Electronic Frontier Foundation v. Department of Justice

• Court: District Court, District of Columbia
• Decided: April 17, 2019
• Docket: Civil Action No. 2017-1039
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC FRONTIER FOUNDATION,

Plaintiff,

v. No. 17-cv-1039 (DLF)

DEPARTMENT OF JUSTICE,

Defendant.

MEMORANDUM OPINION AND ORDER

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, Electronic 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.

1 EFF’s request also referred to “confidential human sources,” which the FBI construed to be synonymous with “informant.” Hardy Decl. ¶ 3 n.1. 2 The FBI initially invoked FOIA exemption 7(E) as the basis for a Glomar response 2 that

neither confirmed nor denied the existence of responsive records. Gov’t’s Statement 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

2 The Glomar response takes its name from the Hughes Glomar Explorer, “a ship built (we now know) to recover a sunken Soviet submarine, but disguised as a private vessel for mining manganese nodules from the ocean floor.” Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926, 931 n.4 (D.C. Cir. 2012) (internal quotation marks omitted). A Glomar response is appropriate when “to answer the FOIA inquiry would cause harm cognizable under an applicable statutory exemption.” Id. (internal quotation marks omitted). 3 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

4 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.

II. LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure mandates that “[t]he court shall grant

summary judgment if the 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). When a

federal agency moves for summary judgment in a FOIA case, all facts and inferences must be

viewed in the light most favorable to the requester, and the agency bears the burden of showing

that it complied with FOIA. Chambers v. U.S. Dep’t of Interior, 568 F.3d 998, 1003 (D.C. Cir.

2009).

To prevail under Rule 56, a federal agency “must prove that each document that falls

within the class requested either has been produced, is unidentifiable, or is wholly exempt from

[FOIA’s] inspection requirements.’” Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (per

curiam) (internal quotation marks omitted). “The system of disclosure established by the FOIA

is simple in theory[:] [a] federal agency must disclose agency records unless they may be

withheld pursuant to one of the nine enumerated exemptions listed in [5 U.S.C.] § 552(b).” DOJ

v. Julian, 486 U.S. 1, 8 (1988). The agency bears the burden of justifying the application of any

exemptions, “which are exclusive and must be narrowly construed.” Mobley v. CIA, 806 F.3d

568, 580 (D.C. Cir. 2015).

Federal courts rely on agency affidavits to determine whether an agency complied with

FOIA. Perry, 684 F.2d. at 126. Agency affidavits are entitled to a presumption of good faith,

SafeCard Servs. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and a court may grant summary

judgment based on an affidavit if it contains reasonably specific detail and is not called into 5 question by contradictory record evidence or evidence of bad faith, Judicial Watch v. U.S. Secret

Serv., 726 F.3d 208, 215 (D.C. Cir. 2013). It is well established that “the vast majority of FOIA

cases can be resolved on summary judgment.” Brayton v. Office of the U.S. Trade

Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).

III. ANALYSIS

EFF does not dispute that the FBI adequately searched for records associated with the

Rettenmaier disclosures, or that it appropriately applied several exemptions to the records

located in that search. EFF’s Br. at 4–5. Instead, EFF focuses on a few specific applications of a

handful of exemptions. The Court divides its analysis into three parts: first, whether the FBI

satisfied its burden to justify (a) a partial Glomar response for documents unrelated to the

disclosures made during the Rettenmaier prosecution and (b) redactions under exemption 7(E);

second, whether exemption 7(C) protects the name of an individual who was convicted based on

information obtained from the Kentucky Best Buy; and finally, whether the FBI satisfied its

burden to justify the categorical withholding of the informant files under exemptions 6, 7(C),

7(D), and 7(E).

A. Exemption 7(E)

Exemption 7(E) protects “records or information compiled for law enforcement purposes,

but only to the extent that the production of such law enforcement records or information . . .

would disclose techniques and procedures for law enforcement investigations or prosecutions . . .

if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C.

§ 552(b)(7). The exemption does not ordinarily protect “routine techniques and procedures

already well known to the public.” Founding Church of Scientology of Washington, D.C. v.

NSA, 610 F.2d 824, 832 n.67 (D.C. Cir. 1979) (internal quotation marks omitted); see also 6 Judicial Watch v. U.S. Dep’t of Commerce, 337 F. Supp. 2d 146, 181 (D.D.C. 2004). It does,

however, protect “confidential details of . . . program[s]” if only their “general contours [are]

publicly known.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1112 (D.C. Cir. 2007) (citing

Blanton v. DOJ, 64 Fed. App’x 787, 788–89 (D.C. Cir. 2003) (per curiam)); see also Shapiro v.

DOJ, 893 F.3d 796, 801 (D.C. Cir. 2018) (permitting the government to withhold documents that

would disclose the way in which the FBI uses a particular publicly known database). In this

Circuit, exemption 7(E) applies if the disclosure of information related to even “commonly

known procedures” could “reduce or nullify their effectiveness.” Vazquez v. DOJ, 887 F. Supp.

2d 114, 116 (D.D.C. 2012) (internal quotation marks omitted), aff’d, No. 13-5197, 2013 WL

6818207, at *1 (D.C. Cir. Dec. 18, 2013) (per curiam).

Exemption 7(E) “sets a relatively low bar for the agency to justify withholding.”

Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). “Rather than requiring a highly specific

burden of showing how the law will be circumvented, exemption 7(E) only requires that the

[agency] demonstrate logically how the release of the requested information might create a risk

of circumvention of the law.” Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009)

(alterations adopted and internal quotation marks omitted). The exemption “looks not just for

circumvention of the law, but for a risk of circumvention; not just for an actual or certain risk of

circumvention, but for an expected risk; not just for an undeniably or universally expected risk,

but for a reasonably expected risk; and not just for certitude of a reasonably expected risk, but for

the chance of a reasonably expected risk.” Id. at 1193.

The FBI invoked exemption 7(E) to justify three withholding decisions. First, it invoked

the exemption to justify a partial Glomar response and refuse to confirm or deny the existence of

any documents unrelated to the use of confidential informants “at the Best Buy, Brooks, 7 Kentucky facility for the period of 2007 to 2016” as well as the existence of any recruiting or

training documents beyond the disclosures made during the Rettenmaier prosecution. Hardy

Decl. ¶ 29; see also id. ¶¶ 53, 58, 60, 62. Second, it invoked exemption 7(E) to justify its

categorical withholding of the informant files for the eight informants who were publicly

acknowledged during the Rettenmaier prosecution. Hardy Decl. ¶¶ 113–14, 125–28. Third, it

invoked exemption 7(E) to justify redactions made to the remaining documents, which it

processed and described in a Vaughn index. Hardy Decl. ¶¶ 98–111; id. Ex. K.

EFF does not dispute that all of the records at issue here were compiled for law

enforcement purposes. See, e.g., EFF’s Br. at 9 n.4. Instead, it argues that none of the FBI’s

withholding decisions are justifiable because it is “well[] known” that the government

“develop[s] criminal cases based on material found on computers by repair technicians.” Id. at

26. As a result, there can be no “concern that disclosure would create a risk of circumvention of

the law.” Id.

The Court agrees with EFF that the FBI failed to satisfy its burden to justify the breadth

of the current partial Glomar response—at least as applied to all four aspects of EFF’s request.

But it concludes that the FBI did satisfy its burden to justify the redactions made to the processed

documents. As for the informant files, the Court explains in Section III.C., infra, that the FBI

failed to satisfy its burden to justify their categorical withholding.

1. The Partial Glomar Response

An agency is permitted to provide a Glomar response and “refuse to confirm or deny the

existence of records where to answer the FOIA inquiry would cause harm cognizable under a

FOIA exception.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (internal quotation marks

omitted). “The Glomar doctrine is in large measure a judicial construct, an interpretation of 8 FOIA exemptions that flows from their purpose rather than their express language.” ACLU v.

CIA, 710 F.3d 422, 431 (D.C. Cir. 2013). The D.C. Circuit has cautioned that courts should not

“stretch th[e] doctrine too far” and “give their imprimatur to a fiction of deniability that no

reasonable person would regard as plausible.” Id. at 431.

A requester may challenge a Glomar response either by arguing that “the agency has

previously official[ly] acknowledged the fact of the existence of a requested record” or by

arguing that disclosure would not cause any harm under the FOIA exemption invoked. James

Madison Project v. DOJ, 302 F. Supp. 3d 12, 20 (D.D.C. 2018) (internal quotation marks

omitted). EFF takes the second approach. The Court therefore “appl[ies] the general exemption

review standards established in non-Glomar cases.” Wolf, 473 F.3d at 374; see also id. at 375–

77 (holding that a Glomar response was appropriate where revealing the existence of the records

would disclose information protected by the relevant exemption). Here, that means that a

Glomar response is only appropriate if disclosing the existence of responsive records would risk

the circumvention of the law under exemption 7(E).

The government argues that disclosure would risk the circumvention of the law because

“disclosing whether or not there are responsive documents concerning the FBI’s use, training, or

recruitment of [confidential informants] at computer repair facilities, other than the Best Buy

Brooks, Kentucky facility, or at the Brooks, Kentucky facility outside the 2007–2016

timeframe,” Gov’t’s Opp’n at 3–4, Dkt. 18, would “likely reduce the effectiveness” of the

technique of using computer repair technicians to identify cyber criminals, id. at 5. It stresses

that disclosing the existence of responsive documents would “indicate the extent of the FBI’s use

of this law enforcement technique.” Id. at 5. Indeed, Hardy’s declaration betrays a concern that

disclosing the existence of responsive documents would reveal whether the FBI uses computer 9 technician informants at specific locations and how frequently it relies on such informants.

According to Hardy, that information will, in turn, inform criminals’ judgment about whether

they should avoid certain facilities, whether they should destroy evidence because of their past

use of certain facilities, and whether they can continue to break the law without fear of

investigation because the FBI does not frequently use computer technician informants.

For example, Hardy declared that disclosure would “reveal[] the FBI has used or uses

Best Buy [confidential informants] at other Best Buy locations,” which would “dissuade

criminals from seeking computer repair services from Best Buy.” Hardy Decl. ¶ 57; see also id.

¶ 51 (“[T]he FBI deemed revealing the existence/nonexistence of responsive records would

enable criminals to judge how they may avoid providing the FBI with critical law enforcement

data through its deployed [confidential informants.]”). Relatedly, he declared that “[c]onfirming

or denying the existence of responsive records would allow criminals to judge whether or not

they should destroy any existing evidence of their criminal activities because of previous Best

Buy interactions.” Id. ¶ 59. He declared that “disclosing that the FBI has not recruited Best Buy

employees may embolden criminals who happen to be Best Buy customers to continue their

criminal activities undaunted.” Id. ¶ 61. And he declared that “[r]evealing the existence of

[guidance, directives, or policy statements] would disclose whether the FBI pursued the

recruitment of computer repair employees on such a regular basis that it found the need to

establish guidance, directives, and/or policy concerning the use of [confidential informants] at

computer repair facilities.” Id. ¶ 63.

A Glomar response under exemption 7(E), however, is only appropriate where the mere

existence of documents would risk the circumvention of the law. See Vazquez, 887 F. Supp. 2d

at 117–18; Kalu v. IRS, 159 F. Supp. 3d 16, 23–24 (D.D.C. 2016). Concerns about the precise 10 number or contents of any responsive documents can be addressed through litigation about the

scope of any withholdings and the level of detail that must be provided to justify those

withholdings. As the D.C. Circuit has explained, a “no number, no list” response might be

justified in “unusual circumstances” where the government believes that an exemption permits it

to withhold a “descri[ption] or even enumerat[ion] on the public record [of] the number, types,

dates, or other descriptive information about . . . responsive records.” ACLU, 710 F.3d at 433. A

Glomar response, which “requires the agency to argue . . . that the very fact of the existence or

nonexistence of responsive records is protected,” is “conceptually different from conceding (or

being compelled by the court to concede) that the agency has some documents, but nonetheless

arguing that any description of those documents would effectively disclose validly exempt

information.” Id.

In this case, disclosing the mere existence—as opposed to the number or type—of any

documents would reveal little, if any, information about the nature or frequency of the FBI’s use

of computer technician informants beyond what the FBI has already disclosed. In the

Rettenmaier litigation and in this case, the FBI acknowledged and even disclosed “documents

concerning [confidential informants] utilized by the FBI between 2007 and 2016, at the Brooks,

Kentucky, Best Buy facility.” Hardy Decl. ¶ 14 (internal quotation marks omitted); see also id.

Ex. K; EFF’s Br. at 11–12 (citing, among others, Washington Post, National Public Radio, and

USA Today articles that reported on the Rettenmaier informant disclosures). Disclosing the

existence of at least one additional document would merely confirm that the FBI has used an

informant outside of the 2007–2016 timeframe—but possibly only one—at the Kentucky Best

Buy. Such a disclosure would not reveal whether the FBI has enlisted informants from any other

Best Buy or computer repair store. Nor would it reveal how frequently the FBI has developed 11 established relationships with, or obtained evidence from, computer technician informants. 3 Cf.

Reporters Comm. for Freedom of Press v. FBI, No. 17-cv-1701, 2019 WL 1003627, at *9

(D.D.C. Mar. 1, 2019) (“[A]cknowledging the existence of records, without any indication about

the number or type of records found, would not provide any information about the frequency of

the technique’s use.”). For these reasons, the Court is hard pressed to conclude that disclosing

the existence of at least one additional document responsive to EFF’s broad request would have

any effect on criminal behavior.

Likewise, the Court is hard pressed to conclude that disclosing the non-existence of any

documents responsive to EFF’s request would “embolden criminals who happen to be Best Buy

[or other computer repair store] customers to continue their criminal activities undaunted,”

Hardy Decl. ¶ 61, or permit them to “judge whether or not they should destroy any existing

evidence,” id. ¶ 59. To conclude otherwise would presume that criminals have no reason to

believe that computer technicians ever cooperate with law enforcement agencies. That seems

highly unlikely given that several states require computer technicians to report suspected child

pornography to law enforcement agencies. EFF’s Br. at 11 (citing N.C. Gen. Stat. § 66-67.4;

Tex. Bus. & Com. Code § 110.002; S.D. Codified Laws § 22-24A-18). 4 Reported case decisions

3 Recall that 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 [his] informant history, which has restricted access within the FBI.” Id. ¶ 3 n.1. 4 North Carolina, for example, requires “any computer technician who, within the person’s scope of employment, observes an image of a minor or a person who reasonably appears to be a minor engaging in sexual activity” to “report the name and address of the . . . owner or person in possession of the computer to the Cyber Tip Line at the National Center for Missing and Exploited Children or to the appropriate law enforcement official in the [relevant] county or municipality.” N.C. Gen. Stat. § 66-67.4(b). 12 also reveal that the government has built cases based on tips from computer technicians. See,

e.g., United States v. Hill, 459 F.3d 966 (9th Cir. 2006); United States v. Stevens, 197 F.3d 1263

(9th Cir. 1999). Indeed, at least in 2009 and 2014, Best Buy service orders included a disclaimer

explaining that “any product containing child pornography will be turned over to the authorities.”

EFF’s Br. Ex. 3 at 57, Dkt. 15-3; see also EFF’s Reply Ex. 5 at 1, Dkt. 21-6. And to the extent

disclosing the non-existence of responsive documents will encourage criminals to retain

evidence, the disclosure will enhance, not diminish, law enforcement efforts to identify and

prosecute computer crimes.

Because the FBI has failed to establish that revealing the existence or non-existence of a

single document beyond those “concerning [confidential informants] utilized by the FBI between

2007 and 2016, at the Brooks, Kentucky, Best Buy facility,” Hardy Decl. ¶ 14 (internal quotation

marks omitted), will “reduce or nullify” the effectiveness of this law enforcement technique,

Vazquez, 887 F. Supp. 2d at 116 (internal quotation marks omitted), the Court will deny

summary judgment as to the FBI’s partial Glomar response. This ruling, however, is limited.

The Court expresses no view as to whether the FBI may legitimately assert a partial Glomar

response to some aspects of EFF’s request, perhaps even to entire categories of EFF’s four-part

request. The Court concludes only that the current partial Glomar response to the entirety of

EFF’s request is unjustified.

2. The Redactions Made to the Processed Documents

Although the FBI has not satisfied its burden to justify its partial Glomar response, it has

satisfied its burden to justify the individual redactions it made to the processed documents

described in its Vaughn index. Exemption 7(E) protects the “confidential details” of even

publicly known techniques, Sussman, 494 F.3d at 1112 (citing Blanton, 64 Fed. App’x at 788– 13 89), and it protects “commonly known procedures” if disclosure could “reduce or nullify their

effectiveness,” Vazquez, 887 F. Supp. 2d at 116 (internal quotation marks omitted); see also Sack

v. U.S. Dep’t of Def., 823 F.3d 687, 694 (D.C. Cir. 2016) (permitting the government to withhold

reports and other documents describing an agency’s polygraph procedures and techniques);

Weisberg v. DOJ, 745 F.2d 1476, 1492 n.27 (D.C. Cir. 1984). 5

EFF argues that the FBI may not withhold information about “investigative techniques

and procedures of its informant program along with internal search slips and related materials

describing its internal review of [Best Buy] employees” because “the well-known technique of

developing criminal cases based on material found on computers by repair technicians obviates

any concern that disclosure would create a risk of circumvention of the law.” EFF’s Br. at 26.

But the Hardy declaration and the FBI’s Vaughn index make clear that the information the FBI

withheld under exemption 7(E) involves “non-public investigative techniques and procedures of

its informant program, and non-public specific details concerning techniques and procedures that

are otherwise known to the public.” Hardy Decl. ¶ 102; see also id. Ex. K. For example, the

withheld information includes “details reflecting the FBI’s standardized [confidential informant]

procedures and guidelines,” which “govern methods and techniques of [confidential informant]

recruitment and utilization.” Id. ¶ 102. It also includes search slips and printouts “related to

5 Quoting from Jaffe v. CIA, 573 F. Supp. 377, 387 (D.D.C. 1983), EFF insists that the exemption “is properly asserted only where the investigative techniques and procedures at issue are ‘secret,’ ‘obscure and not known to the public.’” EFF’s Reply at 2 (alteration adopted) (quoting Jaffe, 573 F. Supp. at 387). But the Jaffe court stated only that the exemption “extends to information regarding obscure or secret techniques,” not that it is limited to such techniques. Jaffe, 573 F. Supp. at 387 (emphasis added). Indeed, it recognized in the next sentence that the exemption does protect “ordinary . . . procedures” if the responsive documents “include confidential details” about those procedures. Id. In any event, the Court is bound by the decisions of the D.C. Circuit, which has recognized that exemption 7(E) can protect even routine and well-known techniques. 14 vetting potential informants” and “annual review[s] to establish a continued need of the

informant[s].” Id. ¶ 111. Revealing this information would reduce the effectiveness of using

informants because, among other things, it “would provide key insight into the FBI’s source

vetting standards” and “enable those wishing to gain the FBI’s confidence and pose as a potential

FBI [informant] the opportunity to judge what information they should manipulate/mask to avoid

discovery . . . and ensure the FBI targets them for recruitment.” Id. The FBI appropriately

applied exemption 7(E).

As a final matter, the Court also concludes that, with respect to the processed records

described in the Vaughn index, the FBI appropriately segregated the information protected under

exemption 7(E) from non-exempt information. When a FOIA requester “seeks a mixture of

exempt and non-exempt records . . . an agency must segregate the non-exempt information from

the exempt information, disclosing the former but not the latter.” Elec. Privacy Info. Ctr. v. IRS,

910 F.3d 1232, 1237 (D.C. Cir. 2018). If, however, an agency adequately describes its

segregability analysis and justifies its withholdings, “a district court need not conduct its own in

camera search for segregable non-exempt information unless the agency response is vague, its

claims too sweeping, or there is a reason to suspect bad faith.” Mead Data Cent. v. U.S. Dep’t of

Air Force, 566 F.2d 242, 262 (D.C. Cir. 1977). Here, Hardy adequately explained the FBI’s

efforts to segregate the information, see Hardy Decl. ¶¶ 112, 149, and the Vaughn index

identifies the specific documents that were redacted in full or in part, id. Ex. K. The record as a

whole reveals that the FBI’s explanation was detailed and sufficiently tailored. And there is no

reason to suspect bad faith. The FBI is therefore entitled to summary judgment with respect to

the information withheld under exemption 7(E) in the processed documents.

15 B. Exemption 7(C)

EFF also challenges the application of exemptions 6 and 7(C) to protect the name of an

individual convicted of a crime based on evidence obtained from the Kentucky Best Buy. EFF’s

Reply at 16; see also Gov’t’s Opp’n at 14. According to the government, the eight relevant

pages “discuss the pre-arrest investigative efforts of the FBI, concerning how a specific case was

handled prior to any public arrest and indictment.” Gov’t’s Opp’n at 15; see also Suppl. Hardy

Decl. ¶ 11; Hardy Decl. Ex. K (Bates-numbered pages 13, 16, 17, 19, 20, 71, 72, and 118). The

Court concludes that the FBI must provide additional documentation to enable the Court to

balance the individual’s privacy interest against the public’s interest in disclosure.

“FOIA Exemptions 6 and 7(C) seek to protect the privacy of individuals identified in

certain agency records.” ACLU v. DOJ, 655 F.3d 1, 6 (D.C. Cir. 2011). Exemption 6 protects

“personnel and medical files and similar files the disclosure of which would constitute a clearly

unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(6), and exemption 7(C) protects

information compiled for law enforcement purposes that “could reasonably be expected to

constitute an unwarranted invasion of personal privacy,” id. § 552(b)(7)(C). Both exemptions

are “implicated anytime revelation of the contents of information would subject the person to

whom they pertain to embarrassment, harassment, disgrace, loss of employment or friends.”

Holy Spirit Ass’n for Unification of World Christianity v. FBI, 683 F.2d 562, 564 (D.C. Cir.

1982) (internal quotation marks omitted). When an agency invokes both exemptions, courts

“focus” on exemption 7(C) because it “establishes a lower bar for withholding material.”

Citizens for Responsibility & Ethics in Washington v. DOJ (CREW I), 746 F.3d 1082, 1091 n.2

(D.C. Cir. 2014) (internal quotation marks omitted).

16 Under exemption 7(C), courts balance the privacy interest at stake against the public

interest in disclosure. Citizens for Responsibility & Ethics in Washington v. DOJ (CREW II),

854 F.3d 675, 681 (D.C. Cir. 2017). The government “must account for the privacy interests at

stake, recognizing that previous disclosures or admissions may have diminished those interests.”

Id. at 683. But if the withheld information implicates a privacy interest, the FOIA requester

“bears the burden of showing (1) that ‘the public interest sought to be advanced is a significant

one, an interest more specific than having the information for its own sake,’ and (2) that the

information [it] seeks ‘is likely to advance that interest.’” Roth v. DOJ, 642 F.3d 1161, 1175

(D.C. Cir. 2011) (quoting Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172

(2004)). It is well established that “the only public interest relevant for purposes of Exemption

7(C) is one that focuses on the citizens’ right to be informed about what their government is up

to.” Sussman, 494 F.3d at 1115 (internal quotation marks omitted).

Although the names of private individuals in law enforcement files are ordinarily exempt

from disclosure absent “compelling evidence that the agency is engaged in illegal activity,”

SafeCard Servs. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991), the D.C. Circuit has held that the

names of individuals who have already been “charged, convicted or otherwise implicated in

connection with [an] investigation” must be considered on a case-by-case basis because “these

individuals have a diminished privacy interest” in the information contained in investigative

documents. CREW II, 854 F.3d at 682; see also id. at 683 (“With respect to those individuals

with diminished privacy interests, the withholding of information pursuant to Exemptions 6 and

7(C) must be subjected to a particularized weighing of the public and privacy interests that

would be implicated by the disclosure sought . . . .”). Courts must consider whether, for

example, “a responsive document could reveal new information about a person’s conduct, going 17 beyond the facts in the public record related to that person’s conviction and sentencing.” Id. at

682. If so, the privacy interest at stake is more likely to outweigh the public interest. Id.

Here, EFF has identified a public interest with several similarities to the “significant

public interest in disclosure” recognized by the D.C. Circuit in ACLU, 655 F.3d at 12. There, the

D.C. Circuit held that exemption 7(C) did not protect the case name, docket number, and court

for “criminal cases in which the government prosecuted individuals after judges granted

applications for cell phone location data without a determination of probable cause, and in which

those individuals were subsequently convicted or entered public guilty pleas.” Id. at 6; see also

id. at 19–20. The ACLU Court noted that press reports suggested a significant public interest in

learning about the use of cell phone location data. Id. at 12–13. Similarly, EFF cites press

reports that suggest at least some degree of public interest in learning about the FBI’s use of

computer technician informants. EFF’s Reply at 17. Also, like the plaintiff in ACLU, EFF could

use the disclosed name to review filings and transcripts from the criminal case, which “could

provide further insight regarding the efficacy of the [law enforcement] technique by revealing

whether courts suppress its fruits, and [c]ould disclose the standard or standards the government

uses to justify [the technique.]” 655 F.3d at 14. Finally, the information could “provide facts . . .

that would inform the public discussion concerning the intrusiveness of th[e] [technique].” Id.

The current record does not permit the Court to determine whether this public interest is

sufficiently weighty to overcome the relevant privacy interest. The FBI must therefore

supplement the record with additional documentation about the contents of the redacted

documents to allow the Court to determine the extent of the relevant individual’s privacy

interest.

18 C. The Informant Files

The FBI invoked exemptions 6, 7(C), 7(D), and 7(E) to “categorically den[y] release of

the informant files” for the eight confidential informants acknowledged in Rettenmaier. Hardy

Decl. ¶ 113. EFF challenges the FBI’s decision only with respect to the four publicly named

informants, largely on the ground that the exemptions were waived due to public disclosures

made in Rettenmaier and during this litigation. EFF’s Reply at 5–6. It argues both that the FBI

did not satisfy its burden to justify the categorical withholding of the files and that the FBI

waived any argument that these and other exemptions apply to portions of the informant files.

Id. at 5–16. The Court agrees that the FBI did not satisfy its burden with respect to the

categorical withholdings, but it disagrees that the FBI waived the application of various

exemptions to portions of the informant files.

It is well established that “[t]he agency bears the burden of establishing that a claimed

exemption applies.” CREW I, 746 F.3d at 1088. An agency may “carry that burden by

submitting affidavits that describe the justifications for nondisclosure with reasonably specific

detail, demonstrate that the information withheld logically falls within the claimed exemption,

and are not controverted by either contrary evidence in the record nor by evidence of agency bad

faith.” Id. (internal quotation marks omitted). The D.C. Circuit has permitted agencies to apply

a “categorical approach” to justify withholding decisions when “the FOIA litigation process

threatens to reveal the very information [an] agency hopes to protect.” Prison Legal News v.

Samuels, 787 F.3d 1142, 1149 (D.C. Cir. 2015) (internal quotation marks omitted). Under that

approach, “[t]he government may justify its withholdings and redactions category-of-document

by category-of-document, so long as its definitions of relevant categories are sufficiently distinct

to allow a court to determine whether specific claimed exemptions are properly applied.” Id. at 19 1149–50 (internal quotation marks omitted). That approach, however, is only appropriate when

“[t]he range of circumstances included in [each] category . . . characteristically support an

inference that the statutory requirements for exemption are satisfied.” Id. at 1150 (alteration

adopted and internal quotation marks omitted).

In his declaration, Hardy explained that the files “could include” ten categories of

documents, and he provided a “general description” of the documents in each category. Hardy

Decl. ¶ 114. He then proceeded to broadly assert exemptions 6, 7(C), 7(D), and 7(E) without

tying them to any of the defined categories. Id. ¶ 115–28.

Hardy’s explanation is insufficient to justify the withholding of the four informant files in

their entirety. As a threshold matter, it is not clear whether all of the withheld documents fall

within the identified categories or whether the FBI is seeking to withhold some documents

without any justification at all. Even assuming the former, the Court is unpersuaded. Hardy

stated, for example, that exemptions 6 and 7(C) apply because the informants “maintain

substantial privacy interests in not being publicly identified as FBI informants” and in keeping

confidential “[t]he breadth, depth, and nature of the[ir] cooperation.” Id. ¶ 123. But one

category of documents in the informant files is titled “documents implementing sensitive

investigative techniques” and includes “documents . . . utilized to implement specific, sensitive,

investigative techniques.” Id. ¶ 114 (capitalization omitted). It is unclear, on this record, how

these documents will reveal personal information about any of the informants, or why redactions

of any personal identifying information will not protect any privacy interests to the extent they

exist. See Mays v. DEA, 234 F.3d 1324, 1327 (D.C. Cir. 2000) (“Exemption 7(C) ordinarily

permits the Government to withhold only the specific information to which it applies, not the

entire page or document in which the information appears; any non-exempt information must be 20 segregated and released . . . .”). In other words, the “range of circumstances included in [each]

category” does not characteristically support an inference that the statutory requirements for

exemption are satisfied.” Prison Legal News, 787 F.3d at 1150 (alteration adopted and internal

quotation marks omitted). 6

Without this categorical argument, the government must rely on Hardy’s alternative

invocation of exemptions 3, 6, 7(A), 7(C), 7(D), and 7(E) to protect “portions” of the informant

files, Hardy Decl. ¶ 130, whether those portions are grouped into “functional categories,” id.

¶ 132, or considered more particularly, id. ¶ 140. EFF argues that the FBI may not now invoke

these exemptions because it failed to “adequately substantiate” their application. EFF’s Br. at

27. It relies, in particular, on Maydak v. DOJ, 218 F.3d 760 (D.C. Cir. 2000), in which the D.C.

Circuit held that, “as a general rule, [the government] must assert all exemptions at the same

time, in the original district court proceedings,” id. at 764. According to EFF, the FBI failed to

adequately assert the exemptions because Hardy used hypothetical language to describe what is

usually contained in an informant file. EFF’s Br. at 27–28. For example, Hardy declared that

“[i]nformant files often contain information concerning physical or documentary evidence

6 The government argues that it is entitled to summary judgment with respect to the informant files because EFF waived any argument about the application of exemptions 6 and 7(C). Gov’t’s Opp’n at 2–3, 18. EFF’s briefing could have been clearer on this point, but EFF did challenge the application of the exemptions to “materials involving” the four publicly identified informants, “including . . . the informant files [the FBI] has withheld in full.” EFF’s Br. at 18. EFF also challenged the FBI’s “argument that portions of [the] informant files can be withheld under additional FOIA exemptions.” Id. at 27 (capitalization omitted). That challenge would only matter if the Court rejected the FBI’s bases for withholding the informant files in full—and two of those bases were exemptions 6 and 7(C). In these circumstances, it would be inappropriate to hold that EFF waived the argument. Cf. Jicarilla Apache Nation v. U.S. Dep’t of Interior, 613 F.3d 1112, 1117 (D.C. Cir. 2010). 21 gathered during FBI investigations,” and “[r]evealing this information could possibly reveal

source identities,” among other things. Hardy Decl. ¶ 135.

EFF confuses a failure to invoke an exemption at all with a failure to satisfy the FBI’s

burden to justify the application of an exemption. In Maydak, the D.C. Circuit ruled that the

government failed to preserve arguments about certain exemptions, in part because the

government conceded that “it did not ‘formally’ invoke other FOIA exemptions in the original

district court proceedings.” 218 F.3d at 765. Instead, it only “reference[d]” the possibility that

other exemptions might apply. Id. The D.C. Circuit held that such references were insufficient

because the government did not assert the exemptions “in such a manner that the district court

c[ould] rule on the issue.” Id. It then expressly distinguished cases in which the D.C. Circuit

permitted the government to provide additional information to the district court to justify various

exemptions. In those cases, the government invoked other exemptions but “fell short in its good

faith attempts to carry its burden of proof with respect to [those] exemptions.” Id.

Hardy clearly invoked exemptions 3, 6, 7(A), 7(C), 7(D), and 7(E). He stated that “the

FBI is also asserting” the other exemptions, Hardy Decl. ¶ 130; see also id. ¶ 140, and he

proceeded to explain over the course of several paragraphs how they apply to the informant files,

id. ¶ 131–46. Although he frequently discussed the relevant issues hypothetically, that is only

because he maintained that a more detailed description of “the precise contents of a[]

[confidential] informant file” would “risk[] the harms protected by the exemptions.” Id. ¶ 131.

The persuasiveness of that argument is relevant to the question whether the FBI satisfied its

burden, not whether it invoked the exemptions at all.

However, even though the government has not waived these arguments, the briefing on

the application of exemptions 3, 6, 7(A), 7(C), 7(D), and 7(E) to the informant files is 22 inadequate. In the government’s motion for summary judgment, it devotes a mere four sentences

to justifying the application of all six exemptions. Gov’t’s Br. at 22–23. And it barely expands

that analysis in its reply. Gov’t’s Reply at 19–20. For EFF’s part, it devotes almost its entire

argument to the preservation question rather than the question whether the FBI satisfied its

burden. See EFF’s Br. at 27–28; EFF’s Reply at 14–16. The Court therefore directs the parties

to file supplemental briefing on the question whether the FBI appropriately withheld the relevant

informant files based on the government’s alternative arguments. See Elec. Privacy Info. Ctr. v.

DOJ, 296 F. Supp. 3d 109, 122 (D.D.C. 2017) (“[T]he document-production process is a fluid

one at the district-court level, and it often includes contemporaneous review and continuous

production determinations by agency-defendants.”).

CONCLUSION

For all these reasons, it is

ORDERED that the government’s Motion for Summary Judgment, Dkt. 13, is

GRANTED IN PART and DENIED IN PART. It is further

ORDERED that EFF’s Cross-Motion for Summary Judgment, Dkt. 15, is DENIED.

And it is

ORDERED that the parties shall file a joint status report on or before May 3, 2019 that

proposes a schedule for further proceedings. The Court will address all remaining issues after

the parties file the additional briefing and documentation required by this Opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge April 17, 2019