Stein v. DOJ, No. 13-00571, 2015 WL 5776059 (D.D.C. Sept. 30, 2015) (Chutkan, J.)

Stein v. DOJ, No. 13-00571, 2015 WL 5776059 (D.D.C. Sept. 30, 2015) (Chutkan, J.)

Re: Request for case evaluation forms, training manuals, monographs, USABook desktop library records, records concerning late British author and journalist, records concerning third party

Disposition: Granting some of defendant's motions for summary judgment; granting in part and denying in part some of defendant's motions for summary judgment

• Exemption 2:  "[T]he court finds that the [Work Processing Unit] Case Evaluation Forms sought by Plaintiff relate solely to the FBI’s internal personnel rules and practices, and as such are exempt from disclosure under FOIA."  The court explains that "[t]he Supreme Court’s opinion in Milner makes clear that the WPU Case Evaluation Forms are personnel records, given that the forms contain 'evaluations of [employees'] work performance' and concern 'the selection, placement, and training of employees' and 'employee relations or human resources,' including 'such matters as hiring and firing, work rules and discipline, compensation and benefits.'"  The court also finds that "the forms relate to ''[p]ersonnel management.''"  The court finds that "[p]laintiff’s assertion that the WPU Case Evaluation Forms 'can also relate' to the FBI’s FOIA process more generally is also both conclusory and speculative."  "Here, there is no evidence in the record indicating that the WPU Case Evaluation Forms are used as some kind of broad 'quality assurance measure' for 'improving the overall quality of the FOIA service provided by the agency' as opposed to or in addition to simply being used for evaluating the performance of individual employees."  "These are not indicia of the FOIA process, but of the FOIA processor."
   
• Exemption 7(E):  "[T]he court finds that the FBI has provided enough information to support its invocation of exemption (b)(7)(E) with regard to the withheld portions of the [Automated Case Support] Basic Reference Guide."  The court relates that "the FBI has represented that ACS 'is the primary tool used by FBI special agents and support personnel to ... conduct federal criminal, national security, and intelligence investigations.'"  The court finds that "[i]t follows that 'use of ACS itself is a law enforcement technique or procedure.'"  "It also follows that the ACS Basic Reference Guide, which explains how to use ACS to search [the Central Records System] and identifies 'where and how particular sorts of data are recorded within' these proprietary computer systems . . . necessarily contains and describes 'techniques' or 'procedures' used for 'law enforcement investigations.'"  The court finds that "[t]he ACS Basic Reference Guide need not provide step-by-step instructions for potential law-breakers in order to fall within the scope of the exemption; it is enough that it provides 'information that could increase the risks that a law will be violated or that past violators will escape legal consequences.'"  "The FBI has demonstrated how the release of the ACS Basic Reference Guide might create a risk of circumvention of the law by averring to the possibility that individuals could use it 'to gain unauthorized access to, view and manipulate data on, or otherwise interfere with the FBI’s system,' and that '[s]uch actions could arm individuals with the information or ability to avoid detection or develop countermeasures to circumvent the FBI’s ability to effectively use this investigatory tool.'"
   
• Exemption 5, Attorney Work-Product:  "In this case, the Civil Division has sufficiently established that the monographs being sought by Plaintiff were prepared by attorneys in anticipation of litigation, as they outline the legal strategies of attorneys who will be required to litigate on behalf of the government."  The court specifically notes that "'[i]t would be of substantial benefit' to a party challenging an agency action, challenging an agency's assertion of a privilege or bringing a claim against an agency under the Privacy Act, 'and of corresponding detriment' to the agency, if the party could obtain these monographs, which would give them 'the benefit of the agency’s legal and factual research and reasoning, enabling [them] to litigate on wits borrowed from' the agency."
   
• Procedural Requirements, Searching for Responsive Records:  The court denies this portion of EOUSA's motion for summary judgment.  "The court agrees with Plaintiff that the Executive Office applied an unnecessarily hypertechnical reading to his request, and that its method of processing only those documents 'behind' links on the FOIA Topic Page which are themselves located on the USABook site was inappropriate."  "The court therefore agrees with Plaintiff that a 'reasonable, simple, liberal construction of [his] request includes 'the FOIA Topic Page' and whatever is on it, and if it includes a page of links, whatever is behind those links is also responsive.'"  However, the court finds that "for any link on the FOIA Topic Page that leads to another list of links on another Topic Page, Defendant is hereby ordered to list the links on the cross-referenced Topic Page on its Vaughn index, but it need not fully process the content that is 'behind' those links at this time."
   
• Exemption 7, Threshold:  "[B]ecause the FBI has demonstrated that . . . 29 pages of records over which it asserts exemption (b)(7)(D) were all originally compiled for law enforcement purposes, those records remain protected by the exemption even if the background checks for which they were re-compiled do not constitute 'law enforcement purposes.'"
   
• Exemption 7(D):  "[T]he court holds that the FBI properly withheld information pursuant to exemption (b)(7)(D) on the one page for which it asserted an express assurance of confidentiality, and grants summary judgment in Defendant’s favor with respect to the withholding of information on that one page."  "The court further holds that the FBI has not met its burden of establishing that it properly withheld information pursuant to exemption (b)(7)(D) on the 28 pages of records for which it asserted an implied assurance of confidentiality, and denies Defendant’s motion for summary judgment with respect to the withholding of information on those 28 pages."  The court explains that "[g]iven the FBI’s fairly in-depth explanation of its confidential source number system, and in light of the fact that Plaintiff has not challenged the information provided by the FBI showing that the source provided information under an express assurance of confidentiality, the court concludes that the FBI has sufficiently established the existence of an express assurance of confidentiality."  However, "[w]hile the court is mindful that there may be circumstances in which an implied assurance of confidentiality can be inferred from the context and surroundings in which the information was imparted, the FBI has not provided the court with enough evidence to permit it to draw such an inference here."  "Instead, the FBI’s declaration speaks primarily in vague generalities about how it cooperatively 'solicits and receives information regularly from state, local, and foreign agencies and authorities,' and how 'a mutual understanding' regarding confidentiality is '[i]nherent in this cooperative effort.'"
   
• Fees and Fee Waivers, Fee Waivers:  "[T]he court concludes that Defendant is entitled to summary judgment on Plaintiff’s challenge to its fee waiver determination."  "[T]he court finds that Plaintiff did not meet his burden of demonstrating that the release of the requested records and information would be 'in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of government.'"  The court explains that "[i]n support of his request for a fee waiver, Plaintiff simply stated that '[t]here can be no question that the information sought would contribute to the public’s understanding of government operations or activities and is in the public interest' because '[t]he events described [in the article] are of great importance to the public.'"  The court finds that "[t]his conclusory statement, without more, is insufficient to support a fee waiver request."