Secrecy: FOIA

FBI Can Withhold Sensitive FOIA Processing Records, DC District Court Rules

By Michael Linhorst
Thursday, March 9, 2017, 11:00 AM

Documents the FBI creates when it processes a FOIA request can be withheld from future FOIA requests in certain sensitive cases, D.C. District Judge Randolph Moss ruled on Monday.

At issue are “search slips” and “processing notes”—internal documents the FBI creates when it responds to FOIA requests. The court determined that those records may be withheld under FOIA’s Exemption 7(E) on a case-by-case basis when their release could allow a savvy FOIA user to create a “mosaic” that reveals information properly protected under the law.

This was the fourth opinion the court has issued in long-running litigation between the FBI and four FOIA requesters: Ryan Shapiro, Newsweek journalist Jeff Stein, the nonprofit National Security Counselors (NSC) and the news organization Truthout. The case, Shapiro v. Department of Justice, involves 58 FOIA requests filed by Ryan Shapiro, an MIT doctoral student, seeking information from FBI investigations into domestic terrorism activities by animal-rights extremists. The FBI gave him 42 “no records” responses, meaning that it told him no records existed that were responsive to his requests. Such responses are allowed in two circumstances: when there really are no records, or when the requested records fall into a narrow exemption in § 552(c) involving documents that could interfere with certain criminal law enforcement proceedings.

After he received the “no records” responses, Shapiro FOIA’d his own FOIA, seeking the search slips and processing notes the FBI created in response to his earlier requests.

The court said the FBI could legally withhold those documents on a case-by-case basis. In this instance, the court decided the documents could be withheld because Shapiro had filed so many FOIA requests that he might have been able to use the processing documents to piece together protected information.

“The search slips at issue,” Judge Moss wrote, “are part of a complex mosaic relating to ongoing FBI operations, involving one of the FBI’s domestic terrorism priorities, which has been the subject of a staggering number of FOIA requests seeking information about many specific individuals and organizations.”

A hypothetical presented by the court illustrates the FBI’s concern. Suppose Mr. Jones is a confidential informant for the FBI. A person who wants to confirm Mr. Jones is an informant files a FOIA seeking all documents mentioning Mr. Jones. The FBI may legally give a “no records” response, telling the requester that it found no records mentioning Mr. Jones, because any other option—say, telling the requester that it found records that it is withholding because they fall into a FOIA exemption—could reveal that Mr. Jones is an informant. If the requester then obtains the processing records, she could discover that records actually were found, and from that conclude that Mr. Jones was an informant.

Due to that concern, the FBI had originally claimed that it could withhold all processing documents in every case. The district court rejected that argument in January 2016, holding in Shapiro I that the FBI’s position was too broad.

The opinion disposes of a number of motions. The Court granted the FBI's motion for leave to file an ex parte, in camera declaration and denied the plaintiffs’ motion to make public portions of that declaration and two others. As for the FBI and plaintiffs’ cross-motions for summary judgment on an array of issues, the court denied the motions as they relate to the FBI's withholding of the file numbers of certain sensitive documents under FOIA Exemption 7(E) because of an insufficient record; and granted summary judgment to the plaintiffs with respect to the FBI's assertion of Exemption 7(A) as to certain FOIA processing records associated with the "parent" FOIA request for certain records. The court also granted the FBI's motion for summary judgment relating to information exempted under FOIA Exemption 1; denied the parties' cross-motions for summary judgment as to Exemption 3; granted the FBI's motion for summary judgment as to records requested by plaintiff Stein relating to the litigation McGehee v. Department of Justice, 800 F. Supp. 2d 220 (D.D.C. 2011); and denied the parties' cross-motions for summary judgment relating to the segregability of non-public information contained in the sought records responsive to the NSC's second FIOA request and Stein's first FOIA request, pending the FBI's submission of a sample of records for the court's review.

The court is permitting briefing on the remaining issues in the case.

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