Cabezas v. FBI, No. 22-5170, 2024 WL 3547243 (D.C. Cir. July 26, 2024) (Rogers, J.)

Cabezas v. FBI, No. 22-5170, 2024 WL 3547243 (D.C. Cir. July 26, 2024) (Rogers, J.)

Re:  Request for records concerning requester’s conviction for receipt of child pornography

Disposition:  Affirming district court’s grant of government’s motion for summary judgment and denial of requester’s motion for discovery and in camera inspection

• Litigation Considerations, Adequacy of Search:  The Court of Appeals for the District of Columbia Circuit holds that “[t]o the extent [the requester] contends that the FBI did not maintain ‘complete records’ in the Central Records System, he overlooks records released in response to the supplemental targeted search in the Tampa Field Office and refers to likely emails on a commercial server and records on his iPhone.”  “On appeal [the requester] does not develop the argument why there should be additional records before this court.”
  
  Additionally, the court relates that “[the requester] renews his argument that the FBI failed to upload all the responsive records to the Central Records System, stating that he ‘used the fruits of his discovery in his criminal case to show that the FBI’s records and record keeping policies were deficient.’”  “The district court explained that [the requester] was conflating records in his criminal discovery and those in the FBI’s possession when it received his FOIA request.”  The court finds that, “[o]n appeal [the requester] neither explains why the district court erred nor describes what other locations might contain responsive records that have not been searched using reasonable means.”
   
• Exemption 5, Deliberative Process Privilege:  The Court of Appeals for the District of Columbia Circuit relates that “[t]he FBI withheld two passages of a non-public ‘detailed operational plan containing information related to [the requester’s] arrest’ under Exemption 5.”  The court holds that “[t]he FBI properly relied on the deliberative process privilege to withhold portions of an ‘FBI operational plan,’ including material containing ‘suggestions regarding FBI operational strategies’ and ‘memorializ[ing] communications with an Assistant United States Attorney . . . who . . . provided advice regarding investigative strategy related to [the requester’s] case.’”  “This material is predecisional.”  “It was prepared prior to the specific operation, and it does not ‘reflect final agency decisions.’”  “The material is also deliberative.”  “The FBI explained that the Assistant United States Attorney’s ‘recommendations and legal analysis were contingent on predicted scenarios that were only speculated to potentially occur.’”  “The FBI further explained how release of this information could harm future FBI investigations by creating a chilling effect on the FBI’s employees’ willingness to share ideas and would damage the integrity of the FBI’s investigative plans and strategies.”
  
  The court relates that “[the requester] insists that the FBI improperly invoked the deliberative process privilege to protect ‘a fact-based arrest operations plan,’ which has no relation to ‘agency [policy oriented] judgment.’”  The court finds that “[g]iven the nature of the sting investigation of [the requester] and others, [the requester] provides no basis for this court to conclude that the FBI has mischaracterized the content of the material withheld under Exemption 5.”  “The FBI’s sworn declarations state how the withheld records fall within the deliberative process privilege of Exemption 5.”  “[The requester] points to nothing in the record to the contrary.” 
   
• Exemption 6; Exemption 7, Threshold; Exemption 7(C):  The Court of Appeals for the District of Columbia Circuit notes that “[t]he FBI also invoked two other FOIA Exemptions to justify redaction of personal identifying information for government employees and various third parties.”  The court notes that “[the requester] does not challenge that the records at issue were ‘compiled for law enforcement purposes.’”           “The FBI invoked Exemption 7(C) to withhold identifying information of FBI special agents and professional staff, an Assistant United States Attorney and other local law enforcement personnel, third parties mentioned in investigative records, a third party of investigative interest to the FBI, and an individual who provided information to the FBI in the course of the investigation of [the requester].”   The court finds that “[e]ach of these individuals has a cognizable privacy interest.”  “[The requester] maintains that the instances of alleged FBI misconduct were sufficient to overcome the privacy interests of an unspecified number of these individuals.”  “He did not develop these claims on appeal, opting instead to incorporate by reference his arguments in the district court.”  “But vague allegations and essentially ‘bare suspicion[s]’ are not ‘evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.’”
   
• Exemption 7(E):  The Court of Appeals for the District of Columbia Circuit relates that “the FBI invoked Exemption 7(E) to withhold undercover communications used in the investigation of [the requester], the operational plan to which Exemption 5 applies in part, and the details of investigative databases and their search results.”  The court finds that “[o]n this record, Exemption 7(E) suffices to support the FBI’s withholding of details about an undercover operation, the operational plan, and database information and search results.”

• Litigation Considerations, Discovery & In Camera Inspection:  The Court of Appeals for the District of Columbia Circuit relates that “[the requester] seeks a remand for development of an adequate record on the ground that the district court abused its discretion by failing to provide any reasoning for denying his motions for limited discovery and for in camera review.”  “The reason for summary denial of his discovery and in camera motions is self-evident in view of the district court’s reasons for granting summary judgment to the FBI.”  “Given the evidence of an adequate search . . . and [the requester’s] failure to ‘provide “countervailing evidence,”’ . . . in the district court or to proffer such evidence on appeal, a remand would serve no purpose.”