Freedom of the Press Foundation v. United States Department of Justice

ORDER by Judge Haywood S. Gilliam, Jr. RE ({{30}}, {{37}}) CROSS MOTIONS FOR SUMMARY JUDGMENT.

Northern District of California, cand-4:2015-cv-03503

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9 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 FREEDOM OF THE PRESS 7 FOUNDATION, Case No. 15-cv-03503-HSG 8 Plaintiff, ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT 9 v. Re: Dkt. Nos. 30, 37 10 UNITED STATES DEPARTMENT OF JUSTICE, 11 Defendant. 12 Northern District of California United States District Court 13 Pending before the Court are the parties' cross-motions for summary judgment. Dkt. Nos. 14 30, 37. For the reasons articulated below, the Court GRANTS Defendant's motion for summary 15 judgment and DENIES Plaintiff's cross-motion. 16 I. BACKGROUND 17 Plaintiff Freedom of the Press Foundation filed this action on July 30, 2015, seeking an 18 injunction to compel Defendant DOJ to disclose records requested under the Freedom of 19 Information Act ("FOIA"). Plaintiff submitted a FOIA request on March 10, 2015, seeking 20 records related to the Federal Bureau of Investigation's ("FBI") procedures for issuing national 21 security letters ("NSLs") to obtain information regarding any member of the media from January 22 2009 to the present. Dkt. No. 1. The FBI is empowered to issue NSLs to obtain "subscriber 23 information and toll billing records information, or electronic communication transactional 24 records" from third-party wire or electronic communication providers if such information is 25 "relevant to an authorized investigation to protect against international terrorism or clandestine 26 intelligence activities." 18 U.S.C. §§ 2709(a)–(b). Plaintiff, however, suspects government 27 misuse of this investigative tool. 28 In response to Plaintiff's FOIA request, the FBI conducted a search of its records. See Dkt. 9 1 No. 30-1 (Hardy Decl.) ¶¶ 17–21 & Exs. H, I. It identified 302 pages of records and released 156, 2 withholding the rest pursuant to FOIA Exemptions 1, 3, 5, 7(C), and 7(E). Id. ¶ 15. Defendant 3 also consulted with another agency — the Office of the General Counsel ("OGC") — regarding 4 responsive records, identifying another 134 pages of records and releasing 72, again withholding 5 the rest pursuant to FOIA Exemptions 5, 6, 7(C), and 7(E). Id. ¶ 16 & Exs. H, I. In total, 6 Defendant identified 436 pages of records responsive to Plaintiff's FOIA request and released 228 7 documents (171 in part and 57 in full). See ¶¶ 5, 16 & Ex. H. The FBI detailed its search and the 8 nature of its withholdings in an affidavit in the form described in Vaughn v. Rosen, 484 F.2d 820 9 (D.C. Cir. 1973), generally known as a "Vaughn Index," as well as two Declarations from David 10 M. Hardy ("Hardy Declarations"), the Section Chief of the Record/Information Dissemination 11 Section ("RIDS") of the FBI's Record Management Division. See Hardy Decl. Ex. I (Vaughn 12 Index); see also Dkt. No. 44-1 (Suppl. Hardy Decl.). Northern District of California United States District Court 13 II. LEGAL STANDARD 14 A. Summary Judgment 15 Summary judgment is proper when a "movant shows that there is no genuine dispute as to 16 any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). 17 A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson 18 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is "genuine" if there is evidence 19 in the record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id. 20 But in deciding if a dispute is genuine, the Court must view the inferences reasonably drawn from 21 the materials in the record in the light most favorable to the nonmoving party, Matsushita Elec. 22 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986), and "may not weigh the evidence 23 or make credibility determinations," Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). 24 With respect to summary judgment procedure, the moving party always bears both the 25 ultimate burden of persuasion and the initial burden of producing those portions of the pleadings, 26 discovery, and affidavits that show the absence of a genuine issue of material fact. Celotex Corp. 27 v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will bear the burden of proof on an 28 issue at trial, it must show that no reasonable trier of fact could not find in its favor. Celotex, 477 2 9 1 U.S. at 325. "If a moving party fails to carry its initial burden of production, the nonmoving party 2 has no obligation to produce anything, even if the nonmoving party would have the ultimate 3 burden of persuasion at trial." Id. at 1102–03. 4 "If, however, a moving party carries its burden of production, the nonmoving party must 5 produce evidence to support its claim or defense." Id. at 1103. In doing so, the nonmoving party 6 "must do more than simply show that there is some metaphysical doubt as to the material facts." 7 Matsushita Elec., 475 U.S. at 586. A nonmoving party must also "identify with reasonable 8 particularity the evidence that precludes summary judgment," because the duty of the Court is not 9 to "scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 10 1279 (9th Cir. 1996). If a nonmoving party fails to produce evidence that supports its claim or 11 defense, courts must enter summary judgment in favor of the movant. Celotex, 477 U.S. at 323. 12 B. FOIA Northern District of California United States District Court 13 FOIA, 5 U.S.C. § 552, "was enacted to facilitate public access to Government documents." 14 Lahr v. Nat'l Transp. Safety Bd., 569 F.3d 964, 973 (9th Cir. 2009) (internal quotations omitted). 15 The goal of FOIA is to "ensure an informed citizenry, vital to the functioning of a democratic 16 society, needed to check against corruption and to hold the governors accountable to the 17 governed." Id. (quotation omitted). At the same time, FOIA contemplates that the government 18 may have legitimate reasons for withholding some information from the public. Id. Accordingly, 19 FOIA "requires federal agencies to make Government records available to the public, subject to 20 nine exemptions for specific categories of material." Milner v. Dep't of Navy, 562 U.S. 562, 564 21 (2011). These nine FOIA exemptions are "explicitly made exclusive and must be narrowly 22 construed." Id. at 565 (quotation omitted). 23 FOIA cases are typically decided on motions for summary judgment because the facts are 24 rarely in dispute. See Minier v. Cent. Intelligence Agency, 88 F.3d 796, 800 (9th Cir. 1996). 25 Upon a motion for summary judgment, a district court analyzes the withholding of documents de 26 novo. 5 U.S.C. § 552(a)(4)(B). FOIA permits a district court to enjoin a defendant agency from 27 withholding agency records or to order a defendant agency to produce any improperly withheld 28 records. Id. 3 9 1 A defendant agency "must show that its search for responsive records was adequate, that 2 any claimed exemptions actually apply, and that any reasonably segregable, non-exempt parts of 3 records have been disclosed after redaction of exempt information." Light v. Dep't of Justice, 968 4 F. Supp. 2d 11, 23 (D.D.C. 2013); accord Lahr, 569 F.3d at 973; Pac. Fisheries, Inc. v. United 5 States, 539 F.3d 1143, 1148 (9th Cir. 2008). The agency bears the burden to show that it has 6 complied with its obligations under FOIA. 5 U.S.C. § 552(a)(4)(B). 7 III. DISCUSSION 8 Defendant asserts that it is entitled to summary judgment on Plaintiff's FOIA claim 9 because the FBI, a component of the DOJ, has fully complied with its obligations under FOIA. 10 Dkt. No. 30 at 1 ("Gov't MSJ"). Specifically, Defendant contends that the FBI (1) conducted a 11 reasonable search in response to Plaintiff's FOIA request; (2) properly withheld documents 12 pursuant to FOIA exemptions 1, 3, 5, and 7E;1 and (3) disclosed all reasonably segregable Northern District of California United States District Court 13 information that is not covered by a FOIA exemption. Id. at 1–2. Plaintiff opposes Defendant's 14 motion for summary judgment and instead seeks judgment that (1) Defendant has failed to 15 conduct an adequate search for responsive documents; (2) Defendant's Vaughn Index fails to meet 16 Defendant's burden under FOIA; (3) Defendant has failed to show that it properly withheld 17 documents pursuant to FOIA exemptions 1, 3, 5, and 7E; and (4) Defendant has failed to disclose 18 all reasonably segregable information that is not covered by a FOIA exemption. Dkt. No. 37 19 ("FPF MSJ"). 20 C. The FBI Has Conducted an Adequate Search for Responsive Records 21 FOIA requires a defendant agency to "demonstrate that it has conducted a search 22 reasonably calculated to uncover all relevant documents." Lahr, 569 F.3d at 986. An agency may 23 make such a showing by "reasonably detailed, nonconclusory affidavits submitted in good faith." 24 Id.; Citizens Comm'n on Human Rights v. Food & Drug Admin., 45 F.3d 1325, 1328 (9th Cir. 25 1995). Because of courts' "limited institutional expertise on intelligence matters" and the risk of 26 27 1 The FBI also redacted material under FOIA exemptions 6 and 7(C) and withheld duplicate 28 documents. Gov't MSJ at 2 n.1. Plaintiff does not challenge those withholdings. Id.; see generally FPF MSJ. 4 9 1 adversaries aggregating even "small pieces" of intelligence data, "[a]ffidavits submitted by an 2 agency to demonstrate the adequacy of its response are presumed to be in good faith" when 3 submitted in the national security context. Hamdan v. U.S. Dep't of Justice, 797 F.3d 759, 770 4 (9th Cir. 2015). 5 "In evaluating the sufficiency of an agency's search, the issue to be resolved is not whether 6 there might exist any other documents possibly responsive to the request, but rather whether the 7 search for those documents was adequate." Lahr, 569 F.3d at 987 (quotation omitted). A district 8 court assesses the adequacy of an agency's search against a standard of reasonableness, construing 9 all facts in the light most favorable to the FOIA requestor. Citizens Comm'n, 45 F.3d at 1328. 10 Summary judgment is inappropriate "if a review of the record raises substantial doubt, particularly 11 in view of well-defined requests and positive indications of overlooked materials. . . ." Hamdan, 12 797 F.3d at 771 (quotation omitted). Nevertheless, the Ninth Circuit has made clear that a search Northern District of California United States District Court 13 is not inadequate for failing to turn up a single document or even several documents. Id.; Lahr, at 14 987 ("[T]he failure to produce or identify a few isolated documents cannot by itself prove the 15 searches inadequate."). Similarly, "[s]peculative claims about the existence of additional 16 documents are insufficient to rebut the presumption of good faith. . . ." Coleman v. Drug Enf't 17 Admin., 134 F. Supp. 3d 294, 301 (D.D.C. 2015); accord Lahr, 569 F.3d at 987–88. 18 The Court finds the Hardy Declarations establish that the FBI conducted an adequate 19 search that was reasonably calculated to uncover all relevant documents. According to Hardy, 20 while the FBI typically searches its Central Records System ("CRS") database in response to 21 FOIA requests, Plaintiff's request did not lend itself to a CRS index search. Hardy Decl. ¶ 17. 22 The CRS index is organized by individuals, organizations, companies, and events, but Plaintiff's 23 request was for more generalized information about NSLs and agency policy. Accordingly, the 24 FBI conducted a more targeted search of the FBI divisions and offices reasonably likely to possess 25 responsive information about the procedures governing and oversight of NSLs used to obtain 26 records for members of the media. Id. ¶¶ 18, 19. RIDS requested records that were created on or 27 before August 10, 2015. Id. Specifically, the FBI's Discovery Processing Unit ("DPU") 28 determined that the OGC was reasonably likely to have, or at least know where to locate, 5 9 1 responsive records. Id. ¶ 20. DPU contac