Elec. Frontier Found. v. Dep't of Justice

384 F. Supp. 3d 1
CourtCourt of Appeals for the D.C. Circuit
DecidedApril 17, 2019
DocketNo. 17-cv-1039 (DLF)
StatusPublished
Cited by16 cases

This text of 384 F. Supp. 3d 1 (Elec. Frontier Found. v. Dep't of Justice) 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
Elec. Frontier Found. v. Dep't of Justice, 384 F. Supp. 3d 1 (D.C. Cir. 2019).

Opinion

DABNEY L. FRIEDRICH, United States District Judge

During a criminal prosecution, the Federal Bureau of Investigation (FBI) disclosed that computer repair technicians at a Best Buy facility in Kentucky had served as confidential informants. After this revelation, *7Electronic Frontier Foundation (EFF) submitted a Freedom of Information Act (FOIA) request seeking records about the FBI's use of cooperating computer technicians. The FBI responded to EFF's FOIA request by refusing to confirm or deny the existence of most of the requested records, withholding in full some records, and processing and disclosing redacted versions of other records. Both parties have now cross-moved for summary judgment. For the reasons that follow, the Court will grant in part and deny in part the government's motion, and it will deny EFF's cross-motion.

I. BACKGROUND

EFF's FOIA request was prompted by disclosures the FBI made in United States v. Rettenmaier , No. 14 -cr-0188 (C.D. Ca. filed Nov. 12, 2014), a child pornography case. In Rettenmaier , a Best Buy employee at a data recovery facility in Brooks, Kentucky discovered a suspicious image of a child while repairing Rettenmaier's computer. Gov't's Br. at 1-2, Dkt. 13-2; EFF's Br. at 2, Dkt. 15; Hardy Decl. ¶ 5, Dkt. 13-3. The employee's supervisor alerted the FBI, which triggered a criminal investigation that led to Rettenmaier's prosecution. Gov't's Br. at 2; EFF's Br. at 2.

In December 2016, the federal judge presiding over the case issued an order that cited evidence about the FBI's cooperation with Best Buy employees. Hardy Decl. ¶ 5; id. Ex. A at 3, Dkt. 13-4. It is undisputed that the FBI ultimately revealed that it had used eight informants at Best Buy's Brooks, Kentucky data-recovery facility from 2007 through 2016, and that it revealed the names of four of those informants. Gov't's Statement of Facts ¶ 14, Dkt. 13-1; EFF's Statement of Facts ¶ 2, Dkt. 15-9; EFF's Reply at 5 n.1, Dkt. 21.

On February 2, 2017, EFF emailed a FOIA request to the FBI that referenced the order in Rettenmaier and sought "[a]ll internal memoranda or other documentation regarding the use of informants ... at any Best Buy facility," "[a]ll internal memoranda or other documentation regarding FBI training of Best Buy personnel in the detection and location of child pornography, or other material, on computers brought to Best Buy for repair," "[a]ll recruiting material from the FBI directed to Best Buy personnel," and "[a]ll memoranda, guidance, directives, or policy statements concerning the use of informants ... at any computer repair facilities in the United States." Hardy Decl. Ex. A at 3.1 In responding to the request, the FBI construed the term "informant" to mean "an individual with whom the FBI has an established relationship, who ha[s] a specific source identification number used to obscure [his] identi[t]y in investigatory records, and ha[s] a separate distinct file containing documentation of their informant history, which has restricted access within the FBI." Id. ¶ 3 n.1.

The FBI initially invoked FOIA exemption 7(E) as the basis for a Glomar response2 that neither confirmed nor denied the existence of responsive records. Gov't's *8Statement of Facts ¶ 5; see also EFF's Statement of Facts ¶ 1. But it eventually agreed to modify that response in light of the disclosures made during the Rettenmaier prosecution. Gov't's Statement of Facts ¶ 10; see also EFF's Statement of Facts ¶ 1; Joint Mot. to Vacate Summ. J. Briefing Schedule ¶ 2, Dkt. 8. Because the government acknowledged in Rettenmaier that the FBI used eight confidential informants at the Kentucky Best Buy from 2007 to 2016, it responded to the request for "internal memoranda or other documentation regarding the use of [confidential] informants ... at any Best Buy" by searching for responsive documents "concerning the [confidential] informants ... at the Brooks, Kentucky facility from 2007 to 2016." Hardy Decl. ¶ 53 (internal quotation marks omitted). As for the request for training materials, it explained that it had already disclosed, in response to an inquiry by the Rettenmaier court, that it had no records from the relevant Kentucky field office related to "training conducted for Best Buy employees in the detection and location of child pornography on computers brought to Best Buy for repair, for the time period of 2008 through February 2012." Id. ¶ 58 (internal quotation marks omitted). Similarly, the FBI acknowledged that it had disclosed during the Rettenmaier prosecution "that it [had] searched [the relevant field office's] records for any recruiting material directed to Best Buy personnel between 2008 and February 2012" and that it had failed to locate any responsive records. Id. ¶ 60 (alteration adopted and internal quotation marks omitted). It maintained its Glomar response for all training and recruiting material not covered by those two previous searches. Id. ¶¶ 58, 60. Finally, the FBI maintained its Glomar response to the extent any records responsive to the final part of EFF's request for "memoranda, guidance, directives, or policy statements concerning the use of [confidential] informants," id. Ex. A at 3, were not covered by the first part of its request, id. ¶ 62.

The FBI invoked exemptions 6, 7(A), 7(C), 7(D), and 7(E) to redact or withhold the records no longer covered by its Glomar response. Id. ¶¶ 66, 113. It "categorically" withheld the "informant files concerning th[e] eight [confidential informants] specifically acknowledged in the Rettenmaier litigation." Id. ¶ 113. Of the remaining records, it released 14 pages in full and 151 pages in part. Id. ¶ 112. It also withheld 78 pages in full because "all information on these pages was either fully covered by one or more of the cited FOIA exemptions or ... any non-exempt information on these pages was so intertwined with exempt material that no information could be reasonably segregated for release." Id. ¶ 112(c). The FBI later supplemented its disclosures after EFF filed its cross-motion by "removing redactions pursuant to Exemptions 6 and 7(C) where they had withheld (1) names of [confidential informants] who had been publicly identified in the Rettenmaier litigation, and (2) the 2009 work phone number of one [confidential informant] who had been publicly identified." Suppl. Hardy Decl. ¶ 15, Dkt. 18-2.

To justify its withholding decisions, the FBI submitted, among other things, two declarations by David M. Hardy, a section chief in the FBI's Records Management Division, see id. ; Hardy Decl., a declaration by Special Agent Tracey L. Riley, see Riley Decl., Dkt. 19-1, and a Vaughn index, see Vaughn v. Rosen , 484 F.2d 820 (D.C. Cir. 1973), that delineated the redactions made to each page of the records that were not either categorically withheld as part of an informant file or covered by the partial Glomar response, Hardy Decl. Ex. K, Dkt. 13-4.

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Bluebook (online)
384 F. Supp. 3d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elec-frontier-found-v-dept-of-justice-cadc-2019.