United States District Court, N.D. California
ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT Re: Dkt.
Nos. 30, 37
HAYWOOD S. GILLIAM, JR. United States District Judge
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.
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
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.).
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
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.
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.
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).
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.
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. §
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; 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”).
The FBI Has Conducted an Adequate Search for Responsive
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).
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.
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.
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
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
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.
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.