Case Detail

FOIA Project Annotation: Judge Emmet Sullivan has ruled that the Justice Department did not waive the confidentiality of its Domestic Investigations and Operations Guide when it shared various chapters with civil liberties and civil rights organizations as part of an outreach program. The groups were invited to two separate meetings in November 2008 where chapters were handed out to participants for review. After two hours, the chapters were collected by DOJ personnel, but there were no restrictions on the ability of participants to take notes during that time and to report back to their organizations on anything they learned. Muslim Advocates, one of the invited organizations, asked DOJ for copies of the chapters, but the agency denied their request, citing Exemption 7(E) (investigative methods and techniques). Muslim Advocates argued that the agency waived confidentiality for the chapters when it made them available without restrictions during the two meetings. Siding with the government, Sullivan noted that "although the FBI allowed Muslim Advocates and several other civil rights and civil liberties groups to view the disputed chapters during a two-hour meeting at FBI headquarters, the Court is not convinced that such a limited review is sufficient to satisfy the requirements of the public-domain doctrine in the absence of evidence that the disputed chapters are now 'truly public.'" Relying on Students Against Genocide v. Dept of State, 257 F.3d 828 (D.C. Cir. 2001), in which the D.C. Circuit ruled that Secretary of State Madeleine Albright did not waive the exempt status of two spy satellite photos by showing them for limited purposes at a UN Security Council meeting, Sullivan pointed out that "in this case, the disputed chapters were not released to the general public; rather, they were only shown to a select group of organizationsâ€"personally invited by the FBIâ€"at FBI headquarters. Although the attendees were permitted to view and take notes on the disputed chapters for approximately two hours, they were required to return the documents at the end of the meeting. As none of the disputed chapters left FBI headquarters, the Court finds that there is not 'permanent public record' of the disputed chapters in the public domain." Sullivan explained that his conclusion that the chapters were not public was bolstered by the fact that Muslim Advocates complained that they were unable to conduct a "meaningful review" of the guide in the two hours in which they had access to the chapters. He indicated that "as the participants in the November meetings lacked sufficient time for a 'rigorous examination' or 'meaningful review' of the disputed chapters, the Court is not persuadedâ€"absent some evidence to the contraryâ€"that the note-taking participants assembled a permanent public record that 'duplicates that being withheld.'" Muslim Advocates also argued that the agency had waived its Exemption 7(E) claim by making the chapters available during the meetings. But Sullivan noted that "with respect to plaintiff's waiver argument, the Court agrees with defendant that 'there is a difference between showing the contested DIOG provisions to a limited audience and a handful of representatives of particular public interest groups and generally disclosing the actual document itself to the public at large.'" Sullivan also dismissed claims that many of the investigative techniques had already been revealed in media reports. However, Sullivan found the agency had not adequately explained its wholesale withholding of one chapter and told DOJ it must provide more substantiation.
Issues: Exemption 5 - Privileges - Waiver of privilege

FOIA Project Annotation: Judge Emmet Sullivan has ruled the Justice Department properly withheld complete chapters of the FBI's Domestic Investigations and Operations Guide from Muslim Advocates. Muslim Advocates had previously argued that the agency waived its ability to withhold the guide after it shared some of its contents with outside advocacy groups. Sullivan had rejected Muslim Advocates' waiver claim, but had found the agency had so far failed to show why entire chapters of the guide were redacted and ordered the agency to conduct a segregability analysis. The agency provided a further affidavit to Sullivan and after reviewing it he agreed the agency had properly withheld the entire chapter. He pointed out that "having carefully reviewed defendant's ex parte declaration, the Court finds that the government has now satisfied its burden of establishing its right to withhold the information contained in Chapter 16 of the [Guide]. The declaration describes in detail each redacted section of Chapter 16 and the justifications for withholding that information, and it demonstrates that the information withheld logically falls within Exemption 7(E) (investigatory methods and techniques)." He added that "the Court concludes that it is both plausible and logical that the disclosure of detailed information regarding the FBI's procedures for investigation of and undisclosed participation in target organizations could risk circumvention of the law and impede the FBI's ability to carry out its mission. Moreover, the Court finds no evidence in the record that contradicts the government's justifications for withholding the redacted information or demonstrates bad faith."
Issues: Litigation - Segregability analysis, Exemption 7(E) - Prosecutorial guidelines - Risk of circumvention

Date Filed	Doc #	Docket Text
2009-09-16	1	COMPLAINT against UNITED STATES DEPARTMENT OF JUSTICE ( Filing fee $ 350, receipt number 4616024021) filed by MUSLIM ADVOCATES. (Attachments: # 1 Civil Cover Sheet)(rdj) (Entered: 09/17/2009)
2009-09-16		SUMMONS (3) Issued as to UNITED STATES DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (rdj) (Entered: 09/17/2009)
2009-09-16	2	NOTICE OF RELATED CASE by MUSLIM ADVOCATES. Case related to Case No. 09-1151. (rdj) (Entered: 09/17/2009)
2009-09-16	3	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by MUSLIM ADVOCATES identifying Corporate Parent NONE for MUSLIM ADVOCATES. (rdj) (Entered: 09/17/2009)
2009-09-20	4	SUMMONS Returned Executed by MUSLIM ADVOCATES. UNITED STATES DEPARTMENT OF JUSTICE served on 9/16/2009, answer due 10/16/2009. (McNicholas, Edward) (Entered: 09/20/2009)
2009-09-20	5	SUMMONS Returned Executed by MUSLIM ADVOCATES. (McNicholas, Edward) (Entered: 09/20/2009)
2009-09-20	6	SUMMONS Returned Executed by MUSLIM ADVOCATES. (McNicholas, Edward) (Entered: 09/20/2009)
2009-10-14	7	AMENDED COMPLAINT against UNITED STATES DEPARTMENT OF JUSTICE filed by MUSLIM ADVOCATES.(znmw, ) (Entered: 10/15/2009)
2009-10-26	8	NOTICE of Appearance by Bryan Russell Diederich on behalf of UNITED STATES DEPARTMENT OF JUSTICE (Diederich, Bryan) (Entered: 10/26/2009)
2009-10-26	9	ANSWER to 7 Amended Complaint by UNITED STATES DEPARTMENT OF JUSTICE. Related document: 7 Amended Complaint filed by MUSLIM ADVOCATES.(Diederich, Bryan) (Entered: 10/26/2009)
2009-10-27		MINUTE ORDER directing the parties to submit a proposed scheduling order by no later than November 12, 2009. In the event that counsel are unable to agree on a joint recommendation, each party shall file an individual recommendation by that time. Signed by Judge Emmet G. Sullivan on October 27, 2009. (lcegs1) (Entered: 10/27/2009)
2009-10-27		Set/Reset Deadlines: Status Report due by 11/12/2009 (clv, ) (Entered: 10/27/2009)
2009-11-12	10	NOTICE of Proposed Order Regarding Schedule by UNITED STATES DEPARTMENT OF JUSTICE (Diederich, Bryan) (Entered: 11/12/2009)
2009-11-13	11	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order, # 2 Statement of Facts, # 3 Memorandum in Support)(Diederich, Bryan) (Entered: 11/13/2009)
2009-11-13	12	AFFIDAVIT re 11 MOTION for Summary Judgment David M. Hardy by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit 1 Part 1, # 2 Exhibit 1 Part 2, # 3 Exhibit 1 Part 3, # 4 Exhibit 1-4, # 5 Exhibit 1 Part 5, # 6 Exhibit 1 Part 6, # 7 Exhibit 1 Part 7, # 8 Exhibit 2, # 9 Exhibit 3, # 10 Exhibit 4, # 11 Exhibit 5, # 12 Exhibit 6, # 13 Exhibit 7)(Diederich, Bryan) (Entered: 11/13/2009)
2009-11-13	13	AFFIDAVIT re 11 MOTION for Summary Judgment Bryan R. Diederich by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Diederich, Bryan) (Entered: 11/13/2009)
2009-11-16		MINUTE ORDER. Upon consideration of 10 the Joint Proposed Scheduling Order, the parties are directed to comply with the following briefing schedule: plaintiff shall file its opposition to defendant's motion for summary judgment by no later than December 14, 2009. If plaintiff chooses to file a cross-motion, it shall be combined with the opposition and filed on the same date. Defendant's reply and, if applicable, combined opposition shall be filed no later than January 4, 2010. Plaintiff's reply, if applicable, shall be filed no later than January 19, 2010. Signed by Judge Emmet G. Sullivan on November 16, 2009. (lcegs1) (Entered: 11/16/2009)
2009-11-16		Set/Reset Deadlines: Cross Motions due by 12/14/2009. Response to Cross Motions due by 1/4/2010. Reply to Cross Motions due by 1/19/2010. Response to Motion for Summary Judgment due by 12/14/2009. Reply to Motion for Summary Judgment due by 1/4/2010. (clv, ) (Entered: 11/16/2009)
2009-12-11	14	Joint MOTION for Extension of Time to Complete Briefing by MUSLIM ADVOCATES, UNITED STATES DEPARTMENT OF JUSTICE (Diederich, Bryan) (Entered: 12/11/2009)
2009-12-11		MINUTE ORDER granting 14 joint motion for extension of time to complete briefing. The parties are directed to comply with the following revised briefing schedule: plaintiff shall file its opposition to defendant's motion for summary judgment by no later than December 21, 2009. If plaintiff chooses to file a cross-motion, it shall be combined with the opposition and filed on the same date. Defendant's reply and, if applicable, combined opposition shall be filed no later than January 11, 2010. Plaintiff's reply, if applicable, shall be filed no later than January 26, 2010. Signed by Judge Emmet G. Sullivan on December 11, 2009. (lcegs1) (Entered: 12/11/2009)
2009-12-11	15	NOTICE of Filing of Supplemental Declaration by UNITED STATES DEPARTMENT OF JUSTICE re 13 Affidavit (Attachments: # 1 Declaration)(Diederich, Bryan) (Entered: 12/11/2009)
2009-12-14		Set/Reset Deadlines: Cross Motions due by 12/21/2009. Response to Motion for Summary Judgment and cross motion due by 12/21/2009; Reply and response due by 1/11/2010; reply due by 1/26/10 (clv, ) (Entered: 12/14/2009)
2009-12-21	16	Memorandum in opposition to re 11 MOTION for Summary Judgment filed by MUSLIM ADVOCATES. (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Declaration Abdelall, # 3 Exhibit A to Abdelall Declaration, # 4 Declaration Brown, # 5 Declaration Buttar, # 6 Exhibit A to Buttar Declaration, # 7 Declaration Khera, # 8 Exhibit A to Khera Declaration, # 9 Exhibit B to Khera Declaration, # 10 Exhibit C to Khera Declaration, # 11 Exhibit D to Khera Declaration, # 12 Exhibit E to Khera Declaration, # 13 Exhibit F to Khera Declaration, # 14 Exhibit G to Khera Declaration, # 15 Exhibit H to Khera Declaration, # 16 Declaration McNicholas, # 17 Exhibit A to McNicholas Declaration, # 18 Exhibit B to McNicholas Declaration, # 19 Exhibit C to McNicholas Declaration, # 20 Exhibit D to McNicholas Declaration, # 21 Exhibit E to McNicholas Declaration, # 22 Exhibit F to McNicholas Declaration, # 23 Exhibit G to McNicholas Declaration, # 24 Exhibit H to McNicholas Declaration, # 25 Exhibit I to McNicholas Declaration, # 26 Exhibit J to McNicholas Declaration, # 27 Exhibit K to McNicholas Declaration)(McNicholas, Edward) (Entered: 12/21/2009)
2009-12-21	17	Cross MOTION for Summary Judgment by MUSLIM ADVOCATES (Attachments: # 1 Text of Proposed Order Proposed Order, # 2 Declaration Abdelall, # 3 Exhibit A to Abdelall Declaration, # 4 Declaration Brown, # 5 Declaration Buttar, # 6 Exhibit A to Buttar Declaration, # 7 Declaration Khera, # 8 Exhibit A to Khera Declaration, # 9 Exhibit B to Khera Declaration, # 10 Exhibit C to Khera Declaration, # 11 Exhibit D to Khera Declaration, # 12 Exhibit E to Khera Declaration, # 13 Exhibit F to Khera Declaration, # 14 Exhibit G to Khera Declaration, # 15 Exhibit H to Khera Declaration, # 16 Declaration McNicholas, # 17 Exhibit A to McNicholas Declaration, # 18 Exhibit B to McNicholas Declaration, # 19 Exhibit C to McNicholas Declaration, # 20 Exhibit D to McNicholas Declaration, # 21 Exhibit E to McNicholas Declaration, # 22 Exhibit F to McNicholas Declaration, # 23 Exhibit G to McNicholas Declaration, # 24 Exhibit H to McNicholas Declaration, # 25 Exhibit I to McNicholas Declaration, # 26 Exhibit J to McNicholas Declaration, # 27 Exhibit K to McNicholas Declaration)(McNicholas, Edward) (Entered: 12/21/2009)
2010-01-11	18	REPLY to opposition to motion re 11 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE. (Diederich, Bryan) (Entered: 01/11/2010)
2010-01-11	19	Memorandum in opposition to re 17 Cross MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Diederich, Bryan) (Entered: 01/11/2010)
2010-01-26	20	REPLY to opposition to motion re 17 Cross MOTION for Summary Judgment filed by MUSLIM ADVOCATES. (McNicholas, Edward) (Entered: 01/26/2010)
2010-02-16	21	NOTICE OF SUPPLEMENTAL AUTHORITY by MUSLIM ADVOCATES (Attachments: # 1 Exhibit Monteilh Complaint)(McNicholas, Edward) (Entered: 02/16/2010)
2010-08-20	22	NOTICE of Appearance by Colleen T. Brown on behalf of MUSLIM ADVOCATES(Brown, Colleen) Modified on 8/20/2010 to edit text (dr). (Entered: 08/20/2010)
2010-09-02	23	NOTICE OF SUPPLEMENTAL AUTHORITY by MUSLIM ADVOCATES (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Brown, Colleen) (Entered: 09/02/2010)
2011-03-30		Case randomly reassigned to U.S. District Judge Amy Berman Jackson. Judge Emmet G. Sullivan no longer assigned to the case. (gt, ) (Entered: 03/30/2011)
2011-05-04	24	NOTICE OF SUPPLEMENTAL AUTHORITY by MUSLIM ADVOCATES (McNicholas, Edward) (Entered: 05/04/2011)
2011-05-05	25	Case reassigned back to Judge Emmet G. Sullivan. Judge Amy Berman Jackson no longer assigned to the case. (gt, ) (Entered: 05/05/2011)
2011-05-16	26	RESPONSE re 24 NOTICE OF SUPPLEMENTAL AUTHORITY filed by UNITED STATES DEPARTMENT OF JUSTICE. (Diederich, Bryan) (Entered: 05/16/2011)
2011-05-19	27	NOTICE OF SUPPLEMENTAL AUTHORITY re 17 Cross MOTION for Summary Judgment by MUSLIM ADVOCATES (Attachments: # 1 Supplement Declaration of F. Khera, # 2 Exhibit A)(Brown, Colleen) Modified on 5/19/2011 to add docket link (jf, ). (Entered: 05/19/2011)
2011-06-01	28	REPLY re 27 NOTICE OF SUPPLEMENTAL AUTHORITY filed by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A)(Diederich, Bryan) (Entered: 06/01/2011)
2011-11-10	29	ORDER granting in part and denying in part 11 defendant's motion for summary judgment and denying 17 plaintiff's cross-motion for summary judgment. Signed by Judge Emmet G. Sullivan on November 10, 2011. (lcegs1) (Entered: 11/10/2011)
2011-11-10	30	MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on November 10, 2011. (lcegs1) (Entered: 11/10/2011)
2011-11-15		Set/Reset Deadlines: Supplemental affidavit due by 11/30/2011. (clv, ) (Entered: 11/15/2011)
2011-11-30	31	MOTION for Extension of Time to File by UNITED STATES DEPARTMENT OF JUSTICE (Diederich, Bryan) (Entered: 11/30/2011)
2011-11-30		MINUTE ORDER treating as opposed and granting over objection 31 defendant's motion for extension of time. Defendant shall file the supplemental affidavit required by 29 this Court's order by no later than December 1, 2011. Signed by Judge Emmet G. Sullivan on November 30, 2011. (lcegs6) (Entered: 11/30/2011)
2011-12-01		Set/Reset Deadlines: Defendant's Supplemental affidavit due by 12/1/2011. (clv, ) (Entered: 12/01/2011)
2011-12-01	32	NOTICE of Ex Parte Filing by UNITED STATES DEPARTMENT OF JUSTICE (Diederich, Bryan) (Entered: 12/01/2011)
2011-12-06	33	NOTICE of Filing Redacted Document by UNITED STATES DEPARTMENT OF JUSTICE re 32 Notice (Other) (Attachments: # 1 Declaration)(Diederich, Bryan) (Entered: 12/06/2011)
2012-01-11	34	ORDER granting 11 defendant's motion for summary judgment. Signed by Judge Emmet G. Sullivan on January 11, 2012. (lcegs6) (Entered: 01/11/2012)
2012-01-11	35	MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on January 11, 2012. (lcegs6) (Entered: 01/11/2012)
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