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Case TitleREPORTERS COMMITTEE FOR FREEDOM OF THE PRESS et al v. FEDERAL BUREAU OF INVESTIGATION et al
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2015cv01392
Date Filed2015-08-27
Date Closed2017-02-23
JudgeJudge Richard J. Leon
PlaintiffREPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
PlaintiffASSOCIATED PRESS
Case DescriptionThe Reporters Committee for Freedom of the Press and the Associated Press submitted separate FOIA requests to the FBI for records concerning the agency's practice of impersonating journalists to deliver surveillance software to targets of criminal investigations. The FBI told the Associated Press that requests like theirs normally took 649 days. The AP appealed the agency's failure to respond, but the Office of Information Policy refused to consider the appeal because the agency had not made an adverse determination. The Reporters Committee made two requests and asked for expedited processing. The FBI denied its request for expedited processing. The Reporters Committee also appealed the agency's failure to respond to its requests. OIP upheld the FBI's search as to one of the Reporters Committee's requests, but indicated that it would not consider its appeal on the failure to respond issue because the agency had not yet made an adverse determination. Both the Reporters Committee and the Associated Press then filed suit.
Complaint issues: Public Interest Fee Waiver, Fee Category - Media or Educational, Expedited processing, Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantFEDERAL BUREAU OF INVESTIGATION
DefendantUNITED STATES DEPARTMENT OF JUSTICE
AppealD.C. Circuit 20-5091
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Complaint attachment 7
Complaint attachment 8
Opinion/Order [27]
FOIA Project Annotation: Judge Richard Leon has ruled that the FBI conducted an adequate search for records concerning the agency's alleged practice of impersonating journalists and found the agency properly invoked a number of exemptions in withholding records. The Reporters Committee and the Associated Press requested the records from the FBI. Because of the specificity of the incident, which involved an anonymous bomb threat at Timberline High School near Seattle, the agency decided not to search its Central Records System, but instead searched its Operational Technology Division. However, the agency ultimately conducted a search of the CRS as well. The plaintiffs argued that based on other publicly available information the agency should have uncovered other responsive records. Leon disagreed, noting that "plaintiffs face an uphill climb in this regard. I have reviewed the information identified by plaintiffs for 'positive indications of overlooked materials.' Nothing in these materials persuades me that plaintiffs' arguments are any more than 'mere speculation that as yet uncovered documents may exist.' Accordingly I conclude the FBI has carried its burden to show that its search was adequate." Approving the withholding of an email under Exemption 5 (privileges), Leon noted that "the unredacted portions of the email messages, submitted by plaintiffs, show that agency personnel were discussing changes to, and legal review of, an application for a search warrant before submitting it to a court. Such information is both pre-decisional and privileged." As to redactions of identifying information about agents, Leon noted that under Exemption 7(C) (invasion of privacy concerning law enforcement records), courts had recognized a strong privacy interest in not being unwarrantedly associated with a criminal investigation. He observed that "the FBI has invoked that weighty interest here and plaintiffs offer little to counterbalance it."
Issues: Exemption 7(C) - Invasion of privacy concerning law enforcement records, Adequacy - Search, Exemption 5 - Privileges
Opinion/Order [54]
FOIA Project Annotation: Judge Richard Leon has ruled that the FBI properly withheld records under Exemption 5 (privileges), Exemption 6 (invasion of privacy), Exemption 7(C) (invasion of privacy concerning law enforcement records), and Exemption 7(E) (investigative methods and techniques) in response to FOIA requests from the Reporters Committee for Freedom of the Press concerning the FBI's policies for impersonating journalists. RCFP's requests were prompted by a 2007 incident at Timberline High School near Seattle when the FBI tricked the anonymous sender of an online bomb threat to reveal his online address by responding to a fake email from the FBI impersonating an AP reporter. In response to RCFP's requests, the FBI located 267 pages and disclosed 186 pages in full or in part. When RCFP filed suit, Leon ruled in favor of the agency, finding that its search was adequate as well. RCFP appealed, and the D.C. Circuit ruled that because the FBI's Director's Office was intimately involved in the agency's response to publicity related to the incident it should have been searched as well. While RCFP's appeal to the D.C. Circuit was pending, it submitted another FOIA request, updating the time frame for its first request and including new categories for records concerning a 2016 report by the Office of the Inspector General. RCFP sued after the agency failed to respond to the 2017 request and the agency located 611 pages of responsive records and disclosed 328 pages in full or in part. The Department of Justice claimed that large portions of the litigation were prohibited by both the law of the case doctrine and the doctrine of collateral estoppel which allows a court to dismiss a case where the same parties have litigated the same issue. Leon, however, pointed out that "a valid rationale for withholding one set of documents does not necessarily apply equally to every other set of documents." Dismissing the claims, Leon indicated that "adopting defendants' position that collateral estoppel applies when the agency's rationales for withholding documents are the same, regardless of what the specific documents are, would violate our Circuit's long held requirement that agencies justify withholdings with details specific to the documents at issue." The agency's Exemption 5 claims were divided into six categories. Leon joined other D.C. Circuit district court judges in finding that "if documents are 'generated as part of a continuous process of decision making' such as 'how to respond to on-going inquiries' from the press or Congress, they are predecisional and deliberative." He agreed that the FBI had properly withheld filled-in copies of forms that FBI personnel used to submit comments on the OIG draft report. He noted that "any factual comments are so intrinsically linked to the FBI's personnel's recommendations and opinions regarding the OIG draft report that disclosure could expose the deliberative process." Leon also allowed the agency to withhold discussions on how to use an investigative technique. While he found that the FBI had provided sufficient detail to adequately explain the foreseeable harm in disclosure of the six categories, Leon indicated that "I would, however, join the chorus of members of this court in rejecting the Government's position that general assertions of harm to the deliberative process privilege are sufficient to satisfy the 'heightened standard' of the FOIA Improvement Act's 'foreseeable harm' requirement. They are not. The Government would be wise in the future to heed such rulings." Leon approved of the agency's use of the privacy exemptions to withhold third-party personally identifying information, observing that "plaintiffs have failed to show how the release of any of these names or identifying information will help the public determine whether FBI officials engaged in illegal or unconstitutional activity by impersonating journalists." RCFP challenged the agency's use of Exemption 7(E) by arguing that impersonating a journalist was a publicly known technique. But Leon noted that "the fact that a law enforcement technique is generally known does not mean its specific procedures or applications are known or that disclosing them would not risk compromising specific investigations." On the agency's withholding of 10 pages of records on an undercover operation, Leon observed that he was satisfied that "the FBI's procedures relate to techniques and methods for surreptitiously investigating potential criminals and engaging in undercover operations."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 7(C) - Invasion of privacy concerning law enforcement records, Exemption 7(E) - Unknown to public
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2015-08-271COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-4223752) filed by REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, ASSOCIATED PRESS. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Civil Cover Sheet, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons)(Townsend, KatieLynn) (Entered: 08/27/2015)
2015-08-27Case Assigned to Judge Richard J. Leon. (sth) (Entered: 08/27/2015)
2015-08-272SUMMONS (4) Issued Electronically as to FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons)(sth) (Entered: 08/27/2015)
2015-08-273STANDING ORDER. Signed by Judge Richard J. Leon on 8/27/2015. (lcrjl2, ) (Entered: 08/27/2015)
2015-09-044RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 9/2/2015. Answer due for ALL FEDERAL DEFENDANTS by 10/2/2015. (Townsend, KatieLynn) (Entered: 09/04/2015)
2015-09-045RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 09/02/2015. (Townsend, KatieLynn) (Entered: 09/04/2015)
2015-09-046RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF JUSTICE served on 9/2/2015 (Townsend, KatieLynn) (Entered: 09/04/2015)
2015-09-047RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. FEDERAL BUREAU OF INVESTIGATION served on 9/3/2015 (Townsend, KatieLynn) (Entered: 09/04/2015)
2015-09-238NOTICE of Appearance by Marina Utgoff Braswell on behalf of FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE (Braswell, Marina) (Entered: 09/23/2015)
2015-10-029ANSWER to Complaint by FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE.(Braswell, Marina) (Entered: 10/02/2015)
2015-10-2810NOTICE of Appearance by Bruce D. Brown on behalf of All Plaintiffs (Brown, Bruce) (Entered: 10/28/2015)
2015-11-1211NOTICE of Appearance by Andrew Marshall Bernie on behalf of All Defendants (Bernie, Andrew) (Entered: 11/12/2015)
2015-11-1212MEET AND CONFER STATEMENT. (Attachments: # 1 Text of Proposed Order Plaintiffs' Proposed Scheduling Order, # 2 Text of Proposed Order Defendants' Proposed Scheduling Order)(Townsend, KatieLynn) (Entered: 11/12/2015)
2015-12-0413NOTICE OF WITHDRAWAL OF APPEARANCE as to FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE. Attorney Marina Utgoff Braswell terminated. (Braswell, Marina) (Entered: 12/04/2015)
2016-01-07MINUTE ORDER: It is hereby ORDERED that, within ten days of the date of this Order, the parties shall submit an updated proposed schedule to govern the above-captioned matter. Signed by Judge Richard J. Leon on 1/7/2016. (lcrjl2, ) (Entered: 01/07/2016)
2016-01-1514Joint MOTION for Scheduling Order by FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Bernie, Andrew) (Entered: 01/15/2016)
2016-01-1915SCHEDULING ORDER : It is hereby ordered that the following schedule shall govern: Defendant's shall complete their production of all non-exempt records responsive to plaintiff's three pending FOIA request. Parties shall submit joint status report by 03/11/16. Defendant's Summary Judgment motions due by 3/28/2016. Response/Cross Motions due by 4/25/2016. Reply/Response to Cross Motions due by 5/16/2016. Reply to Cross Motions due by 5/27/2016. Signed by Judge Richard J. Leon on 01/19/16. (ztb) (Entered: 01/20/2016)
2016-03-1116Joint STATUS REPORT by FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE. (Bernie, Andrew) (Entered: 03/11/2016)
2016-03-2817NOTICE of Appearance by Adam Alexander Marshall on behalf of All Plaintiffs (Marshall, Adam) (Entered: 03/28/2016)
2016-03-2818MOTION for Summary Judgment by FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Declaration of David M. Hardy, # 2 Exhibit Exhibits A-F to Hardy Declaration, # 3 Exhibit Exhibits G-H to Hardy Declaration, # 4 Exhibit Exhibits I-M to Hardy Declaration, # 5 Exhibit Exhibits N-R to Hardy Declaration, # 6 Exhibit Exhibits S-T to Hardy Declaration, # 7 Exhibit Exhibits U-V to Hardy Declaration, # 8 Exhibit Exhibits W-Y to Hardy Declaration, # 9 Exhibit Exhibit Z to Hardy Declaration, # 10 Text of Proposed Order)(Bernie, Andrew) (Entered: 03/28/2016)
2016-04-2519MOTION for Summary Judgment and/or Partial Summary Judgment by ASSOCIATED PRESS, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS (Attachments: # 1 Memorandum in Support of Plaintiffs' Motion for Summary Judgment and/or Partial Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment, # 2 Statement of Facts and Response to Defendants' Statement of Facts, # 3 Declaration of Brian Barrett, # 4 Exhibit A to the Barrett Declaration, # 5 Exhibit B to the Barrett Declaration, # 6 Exhibit C to the Barrett Declaration, # 7 Exhibit D to the Barrett Declaration, # 8 Declaration of Katie Townsend, # 9 Exhibit A to the Townsend Declaration, # 10 Exhibit B to the Townsend Declaration, # 11 Exhibit C to the Townsend Declaration, # 12 Exhibit D to the Townsend Declaration, # 13 Exhibit E to the Townsend Declaration, # 14 Exhibit F to the Townsend Declaration, # 15 Exhibit G to the Townsend Declaration, # 16 Exhibit H to the Townsend Declaration, # 17 Exhibit I to the Townsend Declaration, # 18 Exhibit J to the Townsend Declaration, # 19 Exhibit K to the Townsend Declaration, # 20 Exhibit L to the Townsend Declaration, # 21 Exhibit M to the Townsend Declaration, # 22 Exhibit N to the Townsend Declaration, # 23 Exhibit O to the Townsend Declaration, # 24 Exhibit P to the Townsend Declaration, # 25 Exhibit Q to the Townsend Declaration, # 26 Exhibit R to the Townsend Declaration, # 27 Exhibit S to the Townsend Declaration, # 28 Text of Proposed Order, # 29 Certificate of Service)(Townsend, KatieLynn). Added MOTION for Partial Summary Judgment on 4/26/2016 (znmw). (Entered: 04/25/2016)
2016-04-2520MOTION for In Camera Review and/or Other Appropriate Relief re 19 MOTION for Summary Judgment and/or Partial Summary Judgment by ASSOCIATED PRESS, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS (Attachments: # 1 Text of Proposed Order)(Townsend, KatieLynn) (Entered: 04/25/2016)
2016-05-1121Consent MOTION for Extension of Time to File Reply In Support of Defendants' Motion for Summary Judgment and Opposition to Plaintiffs' Motion for Summary Judgment and/or Partial Summary Judgment by FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Bernie, Andrew) (Entered: 05/11/2016)
2016-05-16MINUTE ORDER granting 21 Motion for an Extension of Time. It is hereby ORDERED that the consent Motion is GRANTED. It is further ORDERED that defendants shall have up to and including May 20, 2016 to file their reply in support of defendants' motion for summary judgment and opposition to plaintiffs' motion for summary judgment and/or partial summary judgment. It is further ORDERED that plaintiffs shall have up to and including June 6, 2016 to file their reply in support of plaintiffs' motion for summary judgment and/or partial summary judgment. Signed by Judge Richard J. Leon on 5/16/2016. (lcrjl2, ) (Entered: 05/16/2016)
2016-05-16Set/Reset Deadlines: Response to Cross Motions due by 5/20/2016. Reply to Cross Motions due by 6/6/2016. Reply to Motion for Summary Judgment due by 5/20/2016. (tb) (Entered: 05/16/2016)
2016-05-2022Memorandum in opposition to re 19 MOTION for Summary Judgment and/or Partial Summary Judgment MOTION for Partial Summary Judgment, 20 MOTION for In Camera Review and/or Other Appropriate Relief re 19 MOTION for Summary Judgment and/or Partial Summary Judgment and Reply Memorandum in Support of Defendants' Motion for Summary Judgment filed by FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Statement of Facts Defendants' Response to Plaintiffs' Statement of Facts, # 2 Declaration Second Declaration of David M. Hardy, # 3 Exhibit Exhibit A to Declaration of David M. Hardy, # 4 Exhibit Exhibit B to Declaration of David M. Hardy, # 5 Text of Proposed Order)(Bernie, Andrew) (Entered: 05/20/2016)
2016-05-2023REPLY to opposition to motion re 18 MOTION for Summary Judgment filed by FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE. (See Docket Entry 22 to view document). (znmw) (Entered: 05/23/2016)
2016-05-2424Consent MOTION for Extension of Time to File Response/Reply as to 19 MOTION for Summary Judgment and/or Partial Summary Judgment MOTION for Partial Summary Judgment by ASSOCIATED PRESS, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS (Attachments: # 1 Text of Proposed Order)(Townsend, KatieLynn) (Entered: 05/24/2016)
2016-05-31MINUTE ORDER granting 24 Motion for Extension of Time to File Response/Reply. It is hereby ORDERED that the motion is GRANTED. It is further ORDERED that plaintiffs shall have up to and including June 10, 2016 to file a reply in support of their motion for summary judgment and/or partial summary judgment. Signed by Judge Richard J. Leon on 5/31/2016. (lcrjl2, ) (Entered: 05/31/2016)
2016-06-02Set/Reset Deadlines: Plaintiffs shall have up to and including June 10, 2016 to file a reply in support of their motion for summary judgment and/or partial summary judgment. (jth) (Entered: 06/02/2016)
2016-06-1025REPLY to opposition to motion re 20 MOTION for In Camera Review and/or Other Appropriate Relief re 19 MOTION for Summary Judgment and/or Partial Summary Judgment , 19 MOTION for Summary Judgment and/or Partial Summary Judgment MOTION for Partial Summary Judgment filed by ASSOCIATED PRESS, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS. (Townsend, KatieLynn) (Entered: 06/10/2016)
2016-09-1626NOTICE REGARDING REPORT BY THE OFFICE OF INSPECTOR GENERAL by ASSOCIATED PRESS, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS (Attachments: # 1 Exhibit Exhibit A)(Townsend, KatieLynn) (Entered: 09/16/2016)
2017-02-2327MEMORANDUM OPINION. Signed by Judge Richard J. Leon on 02/22/17. (tb) (Entered: 02/23/2017)
2017-02-2328ORDER: For the reasons set forth in the Memorandum Opinion accompanying this Order, it is hereby ordered the defendant's 18 Motion for Summary Judgment is GRANTED; and it is further ordered that plaintiff's 19 Motion for Summary Judgment and or Motion for Partial Summary Judgment and 20 Motion for In Camera Review are DENIED. Signed by Judge Richard J. Leon on 02/22/17. (tb) (Entered: 02/23/2017)
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