UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
RYAN NOAH SHAPIRO,
Plaintiff,
v. Case No. 1:16-cv-01399 (TNM)
U.S. DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION
Plaintiff Ryan Noah Shapiro seeks a judgment from this Court that the U.S. Department
of Justice (“DOJ”), by and through its components the Federal Bureau of Investigation (“FBI”)
and the Office of Information Policy (“OIP”) (collectively, the “Defendant”), violated its
obligations under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., in
responding to seven requests submitted by Mr. Shapiro. Compl. 9. In particular, Mr. Shapiro
challenges the FBI’s search for responsive records as inadequate, disputes the FBI’s refusal to
process one request, and argues that the FBI and OIP improperly redacted non-exempt
information from the responsive documents disclosed to Mr. Shapiro. See id.1
Pending before the Court are the parties’ cross-motions for summary judgment pursuant
to Federal Rule of Civil Procedure 56. As jurisdiction and venue is proper in this Court,2 and
upon consideration of the pleadings, relevant law, related legal memoranda in opposition and in
1 Mr. Shapiro initially further sought a declaration that he is entitled to a waiver of fees paid in relation to one of his requests. Id. However, this issue is moot as the FBI has since refunded the fees paid by Mr. Shapiro. Mem. of P. & A. in Supp. of Def.’s Mot. for Summary J. (“Def.’s Mot. for Summary J.”) 4 n.1, ECF No. 13-3. 2 See 5 U.S.C. § 552(a)(4)(B); 28 U.S.C. §§ 1331, 1391. support, the parties’ representations at oral argument, and the entire record therein, I find that no
genuine issue of material fact exists and that the Defendant has met its obligations under FOIA.
Accordingly, the Defendant’s motion for summary judgment will be granted and the
Mr. Shapiro’s motion for summary judgment will be denied.
I. BACKGROUND
Plaintiff Ryan Noah Shapiro is a “historian of national security, the policing of dissent,
and governmental transparency.” Compl. ¶ 1. Between June 5, 2014 and May 11, 2016,
Mr. Shapiro submitted seven FOIA requests to the FBI and OIP seeking information regarding a
research and public relations effort conducted by the FBI in the mid-to-late 1970s called
“Operation Mosaic.” Id. at ¶¶ 13-15, 21-66. According to Mr. Shapiro, Operation Mosaic was
conducted to “publicly highlight perceived difficulties for the FBI caused by the 1974
amendments to [FOIA],” and to “secur[e] legislation to limit the applicability of the newly
amended FOIA to the FBI, as well as to justify unilateral FBI measures to limit Bureau
disclosures under FOIA.” Id. at ¶ 13. In support of his interest in the matter, Mr. Shapiro quotes
an article written in 1982 by then-FBI Director William Webster (“Webster article”), who
explained that the FBI “reviewed FOIA materials that already had been released. . . . [and]
discovered that seemingly innocuous information can be combined with records released at a
different time . . . [that] could reveal clues as to the identity of FBI sources or the extent of an
FBI investigation.” Id. at ¶ 15. The existence and contents of the article are not contested by the
FBI. See Def.’s Response to Pl.’s Statement of Material Facts (“Def.’s Response to Pl.’s
SOMF”) ¶ 2, ECF No. 17-2. “Operation Mosaic” and mosaic-related terms underlie all of
Mr. Shapiro’s requests to the Defendant.
2 A. Mr. Shapiro’s FOIA Requests
Mr. Shapiro’s seven FOIA requests are as follows. First, on June 5, 2014, Mr. Shapiro
submitted a request to the FBI seeking records “relating or referring to FBI file 94-69979.”
Def.’s Statement of Material Facts As to Which There Is No Genuine Issue (“Def.’s SOMF”)
¶ 1, ECF No. 13-1.3 This file contained the Webster article that referred to Operation Mosaic.
Pl.’s Statement of Material Facts As To Which There Is No Genuine Dispute (“Pl.’s SOMF”)
Ex. 16, ECF No. 16-4. The FBI assigned tracking number 1272678-000 to the request, and on
July 24, 2014, after processing the request, the FBI released 49 pages of previously processed
documents deemed responsive to the request to Mr. Shapiro. Def.’s SOMF ¶¶ 2-3. The FBI’s
response was affirmed on internal administrative appeal. Id. at ¶¶ 3-4. Subsequent to the appeal,
the FBI provided Mr. Shapiro with a coded and Bates stamped version of material previously
released to him on July 24, 2014. Id. at ¶ 5.
Second, on June 5, 2014, Mr. Shapiro requested from the FBI all records “relating or
referring to Operation Mosaic.” Id. at ¶ 6. The FBI assigned tracking number 1272573-000 to
the request and, after its search, informed Mr. Shapiro that no records were identified as
responsive to the request. Id. at ¶ 7-8. The FBI’s determination was affirmed on internal appeal.
Id. at ¶ 9. Subsequent to the decision on appeal, the FBI informed Mr. Shapiro that an additional
search determined that one responsive record was already released to Mr. Shapiro under his prior
request regarding FBI file 94-69979. Id. at ¶ 10.
3 The majority of statements in the Defendant’s SOMF are not disputed by Mr. Shaprio. See Pl.’s Response to Def.’s Statement of Material Facts (“Pl.’s Response to Def.’s SOMF”), ECF No. 15-1. Accordingly, unless otherwise stated, all citations to the Defendant’s SOMF indicate undisputed facts in this matter.
3 Third, on June 5, 2014, Mr. Shapiro requested that the FBI produce records relating to the
word “mosaic.” Id. at ¶ 16. The FBI assigned this request tracking number 1272599-000 and
informed Mr. Shapiro that the request was overbroad and did not enable the FBI to locate records
“with a reasonable amount of effort.” Id. at ¶ 17; see also 28 C.F.R. § 16.3(b) (requiring FOIA
requests submitted to DOJ to describe “the records sought in sufficient detail to enable
Department personnel to locate them with a reasonable amount of effort.”). The FBI’s decision
was affirmed on internal appeal. Def.’s SOMF ¶ 18.
Fourth, Mr. Shapiro requested on June 5, 2014 that the FBI provide “any and all ‘94’ files
relating or referring to” FOIA or the Privacy Act. Id. at ¶ 20. The “94” files represent FBI
research matters. Second Hardy Declaration (“Hardy Decl.”) ¶ 23, ECF No. 17-1. The FBI
assigned this request tracking number 1272733-000 and informed Mr. Shapiro that it located an
estimated 1,140,000 pages of records potentially responsive to his request. Def.’s SOMF ¶¶ 21-
22. After expending five and a half hours of time on this search without identifying any
responsive records, the FBI administratively closed this request. Id. at ¶ 31. The FBI’s search
was affirmed on internal administrative appeal. Id. at ¶ 32.
Fifth, on December 15, 2014, Mr. Shapiro submitted a request seeking records responsive
to “Operation Mosaic” and “mosaic study.” Id. at ¶ 11. The FBI assigned this request tracking
number 1272573-001 and, after processing his request, advised Mr. Shapiro that no responsive
records were identified. Id. at ¶¶ 12-13. The FBI’s search was affirmed on internal
administrative appeal. Id. at ¶ 14.
Sixth, on May 11, 2016, Mr. Shapiro submitted a FOIA request seeking records related to
the processing of three of his prior FOIA requests (tracking numbers 1272678-000, 1272573-
000, and 1272573-001). Id. at ¶¶ 35, 40. The FBI assigned two tracking numbers to this request,
4 1351095-000 and 1353203-000. Id. at ¶¶ 36, 42; see also Notice, ECF No. 25 (clarifying that
both tracking numbers pertain to the same request). Pursuant to these tracking numbers, the
FBI reviewed and released to Mr. Shapiro 136 pages and 49 pages of documents, respectively.
Id. at ¶¶ 39, 45. Some of these pages included redactions withheld on the bases of FOIA
exemptions 5, 6, 7(C), and/or 7(E). Id. As the agency’s production was made after this litigation
commenced, no administrative appeal was filed. Notice 2, ECF No. 26.
The last of Mr. Shapiro’s requests at issue in this litigation is his May 11, 2016 request to
the OIP for records relating to three of his prior FOIA requests (tracking numbers 1272678-000,
1272573-000, and 1272573-001). Def.’s SOMF ¶ 54. He also requested records regarding the
destruction of records potentially responsive to those requests. Id. The OIP assigned this request
tracking number DOJ-2016-002983 and identified 128 pages of records responsive to
Mr. Shapiro’s request. Id. at ¶¶ 55, 58. Of the 128 pages, 24 were produced in full, 7 were
produced with redactions pursuant to FOIA exemption 5, and 97 pages were referred to the FBI
for processing. Id. at ¶ 62. As the agency’s production was made after this litigation
commenced, no administrative appeal was filed. Notice 1, ECF No. 26.
B. Relevant FBI Systems
Compounding the complex background of this matter are the myriad systems used by the
FBI.4 Which of these systems the FBI searched, and how, forms the crux of Mr. Shapiro’s
complaint.
The FBI utilizes various systems for different operational needs, which contain
information that is sometimes distinct but is sometimes overlapping. In October 1995, the FBI
4 Mr. Shapiro does not challenge the adequacy of the OIP’s search. See generally Mem. of P. & A. in Supp. of Pl.’s Cross-Mot. for Summary J. and in Opp. to Def.’s Mot. for Summary J.
5 began using its Automated Case Support (“ACS”) system, a single, electronic, integrated case
management system which permits the FBI to “locate, retrieve, and maintain information in its
files in the performance of its myriad missions and functions.” Def.’s SOMF ¶ 47. As part of
the ACS implementation process, over 105 million records from the FBI’s Central Records
System (“CRS”) were converted and incorporated into ACS. Id. CRS is the FBI’s repository for
“applicant, investigative, intelligence, personnel, administrative, and general files.” Id. at ¶ 46.
It spans the entire FBI organization, including its headquarters, field offices, and legal attaché
offices worldwide. Id. It is organized by “classifications,” which include “types of criminal
conduct and investigations conducted by the FBI, as well as categorical subjects pertaining to
counterterrorism, intelligence, counterintelligence, personnel, and administrative matters.” Id.
FBI case files are identifiable by a classification number, followed by the abbreviation of the FBI
office of origin initiating the file, and the individual case file number. Id. For example, for
fictitious file number “11Z-HQ-56789,” the “11Z” is the classification number, “HQ” denotes
the origin of the file as FBI headquarters, and “56789” is the case-specific file number. Id. n.1.
The key to locating information within CRS is through its index, which is arranged in
alphabetical order according to “subject matters to include individuals, organizations, events, or
other subjects of investigative interest.” Id. The FBI does not index every name or other subject
matter in the general index, but rather exercises discretion, based on operational necessity, to
index “information considered relevant and necessary for future retrieval.” Id. at ¶ 47. This may
include indexing by individuals’ name, by organization (e.g., entities, places, and things), or by
event. Id. The FBI’s index is searchable through its Universal Index (“UNI”), which is a
(“Pl.’s Cross-Mot. for Summary J.”), ECF No. 15 (challenging the FBI’s searches in Part I, the FBI’s refusal to process Mr. Shapiro’s request for “94” files in Part II, and redactions in Part III). Therefore, the OIP’s systems are not discussed.
6 centralized, electronic means of both indexing and searching for information. Id. Electronically
searching UNI in ACS permits an individual to locate records, both in paper and electronic
format, dating from prior to 1995, when CRS records were consolidated into ACS, to the present
day. Id. UNI currently contains approximately 115.3 million searchable records. Id.
Also within ACS is the FBI’s Electronic Case File (“ECF”), the “main, and most
extensive ACS database.” Pl.’s SOMF ¶¶ 7-8; Def.’s Response to Pl.’s SOMF ¶¶ 7-8. ECF is
the central repository for the FBI’s text-based documents, and can be searched for particular
terms or phrases, as well as by case number and other characteristics. Id. at ¶¶ 9, 11-13; Def.’s
Response to Pl.’s SOMF ¶¶ 9, 11-13. The FBI “does not generally conduct text searches in
response to FOIA and Privacy Act requests without a bona fide factual reason to do so,” such as
a “clear and certain lead” generated from an index search of CRS, or where the FBI has a
“factual basis” to determine that responsive records exist in CRS but were not located through an
index search. Mem. of P. & A. in Opp. to Pl.’s Cross-Mot. for Summary J. and Reply in Supp.
of Def.’s Mot. for Summary J. (“Def.’s Reply”) 6, ECF No. 18; Def.’s Response to Pl.’s SOMF
¶ 15.
In July 2012, the FBI debuted its next generation case management system, Sentinel,
which “builds on ACS and shares its operational purpose.” Def.’s SOMF ¶ 48. Sentinel is used
for FBI records generated after July 1, 2012 and similarly utilizes an indexing system to organize
information for future retrieval. Id. All records originally located within ACS, including most
ECF content, has been migrated to Sentinel as legacy content. Declaration of Michael G. Seidel
(“Seidel Decl.”) ¶ 7 n.1, ECF No. 30-1. Further, certain of Sentinel’s index are “backfilled” into
ACS. Def.’s SOMF ¶ 48. Thus, while Sentinel did not replace ACS, it provides another avenue
by which to locate FBI records generated both prior to and after July 1, 2012. Id.
7 Distinct from, but related to, CRS is the FBI’s Electronic Surveillance System
(“ELSUR”). Id. ELSUR is similarly searchable through an index search of ACS and Sentinel,
but only indexes information by the names of the targets; participants; or owners, lessors, or
licensors of the premises that is the subject of FBI surveillance. Id. While ELSUR files contain
records of electronic surveillance, other pertinent information, such as the application and court
order authorizing the surveillance where the electronic surveillance is being conducted, is
maintained in CRS. Id. Thus, there must exist a CRS record for every record in ELSUR. Id.
Last, the FBI has a Freedom of Information and Privacy Document Processing System
(“FDPS”) which helps to “maintain information that [the FBI] has acquired in the course of
fulfilling its responsibilities under the FOIA and Privacy Act.” Second Hardy Decl. ¶ 18. FDPS
is the official records storage location for all FOIPA processing records, id. at ¶ 19, and is
searchable by FOIA and/or Privacy Act request numbers. Def.’s SOMF ¶ 53. The FBI explains,
given the difference in their operational functions—namely, a tracking system for FOIA and
Privacy Act requests versus documents pertaining to the FBI’s law enforcement
responsibilities—that “[t]he vast majority of FOIPA request records are not maintained, indexed,
or cross-referenced in the CRS.” Second Hardy Decl. ¶¶ 21-22.
C. Procedural History
Subsequent to the parties’ cross-motions for summary judgment becoming ripe, I ordered
and heard a hearing on the cross-motions. After the hearing, I ordered that the Defendant
perform ECF text searches of “94-HQ-69979,” “94-69979,” and “Operation Mosaic,” and
conduct a targeted physical search of the paper files in the “94” classification, or submit a
supplemental declaration describing why these searches are not required by law. Minute Order
Dec. 21, 2017; Minute Order Jan. 12, 2018. I also ordered the Defendant to submit for in
8 camera review the documents redacted pursuant to the deliberative process privilege. Minute
Order Dec. 20, 2017. With the Defendant’s responses to these orders now complete, I now
consider whether the Defendant’s responses to Mr. Shapiro’s requests merit summary judgment.
II. LEGAL STANDARD
A. Summary Judgment
FOIA requires federal agencies to “disclose information to the public upon reasonable
request unless the records at issue fall within specifically delineated exemptions.” Judicial
Watch, Inc. v. FBI, 522 F.3d 364, 365-66 (D.C. Cir. 2008); see also 5 U.S.C. § 552(a)(3)(A)
(records sought must be “reasonably describe[d]”). The “vast majority” of FOIA cases can be
decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Representative,
641 F.3d 521, 527 (D.C. Cir. 2011). To prevail on summary judgment, the movant must show an
absence of a genuine issue of material fact. Fed. R. Civ. P. 56(a); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In
FOIA cases, an agency must demonstrate that no material facts are in dispute, that it has
conducted an adequate search for responsive records, and that each responsive record has either
been produced to the requestor or is exempt from disclosure. See Weisberg v. U.S. Dep’t of
Justice, 627 F.2d 365, 368 (D.C. Cir. 1980).
B. Adequacy of Search
The agency’s search is adequate if the agency has conducted “a good faith effort to []
search for the requested records, using methods which can be reasonably expected to produce the
information requested.” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). In
other words, the agency must “demonstrate beyond material doubt that its search was reasonably
9 calculated to uncover all relevant documents.” Nation Magazine v. U.S. Customs Serv., 71 F.3d
885, 890 (D.C. Cir. 1995). However, the touchstone of the analysis is the reasonableness of the
agency’s search, not the records produced. See Hodge v. FBI, 703 F.3d 575, 579 (D.C. Cir.
2013) (“[T]he adequacy of a search is determined not by the fruits of the search, but by the
appropriateness of [its] methods.”) (internal quotation marks omitted); Mobley v. CIA, 806 F.3d
568, 583 (D.C. Cir. 2015) (“[A] search, under FOIA, is not unreasonable simply because it fails
to produce all relevant material.”). An agency has discretion to craft its search to meet this
standard, and does not have to search every system if additional searches are unlikely to produce
any marginal return. See Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998).
Once the agency has conducted a good faith, reasonably calculated search, the requesting party
has the burden to show that the record contains “lead[s] that [are] both clear and certain” in order
to prompt the search for additional sources of information. See Hodge, 703 F.3d at 580;
Kowalczyk v. U.S. Dep’t of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996). This is an “exacting
standard.” Reporters Comm. for Freedom of the Press & Assoc. Press v. FBI, 877 F.3d 399, 407
(D.C. Cir. 2017).
To demonstrate reasonableness of its search, an agency can submit a “reasonably detailed
affidavit, setting forth the search terms and the type of search performed, and averring that all
files likely to contain responsive materials (if such records exist) were searched.” Oglesby, 920
F.2d at 68. The D.C. Circuit has recently reiterated that an affidavit submitted in support of a
motion for summary judgment must describe the agency’s search methodology with
“specificity.” Reporters Comm., 877 F.3d at 403. For example, prior D.C. Circuit cases have
examined affidavits for descriptions of the search strategy of the agency, including search terms;
how the search was conducted; and what the search specifically yielded. See, e.g., Aguiar v.
10 Drug Enforcement Agency, 865 F.3d 730, 738-39 (D.C. Cir. 2017); DeBrew v. Atwood, 792 F.3d
118, 122 (D.C. Cir. 2015); Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1122 (D.C. Cir.
2007).
But courts are not to be unduly skeptical of the averments contained within these
declarations. Agency declarations are given “a presumption of good faith, which cannot be
rebutted by ‘purely speculative claims about the existence and discoverability of other
documents.’” SafeCard Servs. Inc. v. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991); see also
Meeropol v. Meese, 790 F.2d 942, 954 (D.C. Cir. 1986) (“In the absence of more concrete
evidence from appellants that such files actually exist, their speculative assertions cannot serve
as the basis for vacating the grant of partial summary judgment.”).
Last, an agency is not required to accede to a request that requires an “unreasonably
burdensome search.” Goland v. Cent. Intelligence Agency, 607 F.2d 339, 353 (D.C. Cir. 1978).
Requests can impose an unreasonable burden on the agency if they “are so broad as to . . .
require the agency to locate, review, redact, and arrange for inspection a vast quantity of
material.” Am. Fed’n of Gov’t Emps. v. U.S. Dep’t of Commerce, 907 F.2d 203, 209 (D.C. Cir.
1990).
C. Exemptions
FOIA requires that an agency produce all records responsive to a properly submitted
request unless the record is protected from disclosure through a statutory exemption. See 5
U.S.C. § 552(b); U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 150-51 (1989). The agency
has the burden of demonstrating that the withheld document falls into one of the enumerated
exemptions. 5 U.S.C. § 552(a)(4)(B); see also Natural Res. Defense Council, Inc. v. Nuclear
Regulatory Comm’n, 216 F.3d 1180, 1190 (D.C. Cir. 2000). This includes providing a
11 sufficiently detailed description of the exemption, the portion(s) of documents to which it
applies, and justification as to why the exemption is relevant, such that the district court can
conduct a de novo review of the agency’s determination. See Church of Scientology of Cal, Inc.
v. Turner, 662 F.2d 784, 786 (D.C. Cir. 1980); Mead Data Cent., Inc. v. U.S. Dep’t of the Air
Force, 566 F.2d 242, 251 (D.C Cir. 1977).
III. ADEQUACY OF THE FBI’S AND OIP’S SEARCHES
The seminal question to resolving the cross-motions for summary judgment is whether
the agency conducted searches for the requested material using “methods which can be
reasonably expected to produce the information requested.” See Oglesby, 920 F.2d at 68. In
summary, DOJ argues that its searches were adequate because it conducted electronic searches of
the CRS and ELSUR indices through the UNI application of ACS and Sentinel, and a physical
search of files from the FBI’s Alexandria Records Centers (“ARC” or the “Center”), which
stores the FBI’s closed files from its headquarters and field offices. Def.’s Mot. for Summary J.
5-6. The thrust of Mr. Shapiro’s counter-argument is that index searches were inadequate, and
that the FBI should have conducted full-text searches in ECF as well. Pl.’s Cross-Mot. for
Summary J. 11. Each of Mr. Shapiro’s requests is addressed in turn.
A. Request 1272678-000 for FBI file 94-69979
Mr. Shapiro’s June 5, 2014 request, tracking number 1272678-000, sought “any and all
records that were prepared, received, transmitted, collected and/or maintained by the FBI, the
Terrorist Screening Center, the National Joint Terrorism Task Force, or any Joint Terrorism Task
Force relating or referring to FBI file 94-69979.” Def.’s SOMF ¶ 1. In response to
Mr. Shapiro’s request, the FBI requested the physical file for 94-HQ-69979 from the ARC.
12 Def.’s SOMF ¶ 51. As part of its file review, the FBI processed and reviewed all responsive
records in the file, including subfiles, bulky exhibits, 1A material, and unserialized records.
Second Hardy Decl. ¶ 9. The FBI avers that this targeted search was reasonably calculated to
locate any responsive records. Def.’s Mot. for Summary J. 6-7.
Mr. Shapiro argues that simply retrieving and reviewing the physical file was insufficient
because his request covered all records “relating or referring to” the file, and that an ECF text
search for both “94-HQ-69979” and “94-69979” is therefore required in order to identify all
responsive records. Pl.’s Cross-Mot. for Summary J. 12. The FBI disputes that it was required
to conduct an ECF search in the absence of any “leads suggesting a text search is warranted,” but
ultimately, “in an abundance of caution,” did perform an ECF text search for “94-HQ-69979.”
Def.’s Reply 9. The ECF search resulted in the identification of responsive records which were
processed and released to Mr. Shapiro. Id. Unfulfilled, Mr. Shapiro argues that an ECF text
search should also have been performed for “94-69979” as potentially responsive documents can
refer to the file number both with and without the office of origin. Reply in Supp. of Pl.’s Cross-
Mot. for Summary J. (“Pl.’s Reply”) 17-18.
Without needing to resort to the question of whether an ECF text search was necessary to
satisfy the FBI’s mandate to conduct the search by a “method[] which can be reasonably
expected to produce the information requested,” Oglesby, 920 F.2d at 68, once the FBI
conducted an ECF text search of “94-HQ-69979,” it should also have conducted an ECF text
search of “94-69979,” particularly as Mr. Shapiro’s request was originally styled without the
office of origin. See Def.’s SOMF ¶ 1. Since the FBI determined to conduct an ECF text search,
it should have used a method—here, search terms—that would reasonably be expected to
produce responsive records. As investigative files may be referred to both with and without the
13 office of origin, both terms should have been searched. However, no genuine issue of material
fact remains pertaining to this request. Subsequent to the hearing on the parties’ cross-motions
for summary judgment, I ordered that the FBI conduct ECF text searches of “94-HQ-69979” and
“94-69979.” Minute Order, Dec. 21, 2017; Minute Order, Jan. 12, 2018. The FBI has now
satisfied this obligation. The ECF text search for “94-HQ-69979” confirmed the results of the
FBI’s prior search. Seidel Decl. ¶ 7. The ECF text search for “94-69979” produced zero results,
responsive or otherwise. Third Declaration of David M. Hardy ¶ 6, ECF No. 34-1. A text search
in Sentinel identified three non-responsive results. Id. at ¶ 7. Thus, the Defendant has
discharged its FOIA responsibilities for this request.
B. Request 1272573-000 for Operation Mosaic
Mr. Shapiro’s June 5, 2014 request, tracking number 1272573-000, sought “any and all
records that were prepared, received, transmitted, collected and/or maintained by the FBI, the
Terrorist Screening Center, the National Joint Terrorism Task Force, or any Joint Terrorism Task
Force relating or referring to Operation Mosaic,” as well as “(1) records relating to the decision
to initiate Operation Mosaic; (2) records relating to ‘[r]esearch for, implementation of,
conducting of, assessment of, and termination of Operation Mosaic’; (3) records about the
dissemination of Operation Mosaic information; (4) ‘[i]nstructional records, policy records, or
memoranda relating or referring to Operation Mosaic’; (5) 62, 80, 94, 190, and 197 files relating
or referring to Operation Mosaic; (6) records relating to the FBI’s monitoring of the results of
Operation Mosaic, including press clippings.” Pl.’s Cross-Mot. for Summary J. 18.
In response to Mr. Shapiro’s request, the FBI conducted index searches for “Operation
Mosaic” in CRS, using ACS’s UNI feature, as well as in Sentinel. Def.’s SOMF ¶ 49. The
search included a “string” breakdown of the search term variations, meaning that variations of
14 the term searched would automatically have also been captured. Id. n.2. The FBI avers that it
did not identify any responsive records indexed to the subject of the request, and that this method
of searching—i.e., by index—can reasonably be expected to locate the information requested.
Def.’s Mot. for Summary J. 6.
Mr. Shapiro argues that performing an index search was not an appropriate method that
would lead to a reasonable expectation of locating responsive documents because his request was
not the type of information that would be indexed. Pl.’s Cross-Mot. for Summary J. 9. Namely,
the index, which is based on “individuals, organizations, events, or other events of investigative
interest,” would not include the “FBI’s administration of FOIA matters and [] the conceptual
framework of the mosaic theory.” Id. Mr. Shapiro further supports his argument by citing the
discretion that the FBI has in indexing information. Id.; see also Def.’s SOMF ¶ 47 (“the FBI
only indexes that information considered relevant and necessary for future retrieval.”). As such,
Mr. Shapiro contends, the FBI should have performed an ECF text search for “Operation
Mosaic.” Pl.’s Cross-Mot. for Summary J. 18-19. Mr. Shapiro further argues that performing an
ECF search is not unreasonably burdensome because the term is “singular in nature” and
therefore all results would be responsive. Pl.’s Cross-Mot. for Summary J. 11. The FBI
disagrees, citing ECF searches as an “extraordinary measure” that is not warranted where, as
here, the CRS index search did not locate any record providing a clear and certain lead to the
existence of another record. Def.’s Reply 6.
After oral argument on the parties’ cross-motions for summary judgment, I ordered the
Defendant to perform an ECF text search of “Operation Mosaic” or to “submit a supplemental
declaration describing in greater detail the efforts that Defendant has taken with respect to th[is]
request[], including why th[is] additional search[] [is] not required by law.” Minute Order, Dec.
15 21, 2017. In response, the FBI conducted an ECF text search for “Operation Mosaic,” which
resulted in three hits, and a search in Sentinel for “Operation Mosaic,” which resulted in two
additional hits. Seidel Decl. ¶ 9.5 After review of all five records, the FBI concluded that none
were responsive. Id.6 I find that the ECF text search of “Operation Mosaic,” coupled with the
previously-performed index searches in CRS and Sentinel, adequately cover the breadth of
Mr. Shapiro’s request, and that no issue of material fact remains with respect to this request.
C. Request 1272599-000 for mosaic
Mr. Shapiro’s June 5, 2014 request, tracking number 1272599-000, sought “all records
that were prepared, received, transmitted, collected and/or maintained by the FBI, the Terrorist
Screening Center, the National Joint Terrorism Task Force, or any Joint Terrorism Task Force”
relating, referring, or containing the word “mosaic” and (1) “all manuals, policies, guidance,
curriculum, standard operating procedures, training [] materials, PowerPoint slides, or other
instructional or policy records containing the word ‘mosaic’”; (2) emails containing the term
“mosaic,” including emails to or from enumerated individuals; (3) other correspondence or
memoranda containing the word “mosaic”; and (4) 62, 80, 94, 190, and 197 files containing the
word “mosaic.” Pl.’s Cross-Mot. for Summary J. 15-16.
5 The Seidel Declaration also explains that Sentinel conducts a search of all text fields in the document, including the title of the investigation and the body of the document, whereas ECF text searches only searches for text in the body of the document. This explains the additional records that resulted from the Sentinel search for “Operation Mosaic.” Id. n.3. 6 Contrary to Mr. Shapiro’s assertion that all results for terms “singular in nature” would be responsive, there may be results to a search term that do not refer to the same subject of the request. Indeed, the FBI identified an “Operation Mosaic” that related to a human trafficking operation, and other results that consisted of counterintelligence and organized crime information. Id.
16 The FBI’s response to this request mirrored its response to Mr. Shapiro’s request for
Operation Mosaic-related records. The FBI conducted index searches for “mosaic” in CRS,
using ACS’s UNI feature, as well as in Sentinel. Def.’s SOMF ¶ 49. The search included a
“string” breakdown of the search term variations, meaning that variations of the term searched
would automatically have also been captured. Id. n.2. The FBI did not identify any responsive
records indexed to the subject of the request. Def.’s Mot. for Summary J. 6. Mr. Shapiro’s
arguments regarding the adequacy of the FBI’s search for “mosaic” are the same objections as to
the agency’s search for “Operation Mosaic” previously described in Section III.B., and I
therefore do not repeat them here.
However, a key difference between the requests is the nature of the information sought.
“Operation Mosaic” may refer to one or several discrete events or propositions,7 whereas
“mosaic” is a wholly generic term, to be used in potentially a variety of contexts that may have
nothing to do with Mr. Shapiro’s actual interest. Conducting an ECF text search for “mosaic,”
and requiring the FBI to conduct a hit-by-hit review and analysis of each result, could be
unreasonably burdensome. See Goland, 607 F.2d at 353 (finding that a page-by-page search of
documents in the agency’s record center was not necessary where the agency had already
conducted certain other procedures to obtain the information requested). Although Mr. Shapiro
suggests that an ECF text search of “mosaic” in combination with other terms would both be
reasonably calculated to return responsive documents and not unreasonably burdensome, I find,
given that: (i) the FBI has already searched its CRS and Sentinel indices for the term “mosaic”
without identifying any responsive records; (ii) Mr. Shapiro’s other requests covered the more
7 While “Operation Mosaic” could be a discrete term, as Mr. Shapiro argues, it nevertheless is possible that multiple investigations or events may be coined “Operation Mosaic” or use the phrase. See Section III.B., supra note 6.
17 targeted terms “Operation Mosaic” and “mosaic study;” see Section III.B., supra; and Section
III.D, infra; which is at the heart of what Mr. Shapiro seeks; and (iii) given that the FBI’s ECF
text search of “Operation Mosaic” produced no responsive records, conducting an ECF text
search for “mosaic” is not a necessary component to a search reasonably calculated to uncover
records responsive to Mr. Shapiro’s request.
Because an adequately designed search responsive to Mr. Shapiro’s request does not
require an ECF text search for “mosaic,” this matter is in a different posture than Mattachine
Society of Washington, D.C. v. United States Department of Justice, in which the Court rejected
the defendant’s argument that an ECF search of the broad terms “gay,” “lesbian,” and
“homosexual” was unduly burdensome. 267 F. Supp. 3d 218, 227 (D.D.C. 2017). In
Mattachine, the Government recognized that an index search would not be a suitable means of
identifying the information that the plaintiff requested, and therefore an ECF text search was the
only means of identifying responsive information. Second Declaration of David M. Hardy ¶ 8,
Mattachine Society of Washington, D.C. v. U.S. Dep’t of Justice, No. 16-cv-773 (D.D.C. July 28,
2017), ECF No. 43-1. Here, as I have already determined that the FBI’s search was adequately
formed to produce responsive records to Mr. Shapiro’s request relating to “mosaic,” whether an
ECF text search is unduly burdensome is not a question that I have to reach.
D. Request 1272573-001 for Operation Mosaic and mosaic study
Mr. Shapiro’s December 15, 2014 request, tracking number 1272573-001, sought records
relating to “Operation Mosaic” and “mosaic study.” In response to Mr. Shapiro’s request, the
FBI conducted index searches for “Operation Mosaic” and “mosaic study” in CRS, using ACS’s
UNI feature, as well as in Sentinel. Def.’s SOMF ¶ 49. No responsive records were identified
through these searches. Def.’s Mot. for Summary J. 6.
18 Mr. Shapiro challenges the FBI’s assertion that index searching was adequate; see
Section III.B., supra; and further argues that, even under the FBI’s own policy, an ECF search is
warranted. Pl.’s Cross-Mot. for Summary J. 14. The FBI may conduct an ECF search when: “(a)
a search of the CRS locates no records but the FBI has reason to believe that responsive records
likely exist; or (b) a search of the CRS results in some records being located but there is
information indicating that more specific responsive records likely exist.” Id. at 13. Here,
Mr. Shapiro maintains that the FBI was aware, though the Webster article, inter alia, that other
documents responsive to the request likely exist, and an ECF text search was therefore
warranted. Id. at 14.
With respect to an ECF search of “Operation Mosaic,” the FBI has now conducted this
search with three non-responsive results. Seidel Decl. ¶ 9. With respect to “mosaic study,” the
searches were adequately designed to return responsive information, and the FBI had no reason
to believe that responsive records likely exist. The study in the Webster article is specifically
noted to be “Operation Mosaic” and not a nondescript, generic term. See Pl.’s SOMF ¶ 2; Def.’s
Response to Pl.’s SOMF ¶ 2. Yet an index search in CRS for “Operation Mosaic” identified no
responsive records. Def.’s Mot. for Summary J. 6. Searches of the CRS and Sentinel indices—
which methodically categorize and arrange over 105 million records in both paper and electronic
formats according to operational need—for “mosaic study” identified no results. The fact that no
responsive documents were identified pursuant to a reasonably designed search does not affect
the adequacy of the search. See Hodge, 703 F.3d at 579 (“the adequacy of a search is determined
not by the fruits of the search, but by the appropriateness of [its] methods”). Further,
Mr. Shapiro points to no “clear and certain” leads for the vague term “mosaic study” such that
the FBI should have conducted additional searches beyond its already good faith, reasonably
19 calculated search. See id. at 580; Kowalczyk, 73 F.3d at 389. Further, as the search outcomes
provided no indication that records responsive to the non-specific term “mosaic study” likely
exist, the FBI’s search was consistent with its policy.
Mr. Shapiro also argues that the FBI improperly failed to process and release non-exempt
portions of records that the FBI itself deemed responsive. Pl.’s Cross-Mot. for Summary J. 15;
see also Pl.’s SOMF ¶¶ 21-36. The Defendant explains that the records that Mr. Shapiro cites
were listed on a search slip, a document created by the FBI during its index search for responsive
records, and that the records were either deemed non-responsive or were previously destroyed by
the National Archives and Records Administration in accordance with their regulations
governing the disposal of such records. Def.’s Reply 9-10; Def.’s Response to Pl.’s SOMF
¶¶ 21-36. In the absence of any indication that the records were destroyed in bad faith, I find that
the FBI did not improperly fail to process or release these records to Mr. Shapiro.8
E. Request 1272733-000 for “94” Files
Mr. Shapiro’s June 5, 2014 request, tracking number 1272733-000, sought “any and all
‘94’ files relating or referring to the Freedom of Information Act and/or Privacy Act.” Def.’s
SOMF ¶ 20. In response to Mr. Shapiro’s request, the FBI requested all “94” files contained at
the ARC. Def.’s SOMF ¶ 52. The ARC informed the FBI that there were 119 shelves at the
Center devoted to “94” files and they were not separated by years. Id. The FBI then conducted a
manual search for responsive records within a select portion of the “94” files, spending five and
a half hours on the request. Id. The FBI avers that its searching failed to locate responsive
records and, without an indication that further searching would locate any responsive material,
8 Indeed, given that—according to Mr. Shapiro—“Operation Mosaic” occurred about 40 years ago, it is hardly surprising that many potentially relevant documents were destroyed long ago.
20 discontinued its search. Def.’s Mot. for Summary J. 7. Mr. Shapiro debates this methodology as
the FBI’s five and a half hours of searching were through reviewing files selected, at random,
among the files on the “94” shelves. Pl.’s Cross-Mot. for Summary J. 21. It is unsurprising,
then, Mr. Shapiro counters, that no responsive records were located. Id. Mr. Shapiro suggests
that a more systematic way of approaching this request would have been for the FBI to conduct
an ECF text search for appropriate keywords (e.g., FOIA, Privacy Act) and to filter its results by
the “94” classification code. Id. at 22.
After the hearing on the parties’ cross-motions for summary judgment, I ordered the
Defendant to “conduct a targeted physical search of the paper files in the ‘94’ classification; or
submit a supplemental declaration describing in greater detail the efforts that Defendant has
taken with respect to these requests, including why these additional searches are not required by
law.” Minute Order, Dec. 21, 2017. In the FBI’s responsive supplemental declaration, it
clarified that the 119 shelves of “94” classification files contain records dated 1991 and earlier.
Seidel Decl. ¶ 10. For files after 1991, the files are stored numerically by case number, instead
of by file classification, which makes it more difficult to discern which are “94” files. Id. at ¶ 11.
Although the FBI discovered a listing of the locations of all “94” classification file numbers
created during an inventory of all FBI files, the list only contains the location of the file, and not
the subject matter of the file. Id. at ¶ 13. Because each of the approximately 99,700 files on the
list would have to be manually pulled, opened, and reviewed to determine if it was responsive to
Mr. Shapiro’s request, the FBI determined that this approach would be too unwieldy. Id. The
FBI then adjusted their approach and attempted to locate responsive records by searching within
21 Sentinel for documents in the “94” file classification originating from its headquarters.9 This
resulted in 8,326 hits, each requiring its own individual review for responsiveness. Seidel Decl.
¶ 13. The FBI reviewed the first 100 hits and found that none were responsive to FOIA (the
subject of this request) or the mosaic theory (the subject of Mr. Shapiro’s other requests). Id.
Given the volume of hits, and lack of indication that these files contain the records that
Mr. Shapiro seeks, the FBI argues that this search is unreasonably burdensome and not
reasonably likely to identify responsive records. Id.
I agree with the FBI. Its declarations have explained that for files dated 1991 or before,
there are 119 shelves with “94” files, and that identification within these files for records relating
to FOIA or the Privacy Act requires a line-by-line review. Id. at ¶ 10. Files dated after 1991 are
not organized in a manner such that identification of “94” files is readily achievable. Id. at ¶ 11.
Even though a listing of all “94” files exists, the list contains nearly 100,000 files and does not
provide further detail to help focus the FBI’s inquiry on the subject of Mr. Shapiro’s request,
“94” files pertaining to FOIA or the Privacy Act. See id. at ¶ 13. A search conducted by
electronic means that limited the scope of the FBI’s request to “94” files originating from the
FBI’s headquarters produced over 8,300 hits, each of which requires manual review. See id.
Furthermore, not all “94” files have been automated; a fully comprehensive review would
therefore require the FBI to conduct both the paper-based and electronic review. Second Hardy
Decl. ¶ 25. The FBI’s collective five and a half hour paper-based review and electronic review
of the first 100 hits did not flush out any indication that further review would likely contain
records responsive to Mr. Shapiro’s request, and I have no reason to believe the expenditure of
9 This would exclude any documents originating from any FBI field or legal attaché office worldwide. See Def.’s SOMF ¶ 46.
22 further limited FBI resources would be worth the effort. I therefore find that to require the FBI
to continue these reviews would be unreasonably burdensome. See, e.g., Founding Church of
Scientology of Washington, D.C. v. National Sec. Agency, 610 F.2d 824, 836 (D.C. Cir. 1979)
(“When the agency has not previously segregated the requested class of records[,] production
may be required only where the agency (can) identify that material with reasonable effort.”)
(internal quotation marks omitted).
F. Requests 1351095-000 and 1353203-000
Mr. Shapiro submitted FOIA requests for “190” files responsive to the processing of his
FOIA requests relating to “Operation Mosaic,” “mosaic study,” and file 94-HQ-69979 (tracking
numbers 1272573-000, 1272573-001, and 1272678-000, respectively). Pl.’s Cross-Mot. for
Summary J. 20. Classification “190” describes records pertaining to the FBI’s FOIA and Privacy
Act requests. Id. Ex. 17. In response to Mr. Shapiro’s request, the FBI conducted a search of
FDPS using the FOIA request numbers provided by Mr. Shapiro, and made productions of 136
and 49 pages of responsive information. Def.’s SOMF ¶¶ 39, 45; Def.’s Mot. for Summary J. 7.
The FBI avers that the FDPS is the only system likely to contain responsive material and
therefore a search of FDPS was reasonably expected to locate the information requested. Id.
Mr. Shapiro disputes this and argues that the FBI should have searched CRS for responsive
records, since, in a letter acknowledging the request, the FBI stated that it is “searching the
indices to [CRS] for [responsive] information.” Pl.’s Cross-Mot. for Summary J. Ex. 19. In
particular, Mr. Shapiro believes that, because his request focused the request to “190” files, that
the FBI is required to search for the files as specified by Mr. Shapiro’s request. Pl.’s Reply 18.
The FBI acknowledges that its letter referenced a CRS search, but explains that the letter used
23 “standard language [from] all our responses to FOIA/Privacy Act requests, and to the extent it is
misleading, this was done inadvertently.” Second Hardy Decl. ¶ 21 n.5.
For this request, I find that a search of FDPS was reasonably expected to produce the
information requested. As explained by the FBI’s affidavit, CRS is used to maintain documents
pertaining to the agency’s law enforcement duties. Second Hardy Decl. ¶ 21. FDPS, a separate
system, is the FBI’s primary records storage location for documents relating to the processing of
FOIA requests. Id. at ¶¶ 18-20, 22. Thus, records responsive to Mr. Shapiro’s request,
pertaining to the processing of his FOIA requests, would reasonably be expected to exist in the
FDPS system. As a result of the FBI’s search in FDPS, it identified and produced 185 pages of
responsive information to Mr. Shapiro. The search of FDPS, and not the CRS index, was an
appropriate “case-specific exercise[] of discretion and administrative judgment and expertise,”
Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 662 (D.C. Cir. 2003), “reasonably expected to
produce the information requested.” Oglesby, 920 F.2d at 68. In any event, the Defendant, not
Mr. Shapiro, has the right to craft the required searches. See Campbell, 164 F.3d at 28.
G. Request DOJ-2016-002983
This request contained two parts: Mr. Shapiro sought records pertaining to the
administrative appeals taken on certain of his requests, and also sought any records regarding the
destruction of any records responsive to his prior FOIA requests. Def.’s SOMF ¶ 54. In
response to the first part of Mr. Shapiro’s request, which asked for records pertaining to his
administrative appeals for requests 1272573-000 (“Operation Mosaic”), 1272573-001
(“Operation Mosaic” and “mosaic study”), and 1272678-000 (FBI file 94-69979), the OIP
conducted a search for records in its on-site file room, which contains all administrative appeal
files adjudicated, regardless of disposition, from the past six fiscal years. Id. at ¶¶ 57-58. The
24 OIP identified 128 pages of responsive information. Id. at ¶ 58. The OIP avers that this search
was reasonably calculated to identify all potentially responsive records, Def.’s Mot. for
Summary J. 7-8, and Mr. Shapiro does not contest the adequacy of this search. See Section I.B.,
supra note 4. I agree that the OIP’s search was adequate. With respect to the second part of
Mr. Shapiro’s request, which was for any records regarding the destruction of records responsive
to Mr. Shapiro’s prior FOIA requests, the OIP determined that no response was necessary as no
records had been destroyed. Id. at ¶ 59. Mr. Shapiro does not contest this determination. See
Pl.’s Response to Def.’s SOMF ¶ 59.
IV. PROPRIETY OF EXEMPTIONS CLAIMED FOR RESPONSIVE RECORDS
The Defendant produced certain responsive records to Mr. Shapiro with redactions
pursuant to FOIA exemptions 5, 6, 7(C), and/or 7(E).10 I address the propriety of each of these
claimed exemptions below.
A. Exemption 5
FOIA exemption 5 protects “inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency in litigation with the agency.” 5
U.S.C. § 552(b)(5). In other words, the exemption covers records that would “normally [be]
privileged in the civil discovery context,” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149
(1975), such as the attorney-client privilege, the attorney work product doctrine, and the
10 The Defendant has since withdrawn all withholdings made pursuant to FOIA exemption 7(E). Def.’s Notice of Ex Parte, In Camera Filing, ECF No. 29. Additionally, the Defendant has since withdrawn the exemptions claimed on certain portions of documents or certain documents in full, and has re-processed and produced to Mr. Shapiro revised documents reflecting these revisions. See id. (withdrawing certain exemption 5 redactions); Second Hardy Decl. ¶ 29 (releasing document Bates numbered Shapiro 190-110 in full). Consequently, I analyze only those withholdings that are still claimed by the Defendant and challenged by Mr. Shapiro.
25 executive deliberative process privilege. Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617
F.2d 854, 862 (D.C. Cir. 1980). The Defendant redacted certain documents pursuant to the
deliberative process privilege and/or the attorney work product doctrine.
The deliberative process privilege protects intra- or inter-agency documents that reflect
“advisory opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated.” Loving v. U.S. Dep’t of Defense, 550 F.3d
32, 38 (D.C. Cir. 2008). The deliberative process privilege exists to encourage “candid
discussion within the agency,” see Quarles v. U.S. Dep’t of Navy, 893 F.2d 390, 392 (D.C. Cir.
1990), and therefore protects not only “deliberative material, but also the deliberative process of
agencies.” Montrose Chem. Corp. of California v. Train, 491 F.2d 63, 71 (D.C. Cir. 1974).
Materials protected are both predecisional and deliberative. Mapother v. U.S. Dep’t of Justice, 3
F.3d 1533, 1537 (D.C. Cir. 1993). Citing this doctrine, the FBI redacted portions on six pages of
produced documents: a Notes Summary Information Sheet (redactions across three pages Bates
numbered Shapiro 190-8 through 190-10) and a FBI search slip (redactions across three pages
Bates numbered Shapiro 190-11 through 190-13). Pl.’s Cross-Mot. for Summary J. Ex. 11. The
OIP also redacted three “Blitz” forms and one handwritten note created by its Administrative
Appeals staff attorneys in the course of adjudicating Mr. Shapiro’s administrative appeal.
Declaration of Vanessa R. Brinkmann ¶ 12, ECF No. 13-6; see also id. Ex. D.
The FBI argues that the processing notes and search slip document the agency’s
deliberative process in determining the disposition of Mr. Shapiro’s FOIA requests. See Def.’s
Mot. for Summary J. 11. Upon reviewing these redactions in camera, I agree. The redacted
portions on documents Bates numbered Shapiro 190-8 through 190-10 reflect FBI employees’
comments as to how they searched for documents potentially responsive to Mr. Shapiro’s
26 requests, and the employees’ evaluations as to the responsiveness of certain documents resulting
from their searches. These comments were made during the FBI’s search and review process—
i.e., prior to the FBI’s final determination on these documents—and are therefore predecisional
as well as deliberative.11
I also agree with the OIP’s determination that the material redacted on the three “Blitz”
forms and on one handwritten note is the predecisional and deliberative process of the agency.
The information redacted contains the impressions, analysis, and recommendation of OIP staff in
their evaluation and adjudication of the adequacy of the FBI’s searches. Since these notes and
comments were made during the course of the OIP’s adjudication, prior to it rendering a decision
on Mr. Shapiro’s appeal, the material is both predecisional and deliberative, and was properly
withheld.12
B. Exemption 6
The FBI also redacted certain information on documents Bates numbered Shapiro 190-12
and 190-13 pursuant to FOIA exemption 6, which governs “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). Although the statute is specific to “personnel and medical files,”
the Supreme Court has clarified that information that “applies to a particular individual” may be
11 Mr. Shapiro points out that the remainder of information withheld by the FBI under the deliberative process privilege is “primarily factual in nature, including such matter as file numbers.” Pl.’s Cross-Mot. for Summary J. 23. As the FBI claimed that this information was also exempt under FOIA exemptions 6 and/or 7(C), and I address the propriety of redacting file numbers within the discussion of those exemptions below. 12 As the deliberative process privilege provides an independent ground for the propriety of these redactions, I do not have to reach whether the OIP properly withheld this information pursuant to the attorney work product doctrine.
27 exempted. U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982). Accordingly, the
FBI redacted certain “names of and identifying information, to include administrative file
numbers and serials” pertaining to FBI Special Agents and other support personnel. Pl.’s Cross-
Mot. for Summary J. 31. Mr. Shapiro does not contest the redaction of FBI Special Agent and
support personnel names, but argues that the FBI has failed to adequately explain how
administrative file numbers and serials could be traced back to particular individuals. Id.
The FBI explains that although these file numbers and serials may not, on their own and
on their face, divulge personal information, they may be used in conjunction with, or cross-
referenced with, other information in the public domain (whether obtained through a FOIA
request or other means) to uncover certain private information, such as the existence of an
individual’s employment status or investigation, the type and nature of employment or
investigation, the geographical area of the matter, and potentially the extent of someone’s career
with the FBI or amount of information obtained by the FBI. See Second Hardy Decl. ¶ 30; Tr. of
Proceedings at 43, ECF No. 33. For instance, a file number with redacted personal information
in this case could be cross-referenced to a file number with unredacted information already in the
public domain, which would allow one to identify individual(s) involved in this case.
Furthermore, these file numbers and serials were deemed not responsive to Mr. Shapiro’s
request. Second Hardy Decl. ¶ 30. I find that the Defendant has adequately explained how these
file numbers implicate an individual’s privacy interest, and that no competing consideration in
this case compels their production. Therefore, I find that the FBI’s redactions made under
exemption 6 are proper.
28 C. Exemption 7(C)
FOIA Exemption 7(C) protects “records or information compiled for law enforcement
purposes” that “could reasonably be expected to constitute an unwarranted invasion of personal
privacy.” 5 U.S.C. § 552(b)(7)(C). Although worded similarly to FOIA exemption 6, exemption
7 requires a lesser showing and protects a broader set of information. Compare 5 U.S.C. §
522(b)(6) (protecting certain documents that “would constitute a clearly unwarranted invasion of
personal privacy) with 5 U.S.C. § 522(b)(7)(C) (protecting documents that “could reasonably be
expected to constitute an unwarranted invasion of personal privacy) (emphasis added); see also
U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 756 (1989)
(noting the difference between the two provisions). Citing this exemption, the FBI redacted “an
investigative file serial created to investigate specific individuals for possible violations of
federal crimes” as “[r]elease of this information would allow for access, through the FOIA or
otherwise, to information pertaining to the FBI’s investigation of these individuals.” Pl.’s Cross-
Mot. for Summary J. 30. Mr. Shapiro does not challenge that the file was created for law
enforcement purposes, conceding the threshold question of a law enforcement purpose, but again
disputes that the disclosure of an investigative file number and/or serial could reasonably be
expected to constitute an unwarranted invasion of personal privacy. See id. at 30-31. I find that
the investigative information was properly redacted under FOIA exemption 7(C). Similarly as
with exemption 6, the disclosure of the file number and/or serial could identify the type of
criminal activity at issue, the geographical location where the investigation was initiated, and the
amount of intelligence obtained by the FBI, as well as, in concert with other information, the
subject of the investigation. This information, which was deemed non-responsive to
Mr. Shapiro’s request, Second Hardy Decl. ¶ 30, was properly withheld.