CNN, Inc. v. FBI, Nos. 17-1167, 17-1175, 17-1189, 17-1212, 17-1830, 2018 WL 1036364 (D.D.C. Feb. 23, 2018) (Boasberg, J.)

CNN, Inc. v. FBI, Nos. 17-1167, 17-1175, 17-1189, 17-1212, 17-1830, 2018 WL 1036364 (D.D.C. Feb. 23, 2018) (Boasberg, J.)

Re: Requests for records concerning memoranda prepared by former Federal Bureau of Investigation Director James Comey

Disposition: Granting defendants' motion for partial summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that, "[b]ased on the Government's 'reasonably detailed affidavit, setting forth the search terms and the type of search performed,' the Court is satisfied that the search was adequate."  The court notes that, "[a]lthough [one plaintiff] does not contest that the search was adequate, . . . because [another plaintiff] chose not to respond at all to the Government's Motion, the Court is in the odd position of having to nonetheless consider the search."  "This is so because the Court of Appeals recently forbade district courts from regarding the failure to even respond as a concession."  Substantively, the court finds that "[defendant] 'aver[red] that all files likely to contain responsive materials were searched,' . . . and the 'search terms were reasonably calculated to lead to responsive documents.'"
   
• Exemption 7, Threshold:  The court holds that "Exemption 7's threshold requirement is . . . satisfied."  "There is little doubt that the Special Counsel's investigation into Russian interference in the election serves law-enforcement needs."
   
• Exemption 7(A):  The court holds that "'[t]he FBI has offered sufficient explanations[]'" for its use of Exemption 7(A).  The court finds that "[i]ts public declaration states that the three pages 'relate to and concern the Comey Memos,' . . . documents that the Court has already held are exempt under 7(A)."  Additionally, the court finds that "the FBI explained that releasing the emails could 'reveal[ ] non-public information about the memos that the FBI protected in the first instance to prevent harm to the investigation.'"  "Disclosing the records 'would highlight particular activities, interactions, and individuals,' which could assist subjects or targets of the investigation in shaping their testimony."  "These averments meet the specificity required for 7(A)."  Finally, "the Court has conducted an in camera review of the three pages[]" and, "[a]fter doing so, it easily concludes, just as with the Memos themselves, that disclosure would interfere with law-enforcement proceedings."
   
• Procedural Requirements, "Reasonably Segregable" Obligation:  The court notes that "[o]ne responsive document includes two separate conversational threads, one of which relates to the Comey Memos and the other of which is a wholly distinct discussion regarding a meeting with a senator."  "Although the only non-exempt information – i.e., the senator discussion – is not responsive to Plaintiffs' requests, the Bureau must nonetheless produce it because 'once an agency . . . identifies a particular document or collection of material – such as a chain of emails – as a responsive "record," the only information the agency may redact from that record is that falling within one of the statutory exemptions.'"  "The Court will, accordingly, return a redacted version of one document to the FBI, which then must turn it over to Plaintiffs."