MEMORANDUM OPINION
DEBORAH K. CHASANOW, United States District Judge.
Plaintiff
Mark Zaid filed three separate lawsuits, Civil Action Nos
DKC 21-1130, 21-2625, and 22-1602, against various government
agencies seeking production of records under the Freedom of
Information Act (“FOIA”). The first two lawsuits
against the Department of Justice (“DOJ”), Civil
Action Nos. DKC 21-1130 and DKC 21-2625, were consolidated by
former Judge George Hazel.[1] (Civil Action No. 21-1139, ECF No. 15).
These two lawsuits challenged the decision of the Federal
Bureau of Investigations (“FBI”) to withhold
certain documents pertaining to the
investigation and prosecution of Zackary Sanders. The third
case, Civil Action No. DKC 22-1602, was filed on June 29
2022, against the Department of Homeland Security
(“DHS”) challenging the failure of the
Immigration and Customs Enforcement (“ICE”) and
the U.S. Secret Service (“USSS”) to provide any
of the requested documentation to Plaintiff. The third case
also relates to the investigation and prosecution of Zackary
Sanders. Zackary Sanders was prosecuted and ultimately
convicted for child pornography and related crimes. The
plaintiff in this case, Mark Zaid, is counsel to Zackary
Sanders. Because the substance of Plaintiff's complaints
against the different government agencies requires a similar
analysis under FOIA, the cases can be decided together.
Defendants
have filed motions for summary judgment in each case. For
ease of reference, the papers in the DOJ case, Consolidated
Civil Action No. DKC 21-1130, will be referred to as
“DOJ” with the document number, and the DHS case,
Civil Action No. DKC 22-1602, will be referred to as
“DHS.” No hearing is necessary. See
Local R. 105.6. For the following reasons, the DOJ motion
will be GRANTED and the DHS motion will be GRANTED in part
and DENIED in part.
A.
Plaintiff's Complaint against the DOJ
On
April 1, 2021, Plaintiff submitted a FOIA request to the FBI
requesting records pertaining to fourteen items[2] associated with
Zackary Sanders. (DOJ, ECF No. 18-2, at 5-7). The requests at
issue are as follows:
1. Documentation or information received by the FBI from a
foreign law enforcement agency (“FLA”) on or
about August 19, 2019, as publicly acknowledged on page 1 of
the redacted Memorandum Opinion filed on October 29, 2020
(“Opinion”), that [Plaintiff] . . . attached as
Exhibit “1” [to the eFOIA request];
2. Copies of the “two warrants” received from the
FLA and publicly acknowledged on page 2 of the Opinion as
being the source(s) for IP address data demonstrating that
multiple IP address, including IP address 98.169.118.39
(“Target IP Address”), accessed online Child
Sexual Abuse and Exploitation Material;
3. The administrative subpoena sent by the FBI on September
10, 2019, to Cox Communications relating to the Target IP
Address, as publicly acknowledged on page 2 of the Opinion;
4. The report, dated January 17, 2020, drafted by Special
Agent Christopher Ford (“SA Ford”), FBI's
Washington Field Office's Child Exploitation and Human
Trafficking Taskforce, to open an investigation into the
Target IP Address, as publicly acknowledged on page 2 of the
Opinion;
5. The search warrant SA Ford applied for on February 10,
2020, in which he stated a user
of the Target IP Address accessed online child sexual abuse
and exploitation material via a website separately identified
by the FLA as having an “explicit focus on facilitation
of sharing child abuse materials,” as publicly
acknowledged on page 3 of the Opinion;
6. To the extent not encompassed by the scope of line item
#5, any records outlining information relied upon in forming
the basis for SA Ford's findings and conclusions about
what the user of the Target IP Address had or had not done at
the Target Website, as publicly acknowledged on pages 2 and 3
of the Opinion;
7. To the extent not encompassed by line items #1 and/or #2,
any communication - including verbal discussions memorialized
in writing -between the U.S. Government and the FLA regarding
the Target IP Address or the Target Website, as publicly
acknowledged on pages 1 through 3 of the Opinion;
8. To the extent not encompassed by any previous line items,
any records outlining the U.S. Government's understanding
prior to August 19, 2019, of what was involved and required
to be done to de-anonymize the IP Addresses of Internet users
who visited the Target Website, as publicly referenced on
pages 1 through 3 of the Opinion;
9. Any FBI affidavits, sworn declarations, court filings or
internal records (such as electronic communications,
Sentinel, etc), that contain any one of the following
sentences, which are taken from the Opinion, as specifically
indicated in quotes:
a. “an online bulletin board dedicated to the
advertisement and distribution of child pornography that
operated from approximately 2016 to June 2019”;
b. “associated to individuals who have accessed online
Child Sexual Abuse and
Exploitation material,” and also in the same document
includes the term “FLA”;
c. “A user of the Internet account at the SUBJECT
PREMISES has been linked to an online community of
individuals who regularly send and receive child pornography
via a hidden service that operated on the Tor anonymity
network.”;
d. “a foreign law enforcement agency (‘FLA')
known to the FBI and with a history of providing reliable,
accurate information in the past, notified the FBI” and
also in the same document includes “accessed online
child sexual abuse and exploitation material via a
website”;
e. “The FLA described the website as having explicit
focus on the facilitation of sharing child abuse material
(images, links and videos)”;
f. “The FLA is a national law enforcement agency of a
country with an established rule of law. There is a long
history of U.S. law enforcement sharing criminal
investigative information with the FLA and the FLA sharing
criminal investigative information with U.S. law enforcement,
across disciplines and including the investigation of crimes
against children.”;
g. “The FLA advised U.S. law enforcement that it
obtained information through independent investigation that
was lawfully authorized in the FLA's country pursuant to
its national laws.”;
h. “The FLA further advised U.S. law enforcement that
the FLA had not interfered with, accessed, searched, or
seized any data from any computer in the United States in
order to obtain that IP address information. U.S. law
enforcement personnel did not participate in the
investigative work through which the FLA identified the IP
address information provided by the FLA.”; or, i.
“18 (twinks) and younger”.
10. Affidavits or sworn declarations filed in federal
district court by SA Ford since May 2016. The search can be
limited to prosecution cases under 18 U.S.C. §§
2251, 2252 or 2253; . . .
13. Any records identifying the identity of the
“FLA” referred to in Exhibit “1”[.]
(Id.).
On
various dates from April 2021 through May 2022, the FBI
informed Plaintiff via letter that it had completed the
search and reviewed records responsive to Plaintiff's
request. The FBI either released responsive records in full,
released records in part, or withheld records in full. The
FBI found that the material that was withheld was: exempt
from disclosure under 5 U.S.C. § 552(b); withheld under
sealing orders from various district courts; or withheld
under orders from the FBI in conjunction with Immigration and
Customs Enforcement (“ICE”) and the Executive
Office for United States Attorneys (“EOUSA”) .
(DOJ, ECF No. 18-1, at 11-13) . Plaintiff filed an appeal of
the FBI's decisions and was notified that his appeal was
closed due to his filing of the instant Complaint.
(Id. at 11 n.8).
B.
Plaintiff's Complaint against DHS
On
March 4, 2022, Plaintiff submitted a FOIA request to the DHS
Privacy Office (“DHS Privacy”). (DHS, ECF No.
23-2 ¶ 6). Plaintiff's request sought multiple
categories of information relating to the “Target IP
Address” and “Target Website.”
(Id.) Specifically, Plaintiff requested records
pertaining to 5 items:[3]
1. Any communication - including verbal discussions
memorialized in writing - between DHS and other U.S.
Government agencies regarding the Target IP Address or the
Target Website, as publicly acknowledged on pages 1 through 3
of the redacted Memorandum Opinion filed on October 29, 2020
(“Opinion”), that is attached as Exhibit
“1”;
2. Any communication - including verbal discussions
memorialized in writing between DHS and the Federal Bureau of
Investigation that was relied upon in forming the basis for
Special Agent Christopher Ford's findings and conclusions
about what the user of the Target IP Address had or had not
done at the Target Website, as publicly referenced on pages 2
and 3 of the Opinion;
3. Any records outlining the U.S. Government's
understanding prior to August 19, 2019, of what was involved
and required to be done to de-anonymize the IP addresses of
Internet users who visited the Target Website, as publicly
referenced on pages 1 through 3 of the Opinion;
4. All records pertaining to the IP address 98.169.118.39
from May 22, 2019, to February 10, 2020;
5. Any records referencing “Hurtcore.”
(Id.). On March 17, 2022, DHS Privacy sent Plaintiff
a letter acknowledging receipt of his request and also
notifying him that his request was too broad in scope or did
not specifically identify the records he sought. The letter
asked Plaintiff to resubmit his request with more detail.
(Id. ¶ 7). Plaintiff emailed with DHS Privacy
and identified ICE and USSS as the government components that
could have...
