Shapiro v. Dep't of Justice

• Citation: 393 F.Supp.3d 111
• Decision Date: 24 July 2019
• Docket Number: Civil Action No. 13-0729 (PLF)
• Parties: Ryan Noah SHAPIRO, Plaintiff, v. DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — District of Columbia

393 F.Supp.3d 111

Ryan Noah SHAPIRO, Plaintiff,

v.DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 13-0729 (PLF)

United States District Court, District of Columbia.

Signed July 24, 2019

Jeffrey Louis Light, Law Offices of Jeffrey Light, Washington, DC, for Plaintiff.

Christopher Charles Hair, Jane M. Lyons, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

OPINION

PAUL L. FRIEDMAN, United States District Judge

This matter is before the Court on the defendant's renewed motion for summary judgment [Dkt. No. 53] and Mr. Shapiro's renewed cross-motion for summary judgment [Dkt. No. 55], after remand to this Court from the Court of Appeals. See Shapiro v. U.S. Dep't of Justice, 893 F.3d 796 (D.C. Cir. 2018). At issue is one remaining record, known as "Serial 91," redacted by the Federal Bureau of Investigation ("FBI") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The Court will grant summary judgment in favor of the government and deny Mr. Shapiro's cross-motion for summary judgment.¹

I. BACKGROUND

The history of this case is set out in prior opinions of this Court and of the U.S. Court of Appeals for the D.C. Circuit and need not be repeated here. See Shapiro v. U.S. Dep't of Justice, 893 F.3d 796 ; Shapiro v. U.S. Dep't of Justice, 249 F. Supp. 3d 502 (D.D.C. 2017) ; Shapiro v. U.S. Dep't of Justice, 205 F. Supp. 3d 68 (D.D.C. 2016) ; Shapiro v. U.S. Dep't of Justice, 34 F. Supp. 3d 89 (D.D.C. 2014). This Court has yet to evaluate the propriety of the government's withholdings as to Serial 91 – an additional, two-page document that was released following oral argument in the Court of Appeals. The D.C. Circuit remanded the case for evaluation of the redactions made to Serial 91 and resolution of any dispute as to those redactions. See Shapiro v. U.S. Dep't of Justice, 893 F.3d at 800.

The government has made thirteen separate redactions to Serial 91, withholding material contained therein pursuant to Exemptions 3, 6, 7(C), and 7(E) of FOIA. See Gov. Mot. at 3; see also 5 U.S.C. §§ 552(b)(3), (b)(6), (b)(7)(E). In his cross-motion, Mr. Shapiro originally challenged eight of the thirteen withholdings made under Exemptions 3 and 7(E) of FOIA and requested that the Court review in camera an unredacted version of the document. See Pl. Cross-Mot. at 1, 18. He submitted a copy of the redacted version of Serial 91 as an exhibit to his cross-motion, identifying each of the eight challenged withholdings by letters A-H (referred to as "blocks" by the parties). See Serial 91. Over the course of the parties' briefing, Mr. Shapiro withdrew his challenges to three withholdings made pursuant to Exemption 7(E). The parties continue to dispute the propriety of five redactions contained in Serial 91: the redactions labeled A, B, E, F, and H in Mr. Shapiro's Exhibit 4. See id.

Attached as exhibits to its motion for summary judgment and its reply, the government has submitted two separate declarations by David M. Hardy – the Section Chief of the FBI's Record/Information Dissemination Section, Information Management Division – to explain the FBI's justifications for nondisclosure. See Fifth Hardy Dec.; Sixth Hardy Dec. At the Court's request, the government has also submitted an unredacted copy of the two-page record referred to as "Serial 91" for the Court's in camera review. See Government's Notice [Dkt. No. 68].

II. DISCUSSION

Pursuant to FOIA, "[a]n agency must disclose agency records to any person under § 552(a), ‘unless they may be withheld pursuant to one of the nine enumerated exemptions listed in § 552(b).’ " See U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 150-51, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) (quoting Dep't of Justice v. Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988) ). "Consistent with [FOIA's] goal of broad disclosure, these exemptions have been consistently given a narrow compass." See id. at 151, 109 S.Ct. 2841.

In moving for summary judgment, the government maintains that "the record demonstrates that the FBI carefully and deliberately differentiated between similar seeming kinds of information to protect intelligence sources and methods, and plaintiff's speculation and innuendo fail to establish any genuine issue of material fact." See Gov. Reply at 2 (citations omitted). Mr. Shapiro disputes the propriety of several of the FBI's withholdings made pursuant to Exemptions 3 and 7(E). See Pl. Cross-Mot. at 1.² The challenged redactions are labeled by letters A-H in Mr. Shapiro's Exhibit 4. See Serial 91. In his reply in support of his cross-motion for summary judgment, Mr. Shapiro states that "[w]ithout conceding that the FBI was correct in its application of Exemption 7(E) to the file numbers at issue in this case" – Blocks C, D, and G – "[he] withdraws his challenge to [those] redactions." See Pl. Reply at 10. The Court therefore need not consider the propriety of the government's withholding as to Blocks C, D, and G because there is "no dispute to resolve." See Shapiro v. U.S. Dep't of Justice, 239 F. Supp. 3d 100, 106 n.1 (D.D.C. 2017) ; see also Shapiro v. U.S. Dep't of Justice, 249 F. Supp. 3d at 505 n.3. Thus, the Court is tasked with evaluating whether Blocks A, B, E, F, and H of Serial 91 contain information properly withheld from Mr. Shapiro because they are exempted from release by FOIA Exemptions 7(E) and 3. The Court proceeds to do so by reviewing the unredacted version of Serial 91 and applying the relevant case law as to these exemptions.

A. Exemption 7(E)

Exemption 7(E) of FOIA permits the withholding of records that are

compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.

See 5 U.S.C. § 552(b)(7)(E).

To justify a withholding under Exemption 7(E), the FBI must demonstrate that: (1) the records were "compiled for law enforcement purposes," see 5 U.S.C. § 552(b)(7)(E) ; (2) the redacted information would "disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions," see 5 U.S.C. § 552(b)(7)(E) ; and (3) "the release of the requested information might create a risk of circumvention of the law." See Blackwell v. F.B.I., 646 F.3d 37, 40-42 (D.C. Cir. 2011) ; see also Bloche v. Dep't of Defense, 370 F. Supp. 3d 40, 58 (D.D.C. 2019) ; Judicial Watch, Inc. v. U.S. Dep't of State, Civil Action No. 12-893 (JDB), 2017 WL 3913212 (D.D.C. Sep. 6, 2017) ; Levinthal v. Fed. Election Comm'n, 219 F. Supp. 3d 1, 6 (D.D.C. 2016) ; Shapiro v. Dep't of Justice, 249 F. Supp. 3d at 506.

Exemption 7(E) requires the government to meet a "relatively low bar" to justify withholdings. See Blackwell v. FBI, 646 F.3d at 42. "[T]he exemption looks not just for circumvention of the law, but for a risk of circumvention; not just for an actual or certain risk of circumvention, but for an expected risk; not just for an undeniably or universally expected risk, but for a reasonably expected risk; and not just for certitude of a reasonably expected risk, but for the chance of a reasonably expected risk." See id. at 42 (quoting Mayer Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009) ). And "where an agency ‘specializes in law enforcement, its decision to invoke exemption 7 is entitled to deference.’ " See Lardner v. U.S. Dep't of Justice, 638 F. Supp. 2d 14, 31 (D.D.C. 2009) (quoting Campbell v. U.S. Dep't of Justice, 164 F.3d at 32 ).

As to the first requirement for withholding pursuant to Exemption 7(E), the "FBI need only establish a rational nexus between the investigation and one of the agency's law enforcement duties and a connection between an individual or incident and a possible security risk or violation of federal law." See Blackwell v. F.B.I., 646 F.3d at 40 (quoting Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998) (internal quotations omitted)). The government contends, and Mr. Shapiro does not dispute, that Serial 91 was "created in connection with a sensitive counterterrorism investigation" undertaken by the FBI – an agency tasked with investigating national security threats. See Fifth Hardy Dec. ¶¶ 16-17. Consistent with this Court's prior determinations, see Shapiro v. U.S. Dep't of Justice, 249 F. Supp. 3d at 505, the government has met the threshold requirement under Exemption 7(E). The Court now turns to the propriety of the government's redactions under the second and third requirements.

1. Redactions to Blocks A, B, and E

Blocks A, B, and E refer to information contained in the redactions following "Attn:", "From: Counterterrorism", and "Title:", respectively. See Serial 91. The FBI has claimed that the withholding of Blocks A, B, and E are warranted under Exemption 7(E) to protect the identity of an FBI unit specifically created to "utilize and implement specific sensitive law enforcement techniques used in counterterrorism investigations." See Fifth Hardy Dec. ¶ 35. Mr. Shapiro disputes this justification and has requested that the Court view Serial 91 in camera. The Court now has done so.

The government maintains that Blocks A and E are properly withheld under Exemption 7(E) because "[r]evealing the identity of the unit and its focus of interest would reveal unknown investigative techniques." See Gov. Reply at 3; Sixth Hardy Dec. ¶¶ 9-10. While Mr. Hardy, the FBI's declarant, does not expressly say the same about Block B, the Court's review of the unredacted document reveals that Blocks B and E are identical.³ Block A, on the other hand, does not contain information identical to that contained in Blocks B and E. The Court will first address the propriety of redacting Blocks B and E...