The N.Y. Times Co. v. FBI, No. 21-10888, 2023 WL 5955843 (S.D.N.Y. Sept. 13, 2023) (Reice Buchwald, J.)

The N.Y. Times Co. v. FBI, No. 21-10888, 2023 WL 5955843 (S.D.N.Y. Sept. 13, 2023) (Reice Buchwald, J.)

Re:  Request for records concerning shootings involving FBI officers

Disposition:  Granting defendant’s motion for summary judgment

• Exemption 6; Exemption 7(C):  “The Court finds there is a strong privacy interest and minimal public interest [regarding information withheld from an Office of Professional Responsibility (“OPR”) report], and accordingly grants the FBI’s motion for summary judgment.”  The court notes that “[t]he exemption under 7(C) is ‘more protective of privacy than Exemption 6 and thus establishes a lower bar for withholding material.’”  “Therefore, if a document passes the more stringent balancing test under Exemption 6, it will necessarily survive the balancing test under Exemption 7.”  Regarding the privacy interests, the court finds that “a ‘government employee who is the subject of an investigation possesses a strong privacy interest in avoiding disclosure of details of the investigation.’”  “The identification of an officer or third party involved in an investigation implicates privacy interests because it could lead to ‘embarrassment’ or ‘harassment,’ and the privacy interests are ‘even stronger . . . insofar as the material in question demonstrates or suggests that they had at one time been subject to criminal investigation.’”  “This interest would certainly be implicated by the identification in an OPR Precedent Report related to an officer intentionally discharging his weapon.”  “While that interest can be triggered by the identification of a person by name, it can also be triggered by identifying details of an event.”  “Here, the FBI represents that it has redacted details within the OPR Precedent Reports that it believes could identify the FBI officers who are the subjects of the report, as well as third parties, even if their names were not included.”  “[T]he FBI’s affidavit provides a sufficient explanation for [these] withholding[s].”  Regarding the public interests at issue, the court finds that “[t]hese privacy interests outweigh the minimal public interest in disclosing a few sentences of the reports.”  “This Circuit has held that there is little public interest in the identification of law enforcement personnel or third parties since that information ‘sheds little light if any on the conduct and administration of FBI investigations.’”  “Plaintiffs recognize this and instead argue that the public interest lies in the belief that that the information behind the redactions would ‘show what information OPR weighed (and what information it failed to gather) in making its consequential decisions to discipline an FBI agent, and (more obviously) it would reveal the full extent of the misconduct committed by two particular FBI agents.’”  “However, plaintiffs’ argument is speculative and plainly disproportionate to the limited redactions actually included in the documents.”  “Therefore, [the court finds that] the FBI has properly withheld the information in these two documents under Exemption 6 to FOIA.”  “Given that this is a sufficient basis to withhold the redacted material, the Court need not reach the alternative argument that the redactions fall under Exemption 7(C).”