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Freedom of Press Foundation v. United States Department of Justice

United States District Court, N.D. California

March 13, 2017

FREEDOM OF THE PRESS FOUNDATION, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

          ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT Re: Dkt. Nos. 30, 37

          HAYWOOD S. GILLIAM, JR. United States District Judge

         Pending before the Court are the parties' cross-motions for summary judgment. Dkt. Nos. 30, 37. For the reasons articulated below, the Court GRANTS Defendant's motion for summary judgment and DENIES Plaintiff's cross-motion.

         I. BACKGROUND

         Plaintiff Freedom of the Press Foundation filed this action on July 30, 2015, seeking an injunction to compel Defendant DOJ to disclose records requested under the Freedom of Information Act (“FOIA”). Plaintiff submitted a FOIA request on March 10, 2015, seeking records related to the Federal Bureau of Investigation's (“FBI”) procedures for issuing national security letters (“NSLs”) to obtain information regarding any member of the media from January 2009 to the present. Dkt. No. 1. The FBI is empowered to issue NSLs to obtain “subscriber information and toll billing records information, or electronic communication transactional records” from third-party wire or electronic communication providers if such information is “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” 18 U.S.C. §§ 2709(a)-(b). Plaintiff, however, suspects government misuse of this investigative tool.

         In response to Plaintiff's FOIA request, the FBI conducted a search of its records. See Dkt. No. 30-1 (Hardy Decl.) ¶¶ 17-21 & Exs. H, I. It identified 302 pages of records and released 156, withholding the rest pursuant to FOIA Exemptions 1, 3, 5, 7(C), and 7(E). Id. ¶ 15. Defendant also consulted with another agency - the Office of the General Counsel (“OGC”) - regarding responsive records, identifying another 134 pages of records and releasing 72, again withholding the rest pursuant to FOIA Exemptions 5, 6, 7(C), and 7(E). Id. ¶ 16 & Exs. H, I. In total, Defendant identified 436 pages of records responsive to Plaintiff's FOIA request and released 228 documents (171 in part and 57 in full). See ¶¶ 5, 16 & Ex. H. The FBI detailed its search and the nature of its withholdings in an affidavit in the form described in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), generally known as a “Vaughn Index, ” as well as two Declarations from David M. Hardy (“Hardy Declarations”), the Section Chief of the Record/Information Dissemination Section (“RIDS”) of the FBI's Record Management Division. See Hardy Decl. Ex. I (Vaughn Index); see also Dkt. No. 44-1 (Suppl. Hardy Decl.).

         II. LEGAL STANDARD

         A. Summary Judgment

         Summary judgment is proper when a “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). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if there is evidence in the record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id. But in deciding if a dispute is genuine, the Court must view the inferences reasonably drawn from the materials in the record in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986), and “may not weigh the evidence or make credibility determinations, ” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997).

         With respect to summary judgment procedure, the moving party always bears both the ultimate burden of persuasion and the initial burden of producing those portions of the pleadings, discovery, and affidavits that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will bear the burden of proof on an issue at trial, it must show that no reasonable trier of fact could not find in its favor. Celotex, 477 U.S. at 325. “If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial.” Id. at 1102-03.

         “If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense.” Id. at 1103. In doing so, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec., 475 U.S. at 586. A nonmoving party must also “identify with reasonable particularity the evidence that precludes summary judgment, ” because the duty of the Court is not to “scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). If a nonmoving party fails to produce evidence that supports its claim or defense, courts must enter summary judgment in favor of the movant. Celotex, 477 U.S. at 323.

         B. FOIA

         FOIA, 5 U.S.C. § 552, “was enacted to facilitate public access to Government documents.” Lahr v. Nat'l Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009) (internal quotations omitted). The goal of FOIA is to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” Id. (quotation omitted). At the same time, FOIA contemplates that the government may have legitimate reasons for withholding some information from the public. Id. Accordingly, FOIA “requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material.” Milner v. Dep't of Navy, 562 U.S. 562, 564 (2011). These nine FOIA exemptions are “explicitly made exclusive and must be narrowly construed.” Id. at 565 (quotation omitted).

         FOIA cases are typically decided on motions for summary judgment because the facts are rarely in dispute. See Minier v. Cent. Intelligence Agency, 88 F.3d 796, 800 (9th Cir. 1996). Upon a motion for summary judgment, a district court analyzes the withholding of documents de novo. 5 U.S.C. § 552(a)(4)(B). FOIA permits a district court to enjoin a defendant agency from withholding agency records or to order a defendant agency to produce any improperly withheld records. Id.

         A defendant agency “must show that its search for responsive records was adequate, that any claimed exemptions actually apply, and that any reasonably segregable, non-exempt parts of records have been disclosed after redaction of exempt information.” Light v. Dep't of Justice, 968 F.Supp.2d 11, 23 (D.D.C. 2013); accord Lahr, 569 F.3d at 973; Pac. Fisheries, Inc. v. United States, 539 F.3d 1143, 1148 (9th Cir. 2008). The agency bears the burden to show that it has complied with its obligations under FOIA. 5 U.S.C. § 552(a)(4)(B).

         III. DISCUSSION

         Defendant asserts that it is entitled to summary judgment on Plaintiff's FOIA claim because the FBI, a component of the DOJ, has fully complied with its obligations under FOIA. Dkt. No. 30 at 1 (“Gov't MSJ”). Specifically, Defendant contends that the FBI (1) conducted a reasonable search in response to Plaintiff's FOIA request; (2) properly withheld documents pursuant to FOIA exemptions 1, 3, 5, and 7E;[1] and (3) disclosed all reasonably segregable information that is not covered by a FOIA exemption. Id. at 1-2. Plaintiff opposes Defendant's motion for summary judgment and instead seeks judgment that (1) Defendant has failed to conduct an adequate search for responsive documents; (2) Defendant's Vaughn Index fails to meet Defendant's burden under FOIA; (3) Defendant has failed to show that it properly withheld documents pursuant to FOIA exemptions 1, 3, 5, and 7E; and (4) Defendant has failed to disclose all reasonably segregable information that is not covered by a FOIA exemption. Dkt. No. 37 (“FPF MSJ”).

         C. The FBI Has Conducted an Adequate Search for Responsive Records

         FOIA requires a defendant agency to “demonstrate that it has conducted a search reasonably calculated to uncover all relevant documents.” Lahr, 569 F.3d at 986. An agency may make such a showing by “reasonably detailed, nonconclusory affidavits submitted in good faith.” Id.; Citizens Comm'n on Human Rights v. Food & Drug Admin., 45 F.3d 1325, 1328 (9th Cir. 1995). Because of courts' “limited institutional expertise on intelligence matters” and the risk of adversaries aggregating even “small pieces” of intelligence data, “[a]ffidavits submitted by an agency to demonstrate the adequacy of its response are presumed to be in good faith” when submitted in the national security context. Hamdan v. U.S. Dep't of Justice, 797 F.3d 759, 770 (9th Cir. 2015).

         “In evaluating the sufficiency of an agency's search, the issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.Lahr, 569 F.3d at 987 (quotation omitted). A district court assesses the adequacy of an agency's search against a standard of reasonableness, construing all facts in the light most favorable to the FOIA requestor. Citizens Comm'n, 45 F.3d at 1328. Summary judgment is inappropriate “if a review of the record raises substantial doubt, particularly in view of well-defined requests and positive indications of overlooked materials . . . .” Hamdan, 797 F.3d at 771 (quotation omitted). Nevertheless, the Ninth Circuit has made clear that a search is not inadequate for failing to turn up a single document or even several documents. Id.; Lahr, at 987 (“[T]he failure to produce or identify a few isolated documents cannot by itself prove the searches inadequate.”). Similarly, “[s]peculative claims about the existence of additional documents are insufficient to rebut the presumption of good faith . . . .” Coleman v. Drug Enf't Admin., 134 F.Supp.3d 294, 301 (D.D.C. 2015); accord Lahr, 569 F.3d at 987-88.

         The Court finds the Hardy Declarations establish that the FBI conducted an adequate search that was reasonably calculated to uncover all relevant documents. According to Hardy, while the FBI typically searches its Central Records System (“CRS”) database in response to FOIA requests, Plaintiff's request did not lend itself to a CRS index search. Hardy Decl. ¶ 17. The CRS index is organized by individuals, organizations, companies, and events, but Plaintiff's request was for more generalized information about NSLs and agency policy. Accordingly, the FBI conducted a more targeted search of the FBI divisions and offices reasonably likely to possess responsive information about the procedures governing and oversight of NSLs used to obtain records for members of the media. Id. ¶¶ 18, 19. RIDS requested records that were created on or before August 10, 2015. Id. Specifically, the FBI's Discovery Processing Unit (“DPU”) determined that the OGC was reasonably likely to have, or at least know where to locate, responsive records. Id. ¶ 20. DPU contacted all three OGC branches - the National Security Law Branch, the Litigation Branch, and the Investigative and General Law Branch - to search for responsive documents. Id. Further, RIDS reviewed an unclassified version of the Domestic Investigations and Operations Guide (“DIOG”), which contains substantially all of the FBI's procedures, techniques, and strategies for conducting investigations. Id. ¶ 21; Suppl. Hardy Decl. ¶ 7. Through this process, RIDS identified Section 18 - entitled “National Security Letter” - as potentially responsive. Hardy Decl. ¶ 21.

         Plaintiff maintains that the FBI failed to perform an adequate search for two reasons: (1) although the FBI represents that it reviewed the DIOG, the FBI failed to identify Appendix G, which falls within Plaintiff's FOIA request because it specifies the procedures for issuing NSLs to obtain telephone records of media members; and (2) the FBI primarily identified records from 2014 and 2015, which Plaintiff finds “surprising” given that the FBI updated the DIOG in 2011. FPF MSJ at 13-14. Plaintiff asserts that these “conspicuous omissions” establish that the FBI did not perform a search reasonably calculated to uncover all responsive documents. Id. at 14. The Court is not persuaded.

         The Supplemental Hardy Declaration explains that the FBI did not identify Appendix G because it was not included in the unclassified version of the DIOG that RIDS reviewed. Suppl. Hardy Decl. ¶ 7 & n.4. Even if the Court agreed with Plaintiff that Defendant should have otherwise identified Appendix G, that omission, standing alone, is insufficient to render the FBI's search inadequate. See Id. at 771 (concluding that the Ninth Circuit has made clear that a search is not inadequate for failure to turn up a single document).

         Similarly, the Hardy Declaration adequately establishes that the FBI searched for documents for the entire period between January 2009 and March 10, 2015. Hardy attests that the FBI's search actually encompassed a significantly broader time period, directing all OGC branches to locate records created on or before August 10, 2015. Hardy Decl. ¶ 19; see also Suppl. Hardy Decl. ¶ 7. Plaintiff's “[s]peculative claims about the existence of additional documents are insufficient to rebut the presumption of good faith” to which Hardy's declarations are entitled. See Coleman, 134 F.Supp.3d at 301.

         Because Plaintiff's speculation cannot overcome the FBI's reasonably detailed, non-conclusory declarations, the Court holds that the FBI has conducted an adequate search for responsive records. While the FBI's search may not have been perfect, Plaintiff was “entitled to a reasonable search for records, not a perfect one.” Hamdan, 797 F.3d at 772.

         D. ...


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