Hertz Schram PC v. FBI, No. 12-14234, 2014 WL 764682 (E.D. Mich. Feb. 25, 2014) (Goldsmith, J.)

Hertz Schram PC v. FBI, No. 12-14234, 2014 WL 764682 (E.D. Mich. Feb. 25, 2014) (Goldsmith, J.)

Re:  Request for certain records contained in National Gang Intelligence Center's "2011 National Gang Threat Assessment Emerging Trends" report

Disposition:  Granting in part and denying in part defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court first "concludes that Plaintiff's argument that the discrepancy between the documents released in response to [a third party] request and the documents released in response to Plaintiff's request creates a genuine issue of material fact lacks merit."  The court explains that "'[t]he factual question is whether the search was reasonably calculated to discover the requested documents, not whether it actually uncovered every document extant.'"  The court next "concludes that although [defendant's] declaration adequately describes the FBI's search of the [Central Record System], the declaration does not describe the [National Gang Intelligence Center (NGIC)]'s search for records in sufficient detail."  The court explains that defendant's "declaration [] states that 'NGIC reviewed its files and located the material it relied upon in preparing the [2011 report][,]'" but "[t]he declaration does not describe how the NGIC organized or searched its files, nor does the declaration provide information regarding 'the procedures [the NGIC] used to process [the] request and to ensure that it appropriately responded to the request.'  The declaration also "does not 'explain in reasonable detail the scope and method of [the NGIC's] search,' . . . nor does it 'identify[ ] the terms searched or explain[ ] how the search was conducted' by the NCIG."  The court also "concludes that the FBI misinterpreted Plaintiff's FOIA request and, therefore, conducted a search that was not responsive to Plaintiff's request."  The court explains that "[t]he plain language of the request," "all documents 'regarding the investigation and determination to include the identification of the 'Juggalos' as a 'gang' in the [2011 report],'" "encompasses a range of documents beyond those on which the NGIC relied in deciding to classify the Juggalos as a gang in the 2011 report."  The court also "agrees that documents responsive to Plaintiff's request are not limited to documents created prior to the authoring of the 2011 report."
   
• Exemption 5, Deliberative Process Privilege:  The court "concludes that the FBI properly withheld documents under Exemption 5."  The court explains that "[t]he documents withheld are intra-agency or inter-agency memos; the handwritten notes of the FBI analyst are an intra-agency memo, . . . and the outside law enforcement agencies that submitted records were acting as consultants to the FBI for the purpose of collecting and providing gang-related information."  Additionally, the court finds that "all the intra-agency and inter-agency memos were prepared and submitted prior to the FBI's issuance of its decision in the 2011 report" and that "the memos were 'the result of a consultative process,' or deliberative."
   
• Exemptions 6 and 7(C):  The court "concludes that the individuals whose identifying information was redacted from the above-mentioned documents have a substantial privacy interest in avoiding disclosure of their identity."  The court explains that "the FBI agents and staff, as well as law enforcement personnel, have an interest in avoiding publicity that could expose them to harassing or hostile actions" and  "third parties of investigative interest or whose names were mentioned in law enforcement reports have an interest in avoiding being publicly linked to a law enforcement investigation."  The court "further concludes that there is no substantial public interest in disclosure of this identifying information; the identities of these individuals do not reveal anything about the workings of the government, and they are not probative of any agency's behavior or performance."
   
• Exemption 7(D):  The court finds that communications "marked 'confidential' or 'for law enforcement dissemination only,'" "are protected from disclosure under Exemption 7(D)."  The court "concludes that these markings indicate that the law enforcement agency submitted such communications to the FBI with the understanding that the communications would remain confidential."  The court also "concludes that the FBI has met its burden of showing that the intelligence bulletin, police report, and gang member identification forms contained implied assurances of confidentiality."  The court agrees with defendant's reasoning that '"we can infer that these law enforcement agencies [providing the documents] did not intend or expect that this cooperative exchange of detailed and singular law enforcement information and intelligence, which was provided to the FBI solely for purposes of furthering NGIC's research, would be publicly disclosed by the FBI.'"
   
• Exemption 7(E):  The court "concludes that the FBI has met its burden of demonstrating that the records were properly withheld under Exemption 7(E), including an explanation of why further details regarding the internal law enforcement techniques may not be exposed in this litigation."  The document at issue "is 'a centralized repository for counterterrorism and investigative data that allows authorized users to query the information using advanced software tools.'"
   
• Litigation Considerations, Vaughn Index/Declaration:  The Court "concludes that the index sufficiently describes each document that was withheld or released in part and explains the exemptions applicable to each document or portion of a document."  The court states that "[t]he index contains a reasonably detailed description of each document, including information such as the type of document, the date of the document, and a brief description of its substance."