Shapiro v. U.S. Dep't of Justice, Civil Action No. 13–555 (RDM)

• Decision Date: 06 March 2017
• Docket Number: Civil Action No. 13–555 (RDM)
• Citation: 239 F.Supp.3d 100
• Parties: Ryan Noah SHAPIRO, et al. Plaintiffs, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — District of Columbia

239 F.Supp.3d 100

Ryan Noah SHAPIRO, et al. Plaintiffs,

v.UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 13–555 (RDM)

United States District Court, District of Columbia.

Signed March 6, 2017

Jeffrey Louis Light, Law Offices of Jeffrey Light, Washington, DC, Kelly Brian McClanahan, Rockville, MD, for Plaintiff.

Kenneth A. Adebonojo, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

This is the fourth in a series of opinions addressing the extent to which the Freedom of Information Act ("FOIA") requires the Federal Bureau of Investigations ("FBI") to disclose records relating to the FBI's review and response to prior FOIA requests. Plaintiffs are nonprofit organizations, advocates, and journalists who filed several FOIA requests seeking processing documents associated with almost a hundred FOIA requests that they or others had previously submitted to the FBI. In an earlier opinion, the Court rejected two categorical non-disclosure policies adopted by the FBI; resolved the parties' disputes regarding several case-specific withholdings; concluded that a handful of the exemptions invoked by the FBI were not adequately supported by the existing record; and granted both parties leave to renew their respective cross-motions for summary judgment as to those exemptions. See Shapiro v. United States Dep't of Justice , 153 F.Supp.3d 253 (D.D.C. 2016) (" Shapiro I ").

Of the many issues raised in this litigation, the FBI is particularly—and understandably—concerned about its policy of withholding "search slips" and "processing notes" generated in response to prior FOIA requests. As the FBI explains, disclosure of these records "might allow a savvy FOIA requester to identify the rare" occasions when "the FBI has exercised its discretion to issue a [‘No Records'] response to a FOIA request for records that are ‘excludable’ under FOIA, and thus would risk the implicit disclosure of highly sensitive information relating to ongoing investigations, confidential informants, and classified national security matters." Id. at 256–57. As originally formulated, the relevant FBI policy required the withholding of all FOIA processing records generated within the last twenty-five years in responding to FOIA requests for investigative files or records. See Dkt. 31–1 at 9 (Second Hardy Decl. ¶ 20). Although the Court has rejected that sweeping policy as inconsistent with FOIA, Shapiro I , 153 F.Supp.3d at 270–76, the FBI's conundrum regarding how to protect information relating to its "No Records" responses while complying with FOIA remains at the core of this case.

In its current motion and opposition to Plaintiffs' cross-motion, the FBI asserts a "targeted" theory of non-disclosure of its "No Records" responses, which it contends is "tailored to the specific and unique facts of this case," Dkt. 57–3 at 56 (Fifth Hardy Decl. ¶ 116), and it defends its withholding of other records and information based on an array of FOIA exemptions. Plaintiffs, in turn, do not challenge many of the FBI's withholdings,¹ but they do challenge the FBI's continued withholding of (1) search slips and processing notes relating to those "parent [FOIA] request[s] [that] resulted in ... ‘No Records' response[s]," Dkt. 57–3 at 56 (Fifth Hardy Decl. ¶ 117); (2) certain case file and sub-file numbers, see Dkt. 68 at 8–15; (3) search slips and processing notes relating to the murder of Hyram Kitchen, see id. at 15–17; (4) information that Plaintiffs contend is not properly treated as classified or subject to the National Security Act, 50 U.S.C. § 3024(i)(1), see Dkt. 67 at 16–18; (5) certain information purportedly subject to the attorney-work-product and deliberative-process privileges, see id. at 18–19; and (6) segregable portions of search slips and processing notes that the FBI claims reflect protected personal information but that have been discussed in publicly available declarations, Dkt. 67 at 19–20. In addition, the FBI seeks leave to submit an ex parte , in camera declaration in support of its motion for summary judgment and its opposition to Plaintiffs' cross-motion for summary judgment. Dkt. 75. Plaintiffs both oppose that motion, Dkt. 79, and move to strike the ex parte , in camera declaration or to make portions of it public, Dkt. 81.²

As explained below, the Court will grant the FBI's motion for leave to file an ex parte , in camera declaration and deny Plaintiffs' motion to strike or make public portions of the FBI's in camera declarations; will grant in part and deny in part the FBI's renewed motion for summary judgment; and will grant Plaintiffs' cross-motion for summary judgment with respect to the application of Exemption 7(A) to records relating to the murder of Dr. Hyram Kitchen, and will otherwise deny that motion. The Court will allow further briefing on the remaining issues in the case.

I. BACKGROUND

Much of the administrative and procedural history of this case is set forth in Shapiro I , 153 F.Supp.3d at 257–68, and the Court will not repeat that background here. The more recent procedural history, however, requires some explication.

A. Shapiro I

In Shapiro I , the Court first rejected two categorical policies adopted by the FBI—a policy of withholding all search slips and processing notes generated in the past twenty-five years in responding to "parent" FOIA requests for investigative files or records, id. at 276, and a policy of withholding all "case evaluation forms" used to track and evaluate the performance of FBI FOIA analysts in processing FOIA and Privacy Act requests, id. at 282. The Court also evaluated the adequacy of the FBI's search for certain records and evaluated a number of case-specific withholdings. Based on that request-by-request review, the Court required the release of certain records, sustained the FBI's withholding of others, and concluded that it needed additional information or argument to evaluate yet other withholdings.

Three case-specific withholdings, in particular, required further factual and legal development. As to the first, Plaintiffs sought records created by the FBI when it processed twelve FOIA requests submitted by other FOIA requesters. Shapiro I , 153 F.Supp.3d at 284. The FBI released certain records, but declined to release others on the ground that those records contained information about private parties (other than the Plaintiffs) and were thus exempt from disclosure under Exemption 7(C). Id. at 284–85 ; see also id. at 286 n.11 (addressing Exemption 6). Plaintiffs did not dispute the premise of this argument, but they argued that the FBI had already placed the relevant information in the public domain, and thereby waived the relevant exemptions. Id. at 285. The Court agreed with the FBI that at least some of information sought was protected by Exemption 7(C) but noted that neither party had addressed the issue of segregability. Id. at 286–87. The Court, accordingly, granted the FBI leave to file a renewed motion for summary judgment addressing segregability. Id. at 287.

The second and third case-specific withholdings requiring further development both involved application of FOIA Exemption 5, which permits an agency to withhold records that "would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). As to one set of records, the FBI asserted the attorney-work-product privilege, arguing that the requested records were prepared in connection with another FOIA lawsuit, namely McGehee v. U.S. Dep't of Justice , 800 F.Supp.2d 220 (D.D.C. 2011). Shapiro I , 153 F.Supp.3d at 289. In response, Plaintiffs maintained that the records at issue were "substantially similar" to the search slips that the FBI would have prepared in the absence of the McGehee litigation. Id. at 290. The Court concluded that the dispute between the parties "expose[d] vacuums both in the record and in the governing precedent," id. and granted the FBI leave "to file an additional evidentiary submission regarding the nature of the withheld documents," id. at 291. With respect to the second set of records, the FBI asserted the deliberative-process privilege, arguing that processing notes prepared by FBI analysts in responding to a FOIA request for records about Hesham Abu Zubaydah, the brother of a Guantanamo detainee, were deliberative materials prepared in the course of responding to the FOIA request. Id. at 292–93. Noting that the FBI had withdrawn its contention that all processing notes are protected by the deliberative process privilege, the Court concluded that the FBI had failed to offer any non-conclusory factual support for its contention that the Zubaydah notes—in particular—were protected. The Court, accordingly, granted the FBI leave to file a renewed motion for summary judgment along with a supplemental factual submission further addressing that issue. Id. at 293.

B. Shapiro II

After issuing its decision in Shapiro I , the Court convened a status conference to address next steps in the litigation. At the status conference, the Court directed that the parties meet and confer and submit a joint report to the Court proposing a schedule (1) for the production of the records that the Court had, to date, ordered the FBI to release and (2) for further briefing and evidentiary submissions on the handful of questions left unresolved in Shapiro I. The parties were unable to reach agreement, but set forth their respective positions in their joint report. See Dkt. 51.

The FBI, for its part, argued that—in light of the Court's conclusion that its categorical "No Records" policy was inconsistent with FOIA—it should be permitted to assert an array of additional FOIA exemptions not presented in its original motion or in opposition to Plaintiffs' cross-motion. Dkt. 51 at 2–3; see also Dkt 21–3 at 25 (First Hardy Decl. ¶ 75 n.20) (asserting that "[i]nformation...