses, and internet/web addresses.’”  “They claim that release of such information could allow criminals to ‘gain unauthorized access to, view and manipulate data on, or otherwise interfere with the FBI’s non-public intranet systems and view or manipulate sensitive investigative data, interfere with the FBI’s non-public internet protocol, or hinder the FBI’s ability to enforce the law by disrupting the FBI’s internal communications.’”  “This type of information has typically been held to be exempt under Exemption 7(E).”  “The Court concludes there is no reason in the record here to deviate from that norm.”
   
• Exemption 4; Exemption 7(E):  The court relates that “[s]everal documents were claimed exempt in part under Exemption 4, 7(E), or a combination of the two.”  “These documents . . . are all emails between FBI personnel and the genetic company(s).”  “According to the Vaughn Index, they discuss various events, articles on genetics, and material for press releases.”  The court finds that, “[a]s noted above, [the FBI] explained that the information withheld under Exemption 4 included ‘confidential contractual and transactional documents and communications, including terms, conditions, privacy agreements, and procedural guidelines, and details relating to advancements for use of genetic genealogy services for law enforcement investigation purposes.’”  “Where this information was included in these email communications, those details were properly redacted under Exemption 4.”  “Additionally, [the FBI] explained that information withheld under Exemption 7(E) for strategies for utilization of particular evidence included ‘sensitive, non-public strategies for using particular types of evidence gathered during unresolved and current pending murder, kidnapping, violent criminal gangs, and serial killing investigations.’”  “Where this information was included in the email communications, those details were also properly redacted under Exemption 7(E).”
   
• Exemption 7(C):  The court relates that “Defendants invoke FOIA Exemptions 6 and 7(C) to withhold ‘names and other identifying information’ for 8 categories of people:  (1) commercial institution personnel; (2) third parties who provided information to the FBI; (3) third parties merely mentioned; (4) FBI Special Agents and Professional Staff; (5) local and state law enforcement personnel; (6) non-FBI federal government personnel; (7) third-party victims; and (8) third parties of investigative interest.”  The court finds that “[n]ames and identifying information of private individuals, law enforcement officers, and other employees connected with law enforcement personnel are routinely protected under Exemption 7(C).”  “The Court agrees that in this case the privacy interests of the third parties, law enforcement personnel, and other related staff trigger the 7(C) Exemption for that information.
   
• ​​​​​​​Litigation Considerations, Reasonably Segregable Requirements:  The court relates that “‘[i]n [the FBI’s] First Declaration, [it] states that the FBI conducted a segregability review of the records and determined that:  (1) for the pages released in part, they ‘compromise a mix of material that could be released and material that needed to be withheld as release would trigger foreseeable harm to one or more interests protected by the cited FOIA exemptions on these pages’; and (2) for the pages withheld in full, there was ‘no information that could be reasonably segregated for release without triggering foreseeable harm to one or more of the cited FOIA exemptions.’”  “These representations, in addition to the Court’s determination that the information has been properly withheld under several exemptions, are sufficient to trigger the presumption that the agencies satisfied their FOIA obligations with respect to segregability.”