UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GEORGE CANNING, Civil Action No. 11-1295{GK) Plaintiff,

v.

U.S. DEPARTMENT OF JUSTICE,

Defendant.

MEMORANDUM OPINION

Pro Se Plaintiff George Canning ("Plaintiff"), brings this

action against Defendant, Federal Bureau of Investigation ("FBI"

or "Defendant"), under the Freedom of Information Act ("FOIA"),

. This matter is now before the Court on Defendant's

Motion for Summary Judgment ("Def.'s Mot.") [Dkt. No. 30-1] and

Plaintiff's Cross-Motion for Partial Summary Judgment ("Pl.' s

Mot. " ) [Dkt. No. 4 6] .

Upon consideration of the Motions, Oppositions, Replies, the

entire record herein, and for the reasons discussed below,

Defendant's Motion for Summary Judgment is granted in part and

denied in part and Plaintiff's Cross-Motion for Partial Summary

Judgment is granted in part and denied in part.

-1- I . BACKGROUND

A. September 29, 2007 FOIA Requests

On September 29, 2007, Plaintiff submitted a FOIA request to

the FBI Washington Field Office ("WFO"). He sought twelve serial

numbers and "any other serials containing references to or

information about Paul Goldstein, Lyndon H. LaRouche Jr., and/or

Jeffrey Steinberg" for items on a copy of a r~dacted FBI airtel

that Plaintiff enclosed with his request. 1 Am. Compl., Ex. D. Mr.

Canning attached privacy waivers from Mr. Goldstein, Mr. LaRouche,

and Mr. Steinberg to his request.

The same day, Mr. Canning submitted a separate FOIA request to

FBI headquarters ( "FBI HQ" ) seeking: ( 1) the same material he

requested from the WFO, (2) two documents declassified by the FBI

prior to an Interagency Security Classification Appeals Panel

( "ISCAP") review, and (3) any information regarding Mr." Goldstein,

Mr. LaRouche, and Mr. Steinberg in airtel WMFO 196B-1918-364.

Ex. A. Defendant claims it has no record of receiving the FBI HQ

request. Second Hardy Deel. ~ 9 [Dkt. No. 30-3].

B. July 18, 2 009 FOIA Request

On July 18, 2009, Mr. Canning submitted a FOIA request to the

FBI HQ seeking documents declassified by ISCAP for three specific

1 In 2011, Defendant located an unredacted copy of the FBI airtel referenced in Plaintiff's request and used this version to locate responsive material. Second Hardy Deel. ~ 27. -2- ISCAP appeals involving Plaintiff and Mr. Steinberg. Am. Compl.,

Ex. K. On December 22, 2009, Mr. Canning amended his request to

seek an additional document related to a declassification review

appeal filed by Mr. Steinberg.

Ex. P. Although the Government

claims it had no prior record of Plaintiff's July 18, .2009 request,

upon receiving Plaintiff's amendment, it opened a FOIA case and

released responsive material. Third Hardy Deel. ~ 10.

C. December 31, 2009 FOIA Request

On December 31, 2009, Mr. Canning submitted a FOIA request to

FBI HQ seeking information about suspected government surveillance

of Mr. LaRouche's presidential campaign. Am. Compl., Ex. R. Again,

the Government claims it had no official record of Plaintiff's

request. See Third Hardy Deel. ~ 5. Nonetheless, it referenced the

FOIA request appended to Plaintiff's Amended Complaint to search

for and process responsive records related to the request.

~

6.

D. Procedural History

Plaintiff instituted this action on July 19, 2011. The

Government filed its pending Motion for Summary Judgment on

December 21, 2012. On May 9, 2013, Plaintiff filed his Cross-

Motion for Partial Summary Judgment. During the course of this

action, the Court denied multiple Motions by Plaintiff to obtain

-3- discovery. The Parties' Cross-Motions for Summary Judgment are now

fully briefed and ripe for review.

II. STANDARD OF REVIEW

FOIA cases are typically and appropriately decided on motions

for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of

Governors of Fed. Reserve Sys.,

(D.D.C.

2011); Defenders of Wildlife v. U.S. Border Patrol,

(D.D.C. 2009). "The standard governing a grant of summary

judgment in favor of an agency's claim that it has fully discharged

its disclosure obligations under FOIA is well-established ....

[T]he agency bears the burden of showing that there is no genuine

issue of material fact, even when the underlying facts are viewed

in the light most favorable to the requester." Weisberg v. U.S.

Dep't of Justice,

(D.C. Cir. 1983); see also

Fed. R. Civ. P. 56(c).

The court may award summary judgment solely on the basis of

"[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." Oglesby v. U.S. Dep't of the Army,

(D.C. Cir. 1990).

If the agency withholds any material on the basis of statutory

exemptions, the agency's affidavits must also (1) "describe the

-4- documents and the justifications for nondisclosure with reasonably

specific detail;" and (2) "demonstrate that the information

withheld logically falls within the claimed exemption;" and must

not be (3) "controverted by either contrary evidence in the record

nor by evidence of agency bad faith." Military Audit Project v.

Casey,

(D.C. Cir. 1981). Such affidavits or

declarations are accorded "a presumption of good faith, which

cannot be rebutted by 'purely speculative claims about the

existence and discoverability of other documents.'" SafeCard

Servs., Inc. v. S.E.C.,

(D.C. Cir. 1991)

(quoting Ground Saucer Watch, Inc. v. C.I.A.,

(D.C. Cir. 1981)).

III. ANALYSIS

In response to Plaintiff's four FOIA requests, Defendant

withheld material under FOIA Exemptions 1, 3, 7(C), 7(D), and 7

(E). Plaintiff objects to the sufficiency of Defendant's search,

contests a number of the asserted FOIA Exemptions, and argues that

certain information should be disclosed because it exists in the

public domain. The Court will address each issue in turn.

A. Sufficiency of the Search Conducted by the FBI

The purpose of FOIA is to "facilitate public access to

Government documents" and "to pierce the veil of secrecy and to

open agency action to the light of public scrutiny." Mccutchen v.

-5- U.S. Dep't of Health & Human Servs.,

(D.C. Cir.

1994) (internal quotations omitted). In responding to a FOIA

request, an agency is under an obligation to conduct a reasonable

search for responsive records. Oglesby,

. To win

summary judgment on the adequacy of a search, the agency must

demonstrate beyond material doubt that its search was "reasonably

calculated to uncover all relevant documents." Weisberg,

. An agency may demonstrate the reasonableness of its search

by submitting "[a] reasonably detailed affidavit." Oglesby,

.

The Court "applies a 'reasonableness' test to determine the

'adequacy' of a search methodology, consistent with congressional

intent tilting the scale in favor of disclosure." Morley v. C.I.A.,

(D.C. Cir. 2007) (internal quotation marks and

citation omitted) . To prevail in a summary judgment motion, an

agency is not required to search every system possible, but must

show that it made a good faith effort that would be reasonably

expected to produce all the requested information. See Steinberg

v. U.S. Dep't of Justice,

(D.C. Cir. 1994).

Summary judgment for an agency is inappropriate only if the

agency's responses "raise serious doubts as to the completeness of

the search or are for some other reason unsatisfactory .... " Perry

v. Block,

(D.C. Cir. 1982).

-6- In this case, the Court concludes that, as to each of

Plaintiff's FOIA requests, the FBI's search was reasonably

calculated to uncover the relevant documents. Three declarations

submitted by David M. Hardy, the Section Chief of the

Record/Information Dissemination Section ("RIDS") I Records

Management Division of the FBI, describe, in extensive detail,

Defendant's search for documents responsive to Plaintiff's

requests. See Second Hardy Deel.; Third Hardy Deel.; Fourth Hardy

Deel. [Dkt. No. 64-1].

With regard to the September 29, 2007 request to the

Washington Field Office, the Government initially located and

processed the files visible on the partially redacted airtel that

Plaintiff attached to his request. Second Hardy Deel. ~ 43. The

Government supplemented its processing efforts with search terms

targeted to retrieve responsive information.

Concerning the

redacted serial numbers that Plaintiff requested, Defendant

searched for and found an unredacted version of the airtel, re-

processed the clean version for release, and then located the

specific files that Plaintiff requested.

~ 44. The Government

also deployed targeted search terms to search its electronic

surveillance ("ELSUR") indices for responsive material. 2

~ 47.

2 Defendant's ELSUR search terms included: "Executive Intelligence Review," "EIR," "Foreign Police Cooperation," "Goldstein, Paul Neil," "LaRouche, Lyndon Hermyle," "Steinberg, Jeffrey," and the date of -7- The Government adopted a similar approach with regard to

Plaintiff's July 18, 2009 and December 31, 2009 requests. Although

Mr. Canning had originally requested a blacked-out file in the FBI

search slip that he attached to his December 31, 2009 request, the

Government located an unredacted version in its files and processed

the corresponding serial numbers for release. Third Hardy Deel. ~

28. Defendant also conducted ELSUR searches using targeted search

parameters. By coordinating with its RIDS Department Review

Committee liaison, the Government was able to locate all of the

material requested by Plaintiff in his July 18, 2009 request.

~ 30.

The Court finds that the Government's efforts as to these

FOIA requests were reasonably calculated to uncover all relevant

documents and· therefore adequate. See Chambers v. U.S. Dep't of

Interior,

(D.C. Cir. 2009). The Hardy

declarations identify, with reasonable specificity, the "system of

records searched and the . geographic location of those files."

Perry,

. See Weisberg v. U.S. Dep't of Justice,

(D.C. Cir. 1980) (agency affidavit must denote which

files were searched and reflect a systematic approach to document

birth and social security number for the targeted individuals. Second Hardy Deel. ~ 47. -8- location in order to enable the appellant to challenge the

procedures utilized) .

Mr. Canning does not appear to dispute that the above measures

were adequate to locate records responsive to his September 29,

2007 request to the Washington Field Office and his two 2009

requests. Instead, Plaintiff principally challenges the fact that

Defendant did not conduct an independent search of the FBI HQ's

files in response to his September 29, 2007 request to the FBI HQ.

Pl. 's Mot. at 6. According to Plaintiff, Defendant blatantly

ignored this request, disregarding Plaintiff's concern that

documents located in the FBI HQ might materially differ from the

records stored in the Field Office. Id. at 8. In response, the

Government asserts that since Field Office files are copied to the

FBI HQ, an independent search of the FBI HQ for the same materials

would have been needlessly redundant. Def.'s Reply at 4 [Dkt. No.

64] .

The Court agrees with the Government. It provided a reasonably

detailed affidavit clarifying why it only searched its Field

Office, and why a search of the FBI Headquarters for the same

documents would be redundant and not likely to result in the

location of additional responsive records. In the affidavit, the

Government clearly explained the process in which each Field Off ice

copied the contents of its files to the corresponding HQ division.

-9- Second Hardy Deel. ~ 46. Unsatisfied, Mr. Canning claims that some

of the HQ documents may not be "in fact identical" because they

might "include[] handwritten notations and ink-stamps" that could

reveal additional information. Pl.' s Reply at 2 (emphasis in

original). Plaintiff's purely speculative claims about the

existence and discoverability of other documents do not overcome

the ~resumption of good faith afforded to the agency's

declarations. See Leopold v. Nat'l Sec. Agency,

(D.D.C. 2015) (deferring to agency's declaration that

explained why a search of an additional government office would be

redundant) .

Nonetheless, Mr. Canning correctly points out that his FBI HQ

request is not identical to the Field Office request. The FBI HQ

request contains two elements absent from the Field Office request:

(1) specific documents declassified by the FBI prior to the ISCAP

review, and ( 2) any information regarding Mr. Goldstein, Mr.

LaRouche, and Mr. Steinberg in airtel WMFO 196B-1918-364. See Am.

Compl, Exs. A, D.

Despite initially having no record of Plaintiff's FBI HQ

request, Defendant searched for the requested information and

released responsive material in response to Plaintiff's Cross-

Motion for Summary Judgment. Fourth Hardy Deel. ~ 12. Defendant

not only released an unredacted copy of airtel WMFO 196B-1918-364

-10- but also searched for the specific documents declassified by the

FBI prior to the ISCAP review, as requested by Mr. Canning. Second

Hardy Deel. ~ 16 n.7; Fourth Hardy Deel. ~ 12. Defendant initiated

a manual search of available files, searched FOIA files indexed to

Plaintiff, and ran targeted key word searches across its internal

database using the applicable ISCAP serial number. Fourth Hardy

Deel. ~ 12. Plaintiff, however, argues that Defendant should have

used additional search terms, including the FBI reference number

and the DOJ Office of Information and Privacy's reference number.

Pl.'s Reply at 3 [Dkt. No. 65].

Plaintiff's argument is not convincing. "A FOIA petitioner

cannot dictate the search terms for his or her FOIA request. /1

Bigwood v. U.S. Dep't of Def.,

(D.D.C.

2015). Where, as here, the agency's search terms are reasonable,

"the Court will not second guess the agency regarding whether other

search terms might have been superior. /1 Liberation Newspaper v.

U.S. Dep't of State,

(D.D.C. 2015).

Significantly, Mr. Canning does not explain why the search

terms he proposes are more likely to uncover responsive information

than the search terms the Government used. Plaintiff requested

documents related to an ISCAP review and a search using the

corresponding ISCAP serial number, which the Government used, is

a logical way to target that information. The Court finds

-11- Defendant's search methods to be reasonable and, absent a showing

of bad faith, the Court will not second guess Defendant's search

process.

Because the Court finds that Defendant has adequately

explained its search protocols in multiple declarations that are

entitled to a presumption of good faith, and that the protocols

used were reasonable, Defendant's motion for summary judgment on

this issue is granted.

B. Claimed Exemptions

Plaintiff objects to Defendant's withholding of certain

information based on various statutory exemptions. FOIA "requires

agencies to comply with requests to make their records available

to the public, unless the requested records fall within one or

more of nine categories of exempt material." Oglesby v. U.S. Dep't

of the Army,

(D.C. Cir. 1996) (citing

(a), (b)). An agency that withholds information pursuant to

a FOIA exemption bears the burden of justifying its decision,

Petroleum Info. Corp. v. U.S. Dep't of the Interior,

(D.C. Cir. 1992) (citing

(a) (4) (B)), and must

submit an index of all materials withheld. Vaughn v. Rosen,

(D.C. Cir. 1973), cert. denied,

(1974). In determining whether an agency has properly withheld

requested documents under a FOIA exemption, the district court

-12- conducts a de novo review of the agency's decision. 5 U.S. C. §

552(a) (4) (B).

As with claims of inadequacy of the search, the court may

award summary judgment as to withheld records solely on the basis

of information provided in affidavits or declarations when they

( 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. "

Military Audit Project,

. As noted above, such

affidavits or declarations are accorded "a presumption of good

faith, which cannot be rebutted by 'purely speculative claims about

the existence and discoverability of other documents.'" SafeCard

Servs.,

(quoting Ground Saucer Watch,

).

1. Exemption 1

FOIA Exemption 1 precludes disclosure of documents that are

"(A) specifically authorized under criteria established by an

Exe cu ti ve order to be kept secret in the interest of national

defense or foreign policy and (B) are in fact properly classified

pursuant to such Executive order."

(b) (1).

-13- As with all of FOIA's exemptions, the burden of proof lies

with the Government to show proper application of Exemption 1.

(a) (4) (B). It is undisputed that the requirements for

classifying information relevant to Mr. Canning's requests are

contained in Executive Order 13526 which went into full effect in

June 2010. Executive Order 13526 provides that information may be

classified if:

(1) an original classification authority is classifying the information; ( 2) the information is owned by, produced by or for, or is under the control of the United States Government; (3) the information falls within one or more of the categories of information listed in section 1.4 of this order; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.

Exec. Order No. 13526,

, 707 (Dec. 29, 2009).

In this case, the Government has asserted Exemption 1 over

certain classified material, including the identities of covert

CIA employees and the location of covert CIA field installations.

See Def. 's Mot. at 7, 32. Mr. Canning rests his Exemption 1

challenge on a claim that Defendant continu~s to assert Exemption

1 over material that has been previously declassified by ISCAP.

-14- Pl.'s Mot. at 12. He identifies a specific document, a memorandum

authored by Allen Mccreight, to demonstrate that Defendant made

Exemption 1 withholdings over portions of the document despite

ISCAP's declassification.

.

Al though Mr. Canning may be correct that the Government cannot

withhold dee lass if ied information under Exemption 1, the Court

need not examine this issue further because in its Reply Motion,

it agreed to release the portions of the Mccreight memorandum that

were declassified by ISCAP. See Def.' s Reply at 23. With this

disclosure, the Government further declared that it reviewed the

material and released all of the declassified information unless

another exemption applies, see Fourth Hardy Deel. ~ 25, an

assertion that is entitled to a presumption of good faith. Negley

v. F.B.I.,

(D.C. Cir. 2006). In the absence

of a showing of bad faith, the Court will defer to Defendant's

declaration. See Ctr. for Auto Safety v. E.P.A.,

(D.C. Cir. 1984) ("This Circuit has repeatedly held that 'when the

agency meets its burden [under the FOIA] by means of affidavits,

in camera review is neither necessary nor appropriate").

Plaintiff also objects to the adequacy of the FBI's and

CIA's declassification reviews. Pl.'s Mot. at 24. He points to

Defendant's supporting affidavits, noting that they do not

specifically state: (1) that Defendant weighed the public

-15- interest in disclosure against the national security interest;

or (2) that Defendant submitted the classified intelligence

source or method information to the Director of National

Intelligence for declassification review.

.

Plaintiff therefore "infers [these steps] were not performed."

Plaintiff's argument is unpersuasive for two reasons. First,

Executive Order 13526 expressly indicates that the determination

of whether the "exceptional case" exists in which "the need to

protect [classified] information may be outweighed by the public

interest in disclosure" is a matter of agency discretion. Exec.

Order 13526 §3.l(d).

Second, Executive Order 13526 does not require Defendant to

submit intelligence information to the Director of National

Intelligence for declassification review as a matter of course.

Instead, the Order merely states that the Director may declassify

information upon consultation with the relevant department. See

Exec. Order No. 13526 §3 .1 (c) . Indeed, Mr. Canning appears to

concede this point. See Pl.'s Mot. at 31 ("[F]rom ... the word 'may'

in the EO 13526 text, the DNI has discretion not to exercise his

§3.l(C) authority - i.e. it is not a reviewable decision"). Finding

that the withheld information was classified in accordance with

the applicable procedural and administrative requirements of Exec.

-16- Order 13526, the Court concludes that Defendant properly withheld

the challenged classified material under Exemption 1.

While processing Plaintiff's FOIA requests, the Government

identified documents that originated with other government

agencies and, pursuant to

, referred those

documents to the appropriate agency for consultation. Def.'s Mot.

at 16. The CIA and U.S. Army Intelligence and Security Command

("USAINSCOM") have also withheld classified material containing

the identities of covert CIA employees, the location of covert CIA

field installations, and other intelligence activities, sources,

and methods under Exemption 1.

. The CIA and

USAINCOM declare, with reasonable specificity, that the disclosure

of such classified information would damage national security.

Dorris Deel. ~~ 6-8 (Dkt. No. 30-13); Lutz Deel. ~~ 7-18 (Dkt. No.

30-14). Mr. Canning does not refute the CIA's or USAINCOM's

statements or identify contradictory evidence in the record.

Accordingly, the Court will defer to the detailed affidavits which

indicate that the withheld information comports with the

substantive and procedural requirements of Exec. Order 13526.

. Exemption 3

The Government contends that the CIA and the State Department

properly withheld information pursuant to Exemption 3. Def.'s Mot.

at 17-19. FOIA Exemption 3 covers records which are "specifically

-17- exempted from disclosure by statute . . . provided that such statute

[requires withholding] in such a manner as to leave no discretion

on the issue, or ... establishes ~articular criteria for withholding

or refers to particular types of matters to be withheld."

(b) (3); see also Senate of Puerto Rico v. U.S. Dep't of

Justice,

(D. C. Cir. 1987) . To satisfy FOIA' s

requirements, Defendant "need only show that the statute claimed

is one of exemption as contemplated by Exemption 3 and that the

withheld material falls within the statute." Fitzgibbon v. C.I.A.,

(D.C. Cir. 1990).

The CIA relies on two statutes - Section 102(A) (i) (1) of the

National Security Act of 1947 ("NSA"),

, as

amended, and Section 6 of the Central Intelligence Agency Act of

1949 ("CIA Act"),

(g), as amended - to justify non-

disclosure of the withheld material. According to the CIA, the

release of the withheld material would reveal the identities of

covert CIA employees and the existence and location of covert CIA

field installations. Lutz Deel. ~ 20. The State Department points

to Section 222(f) of the Immigration and Nationality Act ("INA")

to withhold an agency telegram dated September 5, 1985 which

pertains to the issuance of visas for three Soviet diplomats on a

temporary duty assignment at the Soviet Embassy in Washington,

D.C. Walter Deel. ~~ 5-6 [Dkt. No. 30-11]

-18- As a threshold matter, Plaintiff does not dispute that the

NSA, CIA Act and INA qualify as exemption statutes. Nor could he,

considering the well-settled case law to the contrary. See, e.g.,

Fitzgibbon,

("There is thus no doubt that section

403 (d) (3) [now NSA section 403-1 (i) (1)] is a proper exemption

statute under exemption 3. 11 ) ; Nat' l Sec. Archive Fund, Inc. v.

C.I.A.,

(D.D.C. 2005) (recognizing that

section 6 of the CIA Act exempts certain material from disclosure);

Medina-Hincapie v. U.S. Dep't of State,

(D.C.

Cir. 1983) (concluding that INA section 222 (f) qualifies as an ·I I ' exemption statute) .

The CIA and State Department have adequately demonstrated

that the withheld material falls within the exemption statutes.

Section 102 (A) (i) (1) of the NSA permits the CIA to withhold

information relating to "intelligent sources and methods,"

-l(i) (1), and Section 6 of the CIA Act protects against

the disclosure of the identities of CIA employees.

(g). The CIA, in its declaration, explains that the withheld

material contains the identities of covert CIA employees and the

existence and location of covert CIA field installations. Lutz

Deel. ~ 20. Similarly, Section 222(f) of the INA protects agency

records "pertaining to the issuance or refusal of visas,"

(f), and the material withheld by the State Department

-19- concerns visa issuances for three foreign nationals. Walter Deel.

~ 8. Plaintiff does not challenge the agencies' analysis or

conclusion. Accordingly, the Court concludes that the CIA and State

Department properly withheld this material under Exemption 3.

3. Exemption 7{C)

FOIA Exemption 7 (C) protects information compiled for law

enforcement purposes to the extent that disclosure "could

reasonably be expected to constitute an unwarranted invasion of

personal privacy."

(b) (7) (C). In determining whether

Exemption 7(C) applies, the Court must balance the public interest

in disclosure with the privacy interests implicated by the release

of the material. Computer Prof'ls for Soc. Responsibility v. U.S.

Secret Serv.,

(D.C. Cir. 1996). Suspects,

witnesses, investigators, and third parties all have substantial

privacy interests that are implicated by the public release of law

enforcement investigative materials. Id.; Davis v. U.S. Dep't of

Justice,

(D.C. Cir. 1992). Courts recognize

that the disclosure of such material may lead to embarrassment and

physical or reputational harm to these individuals. See SafeCard,

.

It "is well established that the only public interest relevant

for purposes of Exemption 7(C) is one that focuses on the citizens'

right to be informed about what their government is up to." Davis,

-20-

(internal quotations omitted). Whether disclosure

of private information is warranted under Exemption 7(C) turns on

whether the information "sheds light on an agency's performance of

its statutory duties." u. s. Dep' t of Justice v. Reporters Comm.

for Freedom of the Press,

(1989).

Thus, the requested information must shed light on the

agency's own conduct and not merely on the subject matter of the

underlying law enforcement investigation.

Our Court of Appeals

has held "categorically that, unless access to the names and

addresses of private individuals appearing in files within the

ambit of Exemption 7(C) is necessary in order to confirm or refute

compelling evidence that the agency is engaged.in illegal activity,

such information is exempt from disclosure." SafeCard,

.

In this case, the Government has relied on Exemption 7(C) to

protect the names and/or identifying information of: 1) third

parties who were interviewed by the FBI during the course of

investigations; ( 2) third parties mentioned in the documents in

the released files; (3) FBI Special Agents and support personnel

who were responsible for conducting, supervising, and/or

maintaining the investigative activities reported in the

documents; and (4) third parties who are of investigative interest ' to the FBI and/or other law enforcement agencies. Def.'s Mot. at

-21- 10-11, 29. According to the Government, the release of this

information could subject the relevant individuals to harassment,

embarrassment, intimidation, or legal, economic or physical harm.

Id. at 11.

The Parties do not dispute that the records at issue were

compiled for law enforcement purposes. Instead, Plaintiff and

Defendant principally disagree on whether the public interest in

disclosure outweighs the privacy interests implicated by the

release of the material. According to Mr. Canning, the public

interest in the withheld material is high, "certainly ris[ing] to

the same level as Watergate" because the withheld material, he

suspects, may show attempts made by the federal government to

penetrate the presidential campaign of Lyndon LaRouche. Pl.'s Mot.

at 27-33. The Government argues that no public interest would be

furthered by the disclosure of the withheld information. Def.'s

Mot. at 12.

The Government's withholding of the names of FBI personnel

and third parties that are interviewed by the FBI, who are of

interest to the Bureau, or mentioned in internal documents, clearly

protects legitimate privacy interests. These individuals have a

strong privacy interest because of the potential for harassment.

Martin v. U.S. Dep't of Justice,

(D.C. Cir. 2007)

("[T]hird parties who may be mentioned in investigatory files and

-22- witnesses and informants who provide information during the course

of an investigation have an obvious and substantial privacy

interest in their information.") (internal quotation marks

omitted); Dunkelberger v. U.S. Dep't of Justice,

(D.C. Cir. 1990) ("Exemption 7(C) takes particular note of the

'strong interest' of individuals, whether they be suspects,

witnesses, or investigators, in not being associated unwarrantedly

with alleged criminal activity.") (internal quotation marks

omitted); Fitzgibbon,

.

Mr. Canning contends that there is a strong public interest

in the release of the names of these individuals because disclosure

"may indicate whether the surveillance was of high-level officials

(which may indicate attempts to suppress a campaign issue), or

rank-and-file workers in La Rouche' s presidential campaign [.]"

Pl.'s Mot. at 33. As the FOIA requester, Plaintiff bears the burden

of asserting a countervailing public interest in disclosure. Boyd

v. Exec. Office for U.S. Attorneys,

(D.D.C. 20l5). Here, Mr. Canning offers nothing more than his own

speculation to support his claim that government surveillance of

Mr. LaRouche's presidential campaign took place. Such speculation

does not constitute "evidence that would warrant a belief by a

reasonable person that the alleged Government impropriety might

-23- have occurred."

(upholding Exemption 7(C) claims where

plaintiff offered only speculation as to government misconduct) .

Mr. Canning further argues that disclosure of the information

withheld under Exemption 7(C) is warranted because the Government

did not indicate if it attempted to determine whether the

individuals whose identifying information is being withheld are

living or deceased. Pl.'s Mot. at 33-35. Plaintiff's argument has

no validity. In a declaration supporting its Opposition to

Plaintiff's Motion for Partial Summary Judgment, Defendant

explains that the FBI uses a "100-year rule" to discern the dates

of birth or deaths of individuals involved in an investigation.

Fourth Hardy Deel. ~ 16. Under this rule, the FBI presumes dead

(and releases the names of) individuals born more than 100 years

ago. 3

The Court of Appeals has considered the FBI's use of this

method to determine the life and death of individual_s mentioned in

its withholdings and found it to be reasonable. See Schrecker v.

U.S. Dep't of Justice,

(D.C. Cir. 2003) . 4

3 If the FBI is unable to determine the life or death status of an individual using this method, the agency presumes the individual to be alive and withholds any names and/or identifying information. Fourth Hardy Deel. ~ 16. 4 Plaintiff notes that Defendant redacted the name of Mitchell Werbel, a deceased individual. Pl.'s Mot. at 34. In response to Plaintiff's concern, Defendant released each instance where Mr. Werbel's name was mentioned in responsive records. Def.'s Reply at 17. Plaintiff has not indicated that Defendant's actions inadequately addressed his concern. -24- The Government also contends that U.S. Customs and Border

Protection ("CBP") properly withheld the signature of a government

employee from disclosure pursuant to Exemption 7(C). Def.'s Mot.

at 19. The Court agrees. As explained above, the employee retains

a privacy interest in his or her identity and Plaintiff has not

offered any argument that a countervailing public interest

warrants disclosure.

For these reasons, the Court finds that the Government

properly withheld the challenged material under Exemption 7(C) . 5

4. Exemption 7(D}

FOIA Exemption (7) (D) allows an agency to exempt records or

information compiled for law enforcement purposes where such

information "could reasonably be expected to disclose the identity

of a confidential source which furnished information on a

confidential basis."

(b) (7) (D). To invoke this

exemption, an agency must show either that the source spoke only

under express assurances of confidentiality or that the

circumstances support an inference of confidentiality. U.S. Dep't

of Justice v. Landano,

(1993).

5 Defendant also generally asserts Exemption 6 in conjunction with its Exemption 7(C) claims. Because the. Court has already concluded that Defendant has properly withheld the same information under Exemption 7(C), it need not examine Exemption 6. See Roth v. U.S. Dep't of Justice,

(D.C. Cir. 2011). -25- The Government has asserted Exemption 7(D) over: (1)

confidential informant file numbers; (2) confidential source

symbol numbers and FBI code names; (3) certain information provided

by confidential source symbol numbered informants who reported

information to the FBI on a regular basis under express assurances

of confidentiality; (4) identities of and information provided by

foreign law enforcement agencies under an implied assurance of

confidentiality; (5) identities of and information provided by

foreign law enforcement agencies under an express assurance of

confidentiality; ( 6) names, identifying information, and

information provided by third parties to the FBI under an implied

assurance of confidentiality; and (7) the name or identifying

information of a third party who assisted the FBI under an express

assurance of confidentiality. Def.'s Mot. at 14, 30.

Mr. Canning initially moved for summary judgment regarding

only the information for which the Government asserts an implied

confidentiality exemption where the sources are not affiliated

with law enforcement agencies. See Pl.'s Mot. at 36. However, after

the Government more fully explained the basis for its Exemption

7 (D) assertions in its Reply Motion, Mr. Canning withdrew his

challenge over the documents being withheld under an implied

promise of confidentiality. Pl.'s Reply at 6-7 ("Plaintiff

-26- concedes defendant has now made the requisite factual showing, and

this element of plaintiff's motion is no longer appropriate.").

The Court agrees with the Government that disclosure of the

withheld material could potentially lead to the identification of

confidential sources, endanger informants, affect the cooperation

of future FBI informants, and diminish cooperation between the FBI

and other law enforcement authorities. Accordingly, the Court

finds that the Government properly withheld this material under

Exemption .7 (D) .

5. Exemption 7{E)

FOIA Exemption (7) (E) provides for the withholding of records

or information compiled for law enforcement purposes to the extent

that disclosure of such information could reasonably be expected

to

disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.

5 U.S.. C. § 552 (b) (7) (E). This exemption protects from disclosure

only those law enforcement techniques and procedures that are not

well known to the public. National Sec. Archive v. F.B.I.,

(D.D.C. 1991); Albuquerque Pub. co. v. U.S. Dep't

of Justice,

(D.D.C. 1989). Exemption 7(E) 's

-27- requirement that disclosure could risk circumvention of the law

"sets a relatively low bar for the agency to justify withholding."

Blackwell v. F.B.I.,

(D.C. Cir. 2011). "To clear

that relatively .low bar, an agency must demonstrate only that

release of a document might increase the risk that a law will be

violated or that past violators will escape legal consequences."

Pub. Emps. for Envtl. Responsibility v. U.S. Section,

(D.C. ·cir. 2014).

The Government invokes Exemption 7 (E) to withhold symbol

source numbers, 6 information concerning electronic monitoring

conducted by the FBI, internal FBI code names, and information

regarding law enforcement techniques that the FBI uses to obtain

intelligence in its investigations. See Second Hardy Deel ~~ 104-

05; Third Hardy Deel. ~~ 81-85. According to the Government, the

release of this information would, inter alia, hamper the FBI's

law enforcement efforts to detect and apprehend criminals,

compromise means of collecting intelligence information, and

enable criminal targets to better circumvent law enforcement by

developing countermeasures.

Plaintiff argues that Defendant

has not adequately shown that the underlying techniques are not

already known to the general public. Pl.'s Mot. at 39.

6 Symbol source numbers are designators for specific methods used to

obtain invaluable investigative intelligence information. Third Hardy Deel. ~ 81. -28- As with the Government's Exemption 7 (D) withholdings, the

Parties do not dispute that the information the Goverment has

withheld under Exemption 7 (E) was compiled for law enforcement

purposes. The categories of information that Defendant has

withheld here - e.g. , FBI code names, symbol methodology, and

electronic monitoring techniques - fall squarely within the type

of material envisioned by FOIA Exemption 7(E). The Court of Appeals

has explained that the government's burden under Exemption 7(E) is

to "demonstrate[] logically how the release of [the requested]

information might create a risk of circumvention of the law," and

the Government's affidavits which outline, in detail, the

anticipated harm that would follow should the material be

disclosed, adequately meet this burden. See Mayer Brown LLP v.

I.R.S.,

(D.C. Cir. 2009).

Relying heavily on broad descriptions of law enforcement

techniques that he has witnessed in movies and on television, Mr.

Canning claims that the withheld information likely concerns well-

known techniques such as consensual monitoring and wiretaps. Pl.'s

Mot. at 41-42. Plaintiff's assertions, however, do not indicate

that the specific material withheld in this case is in the public

domain. Nonetheless, even if certain aspects of the techniques

described in the withheld material are publically known, "even

commonly known procedures may be protected from disclosure if the

-29- . disclosure could reduce or nullify their effectiveness." Am.

Immigration Lawyers Ass'n v. U.S. Dep't of Homeland Sec.,

(D.D.C. 2012). Because the Court is persuaded that

the disclosure of this material could reasonably be expected to

risk circumvention of the law, it finds that Defendant has properly

withheld this material under Exemption 7(E).

The Government also argues that the CBP properly withheld

navigation codes from a CBP records system database ("TECS") under

Exemption 7 (E) because disclosure of the codes, which expose

precise keystrokes and navigation instructions, would compromise

the integrity of the CBP law enforcement database. Def.'s Mot. at

21. Plaintiff does not challenge Defendant's assertion. In its

declaration, the CBP adequately explains how disclosure of this

information could reasonably be expected to risk circumvention of

the law. See Suzuki Deel. ~~ 20-23 [Dkt. No. 30-12]. The Court

therefore concludes that Defendant properly withheld this

information under Exemption 7(E) . 7

7 Indeed, other courts in this District have reached the same result. See, e.g., Strunk v. U.S. Dep't of State,

(D.D.C. 2012) (concluding that CBP's decision to withhold TECS-related information under Exemption 7(E) was proper); Skinner v. U.S. Dep't of Justice,

(D.D.C. 2012) (finding the withholding of TECS internal computer access codes to be justified); Miller v. U.S. Dep't of Justice,

(D.D.C. 2012) (same); McRae v. U.S. Dep't of Justice,

(D.D.C. 2012) (same). -30- C. Public Domain Material

Mr. Canning raises two public domain arguments, asserting

that the Government cannot withhold certain information from

disclosure because that information is already publically

available.

First, Mr. Canning contends that the Government has withheld

the names and identifying information of two indi victuals, Fred

Lewis and Gary Howard, despite having previously identified them

as sources, in response to Plaintiff's July 2009 FOIA request. See

Pl.'s Mot. at 19. Because some information about these two

individuals has already been disclosed, he argues, the Government

"cannot properly withhold any information to shield the fact that

[Lewis and Howard] provided information."

(emphasis in

original) .

Second, Mr. Canning alleges that certain information that the

Government has withheld in response to his July 2009 request (the

"Boston ELSUR Searches" documents) was previously released to a

different FOIA requester, Mr. Steinberg. Id. at 20. For example,

Mr. Canning claims Defendant released to Mr. Steinberg the name of

the co-prosecutor in a Boston case regardl.ing Mr. LaRouche yet

withheld the same information in response to Plaintiff's request.

Id. In response, the Government contends that Plaintiff has not

met his burden to identify specific information in the public

-31- domain that corresponds to the withheld material. Def.'s Reply at

13.

Mr. Canning's first argument is persuasive. The Court of

Appeals has held that "the government cannot rely on an otherwise

valid exemption claim to justify withholding information that has

been 'officially acknowledged' or is in the 'public domain.'"

Davis,

(quoting Afshar v. U.S. Dep't of State,

(D.C. Cir. 1983) and Fitzgibbon,

) . In asserting a claim of prior disclosure, plaintiffs

bear the burden of production to "point[] to specific information

in the public domain that appears to duplicate that being

withheld[.]"

Mr. Canning has met his burden here. He has

identified specific material that has been officially disclosed to

him by the Government - i.e., identifying information concerning

Mr. Lewis and Mr. Howard - which duplicates the information the

Government continues to withhold. 8 Accordingly, the Court concludes

that Mr. Canning is entitled to this information.

Turning to Mr. Canning's second argument, the Court reaches

the same conclusion. Whereas the Government released the

identifying information concerning Mr. Lewis and Mr. Howard in

8 Contrary to the Government's assertion, Mr. Canning does not request all information that the Government has in its possession concerning Mr. Lewis and Mr. Howard. Mr. Canning instead requests the withheld material demonstrating that these individuals provided information to the Government. Pl.'s Mot. at 19. -32- response to Mr. Canning's own FOIA request, Mr. Canning has

demonstrated that the Government previously released the Boston

ELSUR information in response to Mr. Steinberg's FOIA request.

Fifth Canning Deel., Ex. C. The Government has not explained why

the identity of the FOIA requester should affect the Court's

analysis. In both instances, the material has been previously

released to the public, a fact that warrants the disclosure of

withheld information in this case. Accordingly, the Government

shall disclose to Mr. Canning: ( 1) the names and identifying

information concerning Mr. Lewis and Mr. Howard in the withheld

material, and (2) the information contained in the Boston ELSUR

documents that the Government previously disclosed to Mr.

Steinberg but continues to withhold from Mr. Canning.

IV. CONCLUSION

For the foregoing reasons, Defendant's Motion for Summary

Judgment shall be granted in part and denied in part and

Plaintiff's Cross-Motion for Partial Summary Judgment shall be

granted in part and denied in part. An Order shall accompany this

Memorandum Opinion.

June 5, 2017 Gla~S~/_~ United States District Judge

-33-