Associated Press v. Federal Bureau of Investigation

265 F. Supp. 3d 82
CourtCourt of Appeals for the D.C. Circuit
DecidedSeptember 30, 2017
DocketCivil Action No. 16-cv-1850 (TSC)
StatusPublished
Cited by12 cases

This text of 265 F. Supp. 3d 82 (Associated Press v. Federal Bureau of Investigation) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Associated Press v. Federal Bureau of Investigation, 265 F. Supp. 3d 82 (D.C. Cir. 2017).

Opinion

[89]*89MEMORANDUM OPINION

TAÑYA S. CHUTEAN, United States District Judge

Before the court are cross motions for summary judgment in this case brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. In 2016, Plaintiffs Associated Press, Gannett Satellite Information Network d/b/a USA Today, and Vice Media, LLC (“Plaintiffs”), each filed FOIA requests to the Federal Bureau of Investigation (“FBI”) for records relating to an agreement with a technology vendor who assisted the FBI in unlocking the iPhone of a suspected terrorist. As part of the parties’ joint agreement in this litigation, the FBI has produced 100 of 123 responsive pages in full or in part, with certain material ■ withheld pursuant to FOIA Exemptions 1, 3, 4, 6, 7(C), and 7(E). Plaintiffs have narrowed their FOIA request on summary judgment to two specific pieces of information — the identity of the vendor, and the price paid to the vendor — such that only Exemptions 1, 3, 4, and 7(E) remain disputed. The FBI claims that Exemptions 1, 3, and 7(E) apply independently to the identity of the vendor and the purchase price, and that Exemption 4 also applies independently to the purchase price.

Plaintiffs have also moved to supplement the record -with then-FBI Director James Comey’s May 3, 2017, Senate' testimony. The court will GRANT Plaintiffs’ motion to supplement the record and consider the testimony as part of Plaintiffs’ brief.

Upon consideration of the parties’ filings, the court concludes that Exemptions 1, 3, and 7(E) independently apply to the requested information, and that Exemption 4 does not. Accordingly, as set forth below, the FBI’s motion for summary judgment is GRANTED, and Plaintiffs’ cross-motion for summary judgment is DENIED.

I. BACKGROUND

In December 2015, Syed Rizwan Farook and Tashfeen Malik killed fourteen people and injured twenty-two others in an attack on the Inland Regional Center in San Ber-nardino, California. See Government’s Motion to Compel Apple Inc. to Comply, No. 5:16-cm-10-SP (C.D. Cal.) at 1 ECF No. 1. The FBI led the federal investigation into the attack, and during the course of that investigation, discovered an employer-owned iPhone issued to Farook that was password-protected. See id. at 1, 5. The phone was equipped with an auto-erase function that would result in the permanent destruction of the information in the phone after 10 failed attempts at entering the passcode. Id. at 5. Thus, the FBI was unable to access the phone without risking the loss of its contents. Id. at 10-11. After initially commencing legal action against the phone’s manufacturer, Apple, to compel its assistance in accessing the phone, id. at 6, the FBI moved to stay the proceedings in March 2016 when an “outside party demonstrated to the FBI a possible method for unlocking Farook’s iPhone.” Government’s Ex Parte Application for a Continuance, No. 5:16-cm-10 (C.D. Cal.) at 3 ECF No. 191.

Rather than allow competitive bidding, the FBI sought a waiver to solicit a single source for the contract to unlock the phone. (Declaration of Jay Ward Brown (“Brown Deck”) Ex. J, at AP-19-AP-23). None of the vendors who inquired with the agency about unlocking the phone had demonstrated that they could produce a solution quickly enough to meet the FBI’s investigative requirements, and in fact, none of them had begun to develop or test a solution at the time of the inquiries. (Id. at AP-22). At the end of March 2016, the FBI reported that it had “successfully ac[90]*90cessed the data stored on Farook’s iPhone and therefore no longer require[d] the assistance from Apple Inc.” Government’s Status Report, No. 5:16-cm~10 (C.D, Cal.) at 1 ECF No. 209.

Following this revelation, then-FBI Director James Comey gave interviews to reporters on April 21, 2016, and May 11, 2016, during which he confirmed several details regarding the tool and its purchase. (Brown Decl. Ex. G; Ex. H; Ex. I). This information included details about its cost, which Comey believed “for sure” exceeded the salary he was due at the time for the remainder of his seven-year, four-month tenure, about $1.2 million. (Brown Deck Ex. G). He also stated that the tool was narrowly tailored to only work - on an iPhone 5C operating on iOS 9, and the FBI had not identified any other phones on which the tool could be used. (Brown Deck Ex. I at 3, 16). Moreover* he noted that the urgency of the FBI’s investigation necessitated the FBI’s purchase of the tool and the agency spent what it needed to in order to acquire it. (Id. at 5).

Each. Plaintiff filed a separate FOIA request with the FBI between March and April of 2016. (See Declaration of David M. Hardy (“First Hardy Deck”) Ex. A; Ex. I; Ex. M). They sought records concerning the FBI’s financial agreements with the vendor the agency employed to unlock the iPhone. (See id.) The FBI initially denied éach request on the basis of FOIA Exemption 7(A), which permits agencies to withhold records or information compiled for law enforcement purposes to the extent that the production of such records could reasonably be expected to interfere -with law enforcement proceedings, (First Hardy Deck Ex. C; Ex. J; Ex. N). Each Plaintiff appealed administratively as provided under FOIA, and the Department of Justice Office of Information Policy affirmed the FBI’s denial of the requests'for the records in- each case. (First Hardy Deck Ex. D; Ex. H; Ex. K; Ex. L; Ex. O; Ex. Q).

Plaintiffs then filed this action in September 2016. (ECF No. 1), On January 6, 2017, the FBI produced 100 of 123 responsive pages in full or in part, with certain information withheld or-redacted pursuant to FOIA Exemptions 1, 3, 4, 6, 7(C), and 7(E). (First Hardy Deck 1126; Ex. R;, Brown Deck Ex. J). The FBI then moved for summary judgment (ECF No, 14), and Plaintiffs filed their cross-motion for summary judgment, narrowing their outstanding FOIA request to two pieces, of information: (1) the identity of the vendor, and (2) the amount paid to the vendor for the tool in question. (See Pis. Mem at 9, ECF Nos. 15,16). As a result of this revised request, the remaining issues' on summary judgment are whether the FBI properly applied Exemptions -1, 3, and 7(E) to the identity-of the vendor,-and whether it properly applied Exemptions 1, 3, 4, and 7(E) to the purchase price.

II. PLAINTIFFS’ MOTION TO SUPPLEMENT THE RECORD

On May 3, 2017, Director Comey testified before the Senate Judiciary Committee. (See Supplemental Declaration of Jay Ward Brown “Supp. Brown Deck” Ex. A), During questioning, Senator Dianne Fein-stein mentioned the FBI’s hacking of Fa-rook’s iPhone, as excerpted below from the hearing transcript: -

FEINSTEIN: Well I — I was so struck when San Bernardino happened and you made overtures to allow that device to be opened, and then the FBI had to spend $900,000 to hack it open. And as I subsequently learned of some of the reason for it, there were good reasons to get into that device.
And the concern I have is that once people had been killed in a terrorist [91]*91attack and that there ■ may' be other DNA, there may be other messages that lead an investigative agency to believe that there are others out there, isn’t to the — for the protection of the public that one would want to be able to see if a device could be opened. ■

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265 F. Supp. 3d 82, Counsel Stack Legal Research, https://law.counselstack.com/opinion/associated-press-v-federal-bureau-of-investigation-cadc-2017.