Zaid v. DOJ, No. 23-1821, 2024 WL 1243017 (4th Cir. Mar. 25, 2024) (Wilkinson, J.)

Zaid v. DOJ, No. 23-1821, 2024 WL 1243017 (4th Cir. Mar. 25, 2024) (Wilkinson, J.)

Re:  Request for records concerning requester’s client

Disposition:  Affirming district court’s grant of government’s motion for summary judgment

• Exemption 7(A):  The Court of Appeals for the Fourth Circuit holds that, “[f]ar from invoking a ‘blanket exemption’ for all records in [the requester’s client’s] investigative file, . . . the government here broke down the kinds of records withheld under exemption 7(A) into nineteen well-defined categories, it conducted a document-by-document review of the records, it grouped them into functional categories, and it demonstrated how release of information contained within those functional categories could reasonably be expected to interfere with enforcement proceedings, not only against [the requester’s client], but other prospective child pornography targets as well.”  The court notes that, “[h]ere the government submitted almost one hundred pages of declarations that ‘explained in detail why [Exemption 7(A)] applied to the information and documents withheld.’”  “‘This is substantially more than is required’ and provided the district court with an adequate basis for finding the government had met its burden.”
  
  The court relates that “[the requester] argues that the government failed to sufficiently describe the two functional subcategories at issue.”  “His arguments are without merit.”  “Regarding the Information Concerning Physical and Documentary Evidence subcategory, [the requester] contends that the FBI failed to describe the records in a functional manner because the declaration only described what the subcategory ‘may’ include.”  “But, . . . the government here asserted that providing a more detailed description ‘could reasonably lead to disclosure of non-public aspects of pending investigative efforts.’”  “[The requester] has not endeavored to dispute this risk, nor has he questioned the government’s good faith in making the assertion.”  “Moreover, the link between releasing information ‘obtained from searches and seizures, surveillance, victim interviews, subpoenas, laboratory reports, and other law enforcement activities’ and the risk to other ‘pending and prospective’ child pornography proceedings is clear.”  “Such information would naturally and necessarily allow other defendants in [the requester’s client’s] criminal circle to ‘discern the FBI’s investigative strategies and employ countermeasures to avoid detection and disruption by law enforcement; and allow investigative targets to formulate strategies to contradict evidence to be presented in court proceedings.’”  “[The court] find[s] that the government’s prediction of harm was ‘reasonable[ ]’ and warranted exemption 7(A) protection.” 
  
  “[The requester] also claims that the FBI failed to define the Exchange of Information Between Various Law Enforcement Agencies subcategory functionally because it only linked the records to past investigative efforts.”  “Not so.”  “[The FBI’s] declaration rationally linked the disclosure of records documenting the exchange of information between the FBI and its law enforcement partners to an interference with prospective enforcement proceedings.”  “Namely, that ‘release of this information would identify the FBI’s investigative interest in particular individuals and subject third parties, such as witnesses and victims, to potential harassment or other forms of intimidation, and physical and mental harm.’”  “[The court has] held that these kinds of harm ‘warrant an exemption under subsection (b)(7)(A).’”  “‘[The requester] contends that these risks were insufficiently concrete because the government failed to point to any specific prospective law enforcement proceeding, instead relying on ‘abstract prospective possibilities.’”  “But this ignores the covert, online nature of child pornography offenses.”  “The name of the game in child pornography prosecutions is compiling evidence of a target’s receipt or possession of child pornography.”  “Such materials are generally accessed online and downloaded to a personal computer.”  “A prospective target that knows he is being monitored by the FBI could try to alter or conceal evidence of past use and could inform other users of the websites he frequented to do the same.”  “In other words, the government cannot point to a prospective target without undermining its case against him and potentially others in his criminal network.”
  
  “Moreover, the government noted the general risk to future enforcement proceedings if the FBI were forced to disclose its communications with other law enforcement agencies.”  “[The court has] recognized that disclosure of records that would ‘reveal information provided to the FBI by a foreign government’ and ‘identify the governmental entity in question . . . would have a chilling effect on the free flow of information between the United States intelligence and law enforcement agencies and their foreign counterparts.’”  “The second [FBI] declaration represented that this would, ‘in turn, diminish the scope or volume of reliable intelligence or investigative information available to the FBI, causing harm to FBI investigations.’”  “[The court] cannot ignore the commonsense conclusion that requiring disclosure of these documents would make other law enforcement agencies, foreign or domestic, think twice before assisting the FBI.”