N.Y. Times Co. v. FBI, No. 22-3590, 2023 WL 5098071 (S.D.N.Y. Aug. 9, 2023) (Oetken, J.)

N.Y. Times Co. v. FBI, No. 22-3590, 2023 WL 5098071 (S.D.N.Y. Aug. 9, 2023) (Oetken, J.)

Re:  Request for copy of report from FBI’s Behavioral Analysis Unit (“BAU”) on the phenomenon known as “Havana Syndrome”

Disposition:  Denying plaintiff’s motion for summary judgment; denying defendant’s motion for summary judgment

• Exemption 7, Threshold:  The court holds that, “[a]s a threshold matter, the BAU Report was compiled for law enforcement purposes, given that it was prepared as part of the FBI’s investigation into Havana Syndrome.”

• Exemption 7(A):  The court holds that “[t]he FBI’s motion for summary judgment is . . . denied as to the 7(A) Exemption because it has not met its burden to justify withholding.”  The court relates that “[i]n its public filings, the FBI represents that disclosure poses a risk of harm because its investigation into Havana Syndrome is ongoing and disclosure would risk disrupting ‘any potential prosecutions that could arise as a result of the counterintelligence investigation.’”  “It also represents that disclosure would ‘jeopardize an ongoing investigation by disclosing what specific information the FBI knew and did not know at the time the Report was drafted and the conclusions reached as a result.’”  “The Court has also reviewed the representations that the FBI has presented on the risk of harm in . . . two classified . . . Declarations.”  “Having considered the FBI’s submissions, and according them the presumption of good faith to which they are entitled, the Court concludes that the agency has failed to carry its burden to provide a ‘logical and plausible’ justification for the application of Exemption 7(A).”  “Withholding is appropriate only if the release of the BAU Report ‘could reasonably be expected to cause some articulable harm,’ . . . .”  “The FBI has not identified a rational link from the content of the BAU Report, as represented in its affidavits, to a reasonable expectation of interference in the ongoing investigation.”  “To the extent that the FBI justifies withholding because the Report could ‘provide substantial information about what the FBI knew and did not know regarding Anomalous Health Incidents at the time the BAU Report was drafted’ . . . the Court finds that this does not logically relate to harm to an ongoing investigation.”  “Media reports indicate that the Report was drafted sometime in or before 2021; disclosing what the FBI did or did not know at least two years ago implies little plausible risk to the ongoing investigation.”  “Additionally, ‘Exemption 7(A) is temporal in nature.’”  “‘Disclosure of the information [the requester] seeks cannot interfere with parts of the enforcement proceeding already concluded.’”  “The Court takes judicial notice of the Intelligence Community Assessment published by the Office of the Director of National Intelligence (DNI), which states that ‘most IC agencies have now concluded that it is “very unlikely” a foreign adversary is responsible for the reported AHIs,’ and also discloses that the FBI was involved in the preparation of that assessment.”  “This, combined with the FBI’s representation [in certain portions of defendant’s classified declarations], call into question whether the exemption applies, especially given that ‘vague mentions of ongoing proceedings are not enough to support Exemption 7(A).’”

• Exemption 7(E):  The court holds that “[t]he FBI has . . . failed to justify withholding under Exemption 7(E).”  The court relates that “[t]he FBI asserts that disclosure would ‘reveal non-public information about the BAU’s techniques and procedures for conducting behavioral analysis.’”  “As to [plaintiff’s] argument that the FBI should release, at minimum, facts such as when the investigation was commenced; how long the investigation lasted; when the final report was published; and what type of information investigators considered, the FBI responds that this would reveal ‘not only the techniques and procedures the BAU used in performing its behavioral analysis, but also the specific application of those techniques and procedures in particular circumstances.’”  The court finds that “[t]he FBI’s representations are at too high a level of generality to justify withholding.”  “First, as [plaintiff] argues, the FBI has made some techniques employed by the BAU public through its own website and publications.”  “And in the context of Havana Syndrome, the DNI’s March 2023 disclosures reveal some investigative steps the FBI took within the U.S., including ‘conduct[ing] a technical survey [REDACTED], including review of the feasibility of an external signal specifically impacting a small localized area.’”  “Second, while the FBI describes the techniques at issue in this case as ‘non-public,’ it does so in a vague and conclusory manner.”  “The Court cannot determine whether any, some, or all of the techniques employed to produce the BAU Report are generally known to the public.”  “It is unclear to what extent the BAU Report contains health-related analysis that is entirely distinct from information on ‘how law enforcement officials go about investigating a crime.’”  “The former would seem to have little logical connection to a risk that future bad actors could circumvent the law, especially given extensive public disclosures about the victims’ health symptoms.”

• Exemption 6 & Exemption 7(C):  The court relates that “[t]he FBI has invoked Exemptions 6 and 7(C) to withhold (1) the names and phone numbers of FBI Special Agents who performed ‘coordinating/completing tasks’ in support of the creation of the BAU Report; (2) information on the ‘locations where victims lived and work and information related to their health, including references to medical reports and records’; and (3) ‘the title and/or affiliation of specific witnesses at the United States Embassy in Havana, Cuba, who had spoken to or parties who were mentioned to the FBI in connection with the FBI's investigation related to Havana Syndrome.’”  “[Plaintiff] does not dispute the application of Exemptions 6 and 7(C) to this information and instead argues that these provisions do not justify withholding the Report in its entirety.”  “Thus, the FBI has properly invoked Exemptions 6 and 7(C) for the narrow purpose of withholding those three categories of information.”

• Litigation Considerations, In Camera Inspection:  “The Court . . . directs the FBI to submit the unredacted BAU Report for its in camera review.”  The court explains that “[it] is not permitted to grant [plaintiff’s] cross-motion at this juncture, given that genuine disputes of material fact remain in the case.”  “Specifically, there is a genuine dispute as to (1) whether the contents of the BAU Report plausibly relate to an ongoing investigation or parts of a law enforcement proceeding that have already concluded; (2) whether the FBI is premising withholding on investigative techniques that are generally known to the public; and (3) whether some of the information withheld under 7(E) can be segregated because it relates to health analysis rather than law enforcement techniques, as defined by the relevant case law.”