Reporters Comm. for Freedom Press v. Fed. Bureau of Investigation

• Decision Date: 15 December 2017
• Docket Number: No. 17-5042,17-5042
• Citation: 877 F.3d 399
• Parties: REPORTERS COMMITTEE FOR FREEDOM OF the PRESS and Associated Press, Appellants v. FEDERAL BUREAU OF INVESTIGATION and United States Department of Justice, Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

877 F.3d 399

REPORTERS COMMITTEE FOR FREEDOM OF the PRESS and Associated Press, Appellants

v.FEDERAL BUREAU OF INVESTIGATION and United States Department of Justice, Appellees

No. 17-5042

United States Court of Appeals, District of Columbia Circuit.

Argued November 13, 2017

Decided December 15, 2017

Katie Townsend argued the cause for appellants. With her on the briefs was Bruce D. Brown, Washington, DC.

Joseph F. Busa, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was Matthew M. Collette, Attorney, Washington, DC.

Before: Tatel and Kavanaugh, Circuit Judges, and Silberman, Senior Circuit Judge.

Tatel, Circuit Judge:

In this Freedom of Information Act case, the Reporters Committee for Freedom of the Press and the Associated Press seek information from the Federal Bureau of Investigation regarding its use of undercover tactics involving impersonation of the media and creation of fake news. After the Bureau turned over several pertinent records, the district court granted summary judgment in its favor. We reverse. As explained below, the Bureau has failed to demonstrate that it "conduct[ed] a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. U.S. Department of the Army , 920 F.2d 57, 68 (D.C. Cir. 1990).

I.

In 2007, Seattle-area Timberline High School began receiving anonymous bomb threats, which prompted daily evacuations. See U.S. Department of Justice, Office of the Inspector General, A Review of the FBI's Impersonation of a Journalist in a Criminal Investigation 1 (2016) ("OIG Report"), Joint Appendix (J.A.) 538. Unable to trace the emailed threats to their sender, local authorities called in cybercrime experts from the FBI's Seattle Division. Id. Sensing the handiwork of a narcissist, the FBI agents devised a plan: if they could flatter the culprit into clicking a link to what appeared to be press coverage suggesting that he had outsmarted the authorities, they could, in turn, outsmart him by secretly delivering specialized malware that would reveal his computer's location. Id. at 11–12, J.A. 548–49. Warrant in hand, an FBI Special Agent contacted an anonymous social-media account associated with the threats, identified himself as an Associated Press "Staff Publisher," and requested input on a draft article accessible through an emailed link. Id. at 14–15, J.A. 551–52. The suspect took the bait, clicking the link and unwittingly downloading the malware. Id. at 16, J.A. 553. Within hours, the FBI had its man. Id.

Flash forward seven years to October 2014, when an American Civil Liberties Union technologist spotted a reference to the FBI's ruse—which had previously drawn little public attention—in a set of FBI documents released years earlier to an electronic privacy organization. Troubled, the technologist took to Twitter, and within days, news of the media impersonation tactics employed at Timberline prompted headlines nationwide. Facing outcry from news outlets, interest groups, and members of Congress, then–FBI Director James Comey, Jr., penned a letter to the New York Times justifying the tactics. But the public's interest had already been roused.

Among those wanting to learn more were the Reporters Committee for Freedom of the Press and the Associated Press, appellants here, which were concerned that "[t]he utilization of news media as a cover for delivery of electronic surveillance software" both "endangers the media's credibility and creates the appearance that it is not independent of the government" and "undermines media organizations' ability to independently report on law enforcement." Letter from Reporters Committee for Freedom of the Press et al. to Eric H. Holder, Jr., Attorney General, U.S. Department of Justice, and James B. Comey, Jr., Director, FBI, at 3 (Nov. 6, 2014), J.A. 384. Between them, the two organizations (hereinafter "the Reporters Committee") submitted three requests under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking FBI records on the Bureau's policies governing media impersonation, the use of such tactics during the Timberline investigation, and any other occasions on which the FBI had used fake news links to deliver malware. After the FBI responded to one request by declaring it had found no responsive records, and failed to respond at all to the other two, the Reporters Committee filed suit against the Bureau and its parent agency, the Department of Justice, claiming among other things that the FBI had conducted an inadequate records search. During the course of litigation, the FBI eventually located and released some responsive records, most pertaining to Timberline and none identifying any other instances of media impersonation. The Reporters Committee insisted that the FBI's search efforts were insufficient, but the district court disagreed and granted summary judgment to the agencies.

II.

"Designed ‘to facilitate public access to Government documents,’ [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) (quoting Department of State v. Ray , 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) ). No exemption is at issue in this appeal; rather, the lone issue before us is whether the FBI responded to the Reporters Committee's FOIA requests by conducting a search adequate to support summary judgment in the government's favor. To prevail on summary judgment, an "agency 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," which it can do by submitting "[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. "[S]ummary judgment is inappropriate" if "a review of the record raises substantial doubt" as to the search's adequacy, "particularly in view of ‘well defined requests and positive indications of overlooked materials.’ " Valencia–Lucena v. U.S. Coast Guard , 180 F.3d 321, 326 (D.C. Cir. 1999) (quoting Founding Church of Scientology v. NSA , 610 F.2d 824, 837 (D.C. Cir. 1979) ). "We review de novo the adequacy of the [agency's] search." DiBacco v. U.S. Army , 795 F.3d 178, 188 (D.C. Cir. 2015).

Here, the government submitted two declarations from David M. Hardy, Section Chief of the FBI's Record/Information Dissemination Section ("Records Section"), which describe a two-phase search. In the first phase, made up of so-called "targeted searches," the Records Section identified the Bureau divisions it considered reasonably likely to hold responsive records, and transmitted to each such division the verbatim text of the relevant FOIA request along with instructions to "send an e-mail to each of its employees asking them to search for all relevant records pertaining to th[e] request" and "help identify all potentially responsive documents, regardless of whether they may be located in their office or elsewhere in the Bureau." Declaration of David M. Hardy ¶¶ 38–40, 43–45 (Mar. 28, 2016) ("First Hardy Decl."), J.A. 112–16; see also Declaration of David M. Hardy ¶¶ 4, 6 (May 20, 2016) ("Second Hardy Decl."), J.A. 492–93.

To facilitate the targeted searches, the FBI divided the records sought into two groups. For Group One records—those "concerning the FBI's utilization of links to what are, or appear to be, news media articles or news media websites to install" certain malware—the Records Section ordered a targeted search of only the Bureau's Operational Technology Division ("Tech Division"). First Hardy Decl. ¶¶ 34, 38–40, J.A. 110, 112–13. The Records Section reasoned that the Tech Division, as the "Division responsible for the deployment and implementation of" the malware used at Timberline, would be "reasonably likely" to hold Group One records and that "no other FBI Divisions or personnel would reasonably likely possess" them. Id. ¶ 40, J.A. 113. For Group Two records—including Timberline-specific documents and media-related policy and training materials, as well as "[a]n accounting of the number of times ... the [FBI] has impersonated media organizations or generated media-style material" to deliver malware—the Records Section ordered targeted searches of several internal divisions, including the FBI's Seattle Division, the Office of General Counsel, the Tech Division, the Behavioral Analysis Unit, the National Covert Operations Section, and the Training Division. Id. ¶¶ 34, 43, J.A. 110–11, 114–15.

According to the Hardy declarations, these internal divisions "completed" the searches they were directed to carry out. Id. ¶¶ 39, 44, J.A. 113, 115. In the case of the Group One search, the Tech Division "advised [the Records Section] that no records responsive to th[e] request were located within its Division." Id. ¶ 39, J.A. 113. In the case of the Group Two searches, "the FBI was able to locate records responsive to [the Reporters Committee's] requests." Id. ¶ 45, J.A. 116.

In the search's second phase, the Records Section conducted a limited index search of the FBI's agency-wide Central Records System ("the Index"), which "index[es] terms in files that are useful to a particular investigation or that are deemed potentially useful for future investigative/intelligence retrieval purposes, such as names of individuals, organizations, companies, publications, activities, or foreign intelligence matters (or programs)." Id. ¶ 36, J.A. 112. Initially, the Records Section searched the Index for Timberline records only, using the search terms "Timberline," "Timberline High School," and "Timberline Highschool." Id. ¶ 57, J.A. 121. This search yielded "the FBI's main...