Title: Defendants' Reply To Their Supplemental Brief, And In Further Support Of Defendants' Motion For Summary Judgment

Document Date: 2014-05-19

Text: Case 1:12-cv-00127-BJR Document 37 Filed 05/19/14 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY
INFORMATION CENTER,

Plaintiff,

v.

US. DEPARTMENT OF JUSTICE
CRIMINAL DIVISION, et al.,

Defendants.

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) Civil Action No. 12-cv-00127 (BJR)

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DEFENDANTS’ REPLY TO THEIR SUPPLEMENTAL BRIEF, AND IN FURTHER
SUPPORT OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Case 1:12-cv-00127-BJR Document 37 Filed 05/19/14 Page 2 of 7

Defendants’ April 25, 2014 supplemental brief (Dkt. No. 33) provided an update to the
Court regarding the continued applicability of Exemption 7(A) to the withheld records in this
matter. Defendants — the Federal Bureau of Investigation (“FBI”), the Criminal Division
(“CRM”), and the National Security Division (“NSD”) of the Department of Justice — supported
their supplemental brief with three publicly-filed declarations, one from each of the defendant
components (Dkts. No. 33-1, 33-2, 33-3), and a fourth declaration (Dkt. No. 34-1) that was filed
contemporaneously with a motion to allow its under-seal filing (Dkt. No. 34). In addition to
updating the Court regarding defendants’ positions, these four declarations incorporated by
reference the six declarations submitted by defendants in January 2013 (see Dkts. No. 11, 12),
and provided further support for defendants’ pending (though administratively closed) motion
for summary judgment.

In response, plaintiff the Electronic Privacy Information Center (“EPIC”) filed a
supplemental opposition-brief that not only failed to rebut defendants’ declarations, but also
declined to discuss or even cite those declarations. (Dkt. No. 36).

Defendants have fully complied with their Freedom of Information Act obligations in this
matter. Defendants conducted a reasonable search, processed records, and determined that
Exemption 7(A) — along with Exemptions 1, 3, 5, 6, 7(C), 7(D), 7(E), and 7(F) — protect the
records from release. Defendants’ supplemental brief and declarations confirm the continued
applicability of Exemption 7(A) at this time by demonstrating that the withheld records were
compiled for law enforcement purposes, and that the release of these records could reasonably be
expected to cause articulable harm to an ongoing Department of Justice (“DOJ”) and FBI
criminal investigation and pending future prosecution. Accordingly, this Court should grant
defendants’ motion for summary judgment, and should deny plaintiff’s cross-motion for
summary judgment.

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Case 1:12-cv-00127-BJR Document 37 Filed 05/19/14 Page 3 of 7

1. Plaintiff Continues to Argue About Documents That Do Not Exist

Plaintiff asserts in its supplemental opposition-brief that “many of the documents at issue

are not law enforcement records” and instead are “records detailing government surveillance of

individuals engaged in legitimate First Amendment activities.” Pl. Supp. Br. 3. While plaintiff

may have hoped to receive such records when it first submitted its FOIA requests, defendants

made clear in their motion for summary judgment and subsequent filings that such records do not

exist. For example, the First Hardy Declaration states:

The FBI is not investigating individuals who simply support or have an interest in
WikiLeaks. However, reading Plaintiff’s request broadly, the FBI concluded that
records concerning its investigation of the disclosure of classified information that
was published on the WikiLeaks website would be responsive to Plaintiff’s
request. The FBI does not, however, maintain lists of individuals who have
demonstrated support for or interest in WikiLeaks, and thus has no records
responsive to this portion of Plaintiff’s request.

First Hardy Decl. ^ 19 n.3. Defendants have repeatedly explained that all of the records they are
withholding are law enforcement records. See, e.g., id. ^ 19; First Bradley Decl. ^ 12-13; First
Cunningham Decl. ^ 12; Defs.’ Mot. 9-10; Defs.’ Reply 7-9. Most recently, defendants observed
that while they had “generously interpreted plaintiff’s FOIA requests” when processing those
requests, they had come to believe — following the at least partial clarification of the requests
provided by plaintiff in its summary judgment briefing — that “many, if not most or even all, of
the records processed ... may have actually been non-responsive to plaintiff’s requests.” Defs.’
Supp. Br. 2.

EPIC provides no basis, other than its own assumptions and suppositions, for its assertion
that the records at issue “are not law enforcement records.” The Court should decline to credit
this pronouncement. The records here concern the government’s criminal investigation into the
unauthorized disclosure of classified information that was published on the WikiLeaks website.
As defendants previously noted, “[t]he starting point for the Court’s review of the withholdings
should ... be Defendants’ description of the responsive materials (supported by the terms of the

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Case 1:12-cv-00127-BJR Document 37 Filed 05/19/14 Page 4 of 7

actual requests) rather than EPIC’s unsupported assumptions about the focus of an investigation
with which it lacks familiarity.” Defs.’ Reply 6.

2. Plaintiff Admits That Defendants Used the Correct Standard to Withhold
Records Pursuant to Exemption 7(A)

In its supplemental opposition-brief, EPIC concedes that the “government can meet its
burden [under Exemption 7(A)] by demonstrating that release of the requested information
would reveal the size, scope and direction of [the] investigation.” Pl’s Supp. Br. 4. That is
exactly the standard that defendants have used. EPIC provides a two-sentence argument
contending that the government has not met this burden, see id. 4-5, but plaintiffs conclusory
argument fails.

Through the ten declarations defendants have submitted in this case, defendants have
more than met their burden of demonstrating that the withheld records would reveal the size,
scope, and direction of the DOJ’s and FBI’s pending criminal investigation. See First Hardy
Decl. ^ 25-38; First Bradley Decl. ^ 14-16; First Cunningham Decl. ^ 14-19; Second Hardy
Decl. ^ 9-11; Second Bradley Decl. ^ 7-9; Second Cunningham Decl. ^ 8-9; Third Hardy
Decl. ^ 8-9; Third Bradley Decl. ^ 4; Third Cunningham Decl. ^ 5; Fourth Hardy Decl. ^ 7-8.
Defendants have properly applied Exemption 7(A), and the Court should uphold their
withholdings.

3. Events That Transpired During the Past Year Which Are Cited By EPIC Do Not
Diminish the Valid Reasons for Continued Applicability of Exemption 7(A)

In their supplemental brief, defendants described several events that have transpired
during the past year, the chief of which was that the “DOJ’s and FBI’s criminal investigation of
unauthorized disclosures to Wikileaks [remained and] remains open and pending.” Defs.’ Supp.
Br. 6. Defendants explained that the fact that a related, military law-enforcement proceeding —
the military investigation and court-martial of Chelsea Manning — had proceeded to the

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Case 1:12-cv-00127-BJR Document 37 Filed 05/19/14 Page 5 of 7

appellate stage did not change defendants’ reliance on Exemption 7(A) to protect the civilian,
criminal investigation (and prospective prosecution) being undertaken by DOJ and FBI. All
three defendant-components confirmed that “no materials can be released at this time without
jeopardizing the DOJ’s pending or prospective civilian enforcement proceedings, for the reasons
discussed in the declarations submitted in connection with defendant’s motion for summary
judgment.” Defs.’ Supp. Br. 9 (citing declarations).

In response, EPIC’s supplemental opposition-brief focuses on two groups of events that
have transpired during the past year which EPIC contends are relevant: (1) “Developments
Related to Wikileaks and Wikileaks Supporters,” and (2) “Revelations Regarding Previously
Secret [NSA] Law Enforcement Collection Methods.” Pl.’s Supp. Br. 5, 8. With respect to the
first group of events — developments related to Wikileaks — defendants have already addressed
these developments and have explained why Exemption 7(A) continues to apply. See Defs.’

Supp. Br. 7-10.1 * * 4 EPIC wrongly contends that Citizens for Responsibility & Ethics in
Washington v. U.S. Department of Justice, No. 12-5223, 2014 WL 1284811 (D.C. Cir. Apr. 1,
2014) requires a different conclusion. The FOIA request in that case specifically sought material
related to the FBI’s and DOJ’s investigation of a named person, Tom Delay. The Court held that
Exemption 7(A) could not continue to provide blanket protection over certain records after the
Department of Justice had decided, and announced, that it would not bring criminal charges
against Mr. Delay. The Court of Appeals found that the government’s “vague” reference to
peripheral “related” investigations did not establish with certainty “whether a criminal

1 Plaintiff also describes the “public release” of “several documents” that plaintiff contends

are responsive to EPIC’s FOIA request. Plaintiff does not explain why it thinks that any released

documents were in defendants’ possession and responsive to the requests at issue. Plaintiff
names two individuals, Smari McCarthy and Herbert Snorrason, but these two individuals were
not among the list of names previously provided by EPIC to the Criminal Division when EPIC
clarified the scope of its request. See Dkt. 12-4 at 76-77.

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Case 1:12-cv-00127-BJR Document 37 Filed 05/19/14 Page 6 of 7

investigation in fact continues to this day.” Id. at *10. Here, on the other hand, defendants have
been very clear that main, multi-subject, criminal investigation of the DOJ and FBI remains open
and pending. The fact that a related military investigation may have proceeded to the appellate
stage does not undercut the need to withhold law enforcement records related to this civilian
investigation.2

As to the second group of events identified by plaintiff — revelations related to the
National Security Agency’s practices — plaintiff has failed to explain its relevance. The FOIA
requests here were submitted to three DOJ components — FBI, CRM, and NSD — and the
records at issue in this case relate to a DOJ and FBI investigation, not an NSA intelligence
collection program. Moreover, plaintiff cannot rely on leaked materials and public reports as if
they were official governmental disclosures. See, e.g., Fitzgibbon v. CIA, 911 F.2d 755, 765
(D.C. Cir. 1990) (distinguishing between information that is “publicly available” and information
that is “officially acknowledged”). These events do not undermine the current applicability of
Exemption 7(A) to the records at issue.

CONCLUSION

For the reasons stated above, and those stated in defendants’ earlier briefing on summary
judgment, the Court should grant defendants’ summary judgment motion, and should enter final
judgment for defendants.

Dated: May 19, 2014 Respectfully submitted,

STUART F. DELERY
Assistant Attorney General

ELIZABETH J. SHAPIRO
Deputy Branch Director

2 And, as defendants have previously explained, Exemption 7(A) may continue to apply even
when a law enforcement proceeding reaches the appellate stage. See Defs.’ Supp. Br. 9.

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Case 1:12-cv-00127-BJR Document 37 Filed 05/19/14 Page 7 of 7

/£/ Lisa Zeldyier Marcus_________

LISA ZEIDNER MARCUS
Trial Attorney

(N.Y. Bar Registration No. 4461679)

United States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Avenue, N.W.

Washington, D.C. 20530

Telephone: (202) 514-3336

Fax: (202) 616-8470

Email: lisa.marcus@usdoj.gov

Counsel for Defendants

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