Shapiro v. U.S. Dep't of Justice

• Decision Date: 12 March 2014
• Docket Number: Civil Action No. 13–595 RMC
• Citation: 37 F.Supp.3d 7
• Parties: Ryan Noah Shapiro, Plaintiff, v. U.S. Department of Justice, Defendant.
• Court: U.S. District Court — District of Columbia

37 F.Supp.3d 7

Ryan Noah Shapiro, Plaintiff

v.U.S. Department of Justice, Defendant.

Civil Action No. 13–595 RMC

United States District Court, District of Columbia.

Signed March 12, 2014

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

William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Defendant.

OPINION

ROSEMARY M. COLLYER, United States District Judge

Ryan Noah Shapiro sues the Federal Bureau of Investigation (FBI) under the Freedom of Information Act (FOIA),5 U.S.C. § 552, and the Privacy Act (PA),5 U.S.C. § 552a, to compel the release of records concerning “Occupy Houston,” an offshoot of the protest movement and New York City encampment known as “Occupy Wall Street.”Mr. Shapiro seeks FBI records regarding Occupy Houston generally and an alleged plot by unidentified actors to assassinate the leaders of Occupy Houston.FBI has moved to dismiss or for summary judgment.¹The Motion will be granted in part and denied in part.

I.FACTS

Ryan Noah Shapiro is a doctoral candidate in the Department of Science, Technology, and Society at the Massachusetts Institute of Technology.Compl.[Dkt. 1]¶ 2.In early 2013, Mr. Shapiro sent three FOIA/PA requests to FBI for records concerning Occupy Houston, a group of protesters in Houston, Texas, affiliated with the Occupy Wall Street protest movement that began in New York City on September 17, 2011.Id.¶¶ 8–13.Mr. Shapiro explained that his “research and analytical expertise ... [concerns] conflicts at the nexus of American national security, law enforcement, and political dissent,” and that he planned to “disseminate ... urgent information [regarding Occupy Houston] to the public.”Mot. to Dismiss or for Summ. J.(MSJ)[Dkt. 9], Decl. of David M. Hardy(Hardy Decl.)[Dkt. 9–1], Ex.A (RequestNo. 1205920–000)[Dkt. 9–2]at 2.²FBI processed and responded to these requests, labeling them RequestNos. 1205920–000, 1206188–000, and1205920–001.Mr. Shapiro now challenges FBI's response to each Request.

A.RequestNos. 1205920–000and1206188–000

By letters dated January 4, 2013, Mr. Shapiro sent two requests to FBI seeking materials related to the Occupy protests in Houston, Texas.³The first, which FBI designated as RequestNo. 1205920–000, sought:

any and all records that were prepared, received, transmitted, collected and/or maintained by ... FBI, the Terrorist Screening center, the National Joint Terrorism Task Force, or any Joint Terrorism Task Force relating or referring to a potential plan to ‘gather intelligence against the leaders of [Occupy Wall Street-related protests in Houston, Texas] and obtain photographs, then formulate a plan to kill the leadership [of the protests] via suppressed sniper rifles.’

SeeRequestNo. 1205920–000at 1(alterations and emphasis in original).Mr. Shapiro stated that the alleged assassination plan was discussed in other FBI documents, which had been released through a prior FOIA request.Seeid. at 1.He attached five pages from the aforementioned FBI documents to his request, all of which were heavily redacted.Seeid. at 11–15.Characterizing his request as presented under FOIA and PA, id. at 1, Mr. Shapiro demanded that FBI search several filing systems, including its Electronic Surveillance (ELSUR) indices, id. at 4–7.He also requested expedited processing and a fee waiver.Id. at 2, 9–10.

Mr. Shapiro's second request for records, which FBI designated RequestNo. 1206188–000, asked for:

any and all records that were prepared, received, transmitted, collected and/or maintained by ... FBI, the Terrorist Screening Center, the National Joint Terrorism Task Force, or any Joint Terrorism Task Force relating or referring to Occupy Houston, any other Occupy Wall Street-related protests in Houston, Texas, and law enforcement responses to the above protests.

See Hardy Decl., Ex. E (RequestNo. 1206188–000)[Dkt. 9–2]at 1(emphasis in original).Mr. Shapiro stated that RequestNo. 1206188–000 was intended to include any assassination plots against leaders of Occupy Wall Street in Houston.Id. at 1.Again, he characterized the request as presented under FOIA and PA, demanded that FBI search its ELSUR indices, among other indices, and sought expedited processing and a fee waiver.Id. at 1–2, 5–7, 9–10.

On February 28, 2013, FBI responded to both Requests with similar letters.Each letter stated that FBI had searched its Central Records System (CRS), and those searches had not located any “main file records responsive to the FOIA” request.SeeHardy Decl., Ex. B [Dkt. 9–2]at 1 & Ex. F [Dkt. 9–2]at 1.FBI informed Mr. Shapiro that he either could provide additional information, for which FBI would conduct an additional search, or could appeal its response to DOJ's Office of Information Policy(OIP) within sixty days.

Mr. Shapiro chose to appeal.SeeHardy Decl., Ex. C[Dkt. 9–2] & Ex. G[Dkt. 9–2].It appears from the record that OIP never decided the appeal on RequestNo. 1205920–000 before it closed the file on June 26, 2013.HardyDecl. ¶ 9 & n.3.Conversely, with respect to RequestNo. 1206188–000, it is clear that OIP affirmed FBI's response and informed Mr. Shapiro of its decision on May 24, 2013.Hardy Decl., Ex. I[Dkt. 9–2].

FBI subsequently reexamined the search that it had conducted for records responsive to RequestNo. 1206188–00.While FBI first had interpreted RequestNo. 1206188–000 as seeking only law enforcement responses to protests in Houston related to Occupy Wall Street, it revised its interpretation and conducted an additional search for all records referring to Occupy Houston.The additional search produced twelve pages of responsive records.On June 24, 2013, FBI informed Mr. Shapiro that it was releasing, in part, four of the twelve pages of responsive records, and entirely withholding the remaining eight pages.FBI cited FOIA Exemptions (b)(1), (b)(3), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(E) as the bases for withholding information contained in these records.HardyDecl. ¶ 15;see alsoHardy Decl., Ex. J[Dkt. 9–2].

B.RequestNo. 1205920–001

Mr. Shapiro submitted a third, dual FOIA/PA Request to FBI on February 3, 2013.This Request sought “any and all records that were prepared, received, transmitted, collected and/or maintained by ... FBI, the Terrorist Screening Center, the National Joint Terrorism Task Force, or any Joint Terrorism Task Force relating or referring to the information source redacted (by ... FBI) and highlighted (by [Mr. Shapiro] ) in” a five-page document which Mr. Shapiro attached to his Request.HardyDecl. ¶ 16 & n.5;see alsoHardy Decl., Ex. K (RequestNo. 1205920–001)[Dkt. 9–2].Notably, the attached document was identical to the document that Mr. Shapiro had attached to RequestNo. 1205920–000.The only difference was that Mr. Shapiro had highlighted the following paragraphs:

An identified REDACTED as of October planned to engage in sniper attacks against protestors [sic] in Houston, Texas, if deemed necessary.An identified REDACTED had received intelligence that indicated the protesters in New York and Seattle planned similar protests in Houston, Dallas, San Antonio, and Austin, Texas.REDACTED planned to gather intelligence against the leaders of the protest groups and obtain photographs, then formulate a plan to kill the leadership via suppressed sniper rifles.(Note: protests continued throughout the weekend with approximately 6000 persons in NYC.‘Occupy Wall Street’ protests have spread to about half of all states in the US, over a dozen European and Asian cities, including protests in Cleveland 10/6–8/11 at Willard Park which was initially attended by hundreds of protestors [sic] )....

On 13 October 2011, writer sent via email an excerpt from the daily REDACTED regarding FBI Houston's REDACTED to all IAs, SSRAs and SSA REDACTED.This REDACTED identified the exploitation of the Occupy Movement by REDACTED interested in developing a long-term plot to kill local Occupy leaders via sniper fire.

Id. at 12–16.As before, Mr. Shapiro asked that the ELSUR indices be searched, and that he receive expedited processing and a fee waiver.Id. at 2, 5, 9–10.This letter was labelled by FBI as RequestNo. 1205920–001.SeeHardy Decl., Ex. L[Dkt. 9–2].

FBI responded on March 8, 2013, telling Mr. Shapiro that the records sought under RequestNo. 1205920–001 pertained to another individual, and that “disclosure of third party information is considered an unwarranted invasion of privacy.”Id. at 1.FBI further explained that records containing third-party information are exempt from disclosure unless there is “proof of death or a privacy waiver from the individual[ ] involved.”Id.FBI also advised Mr. Shapiro that he had sixty days from the date of the letter to appeal to OIP.Id.

By letter dated March 13, 2013, Mr. Shapiro appealed FBI's response to RequestNo. 1205920–001.SeeHardy Decl., Ex. M[Dkt. 9–2].Before OIP reached a decision regarding Mr. Shapiro's appeal,⁴ FBI conducted an additional search for records concerning the highlighted portions of RequestNo. 1205920–001.HardyDecl. ¶ 20.This search identified five pages of responsive records, of which FBI released one page in part via a letter dated June 24, 2013.SeeHardy Decl., Ex. O[Dkt. 9–2].⁵FBI told Mr. Shapiro that it was withholding information pursuant to FOIA Exemptions (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(E).HardyDecl. ¶ 20.

C.Overview of the Document Production

In total, FBI identified seventeen pages of responsive records, producing five of those pages in part and entirely withholding twelve pages.FBI Bates-numbered the produced records, stamping each page sequentially Shapiro–1 through Shapiro–17.⁶Id.¶¶ 37, 39.Mr. Hardy declares that FBI “sought to achieve maximum disclosure consistent” with FOIA, and therefore produced redacted pages where possible.Id.¶ 38.Accordingly, for records produced in part, FBI annotated the redacted information with codes...