Wright v. FBI, No. 18-0687, 2023 WL 6121872 (D.D.C. Sept. 19, 2023) (Chutkan, J.)

Wright v. FBI, No. 18-0687, 2023 WL 6121872 (D.D.C. Sept. 19, 2023) (Chutkan, J.)

Re:  Request for certain records concerning plaintiff, as well as Countering Violent Extremism

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; denying plaintiff’s revised motion to conduct limited discovery

• Procedural Requirements, Proper FOIA Requests:  Regarding item eight of plaintiff’s request, “the court concludes that Plaintiff did not ‘reasonably describe[ ]’ the request.”  The court relates that “[i]tem 8 is a blanket request for all records ‘discussing criticism of the FBI for being too politically correct or mistaken about radical Islamic terrorism, or being unduly concerned about discrimination against U.S. Muslims or the civil rights / civil liberties of Muslims in the U.S.’”  “There is no indication, for example, of where those records might be located . . . or the timeframe in which they might have originated . . . .”  “Defendant avers that ‘without specific descriptors,’ there is ‘no reasonable way to search FBI records for’ any ‘criticism of the FBI concerning the manner in which the FBI handles aspects of Islamic terrorism and aspects of Muslims in the United States.’”  “Plaintiff’s arguments do not alter that conclusion.”  “He contends that item 8’s terms ‘discrimination’ and ‘civil liberties’ are so ‘distinctive’ that ‘a simple keyword search’ would easily yield responsive records.”  “But those common terms are used in dozens of contexts . . . and would not alone meaningfully narrow any potential search.”

• Procedural Requirements, Searching for Responsive Records; Litigation Considerations, Adequacy of Search:  “The court concludes that Defendant conducted an adequate search with respect to four of the five disputed items:  6, 10, 12, and 15, but it requires additional information before it can determine whether Defendant’s search for item 14 was adequate.”  The court finds that “[t]he FBI performed a reasonable search for item 6.”  “As noted above, although Defendant initially determined that it was not sufficiently described, . . . the FBI ultimately ‘conducted a text search of Sentinel’ using search terms corresponding to each of item 6’s subparts.”  “Here, the full text search of Sentinel, using keywords drawn from each subpart of item 6, was enough to satisfy Defendant’s obligations to search in good faith.”  “Plaintiff contends that Defendant should have done more.”  “To begin, he argues that the FBI should have also undertaken the same search measures it used with respect to items 4, 5, and 10(e).”  “But as the court has already noted, each of those other items described specific document types and timeframes that could allow Defendant to conduct more directed searches of specific locations and offices.”  “Item 6, by contrast, sought ‘[a]ll non-training decisional and postdecisional records.’”  “Defendant reasonably responded to that much broader, less specific inquiry by searching the FBI-wide records available through a text search of Sentinel.”
  
  “Plaintiff raises only one objection to Defendant’s search for item 10:  that ‘the FBI produced inter alia two query letters from Rep. McCaul dated December 14, 2017 propounding questions for the records (QFRs)’ but ‘did not produce the responses to the QFRs.’”  “But Plaintiff acknowledges that he does not know whether those records exist.”  “And the ‘failure to turn up a particular document . . . does not undermine the determination that the agency conducted an adequate search.’”
  
  “Plaintiff’s sole objection to Defendant’s search for item 12 fares no better.”  “He argues that the FBI’s ‘CRS index search that turned up no responsive records’ was ‘designed-to-fail’ and that the FBI should have conducted a text search for the five books listed in item 12.”  “But the FBI did conduct that very text search, and still found no responsive records."
  
  “Item 14 requested ‘[a]ll records discussing mosques as’ six distinct categories:  ‘a) seats of government of Islam, b) arsenals to store weapons and ammunition, c) repositories to store food and water, d) fortresses or built with fortified construction, e) providing military style training, [and] f) potentially being used for armed insurrection against the U.S. government.’”  “As it did with item 6, Defendant initially determined that the request in item 14 did not sufficiently describe the records sought to permit a reasonable search, . . . but later performed a term search of Sentinel . . . .”  “Specifically, the FBI searched for the word ‘mosque’ on Sentinel, but the search results ‘contained over one million hits, covering a multitude of subject matters.’”  “Plaintiff does not claim that FOIA obligates Defendant to sift through a million documents to find responsive records for item 14.”  “He does point out, however, that Defendant could refine its search by using ‘keyword[s]’ and ‘Boolean operators (e.g., “mosque” + “arsenal” or “weapons”).’”  “The FBI’s declarant responds that a search ‘using the Boolean operator “and” . . . would yield every instance individually and combination of two or more of the search terms, whether found together or not, yielding an even larger but less accurate pool of possible results.’”  “But that description runs contrary to the ordinary understanding of how the Boolean operator ‘and’ functions.”  “It seems at least possible that using the ‘and’ operator could have significantly reduced the number of hits in a Sentinel search.”  “The court cannot conclude whether a more reasonable search for item 14 is possible without additional information from Defendant and therefore will deny without prejudice the Motion for Summary Judgment as to item 14.”  “Defendant may submit a declaration providing further detail about why a search using the Boolean operator ‘and’ to link the word ‘mosque’ with keywords from item 14’s subparts is not possible.”  “Alternatively, if such a search is possible, Defendant shall carry it out and submit a declaration averring that (1) the search produced no responsive records, (2) the search produced responsive records and they have been produced to Plaintiff or withheld as exempt, or (3) the search returned so many hits that it would be unduly burdensome to review them all (with details on the number of hits and the estimated time it would take to review them).”
  
  Finally, regarding item 15 of the request, the court finds that “Defendant reasonably identified certain offices it deemed most likely to hold responsive records and directed them to conduct a search of their electronic and paper files.”  “Accordingly, Plaintiff’s ‘purely speculative claims about the existence and discoverability of other documents’ cannot overcome the presumption that Defendant searched in good faith.”
   
• Exemption 1, Glomar Response; Exemption 3:  The court relates that “Plaintiff also challenges Defendant’s Glomar response to item 9 of his FOIA request.”  “Item 9 requested ‘[a]ll decisional and post-decisional records discussing the Ft. Hood report recommendations’ to:  ‘a) identify violent extremism by name [and] b) conduct an in-depth analysis of (i) the ideology of violent extremism, (ii) the factors that make that ideology appealing to individuals (including U.S. citizens and legal permanent residents), and (iii) what ideological indicators or warning signs show that the individual is weighing or accepting the ideology[.]’”  “Defendant initially determined that item 9 was too vague to permit a reasonable search, but it later conducted a search that produced 427 potentially responsive pages, which were released in part to Plaintiff.”  “Plaintiff does not challenge that search or release, only Defendant’s invocation of Glomar with respect to any additional records.”  “Defendant plausibly asserted a Glomar response under FOIA’s Exemptions 1 and 3.”  “Its declarant stated that item 9 ‘seeks records concerning organizations, events, programs and ideologies, which triggers a standard Glomar response’ to avoid any indication ‘that certain national security or foreign intelligence related records do or do not exist.’”  “Specifically, item 9 warranted a Glomar response under Exemption 1 because it seeks information specially classified as secret by Executive Order for national defense and foreign policy purposes, and here the FBI’s classification authority decided that disclosing whether responsive records exist would harm U.S. national security by implicating U.S. intelligence activities.”  “And relatedly, item 9 warranted a Glomar response under Exemption 3 because it seeks information specifically exempted from disclosure by statute – here, the National Security Act – that could divulge information about the existence or non-existence of intelligence sources and methods.”  “Given item 9’s request for records related to the government’s response to violent extremism, the court finds Defendant’s invocation of Glomar to be both ‘plausible and logical.’”  “Plaintiff’s objections to the Glomar response are unpersuasive.”  “First, he protests that Defendant’s FOIA declarant . . . is also the FBI’s ‘Original Classification Authority’ who made the Glomar determination in this case, which Plaintiff considers a conflict of interest.”  “But he presents no evidence in the record beyond his own allegations that [defendant’s declarant] has acted in bad faith (allegations the court has rejected, . . . ) or otherwise wrongly invoked Glomar here, and cites no authority indicating that [defendant’s declarant’s] dual roles create a disqualifying conflict of interest.”  “Consequently, Plaintiff's argument is not enough to dislodge the presumption of good faith owed to Defendant’s declarations.”  “Second, Plaintiff argues that Glomar cannot plausibly apply here because ‘the Ft. Hood massacre took place more than a dozen years ago’ and ‘many aspects of the attack were aired long ago in Congress and in various reports about the attack.’”  “Plaintiff may be correct that some records may no longer imperil national security interests, but Defendant’s declaration plausibly avers that other records still may pose that risk, if they exist.”  “It requires no stretch of the imagination to suppose that some records related to the Ft. Hood attack could be relevant to the government’s intelligence sources, methods, or information today.”  “The court will therefore not second-guess Defendant’s invocation of Glomar on that basis.”
   
• Litigation Considerations, In Camera Inspection:  The court holds that “there is no basis for in camera review, and the court will grant summary judgment to Defendant with respect to the FOIA exemptions it claims.”  The court finds that “[defendant’s] declarations set forth, in exhaustive detail, the basis for all the withholdings it made.”  “[Defendant] also produced a Vaughn index summarizing the exemptions applied to withhold any nondisclosed portions of responsive records.”  “Plaintiff does not dispute any of the specific withholdings, stating that he ‘is not in a position to argue whether Defendant’s grounds for [nondisclosure] are well-grounded in law and fact.’”  “Instead, he argues that the court should undertake in camera review of certain random samples of withheld databases and documents.”  “However, ‘when the agency meets its burden [under the FOIA] by means of affidavits, in camera review is neither necessary nor appropriate.’”

• Litigation Considerations, Discovery:  The court holds that “Plaintiff’s motion [for discovery] will . . . be denied.”  “Discovery is rarely permitted in FOIA cases, and generally ‘only upon a showing that the agency acted in bad faith.’”  “Plaintiff has not made that showing.”  “As explained above, there is insufficient evidence to show that Defendant has acted in bad faith at any point in its response to Plaintiff’s FOIA request.”