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Council on American-Islamic Relations, California v. Federal Bureau of Investigation

October 12, 2010

COUNCIL ON AMERICAN-ISLAMIC RELATIONS, CALIFORNIA; AND EDGAR HOPIDA, PLAINTIFFS,
v.
FEDERAL BUREAU OF INVESTIGATION; AND DEPARTMENT OF JUSTICE, DEFENDANTS.



The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT FOLLOWING IN CAMERA REVIEW [Doc. No. 22]

This is an action filed under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, challenging Defendants' decision to redact and withhold certain documents in response to Plaintiffs' FOIA request. Following complete briefing and oral argument, the Court previously granted in part Defendants' Motion for Summary Judgment. The Court found the scope of the agencies' search for the responsive documents was adequate, and granted summary judgment on that issue. However, the Court reserved judgment on the agencies' assertion of exemptions and ordered a limited in camera review of the disputed documents. [Doc. No. 39.]

Pursuant to the Court's directions, Plaintiffs identified a representative sample of 100 pages of the 312 pages Defendants produced in redacted form. [Doc. No. 40.] Thereafter, Defendants produced to the Court for in camera review the unredacted version of those 100 pages as well as the 153 pages of documents withheld in full. Following in camera review, the Court concludes the Defendants justifiably withheld the documents from production under the asserted FOIA exemptions. Therefore, the Court GRANTS Defendants' motion for summary judgment.

BACKGROUND

The factual and procedural background of this case is fully set forth in the Court's June 29, 2010 order. In short, the Council on American-Islamic Relations ("CAIR"), its San Diego-based Public Relations Director Edgar Hopida ("Hopida"), and the Islamic Center of San Diego (collectively, "Requestors") sent joint FOIA requests to the FBI and Justice Department (collectively, "Defendants") on July 14, 2008. [Doc. No. 25-2 at 2-15]. The requests were triggered by a San Diego Union-Tribune article that described a security breach at Camp Pendleton, in which staff had stolen classified information and passed it along to local law enforcement agencies and defense contractors. (Countryman Decl., Ex. 1.) According to the article, that information included "more than 100 FBI and Defense Department files," which revealed that the Islamic Center and other mosques were "monitored by a federal surveillance program targeting Muslim groups." (Id.)

The FOIA requests in this case sought information from the FBI, National Joint Terrorism Task Force ("NJTTF"), and any other Joint Terrorism Task Force ("JTTF") regarding the surveillance program, as well as details on whether the Islamic Center, CAIR, and Mr. Hopida had been monitored as part of this or any other program, and, if so, how, when, and why the monitoring was carried out, and by whom. [Doc. No. 25-2 at 4-5]. The requests also sought information regarding how any documents related to the surveillance were stored, disseminated, or destroyed. [Id.] Overall, the FBI processed a total of 491 pages of records responsive to the July 14, 2008 FOIA request. (Hardy Decl., ¶ 4.) Out of those, the FBI released 26 pages in full, 312 pages in part, and it withheld in full 153 ages.

Plaintiffs CAIR and Hopida commenced the present action on April 20, 2009, alleging violations of FOIA and Justice Department Regulations. [Doc. No. 1]. Defendants filed the current motion for summary judgment, on May 10, 2010. [Doc. No. 22]. In support of the motion, Defendants filed a detailed declaration from David M. Hardy, the Section Chief of the Record Information Dissemination Section ("RIDS"), Records Management Division ("RMD"). Mr. Hardy's declaration provides an explanation of the "FBI's record keeping system and the procedures used to search for records responsive to plaintiffs' requests to FBIHQ and the [San Diego Field Office ("SDFO")]." (Hardy Decl., ¶ 4.) The declaration also provides "justifications for the withholding of information from these records" pursuant to FOIA and Privacy Act exemptions. (Id.)

LEGAL STANDARD

As explained in the Court's June 29, 2010 order, in an action brought under FOIA, the withholding agency bears the burden of proving it may withhold documents under one of the exemptions. 5 U.S.C. § 552(a)(4)(B); U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991). It may meet this burden by submitting affidavits showing that the information falls within the claimed exemption. Minier v. CIA, 88 F.3d 796, 800 (9th Cir.1996). "In evaluating a claim for exemption, a district court must accord 'substantial weight' to [agency] affidavits, provided the justifications for nondisclosure 'are not controverted by contrary evidence in the record or by evidence of [agency] bad faith.'" Id. (citation omitted).

DISCUSSION

In the present case, the FBI withheld documents pursuant to FOIA exemptions 1, 2, 3, 4, 6, 7(A), 7(C), 7(D), and 7(E), and Privacy Act exemptions (j)(2) and (k)(2). The Court will address each in turn.

A. Exemption 1

Exemption 1 protects from disclosure records that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). Exemption 1 thus "establishes a specific exemption for defense and foreign policy secrets, and delegates to the President the power to establish the scope of that exemption by executive order." Military Audit Project v. Casey, 656 F.2d 724, 737 (D.C. Cir. 1981); seealso Epstein v. Kesor, 421 F.2d 930, 933 (9th Cir. 1970) ("The function of determining whether secrecy is required in the national interest is expressly assigned to the executive."). Accordingly, to justify summary judgment, the agency affidavit invoking Exemption 1must provide "detailed and specific" information showing both substantive and procedural compliance with the Executive Order at issue. See ACLU v. FBI, 429 F. Supp. 2d 179, 187 (D. D.C. 2006); accord Hiken v. Dep't of Defense, 521 F. Supp. 2d 1047, 1058 (N.D. Cal. 2007).

The Executive Order applicable to the documents in this case is the Executive Order 12,958, "Classified National Security Information," as amended by Executive Order 13,292. The requirements of classification under the Executive Order 12,958 are as follows:

(1) an original classification authority is classifying the information;

(2) the information is owned by, produced by or for, or is under the control of the United States Government;

(3) the information falls within one or more of the categories of information listed in section 1.5 of this order; and

(4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security and the original classification authority is able to identify or describe the damage.

E.O. 12,958, § 1.2(a). Mr. Hardy, who was designated by the Attorney General as an original classification and declassification authority pursuant to Executive Order 12,958, (Hardy Decl. ¶ 2), has determined that a number of the responsive documents in this case fell within the purview of Exemption 1 because they contain information relating to intelligence activities, sources, or methods. See Hardy Decl. ¶ 70; see also E.O. 13,292 § 1.4(c). Specifically, the FBI withheld the following types of classified information: (1) file numbers; (2) standard terminology or phraseology; (3) character of the case; (4) alpha designators; (5) intelligence sources; and (6) targets of foreign counterintelligence investigations. (Hardy Decl. ¶¶ 75-84.) In opposition, Plaintiffs do not challenge any specific category of the withheld documents; rather, Plaintiffs raise broad arguments that apply to all the categories. The Court will first discuss the extent to which Mr. Hardy's declaration establishes Exemption 1 as to each of the categories of withheld documents. The Court will then discuss Plaintiffs' arguments.

i. FBI's Justifications for Non-Disclosure Pursuant to Exemption 1 File Numbers

Mr. Hardy explains that FBI file numbers are assigned to specific intelligence activities including "channelization" and "dissemination" instructions, the release of which would lead to the exposure of the particular intelligence activities at issue. (SeeHardy Decl. ¶ 75.) Individual file numbers contain a geographical prefix or the originating office and a case number. (Id.) A case number includes a number corresponding to the type of investigation followed by a chronologically-assigned number corresponding to a specific investigation or activity. (Id.) According to Mr. Hardy, disclosure of file numbers would allow hostile analysts to attribute any information released from the documents containing such a file number to that particular file and then to identify the specific intelligence activity by supplying further missing pieces. (Id. ¶ 76.) From this information, "a partial mosaic of the activity begins to appear as more information is identified with the file leading to the exposure of actual current activities or methods." (Id.) Among other things, disclosure would also allow countermeasures to be implemented, making future operations more difficult, or compromise other ongoing planned intelligence operations. (Id.)

Standard Terminology / Phraseology

Similarly, according to Mr. Hardy, disclosure of the standard terminology/phraseology used by the FBI in current cases risks revealing the scope and depth of the FBI's efforts in a particular intelligence investigation. (Id. ¶ 77.) Such disclosure would reveal to a target the level of information that has been learned about him, the limitations of the FBI's investigatory efforts concerning him, and the FBI's willingness to expend further resources and efforts on him, and the likelihood it will do so. (Id.) If the information described by this phraseology is shallow, yet the subject is heavily involved in matters under investigation, it alerts the subject to the fact that his activities may continue without fear or detection. (Id.) Conversely, if the information is substantial, it will prompt the subject to alter his/her course of conduct. (Id.)

Character of the Case

The FBI has also withheld information that identifies the character of the case for a specific type of intelligence activity directed at a specific target of national security interest. (Id. ¶ 78.) According to Mr. Hardy, Revealing this category of information could reasonably be expected to cause serious damage to the national security, as it would disclose a particular intelligence or counterintelligence investigation, the nature, scope or thrust of the investigation, and the manner by which the intelligence or counterintelligence information was acquired. (Id.)

Alpha Designators

Alpha designators are "inserted into file numbers at the end of the FBI classification number to specify a subset of the file for record-keeping purposes." (Id. ΒΆ 79.) According to Mr. Hardy, disclosure of this information is reasonably likely to cause serious harm to the national security as it would identify the specific intelligence activity in use by the ...


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