Rosenberg v. ICE, No. 12-452, 2014 WL 413569 (D.D.C. Feb. 3, 2014) (Kollar-Kotelly, J.)

Rosenberg v. ICE, No. 12-452, 2014 WL 413569 (D.D.C. Feb. 3, 2014) (Kollar-Kotelly, J.)

Re:  Request for records concerning raid of Iowa meatpacking plant and subsequent prosecution of certain individual

Disposition:  Granting in part and denying in part defendant's renewed motion for summary judgment; granting in part and denying in part defendant's previously held in abeyance motion for summary judgment; granting in part and denying in part plaintiff's previously held in abeyance motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court finds the FBI’s search was adequate.  The court explains that "[i]mportantly, in [defendant's most recent] [d]eclaration, the FBI explains that '[b]ased on the nature of the records sought by plaintiff, the CRS is the only FBI system of records where responsive records would reasonably reside absent additional information pointing to records that may reside outside the CRS.'"
   
• Exemptions 6 and 7(C):  The Court finds that defendant "has properly revised its redactions on all except one of the twenty-seven pages."  The court recounts that it previously "ordered the FBI to either revise its redactions or provide a supplemental explanation of the use of Exemptions 6 and 7(C) with respect to the pages identified by the Court."  The court relates that defendant "explains that it reviewed the pages identified by the Court and 'determined additional information could be segregated for release, but only to the extent that release of the information would not reveal the identity of the third party.'"
   
• Exemption 7(D):  The court recounts that "[i]t was not until his reply brief that the Plaintiff challenged the adequacy of the FBI's showing that the interviewees were implicitly assured that their identities would remain confidential."  "As a result, the Court provided the FBI an opportunity to respond to the new argument in the Plaintiff's reply before the Court determined whether the FBI is entitled to summary judgment regarding its use of Exemption 7(D)."  The court finds that, "[h]aving undertaken a thorough in camera review of the information withheld by the FBI pursuant to Exemption 7(D), the Court concludes that for most, but not all, of the redacted documents where the FBI has invoked Exemption 7(D), the FBI has met its burden of establishing that the individuals whose identities and information the FBI withheld provided information to the FBI under an implied assurance of confidentiality."  Regarding the information where the court holds that Exemption 7(D) was correctly used, "the Court finds that the severity of the crime and the close association that certain informants had with . . . [the] fraudulent activity permit a reasonable inference that for these informants 'the communication in all likelihood would not have been made if confidentiality had not been assured.'"  However, the court finds that "the FBI did not meet its burden" in justifying the use of Exemption 7(D) in several instances because "[n]othing about the circumstances in which these individuals were interviewed or about their relationship to the crime indicates that they would not have provided information to the FBI without an understanding that their information and identity would remain confidential."  However, "[t]he Court does find . . . that much of the information on these fifteen pages was properly withheld pursuant to Exemption 7(C), which the FBI simultaneously invoked."
   
• Exemption 7(E):  The court relates that it previously "found it 'unclear ... how the information on these [five] pages reflects internal FBI methodology, or how the disclosure of this information would enable perpetrators to alter their behavior and thwart detection.'"  The court now "finds the FBI has . . . met its burden of establishing that 7(E) exempts the series of questions withheld."  The court explains that "[r]elease of the redacted questions would disclose what the FBI deems relevant to investigating obstruction of justice cases."  "As for the risk of circumvention of the law if the FBI's investigative technique is disclosed," the court finds that "[h]ere, the FBI has logically and reasonably explained how releasing what the FBI deems relevant to obstruction of justice investigations would allow criminals to 'adjust their responses and behavior to circumvent the law.'"
   
• Exemption 3:  The Court "finds [certain] information withheld . . . is most firmly exempt under Exemption 3."  The court relates that "the FBI seeks to withhold records of reports created pursuant to the [Bank Secrecy Act]," 31 U.S.C. § 5319.  The court explains that "[t]he BSA specifically states that 'a report [created pursuant to the BSA] and records of reports are exempt from disclosure under section 552 of title 5.'"
   
• Waiver:  "While the FBI did not raise Exemption 3 as a justification for withholding information on these three pages until its Reply brief, the Court finds the FBI has not waived raising Exemption 3."  The court explains that "the FBI raised the applicability of Exemption 3 in its Reply supporting its Renewed Motion for Summary Judgment and thus prior to the completion of the district court proceedings."  "Moreover, the FBI's initial Renewed Summary Judgment brief and the Third Hardy Declaration discussed in detail how the [Bank Secrecy Act] exempts the information at issue here from FOIA disclosure."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court cautions that "'[t]he [FBI's] conclusion on a matter of law is not sufficient support for a court to conclude that the self-serving conclusion is the correct one.'"  "Nevertheless, upon its extensive review of the documents at issue in this case, the Court finds the FBI has now produced to the Plaintiff all reasonably segregable, nonexempt information, except for the limited information the Court has specifically identified in this opinion as non-exempt and thus releasable to Plaintiff."