N.Y. Times Co. v. Fed. Bureau of Investigation
| Decision Date | 07 November 2017 |
| Docket Number | No. 15–CV–4829 (RA),15–CV–4829 (RA) |
| Citation | 297 F.Supp.3d 435 |
| Parties | The NEW YORK TIMES COMPANY and Scott Shane, Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION, Defendant. |
| Court | U.S. District Court — Southern District of New York |
David Edward McCraw, Ian MacDougall, The New York Times Company, New York, NY, for Plaintiffs.
Arastu Kabeer Chaudhury, Caleb Hayes–Deats, United States Attorney's Office, New York, NY, for Defendant.
The New York Times and Scott Shane (collectively, the "Times") brought this action under the Freedom of Information Act ("FOIA") seeking access to the Federal Bureau of Investigation's summaries of its interviews with Umar Farouk Abdulmutallab in the days and months after he attempted to detonate an explosive device on a commercial airliner headed to Detroit. The FBI initially refused to provide the Times any of its interview notes, or Form 302s ("302s"), which memorialize its debriefings with Abdulmutallab, but made a limited disclosure after this lawsuit was filed. The Times continued to seek additional material, relying in part on the fact that public documents, including some that were filed in connection with Abdulmuttalab's criminal sentencing, had been derived from the 302s. After the Court conducted an in camera review of the 302s, ordered the FBI to conduct segregability analyses, and required it to provide a line-by-line justification for withholding any remaining material, the FBI released 188 of the 195 pages of the 302s with substantially fewer redactions.
Left for the Court to decide is whether the material that remains redacted has been properly withheld under FOIA. After careful in camera review, the Court is persuaded that the redacted material remaining is exempt from disclosure pursuant to FOIA Exemptions 1, 7(A), and 7(C), and that all reasonably segregable information has now been disclosed, with one possible exception. Accordingly, the Court grants the FBI's motion for summary judgment.
On December 25, 2009, Umar Farouk Abdulmutallab,1 a Nigerian national now known as the "Underwear Bomber," attempted to detonate an explosive device concealed in his underwear while aboard a commercial flight from Amsterdam to Detroit. See Decl. of David M. Hardy ("First Hardy Decl.") ¶ 5 (Dkt. 19). The bomb started a fire but did not explode. See id. Abdulmutallab was apprehended and taken into custody. See id.
Between December 25, 2009 and April 30, 2010, the FBI interviewed Abdulmutallab at least eighteen times. See id. Ex. B at 3–4. During these interviews, Abdulmutallab stated that he had traveled to Yemen in 2009, where he met Anwar al-Awlaki and became involved in violent jihad. See id. Ex. A at 12. Abdulmutallab explained that he spent three days at Awlaki's home and was selected for a martyrdom mission. See id. Abdulmutallab then met Ibrahim A1 Asiri, a bomb-maker for A1 Queda in the Arabian Peninsula ("AQAP"), who constructed a bomb for Abdulmutallab and showed him how to use it. See id. at 13–14. Abdulmutallab further stated that he had trained for two weeks at a camp operated by AQAP. See id. at 13. The FBI memorialized these interviews in Form 302s.
On January 6, 2010, Abdulmutallab was indicted in the United States District Court for the Eastern District of Michigan. See id. ¶ 6. On October 12, 2011, Abdulmutallab pled guilty to eight charges, including the attempted use of a weapon of mass destruction and conspiracy to commit an act of terrorism. See id. ¶ 7. On February 16, 2012, he was sentenced to four consecutive terms of life imprisonment and a fifth consecutive term of thirty years. See id.
In advance of Abdulmutallab's sentencing, the government filed a sentencing memorandum. Attached to that memorandum was a three-page appendix, which was "intended to provide the Court with details about Defendant Abdulmutallab's interactions with [AQAP] terrorists in the months leading up to his attack." Id. Ex. A at 12. The appendix described, among other things, Abdulmutallab's travels to Yemen, his interactions with Awlaki, A1 Asiri, and other AQAP members, and the martyrdom mission he intended to execute. See id. at 12–14. The appendix stated that "the bulk of material provided comes from debriefing statements [Abdulmutallab] made to FBI agents from January to April 2010." Id. at 12.
Also in connection with Abdulmutallab's sentencing, the government filed a 22–page report by Dr. Simon Perry, a professor of criminology at Hebrew University, which "assess[ed] [Abdulmutallab's] future dangerousness or likelihood of again attempting a martyrdom mission if released from prison." Id. Ex. B at 2–3. To allow Dr. Perry to conduct this assessment, the government provided Dr. Perry redacted versions of the 302s at issue here, subject to a nondisclosure agreement. See id. at 3. Dr. Perry's report, which was publicly available, cited the 302s over forty times. See id.
On July 30, 2014, Scott Shane sent the FBI an e-mail requesting, under FOIA, "[a]ll Form 302s with notes of FBI interviews with Umar Farouk Abdulmutallab" on the eighteen dates referenced in Dr. Perry's report. See id. ¶ 11, Ex. C.2
On October 13, 2014, the FBI denied Shane's request. See id. ¶ 14, Ex. F. Citing FOIA Exemption 7(A), which applies to certain "records or information compiled for law enforcement purposes," 5 U.S.C. § 552(b)(7), the FBI stated that the records Shane requested were "law enforcement records" that are not subject to disclosure, see First Hardy Decl. Ex. F. The FBI further stated that there was a "pending or prospective law enforcement proceeding" relevant to the records, and that "release of the information in these responsive records could reasonably be expected to interfere with enforcement proceedings." Id. On October 14, 2014, the Times appealed the FBI's denial of his FOIA request to the Department of Justice's Office of Information Policy. See id. Ex. G.
On December 16, 2014, the Office of Information Policy remanded Shane's request to the FBI for further processing of responsive records. See id. Ex. I. The letter remanding Shane's request stated that, "[a]lthough the FBI invoked Exemption 7(A) ... at the time your initial request was processed, that exemption may no longer be applicable to withhold the record in full." Id.
On remand, the FBI again denied Shane's request. See id. ¶ 20, Ex, L. In a letter dated March 20, 2015, the FBI stated that the requested records were entirely exempt under Exemption 7(A), as well as Exemptions 1, 3, 6, 7(C), and 7(E). See id. On March 24, 2015, Shane appealed this decision. See id. ¶ 21, Ex. M.
On May 19, 2015, the Office of Information Policy affirmed, "on partly modified grounds," the FBI's denial of Shane's request. See id. ¶ 23, Ex. O. In a letter to Shane, the Office of Information Policy stated that the FBI "properly withheld this information in full because it is protected from disclosure" under Exemption 7(A). Id. Ex. O. In a footnote, the letter stated that the Office affirmed only the FBI's invocation of Exemption 7(A) and did not waive the government's right "to claim other exemptions that may he applicable to these records." Id.
On June 22, 2015, the Times filed a complaint in this action. See Compl. (Dkt. 1). Relying on the administrative record, both parties moved for summary judgment. See Def.'s Mot. for Summ. J. (Dkt. 17); Pl.'s Mot. for Summ. J. & Opp'n to Def.'s Mot. for Summ. J. (Dkt. 23). The FBI argued that the requested 302s were entirely exempt under Exemption 7(A), asserting that these records "contain information about ongoing investigations of terrorist networks, reveal the FBI's methods for gathering intelligence, identify investigators, targets, and unwitting third parties, and analyze Abdulmutallab's strategies for evading counterterrorism defenses." Def.'s Mem. in Supp. of FBI's Mot. for Summ. J. ("FBI Mem.") at 1 (Dkt. 18).3 The FBI further argued that portions of the requested 302s were also exempt from disclosure pursuant to Exemptions 1, 3, 6, 7(C), and 7(E). See id. at 1–2.
The FBI acknowledged, however, that at least some information regarding Abdulmutallab's interviews with the FBI had already been disclosed to the public. See id. at 23 & n.9. In particular, the FBI noted that there were "relatively modest and general disclosures of information concerning Abdulmutallab in the Government's sentencing submission," and that both President Obama and Attorney General Eric Holder had made public statements regarding Abdulmutallab's association with terrorists and the AQAP network—including the fact that he had stayed at Awlaki's home for three days, trained at an AQAP camp for two weeks, and attempted to execute a suicide mission planned by Awlaki. See id. at 23 & n.9. The FBI argued, however, that these disclosures simply did not provide information "as specific as" the information contained in the requested 302s. Id. at 24. In particular, the FBI claimed that, unlike the information disclosed by officials and in the sentencing memorandum, the requested 302s provided "detailed information" related to "ongoing investigations of terrorist networks," the FBI's "investigative techniques," "intelligence activities, sources, and methods," and the identities of "unwitting third parties." Id. The FBI took the position that, because the documents at issue were protected by Exemption 7(A) in their entirety, it was not required to analyze whether any portions of the requested 302s were segregable under FOIA, See id. at 13.
On October 27, 2015, a few weeks after the FBI had filed its opening brief, the FBI produced, in heavily redacted form, 45 pages of the requested 302s. See Decl. of Scott Shane ("Shane Decl.") ¶ 36, Ex. F (Dkt. 25); see also Second Decl. of David M. Hardy ("Second Hardy Decl.") ¶ 16 (Dkt. 27). In its reply brief and in Hardy's second declaration, the FBI...
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