Case Detail

FOIA Project Annotation: Judge Barbara Rothstein ruled that the FBI properly invoked Exemption 1 (national security), Exemption 3 (other statutes) and Exemption 7 (law enforcement records) as well as an exclusion to withhold records from Jeffrey Labow concerning vandalism of the Four Seasons Hotel as part of a 2008 protest of a meeting by the International Monetary Fund in Washington. Because Labow requested records pertaining to himself, the agency initially failed to locate any records. Labow then filed suit and the agency found 159 records and disclosed 60 in full or in part. Labow argued that innocuous information provided by foreign governments did not qualify for classification. But Rothstein observed that "the D.C. Circuit, however, has not interpreted 'foreign relations or foreign activities' so narrowly. Rather, so long as 'unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to national security. . .,' then the information is appropriately classified under Executive Order 13526." Rothstein found that "given the government's explanation of the harms that could result from revelation of the information that Labow seeks, the government has amply justified its application of Exemption 1. . ." Rothstein approved the agency's use of the National Security Act, the wiretap statute, and grand jury secrecy to withhold information under Exemption 3. Rejecting Labow's assertion that the agency had failed to show that disclosure of records would reveal matters considered by a grand jury, Rothstein pointed out that "this information, however�"such as the identities of those subpoenaed, identities and descriptions of requested records, and records produced in response to subpoenas�"clearly all fall within Rule 6(e) because it would 'tend to reveal. . .the strategy or direction of the investigation' and is not merely 'information coincidentally before the grand jury.'" Although she expressed concerns about the agency's description of the category of records it was withholding under Exemption 7(A) (interference with ongoing investigation or proceeding), she indicated that "the functional category of information could be construed as information regarding [a] pending investigation. The government then sufficiently explains how the release of such information could adversely impact the prospective case." Labow argued that Exemption 7(D) (confidential sources) did not apply because the sources were likely either undercover police or individuals who had been coerced by threat of prosecution. Rothstein noted that "Labow fails to provide case law supporting his assertion that if the source was in fact coerced, that has bearing on Exemption 7(D)'s applicability." She rejected Labow's argument that Exemption 7(E) (investigative methods and techniques) did not apply because the withheld information was either already public or could not possibly help someone evade the law. Rothstein pointed out that "because the government not only attests that these are investigative techniques and procedures but also that these withheld portions relate to specific details that are generally unknown to the public, it is unnecessary to resolve whether, categorically, investigative techniques and procedures that are generally known to the public are protected under Exemption 7(E). Labow's related argument that disclosure of techniques that 'could not possibly help criminals evade the law' is contrary to the statutory text as that prong is not required to withhold information that would reveal law enforcement techniques or procedures." The agency had provided the court with a declaration pertaining to whether an exclusion had been used. Rothstein concluded that "if an exclusion was in fact employed, it was, and continues to remain, amply justified."
Issues: Exemption 7(E) - Unknown to public, Exemption 7(D) - Assurance of confidentiality - Implicit, Exemption 7(A) - Categorical exemption, Exemption 3 - Statutory prohibition of disclosure, Adequacy - Search, Exemption 1 - Properly classified, Exclusions - Disclosure of existence of classified national security investigation

FOIA Project Annotation: Lamenting the cost of FOIA litigation that often boils down to isolated words or sentences, Judge Royce Lamberth has resolved the remaining issue in a case brought by Jeffrey Labow, finding that the FBI properly withheld information about the existence of a pen register under Exemption 3 (other statutes). The D.C. Circuit had previously questioned whether the FBI's explanation for its withholdings was sufficient. The agency had claimed both the Pen Register Act and Rule 6(e) on grand jury secrecy. Upholding the FBI's claims for both provisions, Lamberth noted that "the mere existence of a pen register order does not allow the FBI to automatically withhold or redact other documents that may coincidentally contain the same information that appears in that order. But Exemption 3 allows an agency to withhold information for which Congress has recognized a danger associated with its disclosure. Congress specifically recognized the dangers of disclosing information contained in a pen register order in such a manner that doing so would undermine the very purpose for the secrecy of the order, and Congress expects such a disclosure to be, in certain instances, punished as contempt of court." The D.C. Circuit had expressed concern over whether the FBI's disclosure that a pen register order had been provided to a grand jury had unnecessarily brought up the issue of grand jury secrecy. While Lamberth found the agency's supplemental explanations insufficient, he upheld the agency's claims after reviewing the grand jury materials in camera. He pointed out that once records were actually provided to a grand jury, the FBI had no choice but to withhold them under Rule 6(e). But he observed that 'original FBI documents, copies of which are later submitted to a grand jury (and are stamped and marked accordingly upon their processing and submission), do not fall under the protection of Rule 6(e)." He indicated that Rule 6(e) also qualified under the second prong of Exemption 3 because they referred to particular types of matters to be withheld. He observed that "the grand jury material the FBI seeks to withhold here is directly connected to the type of matter, the secrecy of which Rule 6(e) is designed to protect."
Issues: Exemption 3 - Statutory prohibition of disclosure

Date Filed	Doc #	Docket Text
2011-07-12	1	COMPLAINT against DEPARTMENT OF JUSTICE (Filing fee $ 0.00) filed by JEFFREY LABOW. (Attachments: # 1 Civil Cover Sheet)(dr) (Entered: 07/13/2011)
2011-07-12		SUMMONS (3) Issued as to DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (dr) (Entered: 07/13/2011)
2011-07-12	2	MOTION for Leave to Proceed in forma pauperis by JEFFREY LABOW (dr) (Entered: 07/13/2011)
2011-07-12		FIAT ORDER granting 2 Motion for Leave to Proceed in forma pauperis. "Leave to File without Prepayment of Cost GRANTED," Signed by Judge Emmet G. Sullivan on 7/11/2011. (dr) (Entered: 07/13/2011)
2011-07-26	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF JUSTICE served on 7/25/2011, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 7/25/2011. (dr) (Entered: 07/27/2011)
2011-07-29	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/27/2011. Answer due for ALL FEDERAL DEFENDANTS by 8/26/2011. (dr) (Entered: 07/29/2011)
2011-08-19	5	NOTICE of Appearance by John G. Interrante on behalf of DEPARTMENT OF JUSTICE (Interrante, John) (Entered: 08/19/2011)
2011-08-23	6	Consent MOTION for Extension of Time to File Answer re 1 Complaint by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Interrante, John) (Entered: 08/23/2011)
2011-08-24		MINUTE ORDER granting 6 Defendant's Consent Motion for Enlargement of Time to Answer or Otherwise Respond to Complaint. Accordingly, defendant's answer is now due on September 26, 2011. Signed by Judge Henry H. Kennedy, Jr. on August 24, 2011. (lchhk2) (Entered: 08/24/2011)
2011-09-26	7	MOTION for Extension of Time to File Answer re 1 Complaint by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Interrante, John) (Entered: 09/26/2011)
2011-09-26	8	ERRATA (to reflect consent) by DEPARTMENT OF JUSTICE 7 MOTION for Extension of Time to File Answer re 1 Complaint filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(Interrante, John) (Entered: 09/26/2011)
2011-09-28		MINUTE ORDER granting 7 Defendant's Consent Motion for Enlargement of Time to Answer or Otherwise Respond to Complaint. Accordingly, defendant's answer is due on October 11, 2011. Signed by Judge Henry H. Kennedy, Jr. on September 28, 2011. (NP) (Entered: 09/28/2011)
2011-10-11	9	ANSWER to 1 Complaint by DEPARTMENT OF JUSTICE.(Interrante, John) (Entered: 10/11/2011)
2011-10-13		MINUTE ORDER. The parties shall submit a joint case management report, which shall include proposed deadlines for the submission of dispositive motions, or other appropriate course of action, no later than November 14, 2011. If the parties are unable to reach agreement with respect to the case management report and the proposed deadlines, each party shall submit its own report and proposed deadlines. Signed by Judge Henry H. Kennedy, Jr. on October 13, 2011. (NP) (Entered: 10/13/2011)
2011-10-13		Set/Reset Deadlines: Joint case management report by 11/14/2011. (gdf) (Entered: 10/13/2011)
2011-11-14	10	Second MOTION for Extension of Time to File Joint Case Management Report by DEPARTMENT OF JUSTICE (Attachments: # 1 Proposed Order)(Interrante, John) (Entered: 11/14/2011)
2011-11-21	11	STATUS REPORT by DEPARTMENT OF JUSTICE. (Interrante, John) (Entered: 11/21/2011)
2011-11-24	12	STATUS REPORT by JEFFREY LABOW. (Light, Jeffrey) (Entered: 11/24/2011)
2011-12-15	13	Case reassigned to Judge Barbara Jacobs Rothstein. Judge Henry H. Kennedy no longer assigned to the case. (ds) (Entered: 12/15/2011)
2011-12-16		MINUTE ORDER granting nunc pro tunc 10 Motion for Extension of Time to File Joint Case Management Report. The parties are further ordered to file joint status reports on or before February 22, 2012 and May 22, 2012. The second report shall advise the Court if the FBI has completed processing potentially responsive records and, if so, propose deadlines for the completion of a Vaughn index and for summary judgment motions. If the parties are unable to reach agreement on either status report, each party shall submit its own report. Signed by Judge Barbara Jacobs Rothstein on December 16, 2011. (lchhk1) (Entered: 12/16/2011)
2011-12-19		Set/Reset Deadlines: Joint Case Management Report due on or before 2/22/2012 and 5/22/2012. (tth) Modified on 12/19/2011 (tth). (Entered: 12/19/2011)
2012-01-06	14	STANDING ORDER applicable to this case from this date forward. Signed by Judge Barbara Jacobs Rothstein on January 6, 2012. (lchhk1) Modified on 1/9/2012 to edit text (dr). (Entered: 01/06/2012)
2012-02-22	15	STATUS REPORT (First Joint) by DEPARTMENT OF JUSTICE. (Interrante, John) (Entered: 02/22/2012)
2012-05-22	16	STATUS REPORT (Joint) by DEPARTMENT OF JUSTICE. (Interrante, John) (Entered: 05/22/2012)
2012-05-24		MINUTE ORDER: The parties are instructed to file a joint status report on or before June 21, 2012 that includes a proposed deadline for the completion of the FBI's Vaughn declaration and a proposed briefing schedule for dispositive motions. Signed by Judge Barbara Jacobs Rothstein on 5/24/12. (Reed, Heather) (Entered: 05/24/2012)
2012-05-24		Set/Reset Deadlines: Joint Status Report due by 6/21/2012. (tg, ) (Entered: 05/24/2012)
2012-06-21	17	STATUS REPORT (Joint) by DEPARTMENT OF JUSTICE. (Interrante, John) (Entered: 06/21/2012)
2012-06-25		MINUTE ORDER re 17 Joint Status Report. The court accepts the proposed scheduling order as set forth by the parties in the joint status report. Signed by Judge Barbara Jacobs Rothstein on 6/25/12. (Reed, Heather) (Entered: 06/25/2012)
2012-06-25		Set/Reset Deadlines: Defendant's Vaughn declaration due by 8/20/2012. Defendant's Summary Judgment motion due by 9/19/2012; plaintiff's opposition and cross-motion due by 10/19/2012; defendant's reply in support and opposition to cross-motion for Summary Judgment due by 11/19/2012; plaintiff's reply to cross-motion due by 12/21/2012.(tg, ) (Entered: 06/26/2012)
2012-08-20	18	STATUS REPORT by DEPARTMENT OF JUSTICE. (Interrante, John) (Entered: 08/20/2012)
2012-09-16	19	Consent MOTION for Leave to File First Amended Complaint by JEFFREY LABOW (Attachments: # 1 Exhibit First Amended Complaint, # 2 Text of Proposed Order)(Light, Jeffrey) (Entered: 09/16/2012)
2012-09-19	20	RESPONSE re 19 Consent MOTION for Leave to File First Amended Complaint (Consent) filed by DEPARTMENT OF JUSTICE. (Interrante, John) (Entered: 09/19/2012)
2012-09-19	21	Consent MOTION to Amend/Correct Order, Set/Reset Deadlines, by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Interrante, John) (Entered: 09/19/2012)
2012-09-26		ORDER granting 19 consent Motion for Leave to File First Amended Complaint and to Amend Scheduling Order. Defendant shall file an Answer or other responsive pleading within 30 days of the date that the First Amended Complaint is filed. In addition, the parties shall submit a joint proposed amended scheduling order within 30 days of the date of this minute order. Signed by Judge Barbara Jacobs Rothstein on 9/26/12. (Reed, Heather) (Entered: 09/26/2012)
2012-09-26	22	AMENDED COMPLAINT against DEPARTMENT OF JUSTICE filed by JEFFREY LABOW.(dr) (Entered: 09/26/2012)
2012-10-26	23	ANSWER to 22 Amended Complaint by DEPARTMENT OF JUSTICE. Related document: 22 Amended Complaint filed by JEFFREY LABOW.(Interrante, John) (Entered: 10/26/2012)
2012-10-26	24	NOTICE of Proposed Order by DEPARTMENT OF JUSTICE re Order on Motion for Leave to File, (Interrante, John) (Entered: 10/26/2012)
2012-12-11		MINUTE ORDER: The Court grants the parties' joint request to amend the scheduling order. The scheduling order is amended as follows: Defendant shall make an additional release of resposive, non-exempt records to Plaintiff's FOIA request by December 28, 2012; Defendant shall file a status report on or before January 4, 2013; Defendant shall complete the processing of responsive, non-exempt records to the FOIA request and make a file release of records by March 29, 2013; Defendant shall file another status report on or before April 5, 2013; Defendant shall prepare a Vaughn declaration by June 28, 2013; and the parties shall file a joint status report and propose a briefing schedule, if necessary, by July 8, 2013. Signed by Judge Barbara Jacobs Rothstein on 12/11/12. (Reed, Heather) (Entered: 12/11/2012)
2013-01-04	25	STATUS REPORT by DEPARTMENT OF JUSTICE. (Interrante, John) (Entered: 01/04/2013)
2013-04-05	26	STATUS REPORT by DEPARTMENT OF JUSTICE. (Interrante, John) (Entered: 04/05/2013)
2013-07-05	27	STATUS REPORT (Joint) and Proposed Briefing Schedule by DEPARTMENT OF JUSTICE. (Interrante, John) (Entered: 07/05/2013)
2013-08-22	28	STATUS REPORT (Parties Joint Amended Status Report and Proposed Briefing Schedule) by DEPARTMENT OF JUSTICE. (Interrante, John) (Entered: 08/22/2013)
2013-09-06	29	STATUS REPORT (Joint Amended Status Report and Proposed Briefing Schedule) by DEPARTMENT OF JUSTICE. (Interrante, John) (Entered: 09/06/2013)
2013-09-13	30	STATUS REPORT (Joint Amended Status Report and Proposed Briefing Schedule) by DEPARTMENT OF JUSTICE. (Interrante, John) (Entered: 09/13/2013)
2013-09-16	31	Consent MOTION for Leave to File Excess Pages (Defendant's Motion for Summary Judgment) by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Interrante, John) (Entered: 09/16/2013)
2013-09-16	32	MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Statement of Facts, # 2 Declaration David M. Hardy, # 3 Exhibit A - K, # 4 Exhibit L (Dorris Declaration), # 5 Text of Proposed Order)(Interrante, John) (Entered: 09/16/2013)
2013-09-27		MINUTE ORDER granting 31 consent Motion for Leave to File Excess Pages. Signed by Judge Barbara Jacobs Rothstein on 9/25/13. (Reed, Heather) Modified event title on 9/30/2013 (znmw, ). (Entered: 09/27/2013)
2013-10-25	33	Memorandum in opposition to re 32 MOTION for Summary Judgment filed by JEFFREY LABOW. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order, # 3 Exhibit Chart)(Light, Jeffrey) (Entered: 10/25/2013)
2013-11-13	34	ERRATA by JEFFREY LABOW 33 Memorandum in Opposition filed by JEFFREY LABOW. (Light, Jeffrey) (Entered: 11/13/2013)
2013-11-18	35	STATUS REPORT (and Notice of Proposed Amended Briefing Schedule -- Reply due 12/18/13) by DEPARTMENT OF JUSTICE. (Interrante, John) (Entered: 11/18/2013)
2013-11-19		MINUTE ORDER re 35 Status Report filed by DEPARTMENT OF JUSTICE. The Court hereby GRANTS the consent motion to extend the deadline within which Defendant must file its reply brief. The reply brief shall be filed on or before December 18, 2013. Signed by Judge Barbara Jacobs Rothstein on 11/19/13. (Reed, Heather) (Entered: 11/19/2013)
2013-11-19		Set/Reset Deadline: Reply due by 12/18/2013. (tth) (Entered: 11/19/2013)
2013-12-18	36	Consent MOTION for Extension of Time to File Response/Reply as to 32 MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Interrante, John) (Entered: 12/18/2013)
2013-12-18		MINUTE ORDER granting 36 consent Motion for Extension of Time to File Response/Reply. It is HEREBY ORDERED that Defendant shall file a reply by January 17, 2014. Signed by Judge Barbara Jacobs Rothstein on 12/18/13. (Reed, Heather) (Entered: 12/18/2013)
2013-12-19		Set/Reset Deadlines: Reply due by 1/17/2014. (tth) (Entered: 12/19/2013)
2014-01-16	37	Consent MOTION for Extension of Time to File Response/Reply as to 32 MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Interrante, John) (Entered: 01/16/2014)
2014-01-21		MINUTE ORDER granting 37 Consent Motion for Extension of Time to File Reply. Defendant's Reply shall be filed on or before Jaunary 31, 2014. Signed by Judge Barbara Jacobs Rothstein on 1/21/14. (Reed, Heather) (Entered: 01/21/2014)
2014-01-22		Set/Reset Deadline: Reply due by 1/31/2014. (tth) (Entered: 01/22/2014)
2014-01-30	38	NOTICE of Appearance by Michelle Lo on behalf of DEPARTMENT OF JUSTICE (Lo, Michelle) (Entered: 01/30/2014)
2014-01-30	39	Unopposed MOTION for Extension of Time to File Response/Reply as to 32 MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Lo, Michelle) (Entered: 01/30/2014)
2014-01-30		MINUTE ORDER granting 39 Unopposed Motion for Extension of Time to File Response/Reply. Signed by Judge Barbara Jacobs Rothstein on 1/30/14. (Reed, Heather) (Entered: 01/30/2014)
2014-02-14	40	REPLY to opposition to motion re 32 MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Second Declaration of David M. Hardy, # 2 Third Declaration of David M. Hardy (Public Version))(Lo, Michelle) (Entered: 02/14/2014)
2014-02-14	41	MOTION for Leave to File to Submit an Ex Parte, In Camera Declaration and Memorandum in Support Thereof by DEPARTMENT OF JUSTICE (Lo, Michelle) (Entered: 02/14/2014)
2014-03-04	42	Memorandum in opposition to re 41 MOTION for Leave to File to Submit an Ex Parte, In Camera Declaration and Memorandum in Support Thereof filed by JEFFREY LABOW. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Light, Jeffrey) (Entered: 03/05/2014)
2014-03-14	43	REPLY to opposition to motion re 41 MOTION for Leave to File to Submit an Ex Parte, In Camera Declaration and Memorandum in Support Thereof filed by DEPARTMENT OF JUSTICE. (Lo, Michelle) (Entered: 03/14/2014)
2014-05-01	44	NOTICE OF SUPPLEMENTAL AUTHORITY by JEFFREY LABOW (Light, Jeffrey) (Entered: 05/01/2014)
2014-05-01	45	NOTICE OF WITHDRAWAL OF APPEARANCE as to DEPARTMENT OF JUSTICE. Attorney Michelle Lo terminated. (Lo, Michelle) (Entered: 05/01/2014)
2014-06-24	46	MEMORANDUM ORDER granting defendant Department of Justice's motion 41 for leave to file an ex parte, in camera affidavit and ordering defendant Department of Justice to file the affidavit under seal within seven days of this order. Signed by Judge Barbara Jacobs Rothstein on 6/24/14. (lcrwr2) (Entered: 06/24/2014)
2014-07-01	47	NOTICE of Compliance with Court's June 24, 2014 Order by DEPARTMENT OF JUSTICE re 46 Order on Motion for Leave to File, (Interrante, John) (Entered: 07/01/2014)
2014-07-02	48	RESPONSE re 44 NOTICE OF SUPPLEMENTAL AUTHORITY filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A - Supplemental disclosure letter in light of Sennett decision)(Interrante, John) (Entered: 07/02/2014)
2014-09-04	49	MEMORANDUM OPINION AND ORDER granting defendant Department of Justice's motion 32 for summary judgment. Signed by Judge Barbara Jacobs Rothstein on 9/4/14. (lcrwr2) (Entered: 09/04/2014)
2014-09-05	50	CLERK'S JUDGMENT. Signed by Tonya T. Hightower on 9/5/2014. (tth) (Entered: 09/05/2014)
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