Shapiro v. U.S. Dep't of Justice
| Decision Date | 11 December 2020 |
| Docket Number | Civil Action No. 13-555 (RDM) |
| Citation | 507 F.Supp.3d 283 |
| Parties | Ryan Noah SHAPIRO et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant. |
| Court | U.S. District Court — District of Columbia |
Jeffrey Louis Light, Law Offices of Jeffrey Light, Washington, DC, Kelly Brian McClanahan, National Security Counselors, Rockville, MD, for Plaintiffs.
Kenneth A. Adebonojo, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.
This long-running case raises an ever-growing array of questions about the application of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to FOIA itself. Plaintiffs submitted various FOIA requests to the Federal Bureau of Investigation ("FBI") seeking records related to its processing of nearly a hundred previous (or "parent") FOIA requests from Plaintiffs and others. Plaintiffs’ claims thus raise novel issues of how FOIA, along with its exemptions and exclusions, applies to the documents that an agency generates when discharging its responsibilities under FOIA. The Court resolved many of the most difficult questions in the case in a series of previous decisions. The case has now been pending for more than seven years. Cognizant that FOIA embodies a goal of "efficient, prompt, and full disclosure of information," see Maydak v. U.S. Dep't of Justice , 218 F.3d 760, 764 (D.C. Cir. 2000), the Court resolved several remaining issues at a hearing on May 2, 2019, see Minute Entry (May 2, 2019); Minute Order (May 2, 2019). At the hearing, the Court teed up a small number of remaining issues for what it emphasized, repeatedly, would be the final round of summary judgment briefing in this case. For various reasons explained below, that renewed summary judgment briefing took more than a year to complete, and, despite the Court's admonition, the issues in dispute have proliferated once again. They roughly fall into four (slightly overlapping) buckets: (1) issues left open by the Court's rulings from the bench and the accompanying Minute Order on May 2, 2019; (2) issues that Plaintiffs raise related to the FBI's compliance with the Court's prior orders; (3) new issues presented by the FBI's release of a fresh round of documents, with numerous disputed withholdings; and (4) Plaintiffs’ motion for a permanent injunction to enforce the Court's first opinion.
This is, by the Court's count, its seventh ruling in this case. If left to their own devices, the parties might claim additional exemptions and assert additional objections to withholdings ad infinitum. The Court has already resolved several of the issues about which the parties continue to disagree and, despite this repetition, the Court sees no reason to revisit what it has already decided. As to other issues, the FBI has carried its burden in its latest set of briefs and supporting declarations and is entitled to summary judgment. And as to yet others, the FBI has still failed to justify the exemptions it claims, despite submitting fifteen declarations over the life of this case, and the Court cannot—consistent with the purposes of FOIA and Federal Rule of Civil Procedure 1 —justify providing the FBI with a sixteenth chance.1
The Court will therefore GRANT in part and DENY in part Plaintiffs’ motion for summary judgment and will GRANT in part and DENY in part the FBI's motion for summary judgment. It is now time to bring this case to a close.
The Court has previously explained the administrative and procedural history of this case at length, see, e.g. , Shapiro v. U.S. Dep't of Justice , 153 F. Supp. 3d 253, 267–68 (D.D.C. 2016) (" Shapiro I "), and has also previously summarized its initial rulings, see Shapiro v. U.S. Dep't of Justice , 239 F. Supp. 3d 100, 107–10 (D.D.C. 2017) (" Shapiro IV "). For present purposes, the Court will provide a brief synopsis of the history of the case, with an emphasis on Shapiro IV and its aftermath, which set up (some of) the issues that remain.
In its first opinion, the Court considered and rejected two categorical withholding policies of the FBI. First, the FBI had adopted a policy of withholding all FOIA search slips and processing notes generated in the past 25 years in response to parent requests seeking investigative files. Shapiro I , 153 F. Supp. 3d at 269–70. Although this policy applied broadly to all search slips and processing notes related to parent requests for investigative files, the FBI justified it on somewhat narrower grounds, arguing that these materials may contain references to documents that are "excludable" under FOIA. Id. at 270. That is, the search slips and processing notes might reference certain law enforcement documents that FOIA recognizes as so sensitive that the FBI is permitted to deny their very existence. Id. ; see 5 U.S.C. § 552(c).
As an example of how the exclusions operate, imagine that the FBI is working with a confidential informant, John Jones, to investigate Susan Smith. Susan does not know about the investigation, but she suspects John might be working with the authorities, so she submits a FOIA request to the FBI seeking all records related to John Jones. Of course, if the FBI released the records, that would alert Susan to the existence of the investigation and could put John in danger. But, crucially, if the FBI were to withhold the records and cite FOIA Exemption 7(A), which protects ongoing enforcement proceedings, see 5 U.S.C. § 552(b)(7)(A), that would tip Susan off almost as surely as releasing the records. To account for that scenario, FOIA permits "criminal law enforcement agenc[ies]" to treat "informant records" "as not subject to the requirements of this section." Id. § 552(c). When asked, the FBI can then treat the records as non-existent for purposes of FOIA, sending a "No Records" response. See ACLU of Michigan v. FBI , 734 F.3d 460, 469–72 (6th Cir. 2013).
Now imagine that after receiving a "No Records" response, Susan changes tack. She files a new FOIA request seeking the search slips and processing notes from the FBI's response to her first request. Now the FBI is in a bind. It cannot plausibly issue another "No Records" response, because everyone knows that the FBI creates search slips and processing notes for each FOIA request as a matter of course. The FBI cannot release the records in their entirety, because they include internal notes about John Jones's status as an informant. And the FBI cannot release redacted search slips and processing notes, because its invocation of Exemption 7(A) would once again give away the existence of the ongoing investigation. The FBI thus argued in Shapiro I "that the only option available to it is to withhold all search slips and processing notes that it has created in responding to FOIA requests for investigative files in the last 25 years." Shapiro I , 153 F. Supp. 3d at 271.
The Court did "not doubt that the problem the FBI describe[d] is a serious one," id. , but concluded that the resulting categorical policy swept too broadly, id. at 271–76. The FBI justified this policy under Exemption 7(E), which applies to records that (1) are "compiled for law enforcement purposes" and (2) would disclose either "techniques and procedures for law enforcement investigations or prosecutions" or "guidelines for law enforcement investigations or prosecutions," so long as (3) "such disclosure could reasonably be expected to risk circumvention of the law." 5 U.S.C. § 552(b)(7)(E). But because the policy applied to search slips and processing notes not only from "No Records" responses, but also from any parent FOIA request seeking investigative records, even when those records were not themselves protected by FOIA, the Court held that the policy could not be justified based on either the exclusions of Subsection 552(c) or Exemption 7(E). Shapiro I , 153 F. Supp. 3d at 271–76. As the Court explained, the FBI sought to withhold all search slips, even those the FBI admitted are "not protected by FOIA" exemptions or exclusions, just so "it can amass a haystack in which to hide the search slips that are protected." Id. at 275 (emphasis in original). Because the FBI's asserted policy sought to withhold at least some records that Congress did not exempt from FOIA, the Court rejected the policy and granted summary judgment to Plaintiffs on that issue. Id. at 276.
Second, the FBI sought categorically to withhold "case evaluation forms," which are "used to track and evaluate the performance of FBI employees engaged in processing FOIA requests," id. at 257, under Exemptions 2 and 6, id. at 276. Plaintiffs conceded that the names of the FBI's FOIA analysts could "be withheld under Exemption 6, which shields private personnel information." Id. ; 5 U.S.C. § 552(b)(6). But Plaintiffs disputed whether the rest of those forms could properly be withheld under Exemption 2, Shapiro I , 153 F. Supp. 3d at 277, which covers records "related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). Based on the text of Exemption 2 and Supreme Court precedent interpreting it, the Court held that the FBI's policy could not be sustained under that exemption because, although case evaluation forms relate to personnel practices, they do not do so "solely." Shapiro I , 153 F. Supp. 3d at 281. Rather, the forms also "may enlighten the public about how the FBI goes about satisfying its obligations under FOIA," meaning the public has an interest in their disclosure, and they are therefore not protected by Exemption 2. Id. The Court, accordingly, granted Plaintiffs’ motion for summary judgment as to this second categorical policy. Id. at 282.
The Court also ruled on several case-specific issues, including the adequacy of the FBI's search for certain records and the propriety of certain withholdings. The Court recounts each of those holdings in some detail because the parties’ most...
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