Freedom of the Press Found. v. Dep't of Justice

• Decision Date: 09 October 2020
• Docket Number: 17-cv-9343 (JGK)
• Citation: 493 F.Supp.3d 251
• Parties: FREEDOM OF the PRESS FOUNDATION and Knight First Amendment Institute at Columbia University, Plaintiffs, v. DEPARTMENT OF JUSTICE, National Security Agency, Central Intelligence Agency, and Office of the Director of National Intelligence, Defendants.
• Court: U.S. District Court — Southern District of New York

493 F.Supp.3d 251

FREEDOM OF the PRESS FOUNDATION and Knight First Amendment Institute at Columbia University, Plaintiffs,

v.DEPARTMENT OF JUSTICE, National Security Agency, Central Intelligence Agency, and Office of the Director of National Intelligence, Defendants.

17-cv-9343 (JGK)

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

Signed October 9, 2020

Anna Natalia Diakun, Leena M. Charlton, Ramya Krishnan, Alexander Abraham Abdo, Knight First Amendement Institute at Columbia University, New York, NY, for Plaintiffs.

Jean-David Barnea, Stephen Seungkun Cha-Kim, United States Attorney's Office, New York, NY, for Defendants.

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The plaintiffs, Freedom of the Press Foundation and the Knight First Amendment Institute at Columbia University, brought this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking documents from certain components of the Department of Justice ("DOJ"), including the Criminal Division ("DOJ-CRIM") and the Federal Bureau of Investigation ("FBI"), as well as the National Security Agency ("NSA"), the Central Intelligence Agency ("CIA"), and the Office of the Director of National Intelligence ("ODNI"). After the production of substantial documents, the plaintiffs challenge only the withholding of information on certain records by the DOJ-CRIM and the FBI pursuant to FOIA Exemptions 1, 3, 5, and 7(E), the sufficiency of the search conducted by the FBI for a category of requested records, and the adequacy of the FBI efforts to segregate nonexempt portions of certain records from exempt portions.

The parties have cross-moved for summary judgment. For the reasons explained below, the plaintiffs are entitled to summary judgment with respect to two portions of records improperly withheld by DOJ-CRIM under Exemption 5, but not with respect to their remaining claims.¹ As such, both parties’ motions for summary judgment are granted in part and denied in part.²

I.

The following facts are undisputed unless otherwise noted. This case arises out of identical FOIA requests filed by the plaintiffs with each of the defendants, seeking records relating to restrictions imposed by statute, regulation, or the Constitution on government surveillance targeting members of the news media, or otherwise implicating the freedoms of speech, association, or press. Compl. ¶ 1. The DOJ has publicly adopted a policy document regarding constraints on the use of law enforcement and investigative authorities in relation to members of the news media, in its "Media Guidelines," codified in 28 C.F.R. § 50.10. The plaintiffs allege that their request is motivated by certain undefined terms (including "member of the news media") in Section 50.10 and a lack of clarity regarding certain investigative tools, such as National Security Letters ("NSLs"), to which Section 50.10 may not apply. Compl. ¶¶ 2-3. NSLs, issued pursuant to 18 U.S.C. § 2709, permit the Director of the FBI, or certain designees, to compel third-party service providers to disclose certain information about their customers. Id. ¶ 3.

The Freedom of the Press Foundation is a non-profit organization based in California that "advocate[s] for government transparency and accountability by preserving the rights guaranteed to the press under the First Amendment and fortifying the public's right to know." Id. ¶ 12. The Knight First Amendment Institute is a New York not-for-profit organization, based at Columbia University, that "works to preserve and expand the freedoms to speech and the press." Id. ¶ 13.

The plaintiffs submitted their initial requests to the agencies on October 10, 2017. Id. ¶ 18, Ex. A. On November 29, 2017, the plaintiffs commenced the present action. Following negotiations between the parties, the plaintiffs agreed to narrow the scope of their request, and this Court approved a Final Processing List. Stipulation and Order Regarding Document Searches and Processing, Ex. A., ECF No. 26. The Final Processing List clarified and defined certain terms, including specifying that the term "Documents" was defined to encompass only formal versions of the records at issue. Of particular relevance to the present motion is Category 1(e) of the Final Processing List, which requested all records pertaining to "all requests or statistical information concerning requests for approvals to issue NSLs for the acquisition of records or information of or about members of the new media, submitted to" certain officials within the DOJ or the FBI, or pursuant to section G.12 of Appendix G of the current FBI Domestic Investigations and Operations Guide ("DIOG"). Id. (This request was subsequently narrowed, because the plaintiffs have stated they no longer seek any statistical data relating to NSLs. Pl's. Br. 17 & n.9.)

On July 24, 2018, this Court approved a schedule for the defendants to complete processing and production of nonexempt responsive records. ECF No. 28. DOJ-CRIM released 65 pages in full and 4 pages in part, over 5 interim productions on October 1, October 31, November 30, and December 21, 2018, and February 22, 2019. Declaration of Gail Brodfuehrer, ECF No. 48 ("Brodfuehrer Decl.") ¶¶ 9-10. The FBI released 506 pages in full or in part over three interim productions on August 31, September 28, and October 31, 2018. Declaration of Michael Seidel, ECF No. 47 ("Seidel Decl.") ¶¶ 9-11. The FBI stated that it "did not identify any records responsive to" Category 1(e). Seidel Decl., Ex. G. On November 6, 2019, the plaintiffs provided the defendants with a list of withholdings and issues they intended to challenge, Declaration of Stephen Cha-Kim, ECF No. 45 ("Cha-Kim Decl."), Ex. A, and the DOJ-CRIM subsequently released an additional two pages of records. Brodfuehrer Decl. ¶ 14.

On January 22, 2020, the plaintiffs provided a final list of withholdings that they seek to challenge, specifically information withheld on 2 pages of DOJ-CRIM records under Exemption 5 and 40 pages of FBI records under Exemption 1, 3, and 7. The plaintiffs also challenge the adequacy of the FBI's search with respect to records responsive to Category 1(e) of the Final Processing List, and allege that the FBI failed to segregate and produce properly responsive information.

II.

The standard for granting summary judgment is well established. "The 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) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994).³ The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Where there are cross-motions for summary judgment, the Court must assess each of the motions and determine whether either party is entitled to judgment as a matter of law. See Admiral Indem. Co. v. Travelers Cas. & Sur. Co. of Am., 881 F. Supp. 2d 570, 574 (S.D.N.Y. 2012).

Courts frequently decide challenges to an agency's compliance with its FOIA obligations on a motion for summary judgment, and the factual basis for withholding records pursuant to FOIA Exemptions may be supported by declarations by agency personnel. See Carney v. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994). "Affidavits or declarations ... giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency's burden." Id. "[A]n agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Wilner v. Nat'l Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009). Thus, "[s]ummary judgment is proper in a FOIA case where affidavits give ‘reasonably detailed explanations why any withheld documents fall within an exemption,’ and show that the withheld information ‘logically falls within the claimed exemption.’ " Conti v. Dep't of Homeland Sec., No. 12-CV-5827, 2014 WL 1274517, *13 (S.D.N.Y. Mar. 24, 2014) (quoting Carney, 19 F.3d at 812 and Halpern v. FBI, 181 F.3d 279, 291 (2d Cir. 1999) ).

III.

The cross-motions for summary judgment concern the Government's compliance with its FOIA obligations. "A federal agency responding to a FOIA request must (1) conduct an adequate search using reasonable efforts, (2) provide the information requested, unless it falls within a FOIA Exemption, and (3) provide any information that can be reasonably segregated from the exempt information." Gonzalez v. U.S. Citizenship & Immigr. Servs., No. 19-CV-2911, ––– F.Supp.3d ––––, ––––, 2020 WL 4343872, at *6 (S.D.N.Y. July 29, 2020). Although FOIA "adopts as its most basic premise a policy strongly favoring public disclosure of information in the possession of federal agencies," Halpern, 181 F.3d at 286, "important interests [are] served by [FOIA's] exemptions." Food Mktg. Inst. v. Argus Leader Media, ––– U.S. ––––, 139 S.Ct. 2356, 2366, 204 L.Ed.2d 742 (2019) (quoting FBI v. Abramson, 456 U.S. 615, 630-31, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982) ). Under FOIA, an agency must disclose responsive agency records, unless information within such records may be "withheld pursuant to one of the nine enumerated [e]xemptions" found within Section 552(b). NRDC v. EPA, 954 F.3d 150, 159 (2d Cir. 2020) (quoting Dep't of Justice v. Tax Analysts, 492 U.S. 136, 150-51, 109 S.Ct. 2841, 106 L.Ed.2d 112, (1989) ). At issue in this case are four different exemptions: Exemptions 1, 3, 5, and 7(E)....