Shapiro v. DOJ, No. 13-595, 2014 WL 953270 (D.D.C. Mar. 12, 2014) (Collyer, J.)

Shapiro v. DOJ, No. 13-595, 2014 WL 953270 (D.D.C. Mar. 12, 2014) (Collyer, J.)

Re: Request for records concerning Occupy Houston generally, and specifically alleged plot by unidentified actors to assassinate leaders of Occupy Houston

Disposition: Granting in part and denying in part defendant's motion to dismiss

• Litigation Considerations, Mootness and Other Grounds for Dismissal:  First, the court finds that "[b]ecause FBI did not release all responsive documents to [plaintiff], and redacted information from documents that were released, the Court finds that his claims are not moot."  Second, the court finds that "FBI's motion to dismiss for failure to state a claim ignores the admitted facts, as alleged in the Complaint, that [plaintiff] requested documents that have been located but not released or not released in full."  The court explains that "[plaintiff] contests FBI's claim that FOIA exemptions apply" and "[w]hile the merits of his allegations are to be determined, [plaintiff] clearly has stated a claim."
   
• Litigation Considerations, Adequacy of Search:  The court holds that "[defendant's] Declarations establish that all of FBI's searches were reasonably calculated to discover requested documents."  The court notes that "FBI was not required to search every record system; it was only required to conduct a reasonable search of those systems of records likely to possess the requested information."  The court concludes that "[h]ere, FBI exceeded this standard" and "took the additional step of conducting a text search . . . for more than forty search terms from another Occupy-related FOIA case."
   
• Exemption 1:  The court holds that "[plaintiff's] challenge to FBI's reliance on Exemption 1 is without merit."  The court notes that "[plaintiff] challenges the adequacy of [defendant's] Declaration's description of withheld information, both in terms of the context and nature of the information, as well as the consequences that reasonably will flow from disclosure."  The court finds that "[c]ontrary to [plaintiff's] contentions, [defendant's] Declaration is sufficiently detailed."  The court explains that "[i]t defines what constitutes an intelligence activity or method . . . and describes with reasonable detail the information withheld so as to demonstrate that Exemption 1 applies without revealing the exact information at issue."  The court notes that "[i]n reality, [plaintiff's] issue with [defendant's] Declaration is that it does not reveal the information he wants."  The court notes that, "that is the point of Exemption 1."
   
• Exemption 3:  The court notes that "[t]he statute relevant to this discussion is the National Security Act of 1947, 50 U.S.C. §§ 3001 et seq., as amended by the Intelligence Reform and Terrorism Prevention Act of 2004, Pub.L. 108–458, 118 Stat. 3638 (2004)."  The court explains that "[t]he National Security Act provides that the 'Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure.'"  Additionally, "[i]t also directs DNI to 'establish and implement guidelines for the intelligence community' for, inter alia, '[c]lassification of information under applicable law, Executive orders, or other Presidential directives' and '[a]ccess to and dissemination of intelligence....'"  The court finds that "FBI correctly construes the National Security Act as a federal statute that leaves it with 'no discretion [in] ... withholding from the public information about intelligence sources and methods.'"  Additionally, the court finds that "FBI also has demonstrated that the withheld information falls within the National Security Act."
   
• Exemption 6:  The court notes that "[plaintiff] only challenges FBI's decision to withhold the names and identifying information of third parties who provided information to FBI, and only does so to the extent that FBI relies on Exemption 7(C)."  The court finds that "[a]ccordingly, [plaintiff] has waived any argument as to the applicability of Exemption 6."
   
• Exemption 7, Threshold:  The court finds that "[defendant's] averments are too generalized for purposes of Exemption 7."  The court explains that "[a]t no point does [defendant] supply specific facts as to the basis for FBI's belief that the Occupy protestors might have been engaged in terroristic or other criminal activity."  The court notes that "[n]either the word 'terrorism' nor the phrase 'advocating the overthrow of the government' are talismanic, especially where FBI purports to be investigating individuals who ostensibly are engaged in protected First Amendment activity."  Therefore, the court holds that "FBI will be directed to explain its basis for withholding information pursuant to Exemption 7."  The court further states that "[t]o the extent that FBI believes it cannot be more specific without revealing the very information it wishes to protect, it may request an in camera review of the documents."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court states that it "reviewed FBI's declarations and finds that these submissions adequately specify 'which portions of the document [s] are disclosable and which are allegedly exempt.'"