United States District Court, N.D. California
THE AMERICAN CIVIL LIBERTIES UNION OF NORTH CALIFORNIA, et al., Plaintiffs,
FEDERAL BUREAU OF INVESTIGATION, Defendant.
ORDER REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT
RICHARD SEEBORG, District Judge.
This action arises from Freedom of Information Act ("FOIA") requests filed by plaintiffs the American Civil Liberties Union of Northern California (ACLU), the Asian Law Caucus, and the San Francisco Bay Guardian regarding defendant FBI's alleged surveillance activities of Muslim and other ethnic and racial communities in Northern California. Plaintiffs filed two FOIA requests in early 2010, and commenced this lawsuit that August. Over the last four years, the FBI has produced responsive documents in accordance with a schedule agreed to by the parties.
Plaintiffs now aver that the FBI withheld and redacted records without proper justification, and seek declaratory and injunctive relief under FOIA, 5 U.S.C. § 552. At issue in the parties' cross-motions for summary judgment is whether the FBI has (1) met its burden to demonstrate that it properly withheld documents for law enforcement purposes under 5 U.S.C. § 552(b)(7), also referred to as "Exemption 7"; (2) provided reasonably specific Vaughn index descriptions; and (3) adequately explained why non-exempt materials withheld in full are not reasonably segregable.
This order addresses only a threshold matter dispositive of the first issue-specifically, whether the FBI has carried its burden under Exemption 7 to show a "rational nexus" between the enforcement of a federal law, and the documents it claims are exempt from disclosure. Only if the FBI's actions meet this standard may the FBI properly withhold or redact documents under Exemption 7's subsections. Because the FBI's explanation of the link between its law enforcement activities and the particular documents withheld fails to meet the "rational nexus" standard as it is applied in the Ninth Circuit, the FBI is altogether precluded from withholding information under Exemption 7.
Concerns regarding the effects of FBI surveillance efforts on the civil liberties of individuals and groups in certain ethnic and religious communities prompted plaintiffs to file the two FOIA requests at issue. In March 2010, plaintiffs requested the release of records concerning the FBI's investigation and surveillance of Muslim communities in Northern California. Specifically, plaintiffs demanded records regarding FBI policies and practices as to use of informants; carrying out assessments; legal reasoning materials; cultural competency training materials; use of race, religion, language, or ethnicity for law enforcement purposes including geo-mapping and domain management; the FBI Citizenship Academy; and the FBI Junior Agent Program. They further requested information regarding investigations of mosques and Muslim cultural or community centers, their members and leaders; and targets and outcomes of law enforcement activities in Northern California as compared to the rest of the country. FAC, Exh. A.
Plaintiffs' second request, filed in July 2010, concerned the collection and use of racial and ethnic data in Northern California. It asked for policies, procedures, and/or maps regarding types of racial and ethnic information the agency can or cannot collect, map, or use; types of racial and ethnic information the FBI has collected; collected information on "ethnically-oriented" businesses or facilities; types of characteristics, according to the Domestic Investigations and Operations Guide ("DIOG"), believed to be associated with a particular criminal or terrorist element of an ethnic community; uses of racial and ethnic data; the number of mapped communities in Northern California; and collected maps and community descriptions. FAC, Exh.
B. The FBI conceded that both requests warranted expedited processing, and sent followup letters in response to each noting that it had begun searching for responsive records.
Having received no disclosures, plaintiffs commenced this action on August 24, 2010 with regard to their first FOIA request, and later amended their complaint to incorporate the second. Plaintiffs were denied their request for a preliminary injunction in November. The case was then referred to a magistrate judge for mediation, and the parties agreed on a production schedule for release of responsive records. From December 2010 through June 2012, the FBI released over 50, 000 full or redacted pages of responsive records to the plaintiffs in 20 monthly installments, withholding about 47, 794 pages on grounds of asserted FOIA exemptions.
Following production, the parties agreed upon a sampling methodology to limit litigation going forward. The FBI agreed to provide plaintiffs Vaughn write-ups for the FBI's application of FOIA exemptions for a portion of the responsive documents, rather than the entire contents of production. For the first portion of the write-ups, Plaintiffs selected documents for Vaughn indexing. Then, the FBI indexed every withheld in-full document located at 500 page intervals. For the last portion, the FBI selected documents at each 1, 000th page. The FBI then prepared narrative Vaughn write-ups that described the types of documents withheld and the redactions within the sample and the exemptions applied.
The parties thereafter agreed to narrow the issues in advance of motions for summary judgment. Plaintiffs agreed to refrain from challenging FOIA Exemptions 1, 3, 4, 6, 8, and 9 but reserved the right to challenge other exemptions and the adequacy of the Vaughn index descriptions. The FBI filed a motion for summary judgment and plaintiffs cross-moved. Each side contests whether the FBI improperly withheld documents under Exemption 7; provided reasonably specific Vaughn index descriptions; and failed to explain why non-exempt materials withheld in full are not reasonably segregable. The sole question considered here is whether the FBI's actions meet Exemption 7's threshold requirement.
III. LEGAL STANDARD
Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, the moving party is not required to ...