Clemente v. Fed. Bureau of Investigation

• Decision Date: 21 November 2022
• Docket Number: 1:20-cv-1527 (TNM)
• Parties: ANGELA CLEMENTE, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
• Court: U.S. District Court — District of Columbia

ANGELA CLEMENTE, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

No. 1:20-cv-1527 (TNM)

United States District Court, District of Columbia

November 21, 2022

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

Plaintiff Angela Clemente submitted a broad Freedom of Information Act request to the Federal Bureau of Investigation seeking records related to Jeffrey Epstein and his alleged criminal activities. The FBI located thousands of responsive records, released some in full and others with redactions, and withheld the vast majority under various FOIA exemptions. The FBI now moves for summary judgment, submitting exhaustive declarations and Vaughn indices. Clemente's counsel never responded. Without arguments or evidence to the contrary, the Court will grant the FBI's motion.

I.

Clemente submitted a FOIA request to the FBI essentially seeking all records it had about Jeffrey Epstein and his alleged criminal activities. See generally Compl., ECF No. 1; see also id., Ex. 1, ECF No. 1-5 (letter requesting records under FOIA). The FBI searched for responsive records, initially locating 11,571 responsive pages. See Def.'s Mot. for Summ. J. (Def.'s MSJ) at 3-4, ECF No. 34-2; Decl. of Michael G. Seidel (Seidel Decl.) ¶ 5, ECF No. 34-4; see also Exs. S & T (Vaughn Indices), ECF Nos. 34-6, 34-7. The FBI advised Clemente that some responsive

1

records were accessible in the FBI's FOIA Library (the “Vault”) using the search term “Jeffrey Epstein,” and directed her to that online repository. See id. ¶ 7. And it informed her that other records are located within an investigative file exempt from disclosure under FOIA Exemption 7(A), which shields law enforcement records pertaining to a pending or prospective enforcement proceeding when release of the information could reasonably be expected to interfere with those proceedings. See id.

The FBI then released 181 pages of the Vault records in full and 1,051 pages in part. See id. ¶ 5. It withheld 10,339 pages in full under Exemptions 1, 3, 5, 6, 7(A), 7(C), 7(D), and 7(E). See id. The FBI then processed 1,505 additional responsive pages, releasing 665 in full and 743 in part. See id. It withheld 97 of these pages in full because they were either duplicates of other pages processed elsewhere in the production or exempt under Exemptions 1, 3, 5, 6, 7(A), 7(C), 7(D), and 7(E). See id.; see also id. ¶ 31.

The FBI also issued Clemente two Glomar responses. See id. ¶ 7. The FBI explained that even acknowledging the existence of records about third-party individuals could reasonably be expected to invade personal privacy under Exemptions 6 and 7(C). See id.; see also id. ¶ 171. Similarly, the FBI argued that acknowledging the existence of records about confidential human sources could jeopardize its ability to investigate and fight criminal behavior and could subject the sources to reprisal under Exemption 7(D). See id. ¶ 7; see also id. ¶¶ 172-74. Finally, the FBI argues that it released all non-segregable material. See id. ¶ 164.

II.

Courts resolve the “vast majority” of FOIA cases at summary judgment. Brayton v. Off. of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). To prevail on a motion for summary judgment, a party must show that “there is no genuine dispute as to any material fact.” Fed. R.

2

Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. And a factual dispute is material if it could alter the outcome of the suit under the substantive governing law. See id.

An agency is entitled to summary judgment in the FOIA context if it shows that it has conducted a search reasonably calculated to uncover all relevant documents, see Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007), and that each relevant record has been produced or is exempt from disclosure, see Students Against Genocide v. DOS, 257 F.3d 828, 833 (D.C. Cir. 2001). FOIA requires “disclosure of documents held by a federal agency unless the documents fall within one of nine enumerated exemptions[.]” U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S.Ct. 777, 785 (2021).

The agency bears the burden to show that the claimed exemptions apply. See ACLU v. DOD, 628 F.3d 612, 619 (D.C. Cir. 2011). Courts construe FOIA exemptions narrowly, see Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011), and consider their applicability de novo, see King v. DOJ, 830 F.2d 210, 217 (D.C. Cir. 1987). An agency need not produce a record if a court has enjoined its disclosure, because the agency has no discretion to exercise in such cases. See Judicial Watch, Inc. v. DOJ, 813 F.3d 380, 383 (D.C. Cir. 2016).

An agency may submit “sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, or both, to demonstrate that [it] has analyzed carefully any material withheld and provided sufficient information as to the applicability of an exemption[.]” Brennan Ctr. for Justice v. DOS, 296 F.Supp.3d 73, 80 (D.D.C. 2017); see also Shapiro v. DOJ, 893 F.3d 796, 799 (D.C. Cir. 2018). If no record evidence contradicts this information and there is no evidence of agency bad faith, then summary judgment is appropriate. See ACLU, 628 F.3d at 626;

3

see also Ancient Coin Collectors Guild v. DOS, 641 F.3d 504, 509 (D.C. Cir. 2011) (“Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the exemption are likely to prevail.”).

III.

Recall that Clemente failed to respond to the FBI's motion for summary judgment.^[1]The Court may therefore treat the FBI's Statement of Material Facts Not in Dispute (SMF) as admitted. See LCvR 7(h)(1). But the Court still must conduct an independent analysis of whether the FBI's search was adequate, whether it properly asserted exemptions, whether it properly provided Glomar responses, and whether it met its segregability burden. See Winston & Strawn, LLP v. McLean, 843 F.3d 503, 506-07 (D.C. Cir. 2016) (explaining that district courts cannot treat a motion for summary judgment as conceded for want of opposition because “[t]he burden is always on the movant to demonstrate why summary judgment is warranted”); see also McGehee v. DOJ, 362 F.Supp.3d 14, 18 (D.D.C. 2019) (granting summary judgment after independent analysis in FOIA case when same counsel failed to oppose motion).

A.

The FBI's search was adequate. To obtain summary judgment, the FBI must show “that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). An agency need not uncover every existing document; rather, it must show that its search has been adequate and reasonable. See SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). The Court's inquiry therefore centers on the

4

method of the search, not its results. See, e.g., Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003).

The FBI's primary declarant shows that the FBI's search was reasonably calculated to uncover all records responsive to Clemente's FOIA request. He describes how the FBI organizes and indexes its files, and how it searches various record-keeping systems. See Seidel Decl. ¶¶ 35-48. For Clemente's request, the FBI searched both its FOIA document processing system and its Central Records System for responsive records. See id. ¶ 48. And the FBI's declarant provides the terms searched and cut-off dates used. See id. The FBI has thus provided 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 (cleaned up).

B.

The FBI properly asserted Exemptions 1, 3, 5, 6, 7(A), 7(C), 7(D), and 7(E) for the withheld records.

1.

First up is Exemption 1. It protects matters “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and . . . in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). The FBI here relies on Executive Order 13,526, which prescribes a uniform system for classifying and safeguarding national security information. See Seidel Decl. ¶¶ 69-70. So the FBI must show both that the information was classified under the proper procedures and that the withheld information substantively falls under this Executive Order. See Salisbury v. United States, 690 F.2d 966, 971-72 (D.C. Cir. 1982).

5

In the national security context, courts “consistently defer[] to executive affidavits predicting harm to national security, and have found it unwise to undertake searching judicial review.” Ctr. for Nat'l Sec. Studs. v. DOJ, 331...