Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 1 of 55 1 KAB 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Daniel David Rigmaiden, 10 11 12 No. CV 12-1605-PHX-DLR (BSB) Plaintiff, vs. ORDER Federal Bureau of Investigation, et al., 13 Defendants. 14 15 Plaintiff Daniel David Rigmaiden, who was a federal prisoner at the time of filing 16 his Complaint, brought this civil rights action pursuant to the Freedom of Information Act 17 (“FOIA”) against the Federal Bureau of Investigation (“FBI”), the Executive Office for 18 United States Attorneys (“EOUSA”), the Office of Information Policy, and the United 19 States Department of Justice (“DOJ”). (Doc. 1). Plaintiff moves for partial summary 20 judgment (Doc. 84) and Defendants cross-move for summary judgment on all claims 21 (Doc. 91).1 22 I. Background 23 A. 24 Plaintiff pleaded guilty to conspiracy in violation of 18 U.S.C. § 371; wire fraud, 25 in violation of Title 18, U.S.C. §1343; wire fraud in violation of 18 U.S.C. § 1341, wire Plaintiff’s Criminal Case 26 27 28 1 The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc), regarding the requirements of a response. (Doc. 93). Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 2 of 55 1 fraud in violation of 18 U.S.C. § 1343, and mail fraud in violation of 18 U.S.C. §1341. 2 United States v. Rigmaiden, CR 08-814-PHX-DGC (Doc. 1136).2 The charges against 3 Plaintiff arose “from an alleged scheme to obtain fraudulent tax refunds by filing 4 electronic tax returns in the names of numerous deceased persons and third parties.” 5 United States v. Rigmaiden, 844 F. Supp. 2d 982, 987 (D. Ariz. 2012). “The government 6 located and arrested [Plaintiff], in part, by tracking the location of an aircard connected to 7 a laptop computer that allegedly was used to perpetrate the fraudulent scheme.” Id. 8 Specifically, the government used a portable/transportable wireless device locator3 to 9 locate Plaintiff’s laptop. In his criminal case, Plaintiff alleged that “the technology and 10 methods used to locate the aircard violated his Fourth Amendment rights.” Id. 11 B. 12 On July 26, 2012, Plaintiff filed a Complaint against the FBI, EOUSA, the Office 13 of Information Policy, and the DOJ. In his Complaint, Plaintiff alleged three counts for 14 violations of the FOIA regarding three FOIA requests made by Plaintiff. 15 1. 16 19 20 21 22 23 The FOIA Requests a. 17 18 The Civil Complaint October 10, 2011 Request to the FBI4 (the “Harris Request”) Plaintiff alleged that on October 10, 2011, he mailed the FBI a FOIA request seeking: (1) all agency records concerning portable/transportable wireless device locators and related equipment manufactured, branded or sold by Harris Wireless Products Group (“Harris”); (2) all agency records detailing the FBI’s policies, practices, and procedures to destroy real-time device location data obtained by the Harris portable/transportable wireless device locators and related equipment or by other portable transportable wireless 24 25 26 27 28 2 Plaintiff was released from custody on April 7, 2014. CR 08-814-PHX-DGC (Docs. 1134, 1136). 3 Such locators are known as known as cell site emulators, cell site simulators, IMSI catchers, Loggerhead, TriggerFish, and StingRay. 4 The full request can be located at Doc. 92-6 at 34-41. -2- Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 3 of 55 1 device locators following an investigation or to facilitate an arrest; (3) all agency records 2 detailing the FBI’s polices, practices, and procedures to conceal from defendants and 3 their attorneys in criminal cases the fact that the FBI used portable/transportable wireless 4 device locators to gather evidence during related criminal investigations; and (4) all 5 agency records constituting user manuals, operations manuals, and training manuals for 6 the Harris portable/transportable wireless device locators and related equipment. 7 In his request, Plaintiff specified that all digital documents should be provided in 8 their original native form with metadata preserved and not be printed to hard copy and 9 rescanned to create an artificial digital form of the documents. 10 11 Plaintiff further requested a waiver of all costs pursuant to 5 U.S.C. § 552(a)(4)(A)(iii). Plaintiff also requested expedited processing of the request. 12 On February 15, 2012, Plaintiff sent a letter to the Office of Information Policy 13 indicating that he had not yet received a response from the FBI as to his October 10, 2011 14 request and asserted that he was appealing the FBI’s failure: to acknowledge the FOIA 15 request, to provide a fee waiver, to grant reduced fees, to provide expedited processing 16 and to provide all requested records. 17 On May 10, 2012, the Office of Information Policy acknowledged receipt of the 18 appeal, but stated that the FBI had no record of the FOIA request, that the Office of 19 Information Policy would forward the request to the FBI, and that the appeal was closed. 20 (Doc. 1-2 at 3).5 b. 21 22 23 24 The October 10, 2011 Request to the Executive Office for United States Attorneys (the EOUSA Request”)6 On October 10, 2011, Plaintiff mailed a FOIA request to the Executive Office for the United States Attorneys (“EOUSA”) seeking: (1) records on portable/transportable wireless device locators and related equipment manufactured, branded, or sold by Harris; 25 26 27 28 5 Throughout this Order, all citations to page numbers within the Court’s docket refer to the page numbers generated by the Court’s electronic filing system. 6 The full request can be located at Doc. 92-9 at 9-17. -3- Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 4 of 55 1 (2) records detailing the United States Attorneys’ Office policies, practices, and 2 procedures to seek court orders to destroy real-time wireless device location data 3 obtained by Harris portable/transportable wireless device locators and related equipment 4 or obtained by other portable/transportable wireless device locators; (3) records detailing 5 the United States Attorneys’ Office policies, practices, and procedures to have AUSAs 6 and other attorneys seek one or more court orders authorizing the use of pen registers, 7 trap and trace devices, stored records under the Stored Communications Act and/or 8 mobile tracking devices while the “true intention” is to use Harris portable/transportable 9 wireless device locators and related equipment or other portable/transportable wireless 10 device locators; (4) all records detailing the United States Attorneys’ Office policies, 11 practices, and procedures to conceal from defendants and their attorneys in criminal cases 12 the fact that the government used the Harris portable/transportable wireless device 13 locators and related equipment, or other portable/transportable wireless device locators to 14 gather evidence during criminal investigations. 15 In his request, Plaintiff specified that all digital documents should be provided in 16 their original native form with metadata preserved and not be printed to hard copy and 17 rescanned to create an artificial digital form of the documents. 18 19 Plaintiff further requested a waiver of all costs pursuant to 5 U.S.C. § 552(a)(4)(A)(iii). Plaintiff also requested expedited processing of the request. 20 On February 15, 2012, Plaintiff sent a letter to the Office of Information Policy 21 indicating that he had not yet received a response from EOUSA as to his October 10, 22 2011 request and asserted that he was appealing EOUSA’s failure: to acknowledge the 23 FOIA request, to grant a fee waiver, to grant reduced fees, to provide expedited 24 processing and to provide all requested records. 25 On May 10, 2012, the Office of Information Policy acknowledged receipt of the 26 appeal, but stated that EOUSA was processing Plaintiff’s request and, because an adverse 27 determination had not yet been made, an appeal was improper. (Doc. 1-4 at 50). 28 .... -4- Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 5 of 55 c. 1 2 3 4 5 6 7 8 9 10 11 On November 10, 2011, Plaintiff mailed a FOIA request to the FBI seeking: (1) all agency records concerning comments made by FBI agents and employees to the WSJ reporting in or in relation to the September 22, 2011 WSJ article entitled “‘Stingray’ Phone Tracker Fuels Clash” and (2) all agency records concerning comments made by FBI agents and employees at a panel at the Brookings Institution in May 2011 regarding portable/transportable wireless device locators. Plaintiff again specified that all digital documents should be provided in their original native form with metadata preserved and not be printed to hard copy and rescanned to create an artificial digital form of the documents. Plaintiff again requested a waiver of all costs or reduced costs and expedited processing. 12 13 14 15 16 On January 23, 2012, Plaintiff received a letter from David Hardy, the Section Chief of the Record/Information Dissemination Section, Records Management Division of the FBI (“Hardy”), acknowledging the Receipt of the FOIA request, and stating that the request was being processed, the fee waiver was being considered, and that Plaintiff would receive a decision at a later date. 17 18 19 On January 31, 2012, Plaintiff received two more letters from Hardy. The first letter denied Plaintiff’s request for expedited processing and the second letter denied Plaintiff’s request for a fee waiver. (Doc. 1-2 at 23-25). 20 21 On February 15, 2012, Plaintiff appealed the denials of expedited processing and fee waiver to the Office of Information Policy. (Doc. 1-2 at 28). 22 23 24 25 26 The November 10, 2011 Request to the FBI (the “WSJ Request”)7 On April 17, 2012, the Office of Information Policy sent Plaintiff a letter informing him that the determinations as to fee waiver and expedited processing were being upheld. .... .... 27 28 7 The full request can be located at Doc. 91-8 at 30-40. -5- Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 6 of 55 1 2 2. Counts of the Complaint a. Count One 3 In Count One of his Complaint, Plaintiff alleged that (1) the FBI and DOJ’s failure 4 to acknowledge Plaintiff’s October 10, 2011 FOIA request violated 5 U.S.C. 5 § 552(a)(6)(A)(i) and “corresponding regulations”; (2) the FBI, Office of Information 6 Policy, and DOJ’s failure to grant Plaintiff expedited processing for his October 10, 2011 7 FOIA request to the FBI violated 5 U.S.C. § 552(a)(6)(E); (3) the FBI, Office of 8 Information Policy, and DOJ’s failure to grant Plaintiff fee waivers or a limitation of fees 9 for his October 10, 2011 FOIA requests violated 5 U.S.C. § 552(a)(4)(A)(iii); and (4) the 10 FBI, and DOJ’s failure to grant Plaintiff expedited processing for his October 10, 2011 11 FOIA request violated 5 U.S.C. § 552 (a)(3)(A). 12 b. Count Two 13 In Count Two of his Complaint, Plaintiff alleged that (1) the FBI and DOJ’s 14 failure to acknowledge Plaintiff’s November 10, 2011 FOIA request violated 5 U.S.C. 15 § 552(a)(6)(A)(i) and “corresponding regulations”; (2) the FBI, Office of Information 16 Policy, and DOJ’s failure to grant Plaintiff expedited processing for his November 10, 17 2011 FOIA request to the FBI violated 5 U.S.C. § 552(a)(6)(E); (3) the FBI, Office of 18 Information Policy, and DOJ’s failure to grant Plaintiff fee waivers or a limitation of fees 19 for his November 10, 2011 FOIA requests violated 5 U.S.C. § 552(a)(4)(A)(iii); and (4) 20 the FBI and DOJ’s failure to grant Plaintiff expedited processing for his November 10, 21 2011 FOIA request violated 5 U.S.C. § 552 (a)(3)(A). 22 c. Count Three 23 In Count Three of his Complaint, Plaintiff alleged that (1) the Executive Office of 24 United States Attorneys and DOJ’s failure to acknowledge Plaintiff’s October 10, 2011 25 FOIA request violated 5 U.S.C. § 552(a)(6)(A)(i) and “corresponding regulations”; (2) 26 the Executive Office of United States Attorneys, Office of Information Policy, and DOJ’s 27 failure to grant Plaintiff expedited processing for his October 10, 2011 FOIA request to 28 the EOUSA violated 5 U.S.C. § 552(a)(6)(E); (3) EOUSA, the Office of Information -6- Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 7 of 55 1 Policy, and DOJ’s failure to grant Plaintiff fee waivers or a limitation of fees for his 2 October 10, 2011 FOIA requests violated 5 U.S.C. § 552(a)(4)(A)(iii); and (4) the 3 EOUSA and DOJ’s failure to grant Plaintiff expedited processing for his October 10, 4 2011 FOIA request violated 5 U.S.C. § 552 (a)(3)(A). 5 II. Motions for Summary Judgment 6 A. 7 Plaintiff moves for summary judgment on ten issues: (1) whether he is entitled to 8 fee waivers on his FOIA requests; (2) whether the FBI acted arbitrarily and capriciously 9 in denying his fee waiver request; (3) whether Plaintiff is entitled to expedited processing 10 of his FOIA requests; (4) whether the FBI acted arbitrarily and capriciously when it 11 denied expedited processing of Plaintiff’s requests; (5) whether EOUSA is required to 12 conducted searches for the records requested by Plaintiff in his EOUSA Request; (6) 13 whether the FBI should submit declarations explaining the sufficiency of its searches and 14 justifying its redactions;8 (7) whether the FBI and EOUSA are required to provide native 15 form digital records (digitally redacted as needed) as opposed to rescanned paper print- 16 outs; (8) whether the FBI and EOUSA are required to provide metadata corresponding to 17 all located records; (9) whether Plaintiff exhausted his administrative remedies prior to 18 filing suit; and (10) whether the FBI, EOUSA, and the Office of Information Policy are 19 proper defendants in this case.9 20 .... 21 .... Plaintiff’s Motion 22 23 8 24 25 26 27 28 Because Defendants have now submitted declarations explaining the sufficiency of the searches and justifying the redactions and Plaintiff has made no arguments as to this issue, Plaintiff’s Motion for Summary Judgment as to this issue will be denied. 9 Although Plaintiff moves for summary judgment as to whether he exhausted administrative remedies and whether the FBI and EOUSA are proper Defendants (Doc. 84 at 3), Defendants did not respond to these issues in their cross-motion, and thus the Court will assume that they are not issues in dispute and will deny Plaintiff’s motion on these issues as moot. -7- Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 8 of 55 1 B. 2 In their Motion, Defendants move for summary judgment on the following issues: 3 (1) whether Plaintiff is entitled to a fee waiver; (2) whether Plaintiff is entitled to records 4 in native digital format with metadata; (3) whether the FBI conducted searches 5 reasonably calculated to uncover all relevant documents regarding Plaintiff’s WSJ 6 Request; (4) whether the FBI properly withheld records in response to the WSJ Request; 7 (5) whether the FBI properly withheld records on the Harris Request; (6) whether the FBI 8 has produced all reasonably segregable portions of records; (7) whether EOUSA has 9 conducted a search reasonably calculated to uncover relevant records in response to Defendants’ Motion 10 Plaintiff’s EOUSA Request; and (8) whether the EOUSA has properly withheld records. 11 III. Summary Judgment Standard 12 A court “shall grant summary judgment if the movant shows that there is no 13 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 14 of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 15 (1986). 16 responsibility of presenting the basis for its motion and identifying those portions of the 17 record, together with affidavits, which it believes demonstrate the absence of a genuine 18 issue of material fact. Id. at 323. If the moving party meets its initial responsibility, the 19 burden then shifts to the opposing party who must demonstrate the existence of a factual 20 dispute and that the fact in contention is material, i.e., a fact that might affect the outcome 21 of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 22 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury 23 could return a verdict for the non-moving party. Id. at 250; Matsushita Elec. Indus. Co., 24 Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The opposing party need not 25 establish a material issue of fact conclusively in its favor; it is sufficient that “the claimed 26 factual dispute be shown to require a jury or judge to resolve the parties= differing 27 versions of the truth at trial.” First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 28 253, 288-89 (1968). Under summary judgment practice, the moving party bears the initial -8- Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 9 of 55 1 When considering a summary judgment motion, the court examines the pleadings, 2 depositions, answers to interrogatories, and admissions on file, together with the 3 affidavits or declarations, if any. See Fed. R. Civ. P. 56(c). At summary judgment, the 4 judge’s function is not to weigh the evidence and determine the truth but to determine 5 whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The evidence of 6 the non-movant is “to be believed, and all justifiable inferences are to be drawn in his 7 favor.” Id. at 255. But, if the evidence of the non-moving party is merely colorable or is 8 not significantly probative, summary judgment may be granted. 9 Conclusory allegations, unsupported by factual material, are insufficient to defeat a 10 motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see 11 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (“[c]onclusory, 12 speculative testimony in affidavits and moving papers is insufficient to raise genuine 13 issues of fact and defeat summary judgment”). 14 IV. Id. at 248-49. Discussion 15 A. 16 Plaintiff asserts that he is entitled to fee waivers under 5 U.S.C. 17 §§ 552(a)(4)(A)(iii) and (viii) for all pending FOIA requests because the disclosure of the 18 information sought is in the public interest and is not primarily in Plaintiff’s commercial 19 interest. Plaintiff further asserts that the requested records concern identifiable operations 20 or activities of the federal government, Plaintiff has the ability, expertise and intention to 21 effectively convey the responsive information to the public, and the information sought 22 will contribute significantly to the public understanding. 23 24 25 Fee Waiver Defendants argue that Plaintiff has failed to show that the disclosure of the requested information is in the public interest. 1. Legal Standard 26 “Generally, the FOIA requires those who make document requests to pay for the 27 search and duplication costs for the disclosed documents.” Ctr. for Medicare Advocacy, 28 Inc. v. U.S. Dep’t of Health and Human Servs., 577 F. Supp. 2d 221, 239 (D.D.C. 2008); -9- Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 10 of 55 1 see Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 153 (1980); 5 2 U.S.C. § 552(a)(4)(A)(ii) (stating that the agency regulations shall provide a schedule of 3 all fees, which “shall be limited to reasonable standard charges for document search and 4 duplication” if the records requested are not for commercial use, or are provided to an 5 educational or noncommercial scientific institution or a representative of the news 6 media). But, under certain circumstances, costs may be reduced or waived completely. 7 See Ctr. for Medicare Advocacy, Inc, 577 F. Supp. 2d at 239. 8 Indeed, 5 U.S.C. § 552(a)(4)(A)(iii) provides that: 9 Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. 10 11 12 13 5 U.S.C. § 552(a)(4)(A)(iii); 28 C.F.R. § 16.11(k)(1)(i)&(ii). 14 Where, as here, an agency denies a request for a fee waiver under FOIA, that 15 determination is subject to a de novo standard of review, and “the court’s review of the 16 matter [is] limited to the record before the agency.” 5 U.S.C. § 552(a)(4)(A)(vii); see 17 Ctr. for Biological Diversity v. Office of Mgmt. & Budget, 546 F. Supp. 2d 722, 728 18 (N.D. Cal. 2008) (an agency’s denial of a fee waiver under FOIA is limited “to the facts 19 and arguments in the record before the agency.”). “This limitation applies to both the 20 reasons offered by the agency for the denial and to the evidence in the record supporting 21 the waiver.” Id. 22 Plaintiff bears “the initial burden of satisfying the statutory and regulatory 23 standards for a fee waiver.” Friends of the Coast Fork v. U.S. Dep’t of the Interior, 110 24 F.3d 53, 55 (9th Cir. 1997). 25 .... 26 .... 27 .... 28 .... - 10 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 11 of 55 1 2 2. Discussion a. 3 The Administrative Record i. The October 10, 2011 Harris Request 4 In the Harris Request, Plaintiff stated that he was entitled to a fee waiver because 5 “disclosure of the requested records will help members of the public understand the 6 privacy risks of carrying cell phones and other wireless devices. The requested records 7 concern the direct operations and activities of the government with respect to 8 surreptitiously locating cell phones and other wireless devices. . . .” (Doc. 92-6 at 39). 9 Plaintiff refers to the WSJ article of September 22, 2011, and states that the reported 10 government actions and the information Plaintiff placed in the record in CR 08-0814- 11 PHX-DGC weigh in favor of granting him a fee waiver. (Id. at 40). He goes on to state 12 that he has the ability and intention of conveying the responsive information to the public 13 by placing the information in the criminal case record and forwarding it to a WSJ 14 reporter. (Id).. He refers specifically to his efforts to prove that the government violates 15 the Fourth Amendment. (Id).. 16 The FBI’s initial response of May 1, 2013, was to neither confirm nor deny the 17 existence of the records. 18 confirmed that records responsive to part of the request exist and denied the fee waiver. 19 (Doc. 92-6 at 47, 52-53). The FBI’s response states: (Doc. 92-6 at 43-45). On September 25, 2013, the FBI 26 We have reviewed the information you provided in support of your request for fee waiver and have found that you do not satisfy either requirement [for a fee waiver]. Quoting or paraphrasing the statutes, without also providing factual detail or support specific to your request is not sufficient under the law. Moreover, while disclosure contributes to your individual understanding and interest, it is not likely to contribute significantly to public understanding of government operations and activities. Consequently, your request is denied. 27 (Id. at 52). On December 13, 2013, the FBI agreed to a one-time waiver of costs for 28 documents relating to Plaintiff’s Harris Request that were previously disclosed in Epic v. 20 21 22 23 24 25 - 11 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 12 of 55 1 FBI, a separate FOIA lawsuit. The FBI provided Plaintiff with a CD containing a 500- 2 page sample of records and a Vaughn index. (Doc. 92-6 at 59). On January 14, 2014, the 3 FBI waived copying fees for a CD containing 4,377 records relating to the Epic v. FBI 4 lawsuit, which were responsive to the Harris Request. (Id. at 61). 5 ii. October 10, 2011 EOUSA Request 6 In the EOUSA Request, Plaintiff again stated that he was entitled to a fee waiver 7 because “disclosure of the requested records will help members of the public understand 8 the privacy risks of carrying cell phones and other wireless devices. The requested 9 records concern the direct operations and activities of the government with respect to 10 surreptitiously locating cell phones and other wireless devices. . . .” (Doc. 92-9 at 14). 11 Plaintiff further refers to the WSJ article of September 22, 2011, and states that the 12 reported government actions and the information Plaintiff placed in the record in CR 08- 13 0814-PHX-DGC weigh in favor of granting him a fee waiver. (Id. at 14-15). He goes on 14 to state that he has the ability and intention of conveying the responsive information to 15 the public by placing the information in the criminal case record and forwarding it to a 16 WSJ reporter. 17 government violates the Fourth Amendment. (Id.). (Id. at 15). He refers specifically to his efforts to prove that the 18 The EOUSA initially responded on May 3, 2013 and stated that the request was 19 denied because the agency does not keep records in a manner that would enable it to 20 search for the information but that it had recently released records to the ACLU in 21 response to a request that “generally overlaps [Plaintiff’s] request” and that it would 22 provide those records if Plaintiff wanted them. (Doc. 92-9 at 18). On March 13, 2014, 23 the EOUSA provided 868 pages of documents to Plaintiff. (Doc. 92-9 at 19-20). 24 25 26 27 28 iii. November 10, 2011 WSJ Request to FBI In the WSJ Request, Plaintiff stated that he was entitled to a fee waiver because: [d]isclosure of the requested records will help members of the public understand (1) the privacy risks of carrying cell phones and wireless devices and (2) the FBI policy to destroy discoverable Brady material (i.e., real-time geolocation data) so that defendants and their attorneys will be unable to use the - 12 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 13 of 55 information in a defense. The requested records concern the direct operations and activities of the government with respect to surreptitiously locating cell phones and other wireless devices and related equipment. 1 2 3 4 5 6 7 8 9 10 11 (Doc. 92-8 at 35-36). As with the other requests, Plaintiff stated that he had the ability and intention of conveying the responsive information to the public by placing the information in the criminal case record and forwarding it to a WSJ reporter, and he referred specifically to his efforts to prove that the government violates the Fourth Amendment. (Id. at 36). On January 31, 2012, the FBI sent Plaintiff a letter denying the fee waiver. (Doc. 92-8 at 47-48). The FBI stated that Plaintiff had not adequately demonstrated that the information sought was not in his own commercial interest. (Doc. 92-8 at 47-48). iv. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff’s Appeals On February 15, 2012, Plaintiff appealed the denial of the fee waiver for all three requests to the Office of Information Policy. (Doc. 86-11 at 2-46 (appeal of Harris Request); Doc. 86-12 at 12-44 (appeal of WSJ Request); Doc. 86-13 at 44-89 (appeal of EOUSA Request)). With his appeals, he submitted declarations under penalty of perjury stating: “[m]y primary purpose for seeking the records requested in the [FOIA requests] is to obtain evidence for my defense in United States v. Rigmaiden, CR08-814-PHXDGC, pending in the District of Arizona . . . in support of a motion to suppress evidence . . . .” (Doc. 86-11 at 44; Doc. 86-12 at 37; Doc. 86-13 at 87). He further stated that to advance public understanding, he would give the requested documents to his named contacts at the American Civil Liberties Unions in Northern California and Arizona and the Electronic Frontier Foundation and a reporter at the WSJ. (Doc. 86-11 at 44-45; Doc. 86-12 at 37-38; Doc. 86-13 at 87-88). He also stated that he did not have resources or means to profit from any records as he was in custody at the Corrections Corporation of America, Central Arizona Detention Center. (Doc. 86-11 at 45; Doc. 86-12 at 38; Doc. 86-13 at 88). On April 17, 2012, the Office of Information Policy sent Plaintiff a letter stating that they received the appeal on the WSJ Request and agreed with the denial of the fee - 13 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 14 of 55 1 waiver, but on a different basis than that stated by the FBI. 2 Specifically, the Office of Information Policy found that Plaintiff had not met the public 3 interest requirement of FOIA and that Plaintiff failed to demonstrate that (1) he was the 4 primary beneficiary of the requested documents; (2) disclosure of the records to Plaintiff 5 would be a significant contribution to the public’s understanding; and (3) he had a 6 capacity to disseminate the records to the public. (Id).. (Doc. 86-12 at 48). 7 On May 10, 2012, the Office of Information Policy sent Plaintiff a letter stating 8 that they had received the appeal on the Harris Request, but the FBI had no record of 9 such a request and, thus, there was no adverse determination from which to appeal. (Doc. 10 86-11 at 49). 11 On May 10, 2012, the Office of Information Policy sent Plaintiff a letter stating 12 that they had received the appeal on the EOUSA request, but because Plaintiff had not 13 received an adverse determination, there was no action for the office to consider on 14 appeal. (Doc. 86-13 at 92). 15 b. Analysis 16 As noted, the Court’s de novo review is limited to the record before the agency. 17 Therefore, the Court does not consider subsequent developments, such as Plaintiff’s 18 release from custody. 19 Having reviewed the administrative record, the Court finds that Plaintiff did not 20 demonstrate that his requests were in the public interest. To determine whether the 21 records sought are in the public interest, the Court considers four factors: (1) “whether 22 the subject of the requested records concerns . . . identifiable operations or activities of 23 the federal government, with a connection that is direct and clear, not remote or 24 attenuated”; (2) whether “[t]he disclosable portions of the requested records [are] 25 meaningfully informative about government operations or activities in order to be ‘likely 26 to contribute’ to an increased public understanding of those operations or activities”; (3) 27 whether disclosure would “contribute to the understanding of a reasonably broad 28 audience of persons interested in the subject, as opposed to the individual understanding - 14 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 15 of 55 1 of the requester”;10 and (4) whether disclosure “is likely to contribute ‘significantly’ to 2 [the] public understanding of government operations or activities.” 3 § 16.11(k)(2)(i)-(iv); see Friends of the Coast Fork, 110 F.3d at 55. 4 5 28 C.F.R. Assuming Plaintiff has satisfied the first two factors, Plaintiff has not met his burden as to the third and fourth factors. 6 Plaintiff’s Requests seek records including purchase receipts, invoices, 7 spreadsheets, graphics, and several types of metadata. He specifically seeks records in 8 native digital format with metadata. Plaintiff made no showing in his Requests that this 9 information would contribute to the understanding of a “reasonably broad audience” or 10 would be likely to contribute significantly to the public’s understanding. Thus, although 11 some items may be in the public interest, Plaintiff’s Requests were too broad and 12 sweeping to support his claim that the information would contribute to the public’s 13 understanding as opposed to his own. Indeed, Plaintiff clearly states in his appeals that 14 his primary purpose in obtaining the information sought was for use in his criminal case, 15 which was ongoing at the relevant time. While seeking records for a purpose that does 16 not benefit the public is not fatal to his request for a fee waiver, see Brunsilius v. U.S. 17 Dep’t of Energy, 514 F. Supp. 2d 30, 35 (D.D.C. 2007) (finding that two of the asserted 18 reasons for requesting a fee waiver were not appropriate but considering the remaining 19 claim), an admittedly significant self-serving purpose nevertheless informs the Court’s 20 determination on this factor. Plaintiff’s stated primary purpose in seeking the records 21 demonstrates that the request was mainly for his benefit and not to “contribute to the 22 understanding of a reasonably broad audience of persons interested in the subject.” 28 23 C.F.R. § 16.11(k)(iii); see McQueen v. United States, 264 F. Supp. 2d 502, 525 (S.D. 24 Tex. 2003) (district court denied fee waiver where the plaintiff alleged a public purpose 25 but primarily sought to “obtain[ ] information about [his] criminal case.”); Mells v. I.R.S., 26 27 28 10 “A requester’s expertise in the subject area and ability and intention to effectively convey information to the public shall be considered” in determining whether the requester has satisfied the third factor. 28 C.F.R. § 16.11(k)(2)(iii). - 15 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 16 of 55 1 No. 99-2030, 2002 WL 31934274, at *5-7 (D.D.C. Nov. 21, 2002) (noting that 2 requester’s reasons for fee waiver were “overwhelmingly personal in nature” where he 3 claimed that disclosure “would yield exculpatory evidence pertaining to his criminal 4 conviction”). 5 Even if the Court found that Plaintiff met his burden in showing that the items 6 requested were in the public interest because disclosure would benefit the public at large, 7 Plaintiff did not meet his burden to show that he could disseminate the information to the 8 public. “A requester’s expertise in the subject area and ability and intention to effectively 9 convey information to the public shall be considered” in determining whether the 10 requester has satisfied the third factor. 28 C.F.R. § 16.11(k)(2)(iii); see McCain v. U.S. 11 Dep’t of Justice, 13 F.3d 220, 221 (7th Cir. 1993) (fee waiver must be assessed in light of 12 identity and objectives of requestor); Larson v. C.I.A., 843 F. 2d 1481, 1483 (D.C. Cir. 13 1988) (reasoning that requests cannot become eligible for fee waivers simply upon intent 14 to distribute information to journalists “because such a rule would enable requesters to 15 avoid fees simply by asserting an intention to give the released documents to a 16 newspaper” and finding that denial of fee waiver was justified where the requestor failed 17 to specify the newspaper he would use to disseminate the requested information). 18 Here, Plaintiff was an inmate both at the time he made his requests and at the time 19 he filed his appeals. “Plaintiff’s status as an inmate [at the time of the requests and 20 appeals] certainly inhibits his ability to disseminate information to the general public.” 21 Brunsilius, 514 F. Supp. 2d at 35. Although Plaintiff identified his contacts with the 22 ACLU and the WSJ, he failed to demonstrate the ability to actually disseminate to those 23 contacts the extensive amounts of information sought. Plaintiff suggests in his appeals 24 that he had no resources; thus, there is nothing in the administrative record to show that, 25 at the relevant time, he could pay for the copying and mailing costs associated with 26 providing the records to his contacts. And there is no evidence that Plaintiff’s contacts 27 agreed to pay for copying and mailing costs. 28 .... - 16 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 17 of 55 1 Likewise, the administrative record provides no evidence that Plaintiff could 2 reproduce responses received on CDs, even assuming Plaintiff could have received CDs 3 in prison. In sum, Plaintiff failed to make a showing that he could actually disseminate 4 the records to the public. 5 Accordingly, the administrative record reflects that Plaintiff did not demonstrate 6 that his requests were in the public interest and, thus, Plaintiff was not entitled to a fee 7 waiver pursuant to 5 U.S.C. §§ 552(a)(4)(A)(iii). Accordingly, the Court will deny 8 Plaintiff’s Motion for Summary Judgment and grant Defendants’ Motion for Summary 9 Judgment as to fee waiver pursuant to 5 U.S.C. §§ 552(a)(4)(A)(iii).11 10 B. 11 Plaintiff asserts that, even if he is not entitled to a public-interest fee waiver, the 12 FBI and EOUSA have waived their rights to charge fees under 5 U.S.C. 13 § 552(a)(4)(A)(viii) for the Harris Request and the EOUSA request because their 14 responses to those FOIA requests were untimely. Defendants argue there has been no 15 waiver as to duplication fees and that the EOUSA did not waive search fees. 16 Waiver of right to charge fees 5 U.S.C. § 552(a)(4)(A)(viii) provides that: 21 An agency shall not assess search fees (or in the case of a requester described under clause (ii)(II), duplication fees) under this subparagraph if the agency fails to comply with any time limit under paragraph (6), if no unusual or exceptional circumstances (as those terms are defined for purposes of paragraphs (6)(B) and (C), respectively) apply to the processing of the request. 22 5 U.S.C. § 552(a)(4)(A)(viii) (emphasis added). The referenced “clause (ii)(II)” states 23 “fees shall be limited to reasonable standard charges for document duplication when 24 records are not sought for commercial use and the request is made by an educational or 17 18 19 20 25 26 27 28 11 To the extent that Plaintiff separately moves for summary judgment on the issue of “whether the FBI acted arbitrarily and capriciously in denying his fee waiver request,” Plaintiff’s Motion for Summary Judgment will be denied. - 17 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 18 of 55 1 noncommercial scientific institution, whose purpose is scholarly or scientific research; or 2 a representative of the news media. . . .” 5 U.S.C. § 552 (a)(4)(A)(ii)(II). 3 There is no question that the responses to Plaintiff’s FOIA requests were untimely 4 under 5 U.S.C. § 552(a)(6)(A). 5 U.S.C. § 552(a)(6)(A) provides that each agency “upon 5 any request for records . . .shall . . . determine within 20 days (excepting Saturdays, 6 Sundays, and legal public holidays) after the receipt of any such request whether to 7 comply with such request and shall immediately notify the person making such request of 8 such determination and the reasons therefor, and of the right of such person to appeal to 9 the head of the agency any adverse determination . . . . 5 U.S.C. § 552(a)(6)(A)(i). “The 10 20-day period shall not be tolled by the agency except . . . that the agency may make one 11 request to the requester for information and toll the 20-day period while it is awaiting 12 such information that it has reasonably requested from the requester under this section; or 13 . . . if necessary to clarify with the requester issues regarding fee assessment.” Id. § 14 552(a)(6)(A)(ii)(I)-(II). 15 Plaintiff sent the Harris Request to the FBI on October 10, 2011 via certified mail 16 and received a certified mail receipt indicating that the request was received on 17 November 7, 2011. (Doc. 1-1 at 39). Thereafter, on May 10, 2012, the Office of 18 Information Policy sent Plaintiff a letter stating that the FBI had no record of the Harris 19 Request and stated that the Office of Information Policy would forward that request to the 20 FBI. (Doc. 1-2 at 3). On May 1, 2013, the FBI initially responded to the Harris Request 21 and stated that it would neither confirm nor deny the existence of the records sought by 22 Plaintiff. (Doc. 92-6 at 43-45). Although the FBI claims that it was unaware of the 23 Harris Request until this lawsuit was instituted, it agrees that in light of the letter from the 24 Office of Information Policy, “it will not press[] that particular point in this litigation.” 25 (Doc. 92 at 8-9 n.10). Accordingly, there is no disputed issue of material fact that the 26 FBI’s May 1, 2013 response was untimely under either the November 7, 2011 receipt of 27 Plaintiff’s original request or the May 10, 2012 forwarded request from the Office of 28 Information Policy. - 18 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 19 of 55 1 Likewise, Plaintiff sent the EOUSA Request to EOUSA on October 10, 2011 via 2 certified mail and the United States Postal Service’s Track & Confirm service indicated 3 that the mail was delivered on November 7, 2011. (Doc. 1-3 at 42). The EOUSA’s 4 initial response was sent to Plaintiff on May 3, 2013. (Doc. 92-9 at 18). Accordingly, 5 there is no dispute that the EOUSA’s response was untimely. 6 1. Duplication Fees 7 As to duplication fees, waiver is not appropriate because Plaintiff is not an 8 educational or noncommercial scientific institution and he is not a representative of the 9 news media. Although Plaintiff asserts that he will distribute the records to a 10 representative of the news media, Plaintiff is not himself a “representative of the news 11 media” within the meaning of the statute. A representative of the news media “means 12 any person or entity that gathers information of potential interest to a segment of the 13 public, uses its editorial skills to turn the raw materials into a distinct work, and 14 distributes that work to an audience. . . . Examples of news-media entities are television 15 or radio stations broadcasting to the public at large and publishers of periodicals (but only 16 if such entitles qualify as disseminators of ‘news’) who make their products available for 17 purchase by or subscription by or free distribution to the general public.” 5 U.S.C. § 552 18 (a)(4)(A)(ii). Accordingly, Plaintiff is not entitled to a waiver of duplication fees as to 19 either agency under this provision and summary judgment will be granted to Defendants 20 and denied to Plaintiff on the issue of waiver of duplication fees under 5 U.S.C. § 21 552(a)(4)(A)(viii). 22 2. Search Fees 23 EOUSA argues that Plaintiff is not entitled to search fees due to the untimeliness 24 of the response to the EOUSA request because there were unusual circumstances that 25 prevented the timely processing of the EOUSA request. Likewise, the FBI asserts that 26 “the FBI would still be entitled to charge search fees—if appropriate—due to the broad 27 scope of the plaintiff’s Harris Request,” which constituted unusual circumstances under 5 28 U.S.C. § 552(a)(6)(B)(iii)(II). (Doc. 92 at 8-9 n.10). - 19 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 20 of 55 1 To the extent that search fees are applicable, EOUSA and the FBI have waived the 2 right to charge fees as to the EOUSA and Harris Requests, respectively, pursuant to 5 3 U.S.C. § 552(a)(4)(A)(viii) because their responses to Plaintiff’s requests were untimely 4 and they have not shown unusual or exceptional circumstances within the meaning of 5 5 U.S.C. § 552(a)(6)(B)-(C). 6 EOUSA argues that Plaintiff’s EOUSA request involved unusual circumstances 7 because it sought records from multiple U.S. Attorney’s Offices scattered around the 8 country. (Doc. 91 at 11). 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “[U]nusual circumstances” means, but only to the extent reasonably necessary to the proper processing of the particular requests-(I) the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; (II) the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or (III) the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein. 5 U.S.C. § 552(a)(6)(B)(iii) (emphasis added). Plaintiff argues that § 552(a)(6)(B) requires that, in unusual circumstances, time limits must “be extended by written notice to the person making [the] request setting forth the unusual circumstances for such an extension and the date on which a determination is expected. . . .” (Doc. 114 at 26). He argues that no such notice was provided. (Id). EOUSA relies on Rosenberg v. U.S. Dep’t of Immigration and Customs, 954 F. Supp. 2d 1, 10 (D.D.C. July 23, 2013) in arguing that the procedures for “unusual circumstances” in §552(a)(6)(B) are not incorporated into the fee waiver of 5 U.S.C. § 552(a)(4)(A)(viii), but rather the definition of unusual circumstances is the only thing incorporated into 5 U.S.C. 552(a)(4)(A)(viii). Indeed, the Rosenberg court found that “[t]he plain text of section 552(a)(4)(A)(viii) requires only that unusual circumstances as - 20 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 21 of 55 1 defined by paragraph (6)(B) or (C) [exist], not that unusual circumstances exist and that 2 the agency properly seek additional time to respond to the request in light of unusual 3 circumstances.” Rosenberg, 954 F. Supp. 2d at 10. 4 While the Court agrees that the plain text of section 552(a)(4)(A)(viii) requires 5 only that unusual circumstances exist and not that the agency follow the proper 6 procedures when unusual circumstances exist, the Court finds the agencies’ failure to 7 follow the proper procedures under section § 552(a)(6)(B) to be strong evidence that 8 unusual circumstances did not actually exist. Defendants provide no explanation for their 9 failure to follow the statutorily required procedures in section § 552(a)(6)(B). Moreover, 10 EOUSA does not even attempt to explain why is took over a year and half for EOUSA to 11 simply inform Plaintiff that it does not “maintain records which would enable [it] to 12 reasonably search for information.” (Doc. 91-9 at 18). The simple fact that the request 13 involved a search of multiple U.S. Attorney’s Offices does not show unusual 14 circumstances such that it would explain the untimeliness of the response to Plaintiff’s 15 request. In that respect, this case differs from Rosenberg, where the evidence showed 16 that the request was not received until one month before the request for fees was 17 transmitted to Plaintiff. 18 Likewise, the FBI has not shown how the “broad scope” of Plaintiff’s Harris 19 Request prevented it from responding to Plaintiff’s request for at least a year, simply to 20 inform Plaintiff that the FBI would neither confirm nor deny the existence of the records 21 sought. 22 Accordingly, unusual circumstances did not exist and, thus, Defendants’ untimely 23 responses to Plaintiff’s Harris and EOUSA requests did constitute waiver of search fees 24 under 5 U.S.C. § 552(a)(4)(A)(viii). 25 Judgment will be granted and Defendants’ Motion for Summary Judgment will be denied 26 as to the waiver of search fees under 5 U.S.C. § 552(a)(4)(A)(viii). 27 .... 28 .... Accordingly, Plaintiff’s Motion for Summary - 21 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 22 of 55 1 C. 2 In all three of his FOIA requests, Plaintiff requested that all digital documents be 3 provided in their original native form with metadata preserved. (Doc. 92-6 at 38, 92-8 at 4 35, 92-9 at 13). 5 metadata, substantive metadata, and embedded metadata. Plaintiff moves for summary 6 judgment on his request for documents in native digital format and metadata. Defendants 7 argue that it is impossible for their processing units to provide FOIA documents in native 8 digital form with metadata intact. Native Form Digital Records and Metadata With regard to metadata, Plaintiff specifically requested system 9 In Response, Plaintiff states that “EOUSA provided its records in the form 10 precisely requested by Plaintiff.” (Doc. 114 at 30 (emphasis in original)). Accordingly, 11 it appears that native digital format is not at issue with regard to the EOUSA request. 12 1. 13 14 In 1996, Congress amended FOIA to address electronic information. The Electronic Freedom of Information Amendments of 1996 provide in part: 15 [i]n making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format. Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section. 16 17 18 19 20 Legal Standard 5 U.S.C. § 552(a)(3)(B) (emphasis added). 21 An agency’s determination as to reproducibility must be accorded substantial 22 weight by the reviewing court. 5 U.S.C. § 552(a)(4)(B) (“In addition to any other matters 23 to which a court accords substantial weight, a court shall accord substantial weight to an 24 affidavit of an agency concerning the agency’s determination as to . . . reproducibility 25 under paragraph (3)(B).” 5 U.S.C. § 552(a)(4)(B). 26 .... 27 .... 28 .... - 22 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 23 of 55 1 2 3 2. Native Digital Format Defendant FBI has met its burden to show that the requested material cannot be produced in native digital format.12 4 In support of his argument that Defendants are required to provide records in 5 native digital format, Plaintiff relies on Sample v. Bureau of Prisons, where the district 6 court stated that “there is a clear statutory obligation to provide the records in electronic 7 format when that format is requested.” 466 F.3d 1086, 1088 (D.C. Cir. 2006). In 8 Sample, the BOP provided an inmate with paper copies of records, arguing that electronic 9 records need not be produced because BOP security regulations prohibited the inmate 10 from receiving such records and, thus, they were not “readily reproducible” in that 11 format. 12 characteristics of the FOIA requester. Id. at 1088. In addition, in Sample there was no 13 dispute as to the agency’s ability to produce the records electronically because it offered 14 to provide the records in electronic format to the requester’s non-inmate designee. Id. But the court reasoned that “readily reproducible” does not focus on the 15 Plaintiff argues that the volume of records involved in his requests necessitates 16 that they be provided in native digital form. (Doc. 85 at ¶ 129). He asserts that the FBI 17 plans to print 15,377 pages of native digital form records to hard copy paper, then scan 18 the paper into PDF files, then provide non-native form records to him. (Id. at ¶ 130). He 19 further argues that native form digital records are needed “so that the original, unaltered 20 vector based text can be databased and searched using a computer without the need for 21 Optical Character Recognition (OCR)—which is an unrefined process limiting accurate 22 keyword searches.” (Id). 23 Plaintiff contends that it would be simple for the FBI to provide native form digital 24 records or an equivalent that preserves vector-based, keyword-searchable text. (Doc. 84 25 at 13; Doc. 85 at ¶¶ 134-139). He asserts that for easily edited records like Microsoft 26 Word or Excel documents, Defendants can provide the true native digital form after using 27 28 12 As stated above, Plaintiff concedes that EOUSA has produced its information in a format acceptable to Plaintiff. - 23 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 24 of 55 1 native viewing/editing software to redact (replacing sensitive text with a series of bold 2 XXs) and preserving embedded data. For other records, Plaintiff suggests that a digital 3 PDF conversion process can be used and embedded data provided separately. 4 example, he suggests that an email file in *.eml format or in a format displayed within a 5 web-based email account can be digitally converted to a PDF file using the PrimoPDF or 6 doPDF print driver. By this process, a PDF file is not converted to paper and the vector- 7 based, keyword-searchable text is preserved. (Doc. 84 at 13). Plaintiff also argues that 8 even if the FBI cannot provide records as vector-based PDF files, it can scan its paper 9 documents into its HighView system as 600 dpi flat TIFF images rather than 150 dpi. 10 For (Doc. 114 at 30). 11 The FBI asserts that a “vast majority of the records responsive to FOIA/Privacy 12 Act requests is still maintained by the FBI in original paper format as part of the FBI’s 13 official federal records system.” (Doc. 91-7 at ¶ 10). It further asserts that as to 14 electronic records, “the customized software product that the FBI uses to process FOIA 15 requests, dubbed ‘FDPS,’ converts all electronic media into a flattened TIFF image.” (Id. 16 at ¶ 12). FDPS “is designed such that it is compatible only with TIFF images,” and 17 “[d]ocuments can be reviewed and redacted only if they are in TIFF format.” (Id. at ¶ 18 13). 19 Hardy avers that converting documents to flattened TIFFs “ensures protection of 20 FBI and government agency equities, protection of national security information, and 21 maintenance of classified information.” (Id. at ¶ 13; see id. at ¶ 9 (noting that “FDPS 22 resides on the internal FBI network which is specifically designed to handle documents 23 classified up to the ‘SECRET’ level”)). 24 Hardy further avers that “[d]ocuments in their native electronic formats, . . . unlike 25 TIFFs, are editable and could allow for the required redactions to be reverse engineered, 26 exposing the critical information that must be protected.” (Id. ¶ 14). As to PDF, Hardy 27 attests that the Transportation Security Administration inadvertently released information 28 of a standard operating procedures manual when it processed the manual by drawing - 24 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 25 of 55 1 black boxes on top of sensitive security information in a native PDF version of the 2 document. (Id.). It was later discovered that the blacked out redactions could be made 3 readable by a particular PDF viewer. (Id.). Accordingly, Hardy avers that “[m]aintaining 4 records in their native format and deleting information exempt under the FOIA is not a 5 viable alternative when dealing with sensitive information that, under FOIA, must not be 6 released.” (Id). 7 The FBI has met its burden to show that electronic records are not readily 8 reproducible in native format because they can be edited and redactions can be reverse 9 engineered. Plaintiff does not dispute that embedded data is stripped in the process of 10 converting files to TIFF. Plaintiff does not dispute that TIFF, unlike native format 11 documents, cannot be reverse-engineered to restore redacted information. The legislative 12 history reflects that this alone is fatal to Plaintiff’s request for records in native digital 13 format in this case. See S. Rep. 104-272 at 14-15 (“the ‘reasonable efforts’ qualification 14 could relieve agencies of the obligation of releasing the original form of partially exempt 15 records in circumstances where agencies need to handle the records in a certain form for 16 purposes of redaction and, therefore, cannot readily disclose them, as redacted, in a 17 previously existing form.”). 18 Judgment on the issue of records in native digital format and grant Defendants’ Motion 19 for Summary Judgment on the issue of records in native digital format. 20 3. The Court will deny Plaintiff’s Motion for Summary Metadata 21 As noted above, Plaintiff requested system metadata, substantive metadata, and 22 embedded metadata for each record responsive to his requests to Defendants.13 Whether 23 24 25 26 27 28 13 Metadata can be grouped into three broad categories: substantive metadata (also referred to as application metadata), system metadata, and embedded metadata. First, substantive, or application metadata, is created by the application specific to the ESI being addressed, embedded in the file, and moved with the file when copied. This data may reflect substantive changes to a document by the user and/or instruct the software program on how to display the document because substantive metadata “records and reflects any - 25 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 26 of 55 1 and to what extent metadata is subject to FOIA is the subject of considerable debate. 2 Such debate arises, in part, from an attempt to balance FOIA’s principles of openness and 3 public access to government and records, and the need to safeguard sensitive information. 4 The debate is furthered by the confusion that arises about how metadata must be 5 produced, how much of it must be produced, and what requirements exist for how to 6 search for and produce metadata generally. 7 8 9 10 11 12 13 14 15 16 17 18 19 changes to a document made by the user or creator of a document.” Examples include the track changes function in a Microsoft Word document and other internal data such as who created the document, any revisions that were made, and when the revisions occurred. . . . Substantive metadata is also prone to a large amount of contextual inaccuracy. Second, embedded metadata is generally hidden but usually considered to be an integral part of ESI. This data is embedded in a file and is only available in the original, native file. It consists of text, numbers, hyperlinks, data, or any other information that is not observable by an individual “viewing the output display of the native file.” An example of embedded metadata is that of an Excel spreadsheet that uses formulas that underlie the output of a cell—the formulas underlying the document would constitute metadata. Without the ability to view these formulas, the spreadsheet could be incomprehensible and may not provide any beneficial use to the requesting party. 20 21 22 23 24 25 26 27 28 Third, system metadata is created automatically by the operating system to track the demographics of ESI. This data includes logs and other logistical information generated by the operating system to track modifications of a record’s name, size, location, and the date and time of creation. System metadata is generally useful in determining the authenticity of a document as it could reveal “information regarding the identity of the author and the date and time of creation . . . [and] is created automatically by the user’s application or operating system.” Christopher R. Meltzer, More Than Just Ones and Zeros: The Reproducibility of Metadata Under the Freedom of Information Act, 9 J.L. & Pol’y Info. Soc’y 327, 332334 (2013) (footnotes omitted). - 26 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 27 of 55 1 Nothing in FOIA explicitly requires the production of metadata and Defendants 2 have presented a credible argument that Congress did not intend for FOIA to encompass 3 metadata. (Doc. 92 at 12-16). Moreover, considering the overall breadth and complexity 4 of issues concerning the disclosure of metadata, Congress, and not the Court, is better 5 equipped to create rules governing the production of metadata under FOIA. 6 But, even assuming that metadata is subject to FOIA, disclosure of metadata is not 7 necessary in this case because despite reasonable efforts by Defendants, the metadata 8 sought by Plaintiff is not readily reproducible within the meaning of FOIA. 9 Plaintiff does not seek discrete portions of identified metadata for certain 10 documents, but rather requests every general type of metadata for every document 11 produced in response to broad requests for information, which has amounted to results of 12 thousands of documents. 13 Plaintiff’s requests calls into question whether the metadata in those documents is readily 14 reproducible. The sheer volume of documents possibly responsive to 15 Indeed, while not in the context of metadata specifically, when Congress amended 16 FOIA to address electronic information, it specifically contemplated what would 17 constitute reasonable efforts in the context of whether documents are readily 18 reproducible. 19 20 21 22 23 24 25 26 27 28 The bill’s requirement to make records available in the form or format requested by any person where such records are not usually maintained in the requested form or format, is subject to a “reasonable efforts” qualification. In some cases, this could relieve the agency of the requirement if it would prove onerous. . . . This requirement applies to choices between conventional record forms (e.g., paper, microfiche, or electronic) as well as to choices between existing electronic formats. As a general rule, the decision whether to disclose requested records or information in a new requested form, whether electronic or other form, is a matter of administrative discretion. In exercising that discretion, agencies should consider administrative efficiency and the existence of identified public demands for the information. Consistent - 27 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 28 of 55 1 2 3 4 5 6 7 with current practice, a FOIA requester generally should be entitled to obtain a paper printout of any nonexempt electronic records-or any readily retrievable nonexempt part of such records-if the requester prefers. . . . . [T]he “reasonable efforts” qualification could relieve agencies of the obligation of releasing the original form of partially exempt records in circumstances where agencies need to handle the records in a certain form for purposes of redaction and, therefore, cannot readily disclose them, as redacted, in a previously existing form. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This section also directs agencies to make “reasonable efforts to search for records in electronic form or format.” What constitutes a “reasonable effort” shall vary with the circumstances under which the records are held. We recognize that both agency computer program development resources and agency computer system operation resources are highly valuable and finite. Both of these categories of agency resources shall be impinged upon by the level of new search activity required under the amendments. Agencies should search for and retrieve data according to new specifications where such retrieval activity does not disrupt agency functions. S. Rep. 104-272 at 14-15. As such, the legislative history reflects that Congress contemplated withholding documents both where the agency needs to handle records in a certain form for the purposes of redaction and cannot readily disclose them in a previously existing form and where agency resources would be impinged by search activity for overly broad, voluminous requests. In this case, Defendants have shown that they do not keep metadata in records to be produced under FOIA, see Doc. 92-7 at ¶ 13 (“the conversion of electronic documents to TIFF images is specifically designed to affirmatively strip metadata in order to ensure that no classified and/or law enforcement sensitive information is inadvertently released to the public.”); Doc. 92-9 at ¶ 24 (FOIA/Privacy Staff do not use a document processing system that preserves records in their native form and instead uses an electronic FOIA processing system into which it transfers documents, - 28 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 29 of 55 1 which are maintained in a TIFF format, the staff also converts documents into PDF files 2 through Adobe Acrobat), and Plaintiff’s requests themselves reflect the extensive breadth 3 of the metadata that he seeks. 4 metadata, due to the breadth of Plaintiff’s requests and the fact that Defendants do not 5 keep records for production under FOIA in a form that would allow for production of 6 metadata, Defendants are not required to produce metadata in response to Plaintiff’s 7 FOIA requests at issue in this case. Accordingly, the Court will deny Plaintiff’s Motion 8 for Summary Judgment and grant Defendants’ Motion for Summary Judgment on the 9 issue of metadata. 10 D. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Accordingly, even assuming that FOIA applies to Adequacy of the Responses and Claimed Exemptions to Plaintiff’s Requests FOIA requires that an agency responding to a request “demonstrate that it has conducted a search reasonably calculated to uncover all relevant documents.” Lahr v. Nat’l Transp. Safety Bd., 569 F. 3d 964, 986 (9th Cir. 2009) (quoting Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985)). Such a showing can be made by “reasonably detailed, nonconclusory affidavits submitted in good faith.” Zemansky, 767 F.2d at 571. Such affidavits or declarations are entitled to “a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” Lawyers’ Comm. For Civil Rights of S.F. Bay Area v. U.S. Dep’t of Treasury, 534 F. Supp. 2d 1126, 1131 (N.D. Cal. 2008). An agency “need not set forth with meticulous documentation the details of an epic search for the requested records.” Id. (quotation omitted). “[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Citizens Comm’n on Human Rights v. FDA., 45 F.3d 1325, 1328 (9th Cir. 1995) (quotation omitted) (emphasis in original). In general, the sufficiency of a search is determined by the “appropriateness of the methods” used to carry it out, “not by the fruits of the search.” Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). The failure of an agency “to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not - 29 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 30 of 55 1 undermine the determination that the agency conducted an adequate search for the 2 requested records.” Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004). 3 Once a search has been conducted, FOIA requires disclosure of all agency records 4 at the request of the public unless the records fall within one of nine narrow exemptions. 5 See 5 U.S.C. § 552(b); see also Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996). These 6 “limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the 7 dominant objective of the Act.” Dep’t of Interior v. Klamath Water Users Protective 8 Ass’n, 532 U.S. 1, 8 (2001) (internal citation omitted). The exemptions “have been 9 consistently given a narrow compass,” and agency records that “do not fall within one of 10 the exemptions are improperly withheld.” Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 11 151 (1989) (quotation omitted). 12 Ultimately, the threshold issue on a motion for summary judgment is whether the 13 agency’s explanations are full and sufficiently specific to afford the FOIA requester a 14 meaningful opportunity to contest, and the district court an adequate foundation to 15 review, the soundness of the withholding. See Wiener v. FBI, 943 F.2d 972, 977-79 (9th 16 Cir. 1991) (noting that specificity is the defining requirement of the Vaughn index). 17 “To carry their summary judgment burden, agencies are typically required to 18 submit an index and ‘detailed public affidavits’ that, together, ‘identify [ ] the documents 19 withheld, the FOIA exemptions claimed, and a particularized explanation of why each 20 document falls within the claimed exemption.’” Yonemoto v. Dep’t of Veterans Affairs, 21 686 F.3d 681, 688 (9th Cir. 2012). These submissions—commonly referred to as a 22 Vaughn index—“must be from affiants who are knowledgeable about the information 23 sought and detailed enough to allow the court to make an independent assessment of the 24 government’s claim of exemption.” Id. (internal quotation omitted). Whether by Vaughn 25 index or by affidavit or some combination of the two, the government must “provide 26 enough information, presented with sufficient detail, clarity, and verification, so that the 27 requester can fairly determine what has not been produced and why, and the court can 28 decide whether the exemptions claimed justify the nondisclosure.” Fiduccia v. U.S. - 30 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 31 of 55 1 Dep’t. of Justice, 185 F.3d 1035, 1043 (9th Cir. 1999). “To justify withholding, the 2 government must provide tailored reasons in response to a FOIA request. It may not 3 respond with boilerplate or conclusory statements.” Shannahan v. I.R.S., 672 F.3d 1142, 4 1148 (9th Cir. 2012). 5 Courts “accord substantial weight to an agency’s declarations regarding the 6 application of a FOIA exemption.” Id. at 1148. However, before giving the agency’s 7 expert opinion on national security matters the substantial weight to which it is entitled, a 8 district court must ensure that it has an adequate foundation to review the agency’s 9 withholding claims. King v. U.S. Dep’t of Justice, 830 F.2d 210, 225-226 (D.C. Cir. 10 1987). Deference is not equivalent to acquiescence and, thus, an agency’s declaration 11 may justify summary judgment only if it is sufficient “to afford the FOIA requester a 12 meaningful opportunity to contest, and the district court an adequate foundation to 13 review, the soundness of the withholding.” Campbell v. U.S. Dep’t. of Justice, 164 F.3d 14 20, 30 (D.C. Cir. 1998) (quotation omitted). 15 16 17 18 1. WSJ Request Defendants move for summary judgment on the adequacy of the search and the exemptions claimed as to the WSJ Request. (Doc. 91 at 16-17). a. Adequacy of the Search 19 Hardy avers that that the FBI typically conducts searches in response to FOIA 20 requests in its Central Records System (CRS). (Doc. 92-8 at ¶¶ 15-20). He further attests 21 that, due to the nature of Plaintiff’s WSJ Request, as well as the purpose, design, and 22 organization of information in the CRS as a law-enforcement tool, the FBI conducted a 23 search query outside of the CRS, instead contacting those divisions and offices most 24 likely to maintain potentially responsive records. (Id. at ¶ 21). Specifically, the FBI 25 issued a search e-mail for responsive records relating to the WSJ article and comments 26 made by FBI employees at the Brookings Institution panel at issue. (Id. at ¶ 22). The 27 FBI identified 94 responsive records relating to the WSJ portion of the request, all of 28 - 31 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 32 of 55 1 which were processed. (Id. at ¶22). The FBI released those 94 pages to Plaintiff, on July 2 12, 2013; 14 pages were released in full and 80 pages were released in part. (Id. at ¶ 22). 3 In addition to the search inquiry described above, the FBI also conducted a search 4 of the CRS regarding Plaintiff’s request relating to the Brookings Institute. (Id. at ¶ 23). 5 Hardy avers that neither the search inquiry nor the search of the CRS yielded any records 6 responsive to the Plaintiff’s Brookings Institute request. (Id. at ¶ 23). 7 Plaintiff responds that the FBI should have directly contacted its prior general 8 counsel, Valerie Caproni, for records responsive to his request, since the request 9 concerned comments she made. Plaintiff further asserts that the FBI should have 10 searched its “‘Blackberry enterprise servers maintained by the FBI at its Clarksburg, 11 West Va., facility and other facilities’ for text messages regarding the issues” and it 12 should have searched its archives of saved incoming and outgoing e-mail sent and 13 received by FBI employees. (Doc. 114 at 16). Plaintiff argues that a targeted search of 14 these documents could be easily accomplished. 15 In Reply, the FBI argues that it is not required to employ the same standards of 16 discovery in litigation in responding to a FOIA request, and that Plaintiff received emails 17 in response to his request. The FBI further asserts that FOIA does not impose an 18 obligation on it to contact former employees in order to obtain documents responsive to 19 Plaintiff’s request. 20 As to Plaintiff’s assertion that the FBI needed to contact its former general counsel 21 to adequately search for documents in response to Plaintiff’s request, FOIA “does not 22 impose an obligation on defendant to contact former employees to determine whether 23 they know of the whereabouts of records that might be responsive to a FOIA request.” 24 Blanton v. U.S. Dep’t of Justice, 182 F. Supp. 2d 81, 85 (D.D.C. 2002); see Jackson v. 25 U.S. Dep’t of Labor, No. 2:06 CV 02157 RRB KJM PS, 2008 WL 539925, at *5 n.2 26 (E.D. Cal. Feb. 25, 2008) (“The [agency] is not required to pursue any records that may 27 exist and be in possession of a retired employee.”). Accordingly, the FBI did not need to 28 contact Valerie Caproni for the search to be adequate within the meaning of FOIA. - 32 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 33 of 55 1 As to the remainder of Plaintiff’s arguments, the Court agrees that the FBI has not 2 met its burden to show that its search was reasonably calculated to uncover all relevant 3 documents. Although the FBI states that Plaintiff received some emails in response to 4 Plaintiff’s request, the FBI does not explain whether those emails constituted all relevant 5 documents responsive to Plaintiff’s request. The FBI makes no argument that it would be 6 difficult or overly burdensome to search its email archives and provides no explanation 7 for its failure to do so. Although the FBI implies that a search for more than thirty types 8 of records in more than 20 locations would be overly burdensome and argues that FOIA 9 does not require a search in every conceivable area where responsive records might be 10 found, the FBI provides no information as to the difficulty of such searches, that such 11 searches would be cumulative or unnecessary, why such searches are not commonly 12 done, or any other information that would allow the Court to conclude that its search was 13 reasonably calculated to uncover all relevant documents. The FBI likewise does not 14 explain why it did not search the CRS for documents responsive to the portion of 15 Plaintiff’s request regarding the WSJ. Accordingly, the Court will grant in part and deny 16 in part Defendants’ Motion for Summary Judgment on the adequacy of the WSJ search as 17 set forth herein. 18 b. Exemptions Claimed for WSJ Request 19 To explain the claimed exemptions for redactions relating to the WSJ Request, 20 Defendants have submitted a Declaration from Hardy and have included each document 21 produced in response to the request with the exemption claimed in each portion of the 22 document for which that particular exemption was claimed. (Doc. 92-8). 23 i. Exemption 5 24 The FBI asserts that it properly withheld documents relating to the WSJ Request 25 reflecting “an internal, on-going dialogue among and between FBI personnel with regard 26 to developing FBI policy on the legal status of [cell phone tracking] technology,’ which 27 fall within the deliberative process privilege protected under 5 U.S.C. § 552(b)(5) 28 - 33 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 34 of 55 1 (“Exemption 5”).14 Plaintiff responds that the FBI improperly applied this exemption to 2 records that “contain the FBI’s final decision on how to deal with The Wall Street 3 Journal and what comments will be made to the reporter [because] it failed to disclose 4 the FBI’s internal emails that contain the FBI’s final decision on what would be said, 5 etc.” (Doc. 114 at 14) (emphasis in original). The FBI replies that all information 6 withheld under Exemption 5 is pre-decisional. (Doc. 120 at 12; Doc. 91-8; Doc. 92-8 at 7 ¶¶ 56-60)). Plaintiff has failed to rebut Defendant’s showing that any document withheld 8 under Exemption 5 was a final decision. Accordingly, the Court will grant Defendants’ 9 Motion for Summary Judgment as to Exemption 5 on the WSJ Request. 10 ii. Exemptions 6 & 7(C) 11 The FBI asserts that it properly withheld information under 5 U.S.C. § 552(b)(6) 12 (“Exemption 6”)15 and 5 U.S.C. § 552(b)(7)(C) (“Exemption 7(C)”)16 relating to the WSJ 13 Request containing: (1) names and/or identifying information of FBI Special Agents and 14 support employees who were responsible for investigative activities reported in the 15 responsive documents; (2) the names of FBI support employees who were assigned to 16 handle task related to stingray technology; and (3) names and/or identifying information 17 of third parties who were merely mentioned in records responsive to plaintiffs’ request. 18 The FBI asserts that the exemptions are necessary in protecting identifying 19 information of FBI Special Agents and support employees who were responsible for 20 investigative activities because publicity regarding any particular investigation “may 21 14 22 23 24 25 26 27 28 Exemption 5 exempts “inter-agency or intro-agency memorandums or letters which 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). 15 Exemption 6 exempts “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). 16 Exemption 7(C) exempts “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). - 34 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 35 of 55 1 seriously prejudice their effectiveness in conducting other investigations” and subject 2 them to “unnecessary, unofficial questioning as to the course of an investigation” because 3 these individuals conduct searches and make arrests, which result in “serious disturbances 4 to people and their lives,” which can result in “an individual targeted by law enforcement 5 to carry a grudge lasting years,” and such a person “may seek revenge on agents and 6 other federal employees involved in a particular investigation.” (Doc. 92-8 at ¶ 66). 7 The FBI further asserts that the exemptions are necessary in protecting the names 8 of FBI support employees who were assigned to handle tasks related to stingray 9 technology because they could become the targets of harassing inquiries for unauthorized 10 access to investigations if their identities were released.” (Id. at ¶ 67). The FBI notes 11 that it does disclose the names of the section chief “and above” and “certain supervisory 12 positions,” but withholds the names of other employees including agents and support 13 personnel. (Id.). 14 Finally, the FBI asserts that the exemptions are necessary in protecting the “names 15 and/or identifying information of third parties who were merely mentioned in records 16 responsive to plaintiffs’ request” because releasing information about private citizens 17 “without notarized authorizations permitting such a release violates individuals[’] 18 legitimate privacy interests” and could subject those individuals to “possible harassment 19 or criticism and focus derogatory inferences and suspicion on them.” (Id. at ¶ 68). 20 Plaintiff does not mention or otherwise oppose the application of Exemptions 6 21 and 7(C). Although, Plaintiff states that he “contests all other FOIA exemptions claimed 22 by Defendants which are not otherwise specifically addressed in this brief” (Doc. 114 at 23 16), this statement does not demonstrate a disputed issue of material fact necessary to 24 prevent summary judgment in favor of Defendants. Accordingly, the Court will grant 25 Defendants’ Motion for Summary Judgment as to Exemption 6 and 7(C) on the WSJ 26 Request. 27 28 iii. Exemption 7(E) The FBI asserts that it properly withheld information under 5 U.S.C. § - 35 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 36 of 55 1 552(b)(7)(E) (“Exemption 7(E)”)17 relating to the WSJ Request containing (1) “the FBI’s 2 application and use of emerging cell phone location technology as a law enforcement 3 technique and the procedures associated with employment of this technique” and (2) 4 information “involving the identity of FBI sections that were involved in the 5 investigation(s) at issue in this case [which] are found in the signature block of internal 6 FBI emails.” 7 The FBI asserts that withholding information regarding “the FBI’s application and 8 use of emerging cell phone location technology as a law enforcement technique and the 9 procedures associated with employment of this technique” is necessary because the 10 specific internal application, functioning, and procedural details of the technology are not 11 commonly known and to “release this type of information could enable criminals to 12 educate themselves about the techniques employed for the location and apprehension of 13 individuals and, therefore, allow these individuals to avoid detection or develop 14 countermeasures to circumvent the effectiveness of these techniques and to continue to 15 violate the law.” (Doc. 92-8 at ¶ 72). 16 The FBI asserts that withholding information “involving the identity of FBI 17 sections that were involved in the investigation(s) at issue in this case [which] are found 18 in the signature block of internal FBI emails” is necessary to “protect methods and 19 techniques involving the location and identity of FBI sections that were involved in the 20 investigation(s) at issue in this case.” 21 disclosure of this information would “reveal the targets, the physical areas of interest of 22 investigation, and when taken together the other locations if identified, could establish a 23 pattern or ‘mosaic’ that identification of a single location would not,” which would (Id. at ¶ 73). The FBI further asserts that 24 25 26 27 28 17 Exemption 7(E) exempts “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . 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.” 5 U.S.C. § 552(b)(7)(E). - 36 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 37 of 55 1 “allow hostile analysts to avoid or circumvent those locations especially if one or more 2 location[s] appeared with frequency or in a pattern.” (Id.). The FBI asserts that this 3 would disrupt the investigative process and deprive the FBI of valuable information 4 because a subject could adjust behaviors and activities to avoid detection. (Id.). 5 In response, Plaintiff argues that Exemption 7(E) should not be applied because 6 much of the information withheld by the FBI is already preserved in permanent public 7 records.18 Plaintiff argues that, even if some information is not routine and publicly 8 known, he is nonetheless entitled to some records containing information, which is the 9 same as the information contained in publicly preserved documents under the “public 10 domain exception.” 11 With regard to the FBI’s argument that it is necessary to protect the location and 12 identity of FBI sections, Plaintiff argues that the FBI already publicly advised potential 13 violent offenders that the FBI Criminal Investigative Division, Violent Crimes Unit, is in 14 possession of a number of StingRays. Plaintiff argues that this shows that the FBI’s 15 concern about tipping off criminals is frivolous. 16 Because the FBI has a “clear law enforcement mandate,” it “need only establish a 17 ‘rational nexus’ between enforcement of a federal law and the document for which [a law 18 enforcement] exemption is claimed.” Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803, 19 807 (9th Cir. 1995) (quoting Church of Scientology v. Dep’t of the Army, 611 F.2d 738, 20 748 (9th Cir. 1979)). 21 generally known to the public.” Id. at 815. “Exemption 7(E) only exempts investigative techniques not 22 The FBI has established a rational nexus between the enforcement of federal law 23 and withholding information on investigative techniques relating to the devices that are 24 not commonly known and its need to protect the sections involved in such investigations. 25 Accordingly, the Court will grant Defendants’ Motion for Summary Judgment as 26 18 27 28 Plaintiff “incorporates by reference” arguments made with regard to Exemption 7(E) as claimed in response to the Harris Request. Because the Harris Request is substantially different in content than the WSJ Request, it is unclear how exactly Plaintiff’s arguments regarding the Harris Request apply to the WSJ Request. - 37 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 38 of 55 1 to Exemption 7(E) on the WSJ Request. 2 2. 3 4 EOUSA Request Defendants move for summary judgment on the adequacy of the search and the exemptions claimed as to the EOUSA Request. 5 a. Adequacy of the Search 6 Initially in responding to Plaintiff’s EOUSA request, EOUSA stated that “it did 7 not maintain records in a manner that would enable it to reasonably search for the records 8 [Plaintiff] sought” and denied Plaintiff’s request. (Doc. 92-9 at ¶ 5). EOUSA informed 9 Plaintiff that it could provide him with records released to the ACLU in response to a 10 request that “generally overlapped” with Plaintiff’s request. (Id.) Plaintiff responded to 11 EOUSA, through counsel, that he did not mean to seek all Department of Justice records, 12 but just those of EOUSA and the specific offices identified in his request. (Id. at 3, ¶ 6). 13 He also clarified that “other devices” meant those not manufactured by Harris and 14 “related equipment” referred to related Harris equipment. (Id.). 15 EOUSA then determined that it could search offices 1-5, but could not search 6 16 and 7 because they are not part of EOUSA. (Id. at ¶ 9). EOUSA further determined that 17 it could only search for records in one category of the request, “as the other three 18 categories are subjective, offering no basis for an objective search.” (Id.). 19 Because EOUSA’s records are kept in a manner that manage cases and do not 20 track the use of particular equipment, EOUSA asked representatives of offices 1-5 if they 21 had responsive records and where such records would be stored. (Id. at ¶ 10). After 22 receiving responses, EOUSA searched the emails of individuals that might contain 23 responsive information using the terms provided by Plaintiff in his request. (Id. at ¶¶ 11- 24 13). 25 General’s Advisory Committee. (Id. at ¶ 14). On March 13, 2014, EOUSA responded to 26 Plaintiff and released 868 pages in part and withheld 50 pages. (Id. at ¶ 25). EOUSA also searched the agendas and minutes of meetings for the Attorney 27 Plaintiff argues that the search was inadequate because: (1) the EOUSA failed to 28 search the types of records in the places specified in the FOIA request; (2) the EOUSA - 38 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 39 of 55 1 did not actually conduct a search for the records as it claims it did, but rather, sent 2 Plaintiff records responsive to another FOIA request regarding GPS tracking devices; (3) 3 the EOUSA ignored three of the four categories in the FOIA request letter and its’ 4 reasoning for doing so is frivolous because the EOUSA has previously responded to 5 similarly-worded FOIA requests; and (4) the EOUSA ignored Plaintiff’s request to search 6 all United States Attorneys’ Offices within California, Arizona, and New York. 7 In Reply, Defendants assert that EOUSA did search for the records responsive to 8 Plaintiff’s request as it claims it did. Defendants further assert that “[b]ecause plaintiff 9 has exhausted his search time and received his free documents, his arguments that 10 EOUSA must also search U.S. Attorney’s Offices . . . fails.” (Doc. 120 at 8). 11 With regard to Plaintiff’s argument that EOUSA failed to search the types of 12 records in the places specified in the FOIA request, EOUSA explained that “because its 13 record keeping systems are generally set up to manage cases, and not track the use of 14 particular equipment,” it decided the best way to obtain a reasonable response to 15 Plaintiff’s requests was to ask representatives of offices whether such information might 16 be stored and then searched those places. Defendant EOUSA conducted an adequate 17 search for the types of documents requested by Plaintiff given the nature of its system 18 and the nature of Plaintiff’s request. 19 Moreover, Plaintiff’s argument that EOUSA did not actually conduct a search for 20 the records as it claims it did, but rather, sent Plaintiff records responsive to another 21 FOIA request regarding GPS tracking devices is speculative and is contradicted by John 22 Kornmeier’s declaration.19 23 Plaintiff’s argument that the EOUSA should have searched each category of 24 requested documents also fails. 25 categories of his request were inherently subjective. For instance, Plaintiff sought all 26 department records detailing “USAO polices . . . to have AUSAs and other attorneys seek The records Plaintiff sought in three of the four 27 28 19 John Kornmeier (“Kornmeier”) is the attorney advisor for the Executive Officer for United States Attorneys, United States Department of Justice. (Doc. 92-9 at ¶ 1). - 39 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 40 of 55 1 one or more court orders authorizing the use of pen registers . . . while the true intention 2 is to use Harris/portable/transportable wireless device locators.” 3 (emphasis in original)). In his Declaration, Kornmeier states “[t]hese requests with their 4 subject notions of destroying evidence used to further an investigation; of the ‘true 5 intention’ of an AUSA as opposed to what she may be representing to a court; and of 6 concealing evidence from defendants and their attorneys imply malfeasance and as such 7 are merely argumentative with no objective standard on which to base a search.” Doc. 8 92-9 at ¶ 18. In light of the subjective nature of Plaintiff’s requests, it is reasonable that 9 EOUSA could not formulate a search that would be responsive to the requests. Though 10 EOUSA could perhaps have re-worded the requests to make them searchable, Plaintiff 11 chose to word his requests in a certain way, and the agency receiving a FOIA request 12 should not have to guess at the true meaning of such requests. Indeed, a requester may 13 object to such an undertaking by the agency. Accordingly, it was reasonable for EOUSA 14 to respond to that part of Plaintiff’s EOUSA request to which it could form a responsive 15 search. (Doc. 92-9 at 10 16 With regard to Plaintiff’s argument that EOUSA ignored Plaintiff’s request to 17 search all United States Attorneys’ Offices within California, Arizona, and New York, 18 Kornmeier explains that it did not attempt to search those offices because the case 19 management system used by those USAOs, the Legal Information Office Network 20 System (“LIONS”), tracks case-related information and would not yield information 21 responsive to Plaintiff’s requests. However, the EOUSA does not explain why it did not 22 follow the procedure that it followed with the offices from which it did seeks responsive 23 records in attempting to determine whether the USAOs would have documents 24 responsive to Plaintiff’s requests. 25 EOUSA further argues that it did not search those offices because Plaintiff already 26 received more than the two hours of search time and 100 pages of documents to which he 27 is entitled. This, in itself, does not justify the failure to fully respond to Plaintiff’s 28 request. To the extent that EOUSA sought fees over $250 to complete the search, - 40 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 41 of 55 1 EOUSA should have requested such fees from Plaintiff. See, e.g., Lion Raisins, 636 F. 2 Supp. 2d at 1100 (in response to request requiring over $6,000 in fees, agency requested 3 fees be paid prior to searching); see also 5 U.S.C. § 552(a)(4)(A)(v) (“No agency may 4 require advance payment of any fee unless the requester has previously failed to pay fees 5 in a timely fashion, or the agency has determined that the fee will exceed $250.”). 6 While the Court understands the Parties have disputed whether fee waiver is 7 appropriate, there is no record at all of EOUSA even requesting additional fees to fulfill 8 the remainder of Plaintiff’s request. Accordingly, EOUSA should have attempted to 9 fulfill or seek fees from Plaintiff to fulfill Plaintiff’s requests with respect to the USAOs. 10 Based on the foregoing, Defendants’ Motion for Summary Judgment as to the 11 adequacy of the search in response to the EOUSA request is granted in part and denied in 12 part. 13 b. Exemptions Claimed 14 To explain the claimed exemptions for redactions relating to the EOUSA Request, 15 Defendants submitted a Declaration of Kornmeier and two Vaughn indexes. (Doc. 92-9). 16 i. Exemption 5 17 The EOUSA asserts that it properly withheld documents based on application of 18 the deliberative process privilege and the work-product doctrine under Exemption 5. 19 EOUSA asserts that it withheld materials, which largely consist of emails, draft 20 memoranda, and comments on draft memoranda, which reflect internal, pre-decisional 21 deliberations or were prepared in anticipation of litigation or both. 22 Plaintiff responds that “EOUSA’s [reasoning behind its] claim of exemption (b)(5) 23 . . . is entirely conclusory as shown by its Vaughn index.” Plaintiff does not explain how 24 EOUSA’s reasoning is conclusory and does not include any specific examples of such 25 conclusory reasoning. 26 EOUSA has explained its reasoning for withholding certain documents and has 27 provided detailed Vaughn indexes describing the particular exemption claimed for each 28 redaction. Plaintiff has failed to rebut Defendant’s showing that any information - 41 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 42 of 55 1 withheld under Exemption 5 was improper. 2 Defendant’s Motion for Summary Judgment as to Exemption 5 on the EOUSA Request. 3 ii. Accordingly, the Court will grant Exemption 6 and 7(C) 4 EOUSA asserts that it properly withheld information under Exemptions 6 and 5 7(C) to protect the names and other personal information of individuals identified in 6 EOUSA’s records. Plaintiff does not mention or otherwise oppose the application of 7 Exemptions 6 and 7(C). Although Plaintiff states that he “contests all other FOIA 8 exemptions claimed by Defendants which are not otherwise specifically addressed in this 9 brief” (Doc. 114 at 16), this statement does not demonstrate a disputed issue of material 10 fact necessary to prevent summary judgment in favor of Defendants. Accordingly, the 11 Court will grant Defendants’ Motion for Summary Judgment as to Exemption 6 and 7(C) 12 on the EOUSA Request. 13 iii. Exemption 7(E) 14 The FBI asserts that it properly withheld information under Exemption 7(E) to 15 protect techniques and procedures for law enforcement investigations or procedures of 16 which disclosure could reasonably be expected to risk circumvention of the law. 17 In response, Plaintiff argues that while the “FBI at least attempted to justify an 18 application of exemption (b)(7)(E), EOUSA provides no basis whatsoever to support its 19 application.” 20 Each time Exemption 7(E) was applied, the Vaughn index describes the 21 information withheld and states “[t]he guidance contains sensitive law enforcement 22 information about the use of technology and techniques for investigations and 23 prosecutions which Exemption (7)(E) of the FOIA protects to prevent circumvention of 24 the law.” EOUSA offers no reason as to how the disclosure “could reasonably be 25 expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). Accordingly, 26 EOUSA has not given the Court or Plaintiff enough information to determine whether it 27 properly withheld information pursuant to Exemption 7(E). See Lion Raisins v. U.S. 28 Dep’t. of Agric., 354 F.3d 1072, 1082 (9th Cir. 2004) (“Ordinarily, the government must - 42 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 43 of 55 1 submit detailed public affidavits identifying the documents withheld, the FOIA 2 exemptions claimed, and a particularized explanation of why each document falls 3 within the claimed exemption. . . . Because the court and the plaintiff do not have the 4 opportunity to view the documents themselves, the submission must be ‘detailed enough 5 for the district court to make a de novo assessment of the government’s claim of 6 exemption.’” (emphasis added) (quotation omitted); Wiener, 943 F.2d at 978-79. 7 8 9 10 Accordingly, the Court will deny Defendants’ Motion for Summary Judgment as to Exemption 7(E) on the EOUSA Request. 3. Harris Request a. Adequacy of the Search 11 The FBI asserts that it was unaware of Plaintiff’s Harris Request until this lawsuit 12 was filed. (Doc. 92-6 at ¶ 6). The FBI opened the Harris Request on April 12, 2013. Id. 13 On May 1, 2013, the FBI sent Plaintiff a letter neither confirming nor denying the 14 existence of records responsive to the Harris Request. Id. at ¶ 7. On September 25, 2013, 15 the FBI sent Plaintiff a letter modifying its earlier response and stating that it had located 16 23,000 pages of responsive material subject to exemptions. Id. at ¶ 8. The 23,000 pages 17 were identified in response to searches as follows: (1) a search in response to a FOIA 18 request that sought documents including memoranda, training manuals, and e-mails 19 regarding cell-site simulator devices (including those manufactured by Harris) from 20 January 1, 2000 to November 8, 2011; in response, in May 2012, the FBI circulated an 21 Electronic Communication to five FBI HQ divisions most likely to possess responsive 22 records to perform a focused search and searched the CRS using an Automated Case 23 Support application. (Doc. 104-1 at ¶ 8); (2) a search in response to the EPIC request; in 24 response, an Electronic Communication was sent to seven FBI HQ divisions or offices 25 determined to possess potentially responsive material to the broad request. (Id. at ¶ 9); 26 and (3) in early June 2012, the FBI tasked an additional office to search for documents 27 responsive to the EPIC request. (Id. at ¶ 10). 28 The FBI advised Plaintiff that it had 4,377 pages of material responsive to his - 43 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 44 of 55 1 request that was preprocessed for a similar FOIA request and if Plaintiff wanted those 2 materials, he must submit $427.70 to receive a paper copy or $20 to receive the records 3 on CD. Id. The FBI further advised that “additional material consisting of approximately 4 11,000 pages [of the identified 23,000 pages] could be reviewed for responsive 5 information but [Plaintiff] must first submit his commitment to pay the estimated fees.” 6 (Id. at ¶ 11; Doc. 92-6 at 47-48). 7 The similar FOIA request referred to in the FBI’s September 25 letter was a 8 request submitted by EPIC, which the FBI considered to be substantially similar to 9 Plaintiff’s request. Id. at ¶ 9. EPIC’s request sought “agency records concerning cell site 10 simulator and other cell phone tracking technologies deployed by the FBI to covertly 11 locate, target, and track targets of interest.” Id. For the EPIC request, the FBI reviewed a 12 total of 22,982 pages, producing a total of 4,377 pages in whole or in part and 13 withholding 18,605 in full. Id. The FBI prepared a draft Vaughn index for a sample of 14 500 pages selected by EPIC. Id. On October 21, 2013, Plaintiff responded to the FBI’s 15 letter stating that the terms were unacceptable and claimed that he was entitled to a fee 16 waiver. Id. at ¶ 12. 17 On December 10, 2013, Counsel for the FBI spoke with Plaintiff and agreed to 18 provide him with a copy of the 500 pages that had been reviewed as a sample set in the 19 EPIC litigation with a copy of the draft Vaughn index. Id. at ¶ 13. Those documents 20 were provided to Plaintiff on December 13, 2013. Id. Plaintiff requested a new, revised 21 Vaughn index that would include the FBI’s withholdings under Exemptions 1, 3, 4, 5, 6, 22 7(C), and 7(E). Id. at ¶ 13. On January 14, 2014, the FBI provided Plaintiff with a copy 23 of the 4,377 pages that the FBI previously provided to EPIC in response to the similar 24 FOIA request. Id. at ¶ 14. 25 Plaintiff argues that the search was inadequate because the FBI failed to search for 26 text messages within its Blackberry Enterprise Servers and failed to search for emails 27 within its email servers. Accordingly, Plaintiff argues that the FBI should have to 28 perform keywords searches of its text message and email archive servers. Plaintiff - 44 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 45 of 55 1 further argues that the FBI did not search for the “other records types” named by Plaintiff 2 or in the record systems specifically named by Plaintiff. Plaintiff additionally argues that 3 the FBI failed to search for two specified categories of documents, namely: “all agency 4 records detailing the FBI’s policies, practices, and procedures to destroy real-time 5 wireless device location data obtained by the Harris portable/transportable wireless 6 device locators . . . .” and “all agency records detailing the FBI’s policies practices, and 7 procedures to conceal from defendants and their attorneys in criminal cases the fact that 8 the FBI use the Harris portable/transportable wireless device locators.” Plaintiff argues 9 that the other FOIA searches that the FBI used to fulfill his FOIA request did not request 10 these categories of information and were thus insufficient to satisfy his search. 11 With regard to Plaintiff’s argument that two categories of his request were not 12 searched, the FBI argues that the request for records detailing policies to conceal the use 13 of portable/transportable wireless device locators in criminal cases is a subjective request 14 and, thus, is not appropriate under FOIA. As noted above in the discussion of the 15 EOUSA request, the Court agrees that in light of the subjective nature of Plaintiff’s 16 requests, it is reasonable that FBI could not formulate a search that would be responsive 17 to the requests. 18 The FBI further argues that the searches Plaintiff requested would have been 19 subsumed within the broad searches the FBI conducted. The Court agrees. The FBI 20 conducted searches for “copies of all documents and communication-including legal 21 opinions, memoranda, briefs, training manuals, emails-related to ‘cell site simulators,’ 22 ‘IMSI catchers,’ ‘digital analyzers, ‘TriggerFish,’ ‘StingRay’” and “all documents 23 concerning procedural requirements or guidelines for the use of the StingRay device or 24 other cell site simulator technologies (e.g. configuration, data retention, data deletion.” 25 Based on the breadth of these prior searches, it was reasonable for the FBI to use those 26 searches to satisfy Plaintiff’s requests. 27 With regard to Plaintiff’s argument that the FBI did not search “text messages and 28 emails and the other records types” and record systems named by Plaintiff, the FBI - 45 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 46 of 55 1 makes no argument that it would be difficult or overly burdensome to search its email or 2 text archives and provides no explanation for its failure to do so. Although the FBI 3 implies that a search for more than thirty types of records in more than 20 locations 4 would be overly burdensome and argues that FOIA does not require a search in every 5 conceivable area where responsive records might be found, the FBI provides no 6 information as to the difficulty of such searches, that such searches would be cumulative 7 or unnecessary, why such searches are not commonly done, or any other information that 8 would allow the Court to conclude that its search was reasonably calculated to uncover 9 all relevant documents. 10 11 12 Accordingly, the Court will grant in part and deny in part Defendants’ Motion for Summary Judgment on the adequacy of the Harris/EPIC search as set forth herein. b. Exemptions Claimed 13 The Parties initially agreed to a disclosure of sample documents with a Vaughn 14 index for 500 pages of documents responsive to that request and that the Court’s 15 determination on the exemptions claimed within that sample would guide them in 16 determining whether further disclosures are necessary. 17 agreement on the grounds that the FBI only provided him a 321 page sample, which is 18 inadequate for him to properly dispute the claimed exemptions. In Reply, the FBI argues 19 that it provided Plaintiff with a Vaughn index for the 500 page sample and the reason 20 Plaintiff only received 321 pages is that the remainder of the sample described in the 21 Vaughn index reflects documents that were withheld in full. Defendant FBI asserts that 22 the sample is representative and the Court should use it as a sample of all of the 23 exemptions the FBI is claiming, even though Plaintiff no longer agrees. 24 Plaintiff’s argument to the contrary, there is no reason that the Court’s rulings on the 25 sample exemptions provided cannot be used to guide the Parties in determining whether 26 further disclosures are necessary. Plaintiff now disputes the Despite 27 To explain the claimed exemptions for redactions relating to the sample response 28 to the Harris Request, Defendants have submitted a Declaration from Hardy. (Doc. 92- - 46 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 47 of 55 1 6).20 2 i. Exemptions 6 and 7(C) 3 Plaintiff has agreed not to challenge Exemptions 6 and 7(C) unless there were 4 sections of a personnel file discussing an agent’s training and experience in using 5 portable/transportable wireless device locators and related equipment. Doc. 92-6. at 6 6 n.5. The FBI avers that there are no files discussing an agent’s training and experience. 7 Id. Accordingly, there is no dispute as to Exemptions 6 and 7(C) and the Court will grant 8 Defendants’ Motion for Summary Judgment as to Exemptions 6 and 7(C). 9 ii. Exemption 1 10 The FBI asserts that it properly withheld information relating to the Harris Request 11 relating to intelligence activities, sources, and methods; foreign relations or foreign 12 activities; and vulnerabilities or capabilities of systems relating to national security 13 protected under 5 U.S.C. §552(b)(1) (“Exemption 1”). 14 Exemption 1 exempts information “(A) specifically authorized under criteria 15 established by an Executive order to be kept secret in the interest of national defense or 16 foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 17 U.S.C.A. § 552(b)(1). Executive Order 13,526 applies to Exemption 1 and provides, in 18 relevant part, 19 (a) Information may be originally classified under the terms of this order only if all of the following conditions are met: 20 21 (1) an original classification authority is classifying the information; 22 23 (2) the information is owned by, produced by or for, or is under the control of the United States Government; 24 25 (3) the information falls within one or more of the categories of information listed in section 1.4 of this order; and 26 27 28 20 The Court is unable to locate a copy of the Vaughn index in the Record. Accordingly, the Court has based its decisions solely on the Declaration of David Hardy (Doc. 92-6). - 47 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 48 of 55 1 (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage. 2 3 4 5 6 Exec. Order No. 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009). 7 classified “Top Secret,” “Secret,” or “Confidential.” Id. “‘Secret’ shall be applied to 8 information, the unauthorized disclosure of which reasonably could be expected to cause 9 serious damage to the national security that the original classification authority is able to 10 Information may be identify or describe.” Id. at 707-708. 11 Hardy avers that he is an original classification authority and he has withheld 12 information under Exemption 1 that is marked at the “Secret” level. Hardy avers that he 13 determined that the withheld information involves: intelligence activities; intelligence 14 sources, or methods, or cryptology; foreign relations or foreign activities of the United 15 States, including confidential sources; and vulnerabilities or capabilities of systems, 16 installations, infrastructures, projects, plans or protection service relating to national 17 security including defense against transnational terrorism, as the unauthorized disclosure 18 of the information could reasonably be expected to cause serious damage to national 19 security. Doc. 92-6 at ¶¶ 2, 23. Hardy describes in detail the reasons for withholding 20 such information. Id. at ¶¶ 24-34. 21 Plaintiff argues that the information was improperly withheld under Exemption 1 22 because the FBI is attempting to hide violations of international law and Hardy failed to 23 establish that he received the proper training to continue to exercise his duties as an 24 original classification officer.21 25 26 27 28 21 Executive Order 13,526 provides (d): All original classification authorities must receive training in proper classification (including the avoidance of overclassification) and declassification as provided in this order - 48 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 49 of 55 1 Plaintiff’s speculation that the FBI is asserting Exemption 1 in an attempt to hide 2 violations of international law is speculative and conclusory. 3 speculation that Hardy has not received the proper classification training is speculative 4 and contradicts Hardy’s averments that he has original classification authority. 5 Accordingly, Plaintiff has failed to establish a disputed issue of material fact with respect 6 to Exemption 1 and the Court will grant Defendants’ Motion for Summary Judgment as 7 to Exemption 1 on the Harris Request. 8 iii. Likewise, Plaintiff’s Exemption 3 9 The FBI asserts that it properly withheld information relating to the Harris Request 10 relating to intelligence sources and methods the National Security Act of 1947, which is 11 protected under 5 U.S.C. §552(b)(3) (“Exemption 3”).22 The National Security Act of 12 1947 provides, in relevant part, that “[t]he Director of National Intelligence shall protect 13 intelligence sources and methods from unauthorized disclosure.” 50 U.S.C. § 3024(i)(1). 14 Hardy avers that the Director of National Intelligence reviewed the information exempted 15 16 and its implementing directives at least once a calendar year. . . .Original classification authorities who do not receive such mandatory training at least once within a calendar year shall have their classification authority suspended by the agency head or the senior agency official designated under section 5.4(d) of this order until such training has taken place. 17 18 19 20 21 22 23 24 25 26 27 28 Exec. Order No. 13,526, 75 Fed.Reg. at 709. 22 Exemption 3 exempts information: specifically exempted from disclosure by statute (other than section 552b of this title), if that statute-(A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph. 5 U.S.C.A. § 552(b)(3). - 49 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 50 of 55 1 under Exemption 3 and approved the FBI’s assertion of this statutory authority to 2 withhold intelligence sources and method information. (Doc. 92-6 at ¶ 37). 3 Plaintiff argues that Exemption 3 was improperly applied because the FBI fails to 4 explain how any given document contains intelligence sources and method information. 5 The FBI has adequately explained its application of Exemption 3. Accordingly, the 6 Court will grant Defendants’ Motion for Summary Judgment as to Exemption 3 on the 7 Harris Request. 8 iv. Exemption 4 9 The FBI asserts that it properly withheld information relating to the Harris Request 10 reflecting the identifies of telecommunications companies, wireless products group, cell 11 phone tracking devices, and satellite systems that had provided information to the FBI as 12 part of its national security and criminal investigations, which is protected under 5 U.S.C. 13 §552(b)(4) (“Exemption 4”).23 14 information would impair the government’s ability to obtain necessary information in the 15 future and could cause substantial harm to the competitive position of the person from 16 whom the information was obtained. (Doc. 92-6 at ¶ 40). Hardy avers that the disclosure of this commercial 17 Plaintiff argues that the FBI is relying on Exemption 4 to hide violations of the 18 law and FBI policy. Again, Plaintiff’s speculation that the FBI is asserting Exemption 4 19 in an attempt to hide violations of the law and FBI policy is speculative and conclusory. 20 Accordingly, Plaintiff has failed to establish a disputed issue of material fact with respect 21 to Exemption 4 and the Court will grant Defendants’ Motion for Summary Judgment as 22 to Exemption 4 on the Harris Request. 23 v. Exemption 5 24 The FBI asserts that it properly withheld information relating to the Harris Request 25 subject to the attorney-client privilege and the deliberative process privilege, which is 26 27 28 23 Exemption 4 exempts information regarding “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). - 50 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 51 of 55 1 protected under Exemption 5. Hardy explains the information withheld and the privilege 2 applied in his Declaration. (Doc. 92-6 at ¶¶ 43-66). 3 Plaintiff does not mention or otherwise opposed the application of Exemption 5. 4 Although Plaintiff states that he “contests all other FOIA exemptions claimed by 5 Defendants which are not otherwise specifically addressed in this brief,” (Doc. 114 at 6 15), this statement does not demonstrate a disputed issue of material fact necessary to 7 prevent summary judgment in favor of Defendants. Accordingly, the Court will grant 8 Defendants’ Motion for Summary Judgment as to Exemption 5 on the Harris Request. 9 vi. Exemption 7(E) 10 The FBI asserts that it properly withheld information under Exemption 7(E) 11 relating to the Harris Request containing (1) information related to the application of cell- 12 site simulator technology as a law enforcement technique and its associated procedures; 13 and (2) secure FBI e-mail addresses, faxes, telephone numbers and building/office 14 locations where the devices are developed and tested. 15 As to the first category, the FBI asserts that it withheld information including: (1) 16 the development of the technology as a law enforcement tool; (2) the facts and 17 circumstances relating to the employment or contemplated use of this technique; (3) 18 procedural matters associated with the use of this technique; (4) technical specifications; 19 (5) specific types of products that are utilized or may be utilized in the future; (5) 20 sensitive terms and definitions specific to the FBI relating to the application of these 21 devices in collecting data in current and/or potential future investigations; and (6) 22 information that would expose the scope, direction, level of cooperation, and expertise 23 related to the cell-site technology techniques and procedures. (Doc. 92-6 at ¶ 73). Hardy 24 asserts that “disclosure would provide a virtual playbook for criminal elements and 25 terrorists on how to identify, avoid, or evade detection efforts related to the use of this 26 technology.” Id. 27 As to the second category, the FBI asserts that its internal e-mail addresses, faxes, 28 phone numbers, and sensitive building/office locations relate to the internal practices of - 51 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 52 of 55 1 the FBI as they are utilized by FBI personnel during the performance of their jobs and 2 disclosure of the information could subject the individuals to hackers and unauthorized 3 users, who could disrupt official business and compromise the effectiveness of the 4 computer system. Id. at ¶ 74. 5 In Response, Plaintiff asserts that the FBI improperly relies on Exemption 7(E) to 6 withhold user manuals and other technical information relating to “cell phone spying 7 equipment manufactured by Harris” because detailed technical information about the 8 Harris devices is generally known the public and much of the information is already 9 preserved in the public records. 10 The FBI properly withheld information relating to its internal e-mail addresses, 11 faxes, phone numbers, and sensitive building/office locations because it has established a 12 rational nexus between its enforcement function and the information being withheld. 13 With regard to the remainder of the information being withheld under Exemption 14 7(E), the Court does not have adequate information from the Declaration of Hardy about 15 the documents withheld and the information withheld in particular documents. Because 16 the FBI has not provided the Court with a particularized explanation of why each 17 document falls within the claimed exemption, the FBI has failed to establish a rational 18 nexus between its law enforcement function and the information being withheld. 19 20 Accordingly, the Court will deny in part and grant in part Defendants’ Motion for Summary Judgment as to Exemption 7(E) on the Harris Request. 21 E. 22 Plaintiff moves for summary judgment on his claim that he was and still is entitled 23 to expedited processing of his FOIA requests and that the FBI acted arbitrarily and 24 capriciously in denying him expediting processing. Plaintiff asserts that he was entitled 25 to expedited processing under 5 U.S.C. §552(a)(6)(E)(i) because he demonstrated a 26 compelling need for the documents. 27 Expedited Processing The term “compelling need” means-- 28 - 52 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 53 of 55 (I) that a failure to obtain requested records on an expedited basis under this paragraph could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or 1 2 3 6 (II) with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity. 7 5 U.S.C.A. § 552 (a)(6)(E)(iv). In his FOIA requests, Plaintiff failed to demonstrate a 8 compelling need within the meaning of the statute and has failed to demonstrate that the 9 FBI acted arbitrarily and capriciously in denying him expediting processing. 10 Accordingly, Plaintiff’s Motion for Summary Judgment on the issue of expedited 11 processing is denied. 12 IT IS ORDERED: 4 5 13 14 15 (1) The reference to the Magistrate Judge is withdrawn as to the Parties’ motions for summary judgment (Doc. 84, 91). (2) Plaintiff’s Motion for Partial Summary Judgment (Doc. 84) is granted in 16 part and denied in part as follows: Plaintiff’s Motion for Partial Summary Judgment is 17 granted as to the issue of waiver of search fees for the Harris and EOUSA requests and 18 is denied in all other respects. 19 (3) Defendants’ Cross-Motion for Summary Judgment (Doc. 91) is granted in 20 part and denied in part as follows: Defendants’ Motion for Summary Judgment is 21 granted as to fee waiver pursuant to 5 U.S.C. §§ 552(a)(4)(A)(iii); Defendants’ Motion 22 for Summary Judgment is granted on the issue of waiver of duplication fees under 5 23 U.S.C. § 552(a)(4)(A)(viii); Defendants’ Motion for Summary Judgment is granted on 24 the issue of records in native digital format; Defendants’ Motion for Summary Judgment 25 is granted on the issue of metadata; Defendants’ Motion for Summary Judgment is 26 granted in part and denied in part as set forth herein on the issue of the adequacy of 27 the WSJ search; Defendants’ Motion for Summary Judgment is granted as to 28 Exemptions 5, 6, 7(C), and 7(E) on the WSJ Request; Defendants’ Motion for Summary - 53 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 54 of 55 1 Judgment is granted in part and denied in part as set forth herein as to the adequacy of 2 the search in response to the EOUSA Request; Defendants’ Motion for Summary 3 Judgment is granted as to Exemptions 5, 6, and 7(C) on the EOUSA Request; 4 Defendants’ Motion for Summary Judgment is denied as to Exemption 7(E) on the 5 EOUSA Request; Defendants’ Motion for Summary Judgment is granted in part and 6 denied in part as set forth herein as to the adequacy of the search in response to the 7 Harris Request; Defendants’ Motion for Summary Judgment is granted as to Exemptions 8 1, 3, 4, 5, 6, and 7(C) on the Harris Request; Defendants’ Motion for Summary Judgment 9 is granted in part and denied in part as to Exemption 7(E) of the Harris Request; 10 Defendants’ Motion for Summary Judgment is denied in all other respects. 11 (4) 12 the parties shall: 13 14 Because this Order does not resolve all of the issues in this FOIA action, (a) confer and attempt to resolve the outstanding issues in this case in light of the Court’s rulings; 15 (b) 16 what issues remain outstanding; 17 .... 18 .... 19 .... 20 .... 21 .... 22 .... 23 .... 24 .... 25 .... 26 .... 27 .... 28 .... if the Parties cannot resolve all issues, the Parties shall determine - 54 - Case 2:12-cv-01605-DLR-BSB Document 122 Filed 11/14/14 Page 55 of 55 1 (c) on or before December 15, 2014, the Parties shall file a joint status 2 report numerically listing each issue that remains outstanding (if either party argues that a 3 particular issue listed by the other party is not outstanding, the objecting party shall note 4 his position on that issue in the status report). After listing the issues, the parties shall 5 advise the Court how they propose to proceed to the resolution of this case. If the parties 6 propose another round of summary judgment motions, they must include a proposed 7 deadline for filing such motions in the status report. Such status report shall not be used 8 to re-argue or ask the Court to reconsider any of the issues decided in this Order. 9 Dated this 14th day of November, 2014. 10 11 12 13 14 Douglas L. Rayes United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 55 -