Brennan Ctr. for Justice at N.Y. Univ. Sch. of Law v. Dep't of Homeland Sec.

• Decision Date: 03 August 2018
• Docket Number: 16 Civ. 672 (KPF)
• Citation: 331 F.Supp.3d 74
• Parties: BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW, Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY, Department of Justice, Defendants.
• Court: U.S. District Court — Southern District of New York

331 F.Supp.3d 74

BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW, Plaintiff,

v.DEPARTMENT OF HOMELAND SECURITY, Department of Justice, Defendants.

16 Civ. 672 (KPF)

United States District Court, S.D. New York.

Signed August 3, 2018

Jeffrey C. Bank, Daniel Paul Weick, Wilson Sonsoni Goodrich & Rosati, Michael William Price, Brennan Center for Justice, New York, NY, for Plaintiff.

Elizabeth Tulis, Jacob Thomas Lillywhite, United States Attorney's Office, New York, NY, for Defendants.

OPINION AND ORDER

KATHERINE POLK FAILLA, United States District Judge

The Brennan Center for Justice at New York University School of Law ("Plaintiff" or the "Brennan Center") brought this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, against the Department of Homeland Security and the Department of Justice (collectively, the "Government" or "Defendants"); it seeks documents regarding certain initiatives under the rubric "Countering Violent Extremism" that were first established by the White House in 2011. Defendants have disclosed various documents in response to Plaintiff's FOIA claims, but the parties dispute Defendants' withholdings of a limited set of information. Now that the parties have had an opportunity to refine the issues, Defendants have moved for summary judgment, and Plaintiff has cross-moved for summary judgment. For the reasons that follow, Defendants' motion is granted in full.

BACKGROUND¹

A. Factual Background

1. The Parties

The Brennan Center for Justice at New York University School of Law is "a non-profit, non-partisan corporation, organized under section 501(c)(3) of the Internal Revenue Code." (Compl. ¶ 12). It describes itself as "a nonpartisan research and policy institution ... focused on fundamental issues of democracy and justice." (Id. ). In furtherance of that aim, the Brennan Center's Liberty and National Security Program utilizes "policy recommendations, litigation, and public advocacy to advance effective national security policies," including those related to "ensuring that domestic surveillance and counterterrorism policies are properly targeted to the threat and do not discriminate against particular communities." (Id. ).

This dispute concerns FOIA requests that the Brennan Center issued to the following governmental entities: the Department of Homeland Security ("DHS"), within which Plaintiff seeks records from the DHS Office of Intelligence and Analysis ("I & A"); and the Department of Justice ("DOJ"), within which Plaintiff seeks records from the Federal Bureau of Investigation ("FBI"). (Compl. ¶¶ 13-14). The following sections detail Plaintiff's requests and Defendants' responses.

2. The Countering Violent Extremism Initiative

"In August 2011, President Obama issued the National Strategy for Empowering Local Partners to Prevent Violent Extremism in the United States, which outlined a strategy for the federal government to ‘support and help empower American communities and their local partners in their grassroots efforts to prevent violent extremists.’ " (Def. Br. 2 (citation omitted) ). In December 2011, the White House issued a corresponding "Strategic Implementation Plan" (or "SIP") in furtherance of the President's efforts toward "countering violent extremism" (or "CVE"); the SIP detailed then-current CVE efforts, as well as initiatives that were to be performed by government agencies and their components, including DOJ, DHS, the U.S. Attorneys' Offices, and the FBI. (See generally Price Decl., Ex. 1). As framed by the Brennan Center, "CVE aims to deploy the resources of the federal government—both law enforcement and social services—to encourage and assist American Muslim communities in identifying persons who ... might hold extremist views and be at risk of becoming violent." (Compl. ¶ 2).

3. Plaintiff's FOIA Requests

In 2014 and 2015, Plaintiff issued 13 FOIA requests to various government agencies seeking documents related to CVE initiatives. (See Compl. ¶¶ 15-49). At present, a limited number of Plaintiff's requests to two government entities—the FBI and I & A—remain at issue. (See Pl. Br. 4-5).

a. The FOIA Requests to the FBI

On December 23, 2014, Plaintiff submitted a FOIA request to the FBI seeking records related to the FBI's participation in CVE programs. (See Hardy Decl., Ex. F). On June 3, 2015, the FBI released 28 pages of documents, some of which contained redactions. (See id. at Ex. H; Compl. ¶ 36). On July 31, 2015, Plaintiff appealed the adequacy of the FBI's search and the redactions of the FBI's disclosed materials. (Hardy Decl., Ex. I). On November 24, 2015, the FBI remanded the FOIA request for further processing of records that had previously been withheld. (Id. at ¶ 22).

Also on December 23, 2014, Plaintiff submitted a second FOIA request to the FBI seeking various documents generated by the FBI's Countering Violent Extremism Office (the "CVEO"). (See Hardy Decl., Ex. A; Compl. ¶ 31). On January 9, 2015, the FBI acknowledged receipt of the request, and on June 3, 2015, the FBI released 25 pages of responsive documents, some of which contained redactions. (See Hardy Decl., Ex. B-C; Compl. ¶ 33). On July 31, 2015, Plaintiff appealed the adequacy of the FBI's search and challenged the FBI's redactions. (See Hardy Decl. Ex. D). The FBI denied the appeal on September 15, 2015. (Compl. ¶ 33).

On November 4, 2015, Plaintiff submitted an additional FOIA request to the FBI seeking records related to certain CVE-related activities. Among those requests, Plaintiff sought "records pertaining to the FBI's plan for ‘Shared Responsibility Committees,’ " or "SRCs," which were "described as ‘proposed groups of community leaders and FBI representatives who could discuss cases of specific youths.’ " (Hardy Decl., Ex. K (footnote call number omitted); see also Pl. Br. 4). "By letter dated November 19, 2015, the FBI informed Plaintiff [that] a search of the FBI's Central Records System failed to locate any main file records responsive" to the request. (Hardy Decl. ¶ 28). On December 4, 2015, Plaintiff appealed the adequacy of the FBI's search for responsive records, which appeal the FBI denied on January 13, 2016. (Id. at ¶¶ 30-32).²

After Plaintiff filed the Complaint in this action on January 29, 2016, the FBI released additional responsive documents to Plaintiff. (See Hardy Decl. ¶¶ 14, 24, 33-34). On August 29, 2017, after summary judgment briefing closed, the FBI performed another search and produced additional responsive documents related to the FBI's proposals for SRCs. (See Dkt. # 53).

In addition to a broad-based challenge to the adequacy of the FBI's search for records related to the proposed SRCs, Plaintiff offers specific challenges to the FBI's redactions to two documents: (i) the "FBI Field Office CVE Model," which "is a PowerPoint presentation that is almost entirely redacted"; and (ii) an intelligence assessment entitled FBI Strategic Plan to Curb Violent Extremism , which is "partially redacted." (Pl. Br. 4). In addition, from the FBI's supplemental post-briefing disclosure, Plaintiff seeks the release of three documents: (i) a July 2015 draft Memorandum of Understanding reflecting the SRC proposal as of that date; (ii) a March 2015 presentation explaining an SRC proposal; and (iii) a November 2015 executive summary of an SRC proposal. (See Dkt. # 57).

b. The FOIA Requests to DHS

On December 23, 2014, Plaintiff submitted two FOIA requests to DHS regarding that agency's involvement in CVE programs. (See Sepeta Decl. ¶¶ 10, 13). I & A acknowledged receipt of both requests by letter dated January 16, 2015. (Id. at ¶¶ 12, 14). After the initiation of this litigation, I & A provided records responsive to Plaintiff's FOIA request, some of which were released in full and others only in part. (Id. at ¶ 15).

Plaintiff challenges I & A's redactions to three intelligence assessments: (i) Empowering Somali [redacted] Key for Countering Youth Radicalization and Their Travel Abroad for Terrorism ; (ii) Syria-Based US and UK Persons' Public Social Media Activity Effective but Provides Terrorism Prevention Opportunities ; and (iii) Pre-Travel Activities Exhibited by US Persons Aspiring to Fight in Syria Provide Detection Opportunities. (Pl. Br. 5).

B. Procedural Background

As mentioned above, Plaintiff filed its Complaint in this action on January 29, 2016. (Dkt. # 1). On May 24, 2016, the Court endorsed a joint letter from the parties setting a schedule for further document processing in an attempt to resolve any remaining disputes between the parties. (Dkt. # 25). The parties could not resolve their disputes fully, however, and on February 15, 2017, the Court approved a schedule for the parties to file cross-motions for summary judgment. (Dkt. # 29).

On May 1, 2017, Defendants moved for summary judgment, and on June 7, 2017, Plaintiff cross-moved for summary judgment. (Dkt. # 37-41, 45-50). On July 11, 2017, Defendants filed a reply memorandum of law in further support of their motion for summary judgment, and on August 11, 2017, Plaintiff filed its reply in further support of its motion for summary judgment. (Dkt. # 45-51).

On September 15, 2017, Plaintiff informed the Court of the FBI's post-briefing disclosure and requested further briefing to address Plaintiff's challenges to the adequacy of that disclosure, which further briefing the Court approved that same day. (Dkt. # 52-53). Accordingly, on October 13, 2017, Defendants submitted a letter brief and accompanying declaration in response to Plaintiff's September 15, 2017 letter. (Dkt. # 57-58). Plaintiff submitted a letter brief in opposition on October 24, 2017. (Dkt. # 59).

On February 28, 2018, the Government informed the Court that it had produced an additional set of documents to Plaintiff; the Government thus requested that Plaintiff be permitted time to review these documents and, by June 8, 2018, inform the Court whether the additional disclosure would require further briefing. (Dkt. # 62). After...