Title: WikiLeaks Memoradum Opinion

Document Date: 2015-03-04

Text: Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 1 of 22

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY
INFORMATION CENTER,

Plaintiff,

Civil Action No. 12-127 (BJR)

v.

MEMORANDUM OPINION

DEPARTMENT OF JUSTICE CRIMINAL
DIVISION, et al.

Defendants.

Granting in part & Denying in Part Defendants’ Motion for Summary Judgment;
Granting in part & Denying in Part Plaintiff’s Motion for Summary Judgment

I. INTRODUCTION

This matter is before the Court on the parties’ cross-motions for summary judgment and
Plaintiffs motion for in camera review of the Defendants’ withheld records. Dkt. Nos. 12, 15,
17, 34. Plaintiff Electronic Privacy Information Center (“EPIC”) submitted a Freedom of
Information Act (“FOIA”) request seeking documents related to the Government’s investigation
into WikiLeaks, an “Internet-based media organization” famous for releasing classified
information to the public. EPIC now brings suit against the Federal Bureau of Investigations
(“FBI”), the Department of Justice’s National Security Division (“NSD”), and the Department of
Justice’s Criminal Division (“CRM”) (collectively, “Defendants,” “the agencies,” or “the
Government”). The Court grants summary judgment in favor of FBI and CRM because these
agencies have demonstrated that they conducted adequate searches and properly withheld any
responsive documents pursuant to FOIA Exemption 7. However, because NSD fails to

1

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 2 of 22

demonstrate that its search was adequate, the Court denies NSD’s motion for summary judgment
and grants Plaintiffs Cross-Motion in this regard.

II. BACKGROUND

On November 28, 2010, WikiLeaks published numerous classified United States
government documents that had been provided to it by Private Bradley Manning. The
Department of Justice immediately initiated an investigation into the possible unauthorized
released of classified information. Compl. ^ 15-16; Defs.’ Mot. at.

As part of its investigation, the Government sought and obtained a court order compelling
the social networking website, Twitter, to disclose customer account information for five
individuals, including Manning, WikiLeaks spokesperson, Jacob Appelbaum, and WikiLeak’s
founder, Julian Assange. See United States v. Appelbaum, 707 F.3d 283, 287 (4th Cir. 2013).
Plaintiff suspects that other online services were served with similar court orders requesting
information on WikiLeaks supporters. Def’s Mot., Ex. 1A at 3. Plaintiff also claims that “the
government began to target members, supporters, and associates of WikiLeaks and WikiLeaks’
sources.” In support for this claim, Plaintiff points to news articles on the FBI’s questioning of
Abbelbaum and David House, the creator of a website that supports Manning. Pl.’s Opp’n at 4.

On June 23, 2011, EPIC filed FOIA requests with each of the Defendants, seeking
records related to the Government’s investigation into WikiLeaks. Pl.’s Cross-Mot., Dkt. 15 at
5; Compl., Dkt. 1 at ^ 30-32. Specifically, EPIC’s requested four categories of records:

1. All records regarding any individuals targeted for surveillance for support for or interest
in WikiLeaks;

2. All records regarding lists of names of individuals who have demonstrated support for or
interest in WikiLeaks; 3

3. All records of any agency communications with Internet and social media companies
including, but not limited to Facebook and Google, regarding lists of individuals who

2

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 3 of 22

have demonstrated, through advocacy or other means, support for or interest in
WikiLeaks; and

4. All records of any agency communications with financial services companies including,
but not limited to Visa, MasterCard, and PayPal, regarding lists of individuals who have
demonstrated, through monetary donations or other means, support or interest in
WikiLeaks.

Defs.’ Mot., Exs. 1A, 3-1, 5-1.

Each of the agencies responded to EPIC’s FOIA requests separately. CRM requested
more specification on the subject matter and time frame of desired records. Defs.’ Mot. Summ.

J. Ex 5, App. 2. After receiving clarification, CRM responded that it had not yet conducted a
search but that any responsive records would not be disclosed pursuant to Exemptions 6 and 7(c).
Id., Ex. 5, App. 4. Meanwhile, NSD responded that it was withholding responsive records
pursuant to Exemption 7(a). Id., Ex. 3-2.

Lastly, FBI stated that it had searched “the indices to [its] Central Records System” using
the term WikiLeaks and was “unable to identify responsive main file records.” Id., Ex. 1B
(internal quotation marks omitted). In a subsequent search of its Central Records System
(“CRS”), the FBI identified “investigative files that likely contain information responsive to
[Plaintiff’s FOIA request.” Id., Ex. 1 (“1st Hardy Decl.”) ^ 19.1 The FBI withheld these
potentially responsive records pursuant to Exemption 7(A). Id. ^ 20.

Unsatisfied with the agencies’ responses, EPIC filed this lawsuit, seeking review of the
adequacy of the FBI and NSD’s searches and each of the agency’s decision to withhold the
responsive documents. See generally Compl. The parties filed cross-motions for summary
judgment. Dkt. Nos. 12, 15. In support of its motion, Defendants filed public and ex parte

1 David M. Hardy is the Section Chief of the Record/Information Dissemination Section, Records
Management Division at the FBI. 1st Hardy Decl. | 1.

3

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 4 of 22

affidavits from each of the relevant agencies. See Order (July 29, 2014) (granting Defendant’s
motion for leave to file ex parte declarations).

At this juncture, Defendants maintain that all of the responsive documents are protected
from disclosure by Exemption 7(A), although additional exemptions may also apply. Defs’

Mot. at 1; Defs’ Supp’l at 14. Plaintiff insists that Exemption 7(A) cannot apply because it is
“not generally seeking records about individuals who may be the target of criminal
investigations, [but rather] it is seeking records about individuals who are exercising their
Constitution rights,” by supporting WikiLeaks. Pl.’s Cross-Mot. at 1. Plaintiff has also moved
for in camera review of the withheld records. Dkt. No. 17.

After this case was transferred to the undersigned, the Court instructed the parties to file
supplemental briefing to shed light on any relevant events that had transpired since the filing of
the parties’ cross-motions for summary judgment. The Defendants report that on July 2013
Manning was convicted in the military court and his appeal is pending. Defs’ Supp’l at 8.
Defendants note that Manning’s prosecution is separate and distinct from the Department of
Justice and FBI’s multi-subject investigation into the unauthorized disclosure of classified
information published on WikiLeaks, which is “still active and ongoing” and remains in the
investigative stage. Defs’ Supp’l Br. at 8.

The Court turns now to consider the parties’ specific arguments and the applicable legal
standards.

III. LEGAL STANDARD

FOIA was intended by Congress to make governmental records generally available to any
person, on request, unless specifically exempted by the Act itself. Vaughn v. Rosen, 484 F.2d

2 Defendants also rely on Exemptions 1, 3, 5, 6, 7(C), 7(D), 7(E), and 7(F). The Court, finding that
Exemption 7(A) applies, does not discuss whether these alternative exemptions may apply.

4

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 5 of 22

820, 823 (D.C. Cir. 1973). “FOIA represents a balance struck by Congress between the public’s
right to know and the government’s legitimate interest in keeping certain information
confidential.” Ctr. for Nat. Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir.
2003) (citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)). The nine
exemptions the Government may invoke to justify a refusal to produce records must be
“construed narrowly,” to “provide the maximum access consonant with the overall purpose of
the Act.” Vaughn, 484 F.2d at 823.

Most FOIA cases can be resolved on summary judgment. See Brayton v. Office of the
U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment is granted
when there is no genuine dispute as to any material fact, and the movant is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In
a FOIA case, an agency is entitled to summary judgment if it can demonstrate that there are no
material facts in dispute as to the adequacy of its search for or production of responsive records.
Nat’l Whistleblower Ctr. v. U.S. Dep’t of Health & Human Servs., 849 F. Supp. 2d 13, 21-22
(D.D.C. 2012).

Where a plaintiff challenges an agency’s withholding, “the burden is on [the agency] to
establish [its] right to withhold information from the public . . . .” Coastal States Gas Corp. v.
Dep't of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980). An agency can rely on sufficiently detailed
declarations or affidavits, a Vaughn index, or both to establish that a withholding is proper. See
Bigwood, 484 F. Supp. 2d at 74. Declarations must (1) “describe the documents and the
justifications for nondisclosure with reasonably specific detail,” (2) “demonstrate that the
information withheld logically falls within the claimed exemption,” and (3) “are not controverted
by either contrary evidence in the record nor by evidence of agency bad faith.” Elect. Privacy

5

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 6 of 22

Info. Ctr., 384 F. Supp. 2d at 106 (quoting Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981). An agency “is not required to provide so much detail that the exempt material
would be effectively disclosed.” Johnson v. Executive Office for U.S. Attorneys, 310 F.3d 771,
776 (D.C. Cir. 2002) (citing Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 261
(D.C. Cir. 1977)).

IV. ANALYSIS

A. Adequacy of Search

Plaintiff challenges the adequacy of the NSD’s and FBI’s respective searches. Where a
plaintiff challenges the adequacy of a search under FOIA, the agency “must show beyond
material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant
documents.” Weisberg v. United States Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983).
To demonstrate the adequacy of the search, an agency may rely solely on “a reasonably detailed
affidavit [or declaration], setting forth the search terms and the type of search performed, and
averring that all files likely to contain responsive materials (if such records exist) were
searched.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (quoting
Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). Courts give substantial
weight to an agency’s affidavits, and the presumption of good faith accorded to such affidavits
“cannot be rebutted by purely speculative claims about the existence and discoverability of other
documents.” Nat’l Whistleblower Ctr. v. Dep't of Health & Human Servs., 849 F. Supp. 2d at 22
(quoting SafeCard Servs. Inc. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991))
(internal quotation marks omitted).

1. NSD Has Failed to Demonstrate an Adequate Search
Upon receiving Plaintiff’s request, NSD FOIA personnel determined that the
Counterespionage Unit (CES) was likely to have responsive records. Def.’s Mot., Ex. 3 (1st

6

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 7 of 22

3

Bradley Decl.) ^ 9. CES stated that there was an “ongoing criminal investigation relating to
WikiLeaks and [the] unauthorized disclosure of classified information.” Id. The lead CES
attorney on this investigation indicated that the only place where any potentially responsive
documents would reasonably be contained was in his/her electronic files, and that files in other
locations would merely be duplicative of responsive records found in his/her files. Id. NSD
FOIA personnel was given access to the lead attorney’s files and reviewed them before
determining that “all responsive files are part of a pending criminal investigation and are
therefore exempt from disclosure pursuant to FOIA Exemption []7(A).” Bradley 1st Decl. ^ 10.

EPIC contends that NSD’s search is lacking because the agency “does not explain how
[it] determined which components to search,” or why all responsive records found outside of the
lead attorney’s files would be duplicative, “or the terms used, if any, to search electronic files.”
Pl.’s Cross-Mot. at 20-21. In response, NSD rehashes the aforementioned steps taken by NSD to
locate responsive records, concluding that the “search was sufficiently comprehensive.” Defs.’
Mot. Summ. J. at 8. NSD claims it provided details regarding how it conducted its search in its
ex parte declaration because “disclosure would itself compromise the investigation.” 4 Id.

The Court agrees that NSD has failed to provide evidence of an adequate search. Despite
NSD’s assertion, its ex parte declaration fails to provide any further explanation regarding how
its search was conducted.5 See Bradley 2d Decl. ^ 4. Such an explanation is especially

3 Mark A. Bradley is the director of the FOIA and Declassification Unit of the Office of Law and
Policy for the NSD. Bradley 1st Decl. | 1.

Ex. 4.

Bradley submitted an ex parte declaration in addition to his public declaration. See Def.’s Mot.,

5 Instead of explaining how its search was conducted, NSD’s ex parte declaration focuses on the
fruits of its search. See Bradley 2d Decl. | 4. However, the adequacy of a FOIA search is not determined
by the fruits of the search, but by the appropriateness of the methods used to carry out the search.
Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (citing Steinberg v. Dep't of
Justice, 23 F.3d 548, 551 (D.C. Cir. 1994)).

4

7

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 8 of 22

warranted given that NSD limited its search to only one employee’s files. NSD’s reason for
limiting its search to this one employee’s files was that “[n]o other locations within NSD area
[were] reasonably likely to have responsive records that are not duplicated in the electronic files
of the lead attorney.” Bradley 1st Decl. ^ 9. However, this conclusion is based solely on the
lead attorney’s representations, and it is not obvious why the lead attorney would know the
contents of all the responsive records so as to affirm that they are duplicative of his files or,
conversely, that his files are duplicative of all other files.

Moreover, it does not appear that NSD used any search terms to search its records, or, if
it did, NSD does not provide these search terms to the Court. See Valencia-Lucena, 180 F.3d at
326 (explaining that a reasonably detailed affidavit should set forth the search terms used by the
agency). This is especially troubling given the specificity of EPIC’s request, which expressly
included the names of people and companies it sought information about. See Meeropol v.
Meese, 790 F.2d 942, 956 (D.C. Cir. 1986) (stating that courts should measure the adequacy of a
search by “the reasonableness of the effort in light of the specific request”).

The Court finds that NSD’s affidavit does not provide sufficient details to support an
adequate search. Any future search must “reflect a systematic approach to document location.”
See Oglesby, 920 F.2d at 68 (“A reasonably detailed affidavit, setting forth the search terms and
the type of search performed, and averring that all files likely to contain responsive materials (if
such records exist) were searched, is necessary to afford a FOIA requester an opportunity to
challenge the adequacy of the search and to allow the district court to determine if the search was
adequate in order to grant summary judgment.”); McGehee v. Cent. Intelligence Agency, 697
F.2d 1095, 1102 (D.C. Cir. 1983) (indicating that a agency’s affidavit should “describe[] its
search procedures and explain[] why a more thorough investigation would have been unduly

8

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 9 of 22

burdensome”). Accordingly, the Court grants Plaintiff’s motion insofar as it challenges the
adequacy of NSD’s search.6

2. FBI’s Search was Adequate

FBI searched its Central Record System (“CRS”) - the main database used by the FBI to
organize its files - using the search term “WikiLeaks.” 1st Hardy Decl. ^ 19. Generally, the
CRS may be searched by inserting a key word and locating it among the main subject files, or
one can perform a cross-reference search that locates any subject file merely mentioning the key
term, regardless of whether or not the title of that file includes that term. Id. ^ 12.

The FBI’s initial CRS searched only the main subject files for the term “WikiLeaks.” Id.

^ 18. After this search proved unsuccessful, the FBI conducted a cross-reference search and
found a file that contained the term WikiLeaks. Id. ^ 19. The FBI contacted the case agents
associated with this file and asked them whether their files contained information responsive to
EPIC’s FOIA request. Specifically, the FBI inquired about “all records regarding any individual
targeted for surveillance for support for or interest in WikiLeaks,” any “lists of names of
individuals who have supported or shown interest in WikiLeaks,” as well as any
“communications with internet, social media, and financial services companies regarding ‘lists of
individuals who have demonstrated ... support for or interest in WikiLeaks.’” Id. ^ 19. After
consultations with the case agents, “the FBI identified investigative files that likely contain
information responsive to [EPIC’s] FOIA request.” Id. The FBI clarifies that it is not
investigating individuals who “simply support or have an interest in WikiLeaks,” and that it does
not “maintain lists or individuals who have demonstrated support for or interest in WikiLeaks.”

6 The Court will not consider whether exemptions apply to NSD until an adequate search is
conducted.

9

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 10 of 22

Nevertheless, the FBI interpreted “Plaintiff’s request broadly,” and “concluded that records
concerning its investigation of the disclosure of the classified information that was published on
the WikiLeaks website would be responsive to Plaintiff’s request.” Hardy 1st Decl. n.3.

Plaintiff now argues that FBI failed to follow through on “obvious leads to discover
requested documents” because it only used one search term, WikiLeaks. Pl.s’ Cross-Mot.

Summ. J. at 22. FBI responds that while it began its search using the term WikiLeaks, it
“broadened its search by using the information obtained to contact particular case agents and
identify additional investigative files that likely contained responsive information.” Def’s Mot.
at

The Court finds that FBI’s search for responsive records was adequate. The FBI used the
key term WikiLeaks to search its CRS, but its search efforts did not cease there. The FBI then
used the results of the CRS search to locate the case agents working with potentially responsive
material. The Court deems that this strategy was especially reasonable given that the term
WikiLeaks is repeatedly stated in Plaintiff’s FOIA request when describing each group of
requested documents. See Defs.’ Mot. Summ. J., Exs. 1A, 3-1, 5-1. Once identifying the case
agents, the FBI requested that these case agents review their files for further responsive
documents, specifically referring to the language in Plaintiff’s FOIA request. The Court finds
that the FBI’s use of the term WikiLeaks at the initial stages of the search was reasonable in light
of the Plaintiff’s own consistent use of term when drafting its FOIA request, as well as the FBI’s
later search efforts with its case agents that went beyond the term WikiLeaks.

10

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 11 of 22

B. FBI & CRM Properly Withheld Responsive Documents Pursuant to FOIA
Exemption 7(A)

1. Exemption 7 Threshold: Were the Records “Compiled for Law
Enforcement Purposes”?

Plaintiff acknowledges “that a portion of the responsive records relate to legitimate law
enforcement investigations,” and are therefore properly withheld under Exemption 7(A). Pl.’s
Cross-Mot. at 11. Nevertheless, Plaintiff argues that its FOIA requests also encompass “the
targeting of individuals engaged in lawful First Amendment activities for which no legitimate
law enforcement purpose exists.” Pl.’s Reply at 4; see also Pl.’s Cross-Mot. at 10-13. In other
words, Plaintiff believes that WikiLeaks supporters are being targeted illegally, given that
“[t]here is no criminal conduct, no security risk or violation of federal law, and no law violators
to prosecute.” Pl.’s Cross Mot. at 14. Plaintiff points to the surveillance of Jacob Appelbaum
and David House to support the likely existence of records that have “no legitimate law
enforcement purpose.” Pl.’s Reply at 4.

Defendants respond that the Plaintiff is “argu[ing] about documents that do not exist.”
Defs.’ Supp’l Reply at 2. Defendants explain that their search has not produced documents
responsive to Plaintiff’s requests because there are no surveillance records for individuals who
“simply support” or have interest in WikiLeaks. Id. According to Defendants, “all of the

House brought a law suit against various government entities, claiming that the government had
conducted an unreasonable search and seizure when he was stopped at the border and a search of his
laptop was conducted. Pl.’s Opp’n at 14 (citing House v. Napolitano, 2012 U.S. Dist. Lexis 42297, No.
11-10852 (D. Mass. March 28, 2012)). The District Court of Massachusetts denied the government’s
motion to dismiss House’s lawsuit. In its brief, Plaintiff provides an excerpt from the District Court of
Massachusetts’s opinion which sets forth the factual allegations surrounding the search as House
described them in his complaint. The Court finds this recitation of facts unhelpful, given that the District
Court of Massachusetts was not making any findings and was required to accept House’s allegations as
true at the motion to dismiss stage. Nor did the House v. Napolitano lawsuit reach the procedural stage
where any findings of fact were made, and instead, in May 2013, House filed a stipulation of dismissal
with prejudice. Dkt. No. 33-6.

11

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 12 of 22

records they are withholding are law enforcement records,” notwithstanding Plaintiff’s

“assumptions and suppositions” to the contrary. Id.

An agency withholding records pursuant to Exemption 7 must demonstrate, as a

threshold matter, that its withheld records were “compiled for law enforcement purposes.” Pratt

v. Webster, 673 F.2d 408, 416 (D.C. Cir. 1982). But when an agency “specializes in law

enforcement, its decision to invoke [E]xemption 7 is entitled to deference.” Campbell v. DOJ,

164 F.3d 20, 32 (D.C. Cir. 1998). Specifically, the D.C. Circuit has recognized that

an agency whose principal mission is criminal law enforcement will more often
than not satisfy the Exemption 7 threshold criterion. Thus, a court can accept less
exacting proof from such an agency that the purpose underlying disputed
documents is law enforcement. This less exacting judicial scrutiny of a criminal
law enforcement agency’s purpose in the context of the FOIA Exemption 7
threshold is further bolstered by Congress’ concern that inadvertent disclosure of
criminal investigations, information sources, or enforcement techniques might
cause serious harm to the legitimate interests of law enforcement agencies.

Id. at 418.

In line with this more deferential approach, the D.C. Circuit set forth “two critical
conditions that must be met for a law enforcement agency to pass the Exemption 7 threshold.”
Pratt v. Webster, 673 F.2d at 420. “First, the agency’s investigatory activities that give rise to
the documents sought must be related to the enforcement of federal laws or to the maintenance of
national security.” Id. To demonstrate this “nexus” requirement, the agency must identify “a
particular individual or a particular incident as the object of its investigation and the connection
between that individual or incident and a possible security risk or violation of federal law.” Id.
The existence of a possible security risk or violation of federal law establishes that an agency
acted “within its principal function of law enforcement, rather than merely engaging in a general
monitoring of private individuals’ activities.” Id.

12

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 13 of 22

Second, “the nexus between the investigation and one of the agency’s law enforcement
duties must be based on information sufficient to support at least ‘a colorable claim’ of its
rationality.” Id. at 421. In other words, “the agency’s basis for the claimed connection between
the object of the investigation and the asserted law enforcement duty cannot be pretextual or
wholly unbelievable.” Id. In sum, an agency’s declarations filed in support of Exemption 7(A)
must provide facts that “establish a rational ‘nexus’ between the investigation and one of the
agency’s law enforcement duties, and a connection between an individual or incident and a
possible security risk or violation of federal law.” Campbell, 164 F.3d at 24-25.

The documents generated in the course of investigating the unauthorized release of
classified material on the WikiLeaks website were quite obviously related to the FBI and CRM’s
law enforcement duties to enforce criminal laws and to protect against national security threats.
Defendants FBI and CRM have filed seven declarations in this case, three of which were filed ex
parte and in camera. David Hardy from the FBI states that “responsive records are contained in
files pertaining to the FBI’s investigation of the disclosure of classified information that was
published on the WikiLeaks website.” Hardy 1st Decl. ^ 23. Similarly, John Cunningham8 from
CRM states that “the responsive records in the possession of the Criminal Division are all part of
the Department of Justice’s investigation into the unauthorized disclosure of classified
information that resulted in the publication of materials on the WikiLeaks website.”

Cunningham 1st Decl. ^ 12. The fact that the agencies have identified a possible security risk or
violation of federal law sufficiently establishes, at least for purposes of Exemption 7, that they

John E. Cunningham III is a trial attorney in the Department of Justice, Criminal Division, and is
currently assigned to the Office of Enforcement Operations, Freedom of Information Act/Privacy Act
Unit. Cunningham 1st Decl. | 1.

13

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 14 of 22

have acted “within [their] principal function of law enforcement, rather than merely engaging in
a general monitoring of private individuals’ activities.”9 Pratt v. Webster, 673 F.2d at 420.

Moreover, there is no support for the notion that Defendants’ investigation into the
unauthorized publishing of classified material on WikiLeaks is pretext and that Defendants are
conducting illegal investigations of innocent WikiLeaks supporters. The FBI specifically states
that it “is not investigating individuals who simply support or have an interest in WikiLeaks,”
and “does not . . . 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.” Hardy 1st
Decl. ^ 19 n.3; see also Hardy 4th Decl. ^ 7-8. Moreover, CRM’s in camera submission
demonstrates to the Court that its responsive documents do not pertain to an investigation of
individuals who “simply support” WikiLeaks. See Defs.’ Mot. Summ. J. Ex. 6. After reviewing
the Defendants’ declarations and exhibits attached thereto, the Court finds that Plaintiff’s
speculation fails to rebut the presumption of good faith that is afforded to agency declarations.
See Nat’l Whistleblower Ctr., 849 F. Supp. 2d at 22 (quoting SafeCardServs., Inc., 926 F.2d at
1200 (D.C. Cir. 1991)) (internal quotation marks omitted) (stating that the presumption of good
faith afforded to agencies’ sworn statements “cannot be rebutted by purely speculative claims
about the existence and discoverability of other documents”).

2. Interference with Enforcement Proceedings

To make a successful Exemption 7(A) claim, the government must further “demonstrate
that disclosure (1) could reasonably be expected to interfere with (2) enforcement proceedings 9

9 The D.C. Circuit has recently clarified that records are “compiled for law enforcement purposes”
not only when they are related to an investigation and prosecution after a violation of the law, but also
when the records are generated in an effort to “prevent criminal activity and to maintain security.” Elec.
Privacy Info. Ctr. v. United States Dep’t of Homeland Sec., 2015 U.S. App. LEXIS 2043, at *8-9 (D.C.
Cir. 2015).

14

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 15 of 22

that are (3) pending or reasonably anticipated.” Citizens for Responsibility & Ethics in Wash. v.
Dep’t of Justice, 746 F.3d 1082, 1096 (D.C. Cir. 2014) (internal quotation marks and citations
omitted). Here, Defendants assert that “disclosure would identify potential witnesses and other
individuals who have cooperated with the investigation, reveal the documentary evidence and
other information gathered in the course of the investigation, expose the scope and methods of
the investigation, and tip-off subjects and other persons of investigative interest.” 10 Defs.’ Reply
at 10.

Plaintiff first argues that the release of records concerning individuals who are simply
supporting WikiLeaks could not interfere with any pending or reasonably anticipated
enforcement proceeding since their activity is legal and protected by the First Amendment. Pl.’s
Cross-Mot. at 14. This argument is again premised on Plaintiff’s speculation that the
Government’s investigation is targeting innocent WikiLeaks supporters, and, for the reasons
previously discussed, the Court finds it lacks merit.

Next, Plaintiff argues that litigation surrounding the Twitter Order has already disclosed
to the public “[m]any of the techniques used to conduct surveillance on WikiLeaks support[er]s,”
and therefore subsequent disclosure can do no further damage. Pl.’s Cross-Mot. at 17. Plaintiff
asks that Defendants turn over “any records whose content has already been revealed in the
litigation over the Twitter Order, and any generalized information about publicly-known
surveillance practices.” Id. at 18. Finally, Plaintiff contends that the Defendants’ investigation is

Defendants originally stated that the release of documents would also interfere with the military
prosecution of Manning. After supplemental briefing, Defendants acknowledge that Manning has been
convicted and sentenced by a military tribunal but maintain that the release of these records would
interfere with Manning’s appeal. The Court need not determine whether the appeal of Manning’s
sentence is sufficient to warrant Exemption 7(A) protection. Regardless of whether the records interfere
with Manning’s prosecution, the Court finds that the records interfere with an active, ongoing law
enforcement investigation concerning the unauthorized release of classified materials on the WikiLeaks
website. As such, the records qualify for Exemption 7(A) protection.

15

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 16 of 22

too vague to support a withholding under Exemption 7(A). Pl.’s Supp’l Br. at 6 (citing Citizens
for Responsibility & Ethics in Washington v. Dep’t of Justice, 746 F.3d 1082 (D.C. Cir. 2014)).

“Exemption 7(A) explicitly requires a predictive judgment of the harm that will result
from disclosure of information, permitting withholding when it ‘could reasonably be expected’
that the harm will result.” Ctr. for Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918, 927 (D.C.
Cir. 2003) (quoting 5 U.S.C. § 552(b)). “So long as the investigation continues to gather
evidence for a possible future criminal case, and that case would be jeopardized by the premature
release of that evidence, Exemption 7(A) applies.” Citizens for Responsibility & Ethics in
Washington v. Dep’t of Justice, 746 F.3d at 1098 (quoting Juarez v. Dep’t of Justice, 518 F.3d
54, 59 (D.C. Cir. 2008)). The government has the burden of demonstrating a reasonable
likelihood of interference with enforcement proceedings. Ctr. for Nat ’l Sec. Studies, 331 F.3d at
926. The government’s declarations, especially when viewed in light of the appropriate
deference to the executive on issues of national security, may satisfy this burden. Id.

Here, the FBI and CRM have determined that the release of information on the
techniques and procedures employed in their WikiLeaks investigation would allow targets of the
investigation to evade law enforcement, and have filed detailed affidavits in support thereof.
Hardy 1st Decl. ^ 25; Cunningham 1st Decl. ^ 11. As Plaintiff notes, certain court documents
related to the Twitter litigation have been made public and describe the agencies’ investigative
techniques against specific individuals. To the extent that Plaintiff seeks those already-made
public documents, the Court is persuaded that their release will not interfere with a law
enforcement proceeding and orders that Defendants turn those documents over. 11

11 In its supplemental briefing, Plaintiff notes that subpoenas for information on Smari McCarthy
and Herbert Snorrason, “two Icelandic freedom of information activists who supported WikiLeaks,” have
also been unsealed. Pl.’s Supp’l Opp’n at 7. Plaintiff argues that since McCarthy and Snorrason are now
in possession of the subpoenas, the agencies’ disclosure of responsive records is not likely to interfere

16

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 17 of 22

Despite Plaintiff’s urging to the contrary, the release of the Twitter litigation documents
does not entitle Plaintiff to the non-public records which may describe the same or similar
techniques as those discussed in the Twitter litigation. The Supreme Court and the D.C. Circuit
have cautioned against allowing “bits and pieces” of data to be released which “may aid in
piecing together bits of other information even when the individual piece is not of obvious
importance itself.” In other words, “what may seem trivial to the uninformed, may appear of
great moment to one who has a broad view of the scene and may put the questioned item of
information in its proper context.” Ctr. for Nat ’l Sec. Studies v. Dep’t of Justice, 331 F.3d at
928-929.

In the instant case, releasing all of the records with investigatory techniques similar to
that involved in the Twitter litigation may, for instance, reveal information regarding the scope
of this ongoing multi-subject investigation. This is precisely the type of information that
Exemption 7(A) protects and why this Court must defer to the agencies’ expertise. See id. at 928
(determining that Exemption 7(A) allowed agency to withhold the names of detainees even
though some names were made public because the records “could reveal much about the focus
and scope of the agency’s investigation and are thus precisely the sort of information exemption

with law enforcement proceedings. Defendant responds that EPIC’s narrower request for information did
not include the names of these two individuals. Def.’s Supp’l Reply at 4, n.1.

As an initial matter, the Court rejects the Defendant’s representation of EPIC’s request. EPIC’s
FOIA request clearly extends beyond any named individuals. See Dkt. No. 12-4, Ex. 3 (“However, the
FOIA Request is not limited to those six individuals. In fact, one of the purposes of this FOIA Request is
to obtain records relating to the surveillance of other individuals who have not been named as surveillance
targets.”). Nevertheless, the effect of the release of the McCarthy and Snorrason court documents is not
as broad as Plaintiff argues. Like the Twitter litigation documents, any responsive document related to
McCarthy and Snorrason which has already been made public should be released to Plaintiff. However,
insofar as Plaintiff seeks the disclosure of other non-public records, the Court’s denies such a request for
the reasons elaborated below.

17

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 18 of 22

7(A) allows an agency to keep secret”) (quoting Swan v. SEC, 96 F.3d 498, 500 (D.C. Cir.

1996)). The Court finds this to be particularly true here, where the investigation, as here, deals
with issues of national security. Id. at 928 (“[T]he judiciary is in an extremely poor position to

second-guess the executive’s judgment in this area of national security.”).

Finally, the Court is not persuaded that the Defendants’ investigation is too vague to
support an Exemption 7(A) withholding. EPIC attempts to liken the investigation in the instant
case with that at issue in Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of
Justice, 746 F.3d 1082 (D.C. Cir. 2014) (hereinafter, CREW v. Dep’t of Justice). Pl.’s Supp’l
Opp’n at 6. CREW concerned the FBI’s investigation into the activities of former lobbyist Jack
Abramoff. Several people were convicted, including two senior aides to Tom DeLay, the former
House of Representatives Majority Leader. Id. at 1087. The FBI never acknowledged whether
Tom DeLay was the target of their investigation but, in August 2010, DeLay announced that the
Department of Justice would not bring criminal charges against him. Id. After this
announcement, CREW filed a FOIA request seeking records related to the FBI’s investigation of
Tom DeLay. The FBI argued that Exemption 7(A) applied because the release of the records
would interfere with the criminal prosecution of DeLay’s senior aides as well as all criminal
investigations related to the lobbying investigation. Id. at 1096.

In its supplemental brief, Plaintiff states that the media has recently uncovered “investigative
techniques deployed by the National Security Agency,” which were used in the NSA’s surveillance of
WikiLeaks and its supporters. Pl.’s Supp’l Opp’n at 8. Plaintiff argues that the public’s awareness of the
NSA’s investigative techniques show that the disclosure of such techniques will not aid criminals in
circumventing the investigation or the law. Id. at 10. The Court rejects Plaintiffs arguments. As an
initial matter, the NSA is not a Defendant and its investigation is not at issue here. Moreover, as noted
above, the scope of the Defendants’ investigations and other “bits” of valuable information may be
revealed by disclosing the records, even if the investigative techniques discussed therein have already
been made public.

18

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 19 of 22

Ultimately, the D.C. Circuit in CREWv. Department of Justice determined that
Exemption 7(A) did not apply because there was no pending or anticipated proceeding. First,
DeLay’s senior aides had been convicted, sentenced, and no appeals were pending. Id. at 1097.
Second, the Circuit expressed “considerable uncertainty about whether a criminal investigation
in fact continues to this day.” Id.

In stark contrast to the CREW panel, this Court is persuaded that there is an ongoing
criminal investigation. Unlike the vague characterization of the investigation in CREW,
Defendants have provided sufficient specificity as to the status of the investigation, and sufficient
explanation as to why the investigation is of long-term duration. See e.g., Hardy 4th Decl. ^ 7,

8; Bradley 2d Decl. ^ 12; 2d Cunningham Decl. ^ 8.

C. Segregability

EPIC argues that “the government has failed to segregate and release non-exempt
portions of records.” Pl.’s Cross-Mot. Summ. J. at 22. EPIC insists that the types of documents
the government wants to protect are readily segregable, “[f]or example, the government is
seeking to protect the names of witnesses, law enforcement personnel, foreign officials, and
individual targets of investigations, as well as predecisional and deliberative documents.” Pl.’s
Cross-Mot. at 23. In response, Defendants maintain that “[e]ach component has reviewed the
responsive material, and determined that it is exempt in its entirety under Exemption 7(A). As a
result, there are no segregable, non-exempt portions that may be released to EPIC.” Defs.’ Mot.
at 15.

FOIA requires that “any reasonable segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. §
552(b). This Circuit has long since held that “non-exempt portions of a document must be

19

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 20 of 22

disclosed unless they are inextricably intertwined with exempt portions.” Mead Data, 566 F.2d
at 260. In order to demonstrate that all reasonably segregable material has been disclosed, the
agency must provide a “detailed justification” for its non-segregability. Johnson, 310 F.3d at
776 (quoting Mead Data, 566 F.2d at 261)). “[C]onclusory language in agency declarations that
do not provide a specific basis for segregability findings by a district court may be found
inadequate.” Jarvik v. C.I.A., 741 F. Supp. 2d 106, 120 (D.D.C. 2010) (citations omitted).
However, the agency is not required to provide so much detail that the exempt material would be
effectively disclosed. Johnson, 310 F.3d at 776 (quoting Mead Data, 566 F.2d at 261)).

The Court finds that the Government has amply supported its determination that there is
no segregable material. The FBI explains in its declaration that “[its] review of the potentially
responsive records in the pending cases reveals no materials that can be released without
jeopardizing current or prospective investigative/and or prosecutive efforts.” Hardy 1st Decl. ^
27, 119. The Court, having reviewed the FBI’s carefully detailed ex parte declaration, is
persuaded. See Hardy 4th Decl. ^ 7. Similarly, CRM states, “[t]he Criminal Division has
reviewed these records and determined that there are no reasonably segregable non-exempt
portions that can be released.” Cunningham 1st Decl. ^ 44. Furthermore, CRM’s ex parte
Vaughn index, which identifies every responsive document and the basis for its withholding,
provides further support for CRM’s segregability analysis. Accordingly, the Court finds that the
government provides adequate justification for the nonsegregability of the records.

D. In Camera Review

20

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 21 of 22

EPIC contends that the Court should review the withheld records in camera, because the
government’s secrecy limits EPIC’s “ability to provide a check on the government’s exemption
claims.” Pl.’s Cross-Mot at 25- 26.

While district courts have “the explicit authority to conduct in camera reviews of agency
files to determine the applicability of the claimed [FOIA] exemptions,” the court should not
resort to an in camera review as a matter of course. Quinon v. Fed. Bureau of Investigation, 86
F.3d 1222, 1227-28 (D C. Cir. 1996) (citing S. Conf. Rep. No. 1200, 93d Cong., 2d Sess. 9
(1974). However, an in camera review may be required “when agency affidavits in support of a
claim of exemption are insufficiently detailed or there is evidence of bad faith on the part of the
agency.” Armstrong v. Executive Office of the President, 97 F.3d 575, 578 (D.C. Cir. 1996)
(citing Quinon v. Federal Bureau of Investigation, 86 F.3d 1222, 1228 (D.C. Cir. 1996)).

Here, EPIC brings no allegation that Defendants acted in bad faith. Moreover, as
discussed above, the agencies’ public and ex parte declarations provide a sufficient basis to
determine that Exemption 7(A) applies to the responsive documents. See Hayden, 608 F.2d at
1386 (declining to conduct in camera review where agency had not displayed bad faith and had
provided sufficient declarations). Accordingly, the court, reminded that Congress intended that
the courts give agency declarations “substantial weight” in light of their law enforcement
expertise, declines to conduct an in camera review.

V. CONCLUSION

For the foregoing reasons, the court grants in part and denies in part Defendants’ motion
for summary judgment, and grants in part and denies in part Plaintiff’s motion for summary

21

Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 22 of 22

judgment. An Order consistent with this opinion is separately and contemporaneously issued 4th
day of March, 2015.

BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE

22

e-Highlighter

Click to send permalink to address bar, or right-click to copy permalink.

Un-highlight all Un-highlight selectionu Highlight selectionh