Labow v. DOJ, No. 11-1256, 2014 WL 4368954 (D.D.C. Sept. 4, 2014) (Rothstein, J.)

Labow v. DOJ, No. 11-1256, 2014 WL 4368954 (D.D.C. Sept. 4, 2014) (Rothstein, J.)

Re: Request for records concerning plaintiff

Disposition: Granting defendant's motion for summary judgment

• Litigation Considerations, Pleadings:  The court holds that "[plaintiff] fails to raise an objection in his opposition to the adequacy of the FBI's search, or to withholdings under Exemptions 6, 7(C), or 7(F), as well as several subcategories of Exemptions 7(D) and 7(E)."  "Accordingly, because [plaintiff] has not raised specific objections to those exemptions, those arguments with respect to the FBI's search and its withholdings under Exemptions 6, 7(C), and 7(F) will be treated as conceded."  "Similarly, the Court need not consider the applicability of the challenged exemptions for the documents that have been withheld under multiple exemptions, one of which includes Exemptions 6, 7(C), and 7(F) or the unchallenged portions of Exemption 7(D) or 7(E)."
   
• Exemption 1:  The court holds that defendant appropriately withheld certain material under Exemption 1.  The court notes that "[t]here are two sets of documents relevant here."  "The first set of documents was created before [plaintiff's] FOIA request . . . [and] [t]he second set was created, and subsequently classified, after [plaintiff's] FOIA request."  The court finds that "even if the first set of documents was classified after [plaintiff's] FOIA request, [defendant's] Declaration explains that both sets of documents were classified in accordance with the classification requirements in Executive Order 13526, were classified on a document-by-document basis, and were classified 'under the direction of the senior agency official described in § 5.4.'"  The court next finds that "[t]he government properly classified the withheld information as pertaining to 'foreign government information' or to 'foreign relations or foreign activities.'"  The court relates that "[defendant] explains the expectation of confidence of the information, . . . and the Executive Order itself permits the source of the foreign government information to be classified."  The court also explains that "so long as 'unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security ... and it pertains to ... foreign relations or foreign activities of the United States,' then the information is appropriately classified under Executive Order 13526."  The court then finds that "it is difficult to conclude that the government has failed to meet its 'light' burden to justify its withholding."  The court notes that "[defendant] explains that disclosure of the withheld and redacted information would 'reveal the actual intelligence activity or method utilized by the FBI against a specific target; disclose the intelligence-gathering capabilities of the method; and/or provide an assessment of the intelligence source penetration of a specific target during a specific period of time.'"  The court relates that "[defendant] goes on to discuss the particular types of information that it withheld, such as the 'character and/or title of case,' the 'acronym that identifies a specific intelligence method utilized by the FBI in its intelligence activities,' and the 'intelligence sources.'"  The court also notes that "[defendant] explained that '[i]t is [its] judgment that any greater specificity in the descriptions and justifications set forth with respect to information relating to foreign government relations or foreign activities and intelligence sources and methods of the United States could reasonably be expected to jeopardize the national security of the United States.'"
   
• Exemption 3:  The court relates that "the FBI claims that 18 U.S.C. § 3123, Issuance of an order for a pen register or trap and trace device, Federal Rule of Criminal Procedure 6(e), The Grand Jury, and 50 U.S.C. § 3024(i)(1), Responsibilities and authorities of the Director of National Intelligence (also known as the National Security Act of 1947) all protect the information from disclosure."  The court discusses each of these in turn, first explaining that "[u]nder 50 U.S.C. § 3024(i)(1) . . . the Director of National Intelligence is directed to 'protect intelligence sources and methods from unauthorized disclosure,'" and that "[plaintiff] does not contest that the National Security Act is a proper withholding statute."  "[Plaintiff] does, however, challenge the government's use of the National Security Act to justify withholding and redacting information under the FOIA based substantially on the same grounds as his challenge to the government's use of Exemption 1."  The court finds that "[plaintiff's] challenge on those grounds is unsuccessful."  Second, the court explains that "[u]nder 18 U.S.C. § 3123, [a]n order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that (1) the order be sealed until otherwise ordered by the court; and (2) the person owning or leasing the line or other facility to which the pen register or a trap and trace device is attached, or applied, or who is obligated by the order to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber, or to any other person unless otherwise ordered by the court."  The court holds that "[t]he government . . . has already provided sufficient information [to justify withholding]: the government describes the material being withheld—information about the 'identities and phone numbers of the individuals subject to pen registers in this case—and the statute provides unequivocally that such orders 'shall' 'be sealed until otherwise ordered by court.'"  Third, the court relates that "Federal Rule of Criminal Procedure 6(e) prohibits disclosure of grand jury matters."  The court holds that "the government has provided a sufficient basis to conclude that it properly withheld the documents that would 'expose the inner workings of the grand jury' while not applying Exemption 3 to the documents that were 'coincidentally before the grand jury.'"
   
• Exemption 7(A):  The court holds that "[w]hile the government's affidavit leaves much to be desired, it has provided sufficient essentials for the Court to conclude that release of these law enforcement records could adversely impact an impending enforcement proceeding."  The court explains that "the government has averred that it has a pending investigation in which 'the subject is unaware of the investigation' and that it thus 'protected responsive records from that investigation pursuant to Exemption 7(A).'"
   
• Exemption 7(D):  The court holds that "summary judgment will be granted to the government on this issue."  The court explains that "[h]ere, the government withheld six categories of information, two under an implied assurance of confidentiality—'names, identifying information about, and/or information provided by sources under implied assurances of confidentiality' and 'names of, identifying information about, and/or information provided by local law enforcement under implied assurances of confidentiality—and four under express assurances of confidentiality.'"  The court first finds that "the FBI has met its burden by showing that it provided an express assurance of confidentiality to the source symbol number informants, and to other third parties or foreign agencies providing information."  Regarding implied assurances of confidentiality, the court finds that "the nature of the crime—an extremist anarchist protest involving property destruction—weighs in favor of finding that the source likely spoke 'with an understanding that the communication would remain confidential,'" "'the FBI intended to maintain the source's confidentiality so that s/he could be a source of information in similar cases in the future due to his/her knowledge about and access to individuals involved in extremist activities,'" and the FBI "indicat[ed] that the source has an ongoing relationship with the law enforcement agency."  Although, the court notes that "the government seems to concede that the source is unpaid," "[o]n balance . . . the factors weigh in favor of finding that the source spoke with the expectation of confidentiality."
   
• Exemption 7(E):  The court holds that "the government is entitled to summary judgment for its use of Exemption 7(E)."  The court notes that "the gist of [plaintiff's] attack is that the government cannot redact 'investigative techniques that are well known to the public,' particularly when disclosure could not possibly help criminals evade the law, and that Exemption 7 does not protect techniques that are 'not currently in use.'"  The court finds that "[defendant] acknowledged that 'it is publically known that the FBI and other law enforcement agencies engage in different types of surveillance in investigation.'"  "However, [defendant] then explained that that the information withheld was 'non-public details about when, how, and under what circumstances the FBI conducts surveillance.'"  "Further, [defendant] explains that the information that it withheld is about [a] 'currently-used law enforcement technique related to intelligence gathering that is itself classified.'"
   
• Exclusions:  "After reviewing all the materials submitted with the government's motion for summary judgment and [plaintiff's] opposition, as well as the govenment's ex parte declaration, the Court concludes that, if an exclusion was in fact employed, it was, and continues to remain, amply justified."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court "finds that the Second [defendant] Declaration sufficiently describes the segregability analysis undertaken and provides adequately detailed justifications for the nonsegregability of the documents."
   
• Litigation Considerations, Relief:  The court holds that "[e]ven if there are now 'additional releasable materials,' [plaintiff] is not entitled to reprocessing because he has not shown that the government erroneously withheld the information when it processed his request in 2011 and 2012."