N.Y. Times Co. v. FBI, No. 22-3590, 2024 WL 325273 (S.D.N.Y. Jan. 29, 2024) (Oetken, J.)

N.Y. Times Co. v. FBI, No. 22-3590, 2024 WL 325273 (S.D.N.Y. Jan. 29, 2024) (Oetken, J.)

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

Disposition:  Following in camera inspection, granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment

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

• Exemption 7(E):  The court relates that “[t]he FBI continues to assert that the entire Report is exempt from disclosure under Exemption 7(E).”  “Upon consideration of the FBI’s in camera submission, the Court concludes that the Report does contain descriptions of techniques and procedures whose disclosure could reasonably be expected to risk circumvention of the law.”  “Any further description of these techniques and procedures in this Opinion could risk compromising law enforcement.”  “However, the Court also concludes that Exemption 7(E) does not justify withholding the Report in full.”  “First, the FBI improperly invoked Exemption 7(E) to shield information about techniques and procedures that are generally known to the public.”  “The FBI’s conclusory statement that publicly disclosed facts in the Report are ‘inextricably intertwined’ with BAU techniques that must be protected to prevent circumvention of the law is not borne out by the Court’s in camera review.”  “Second, the Report's discussions of the factual background of the investigation and its conclusions do not fall under Exemption 7(E)’s protective umbrella.”  “In its in camera review, the Court has identified numerous passages in the Report that discuss the investigation’s facts and findings without revealing any investigative techniques or procedures, whether known or unknown to the public.”  “The Court also determines that these portions are not inextricably intertwined with exempt material contained in the Report.”  “The FBI has failed to demonstrate a logical connection between disclosure of the Report’s investigative facts or high-level conclusions – devoid of any discussion of analytical methods unknown to the public – and the risk that bad actors could circumvent the law.”

• Exemption 6; Exemption 7(C):  The court relates that “[t]he FBI has jointly 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 Report; (2) information on the ‘locations where victims lived and worked 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 the Havana Syndrome.’”  “[Plaintiff] does not dispute the application of Exemptions 6 and 7(C) to this information but instead argues that these provisions do not justify withholding the Report in full.”  “Based on its in camera review, the Court determines that the information identified as protected by these two exemptions is protected under Exemption 7(C) alone, and it therefore need not consider Exemption 6 separately with respect to the same information.”  “The Court, therefore, will grant summary judgment in favor of [plaintiff] to the limited extent that Exemption 7(E) does not justify withholding the Report in its entirety.”  “The FBI is directed to disclose the portions of the Report identified in footnote two of this Opinion to [plaintiff], subject to the marked redactions for withholding under Exemption 7(C).”