Title: Defendants' Reply In Support Of Thier Motion For Leave To File Ex Parte And In Camera A Supplemental Declaration Concerning Withholding Of Investigative Records

Document Date: 2014-05-19

Text: Case 1:12-cv-00127-BJR Document 38 Filed 05/19/14 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)

ELECTRONIC PRIVACY )

INFORMATION CENTER, )

)

Plaintiff, )

)

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

)

US. DEPARTMENT OF JUSTICE )

CRIMINAL DIVISION, et al., )

)

Defendants. )

_____________________________________ )

DEFENDANTS’ REPLY IN SUPPORT OF THIER MOTION FOR LEAVE TO FILE
EX PARTE AND IN CAMERA A SUPPLEMENTAL DECLARATION
CONCERNING WITHHOLDING OF INVESTIGATIVE RECORDS

Defendants the Federal Bureau of Investigation (“FBI”), the Criminal Division (“CRM”),
and the National Security Division (“NSD”) (collectively, “defendants”) submit this reply
memorandum in further support of their motion for leave to file a supplemental declaration under
seal, ex parte and in camera, in connection with their April 25, 2104 supplemental brief.

Background

On March 11, 2014, this Court issued a Minute Order directing defendants to provide an
update regarding their positions on plaintiff’s FOIA requests, and, specifically, whether the
government continues to rely on Freedom of Information Act (“FOIA”) Exemption 7(A) to
withhold records in this case. Defendants filed their supplemental brief on April 25, 2014. In
support of that supplemental brief, and in further support of their pending (though
administratively closed) motion for summary judgment, defendants submitted three publicly-
filed declarations, one from each of the defendant components (Dkts. No. 33-1, 33-2, 33-3).
Defendants’ public declarations included all of the information that defendants could provide on

Case 1:12-cv-00127-BJR Document 38 Filed 05/19/14 Page 2 of 4

the public docket without revealing the very information they seek to protect through enumerated
FOIA exemptions, and in particular Exemption 7(A). In order to provide a full update to the
Court, defendants also sought leave to file a supplemental, ex parte and in camera declaration.
Dkt. No. 34. Defendants followed the Court’s instructions for submitting an under-seal filing.

See Defs.’ Certificate of Service, Dkt. No. 34 at 4 (describing the steps taken by defendants’
counsel to file defendants’ motion and the sealed document).

Plaintiff opposed defendants’ motion (Dkt. No. 35), and defendants now submit this

reply.

Discussion

It is well-established that federal agencies may utilize any one of a number of options in
order to sustain their evidentiary burden of proving that withheld information falls within a FOIA
exemption. See, e.g., Gallant v N.L.R.B., 26 F.3d 168, 172 (D.C. Cir. 1994) (noting that an
agency’s evidence may take “the form of an in camera review of the actual documents,
something labeled a ‘Vaughn Index,’ a detailed affidavit, or oral testimony”). In this case,
defendants rely on ten declarations submitted in connection with their motion for summary
judgment and supplemental brief, six of which were filed publicly, and four of which were filed
under seal (along with motions for leave to file) for in camera review. See Defs.’ Supp. Br. 5
(updated chart of declarations supporting defendants’ motion for summary judgment).

The use of ex parte affidavits is appropriate because sometimes it is not possible for the
Government to fully detail the basis for its withholdings on the public record. See, e.g., Arieff v
U.S. Dep’t of Navy, 712 F.2d 1462, 1469 (D.C. Cir. 1983) (explaining that in camera affidavits
are, “when necessary, part of a trial judge’s procedural arsenal”). While “in camera declarations
should be avoided unless truly necessary, where, as here, an agency indicates that no additional
information concerning an investigation may be publicly disclosed without revealing precisely

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the information that the agency seeks to withhold, the receipt of in camera declarations is
appropriate.” Barnard v. Dep’t of Homeland Sec., 598 F. Supp. 2d 1, 16 (D.D.C. 2009). Courts
in this district allow the government to submit ex parte, in camera declarations where doing so
provides necessary information that cannot be revealed on the public record. See, e.g., Pub.
Citizen Health Res. Group v. Dep’t of Labor, 591 F.2d 808, 809 (D.C. Cir. 1978) (ruling that
district court should not have refused to examine affidavit proffered in camera because affidavit
was “the only matter available . . . that would have enabled [the court] to properly decide de
novo the propriety of’ the agency’s exemption claim); Phillippi v. CIA, 546 F.2d 1009,

1013 (D.C. Cir. 1976) (requiring “as complete a public record as is possible” before examining
classified affidavits in camera); Jarvik v. CIA, 741 F. Supp. 2d 106, 111-13 (D.D.C. 2010)
(permitting agency leave to file in camera declaration where court “cannot meaningfully review
the defendant’s actions based on the current public record and the [agency] cannot provide
further information on the public record” due to national security concerns); Pub. Citizen v.
Dep’t of State, 100 F. Supp. 2d 10, 27 (D.D.C. 2000) (explaining that “[w]hile . . . in camera
declarations are disfavored as a first line of defense,” the agency had already submitted “three
public declarations” amounting to a “threshold showing on the public record”), aff’d in
pertinent part & rev’d in part on other grounds, 276 F.3d 674 (D.C. Cir. 2002).

Plaintiff argues that “the government has not shown the Court that it has met this
Circuit’s standard for filing ex parte and in camera evidence.” Pl. Opp. 3, 4-5. But defendants’
motion did demonstrate why the in camera submission was necessary — because defendants’
public declarations had already discussed all details that could be said on the public record, and
defendants had additional, necessary, law-enforcement sensitive information to explain to the
Court the current applicability of Exemption 7(A) and justify defendants’ withholdings. Defs.’
Mot. 1-2. Moreover, the proposed ex parte, in camera declaration itself indicates that it contains

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non-public, law-enforcement sensitive information. See Fourth Hardy Decl. ^ 6-7. And it is
evident that defendants segregated as much information as could be said publicly and included
that information on the public record. Thus, defendants have met the Circuit’s standard for filing
an ex parte, in camera declaration. See Barnard, 598 F. Supp. 2d at 16.

Conclusion

Defendants’ appropriately submitted an ex parte, in camera, supplemental declaration

containing necessary updates that cannot be revealed publicly without harming the DOJ’s and

FBI’s pending criminal investigation. The Court should permit the under seal filing, and should

consider defendants’ supplemental in camera declaration.

Dated: May 19, 2014 Respectfully submitted,

STUART F. DELERY
Assistant Attorney General

ELIZABETH J. SHAPIRO
Deputy Branch Director

/s/ Lisa Zeidner 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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