UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

REPORTERS COMMITTEE FOR : FREEDOM OF THE PRESS, : : Plaintiff, : Civil Action No.: 17-1701 (RC) : v. : Re Document Nos.: 47, 49, 50 : FEDERAL BUREAU OF : INVESTIGATION et al., : : Defendant. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT, DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT, AND DENYING PLAINTIFF’S MOTION FOR IN CAMERA REVIEW

I. INTRODUCTION

Concerned about law enforcement going undercover to impersonate journalists and

documentary filmmakers, Plaintiff Reporters Committee for Freedom of the Press seeks records

relating to the practice from the Federal Bureau of Investigation. In response to the Committee’s

Freedom of Information Act (“FOIA”) request, the Bureau disclosed some redacted documents

and withheld others completely. It says it has discharged its obligations under FOIA. The

Committee disagrees. For the most part, the Bureau is right. It has adequately justified its

withholdings for all but one group of the disputed records. With respect to that group of records,

the agency must provide a better explanation.

II. BACKGROUND

As discussed in the Court’s previous opinion in this case, the Committee’s lawsuit has its

origins in a series of news events that brought public attention to law enforcement’s practice of impersonating journalists and documentary filmmakers. See Reps. Comm. for Freedom of Press

v. FBI (Reps. Comm. I),

, 215–217 (D.D.C. 2019). The most prominent of

those events involved an armed standoff between federal law enforcement officers and Nevada

cattle rancher Cliven Bundy. See

. During the subsequent prosecution of Bundy and

his supporters, the federal government revealed that FBI agents posed as documentary

filmmakers to lure suspects into speaking with them.

at 216–17.

Media coverage of the Bureau’s undercover operation—called “Operation Longbow”—

prompted the Committee to request information about the filmmaker impersonation tactic. See

. Its FOIA request sought eight kinds of records. See Defs. Statement of Material Facts

as to Which There Is No Genuine Issue (“Defs.’ SMF”) ¶ 1, ECF No. 47-2. Items 1 through 5 of

the request asked for records pertaining to the Bundy standoff.

Items 6 through 8 were

framed more broadly. They requested:

(6) All records, including but not limited to, email communications, concerning or referencing any other instances of impersonation of a documentary filmmaker and/or a documentary film crew by the FBI in connection with any criminal investigation since January 1, 2010;

(7) Records of any “professional credentials, websites and business cards” used by FBI agents in connection with the impersonation of a documentary filmmaker and/or a documentary film crew since January 1, 2010; and

(8) All records of the FBI’s policies and practices concerning the impersonation of documentary filmmaker and/or documentary film crew since January 1, 2010, including records of any changes to those policies and practices.

These last three items are at the center of the parties’ current dispute.

When the Committee’s attempts to get records directly from the Bureau failed, it filed

this FOIA suit. See Reps. Comm. I, 369 F. Supp. at 218. The Bureau initially refused to confirm

2 or deny the existence of any records responsive to items 6 and 7 (other than those dealing with

the already-public Bundy investigation). See id. It argued that disclosure of any information

related to the Committee’s request would reveal information about a law enforcement technique

that would lessen that technique’s effectiveness. Id. at 219. The Court disagreed, see id. at 225,

so the Bureau began searching for responsive records, see, e.g., Joint Status Report, ECF No. 30.

The Bureau’s search uncovered “approximately 125,000 pages and approximately 200

audio/video files potentially responsive to items 6 and 7,” 4th Seidel Decl. ¶ 21, ECF No. 47-3,

as well as 28 pages responsive to item 8, id. ¶ 25. Although the agency released a small portion

of these records to the Committee, it withheld most of them under various exemptions to FOIA’s

general disclosure requirement. See id. ¶¶ 21–23, 27.

Whether the Bureau properly withheld the records that it did is at issue today. It moves

for partial summary judgment, asserting that it has satisfied its obligations under FOIA for items

6 through 8 of the Committee’s request. See Defs.’ Mot. Partial Summ. J. (“Defs.’ Mot.”), ECF

No. 47-1; see also Defs.’ Combined Reply and Opp’n, ECF No. 53. The Committee counters

with a motion for partial summary judgment of its own, challenging various aspects of the

Bureau’s disclosure as inadequate. See Pl.’s Mem. Opp’n Defs.’ Mot. Partial Summ. J. and

Supp. Pl.’s Cross-Mot. Partial Summ. J. (“Pl.’s Mot.”), ECF No. 49-1. It also asks the Court to

review a sample of the disputed records in camera to verify the Bureau’s exemption claims. See

Pl.’s Mem. Supp. Mot. In Camera Review (“Pl.’s In Camera Mot.”), ECF No. 50-1; see also

Pl.’s Reply Supp. Cross-Mot. Partial Summ. J. and Mot. In Camera Review (“Pl.’s Reply”).

For the reasons stated below, the Court grants in part and denies in part the Bureau’s

motion and denies both of the Committee’s motions. The Bureau properly withheld most of the

records in dispute. Nevertheless, it did not adequately justify withholding one category of

3 records. The agency will have another chance to do so. In addition, in camera review of a

sampling of the withheld records is not necessary at this time.

III. LEGAL STANDARD

A court must grant summary judgment “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). Because resolving a FOIA claim generally entails applying law to undisputed

facts, “FOIA cases typically and appropriately are decided on motions for summary judgment.”

See Defs. of Wildlife v. U.S. Border Patrol,

(D.D.C. 2009).

The Freedom of Information Act “was designed ‘to pierce the veil of administrative

secrecy and to open agency action to the light of public scrutiny.”’ U.S. Dep’t of State v. Ray,

(1991) (quoting Dep’t of Air Force v. Rose,

(1976)). Put

simply, it “mandates that an agency disclose records on request, unless they fall within one of

nine exemptions.” Milner v. Dep’t of Navy,

, 565 (2011). Because FOIA embodies

a general policy of disclosure, however, the exemptions must “be given a narrow compass.”

Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Just. (CREW),

(D.C.

Cir. 2014) (internal quotation marks omitted) (quoting Milner, 562 U.S. at 571). For the same

reason, “[t]he agency bears the burden of establishing that a claimed exemption applies.” Id.

And even then, the recently enacted FOIA Improvement Act requires an agency to disclose an

exempted record unless it can also show that it “reasonably foresees that disclosure would harm

an interest protected by [the] exemption” or that “disclosure is prohibited by law.”

(a)(8)(A)(i); see also Machado Amadis v. U.S. Dep’t of State,

, 370 (D.C. Cir.

2020); Ctr. for Pub. Integrity v. U.S. Dep’t of Def.,

, 335 (D.D.C. 2020).

4 An agency carries its burden at summary judgment “by submitting affidavits that

‘describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the

information withheld logically falls within the claimed exemption, and are not controverted by

either contrary evidence in the record nor by evidence of agency bad faith.’” CREW,

(quoting Larson v. Dep’t of State,

(D.C. Cir. 2009)). Agency affidavits

can “take the form of a ‘Vaughn index,’ but there is ‘no fixed rule’ establishing” what they “must

look like.”

(citations omitted). An agency may offer declarations from agency officials,

Vaughn indices, the requested records in camera, or a combination of some or all those sources.

See Tax Analysts v. IRS,

(D.C. Cir. 2005); see also ACLU v. CIA,

(D.C. Cir. 2013) (“[A] district court has considerable latitude to determine [a Vaughn

index’s] requisite form and detail in a particular case.”). What matters is that the agency

materials “give the reviewing court a reasonable basis to evaluate the claim of privilege.”

ACLU,

(quoting Gallant v. NLRB,

(D.C. Cir. 1994)).

Usually, an agency must “provide the requestor with a description of each document

being withheld[] and an explanation of the reason for the agency’s nondisclosure.” Oglesby v.

U.S. Dep’t of Army,

(D.C. Cir. 1996). But when “the FOIA litigation

process threatens to reveal ‘the very information the agency hopes to protect,’” the agency may

limit the information in its affidavits to just “‘brief or categorical descriptions’ of the withheld

information.” CREW,

(quoting ACLU,

). In that circumstance,

the agency can “justify withholding or redacting records ‘category-of-document by category-of-

document’ rather than ‘document-by-document.’” Am. Immigr. Lawyers Ass’n v. Exec. Off. for

Immigr. Rev.,

(D.C. Cir. 2016) (quoting CREW,

).

5 Finally, an agency that withholds requested information “must demonstrate that it cannot

segregate the exempt material from the non-exempt and disclose as much as possible.”

Hertzberg v. Veneman,

(D.D.C. 2003); see also

(b); Mead

Data Ctr., Inc. v. U.S. Dep’t of Air Force,

(D.C. Cir. 1977) (“[N]on-exempt

portions of a document must be disclosed unless they are inextricably intertwined with exempt

portions.”). It can satisfy that obligation by explaining with “reasonable specificity” why it

cannot segregate the requested documents further. See Ctr. for Pub. Integrity v. U.S. Dep’t of

Com.,

, 116 (D.D.C. 2019) (quoting Loving v. U.S. Dep’t of Def.,

(D.C. Cir. 2008)). A “blanket declaration” of nonsegregability is not enough. See

Wilderness Soc. v. U.S. Dep’t of Interior,

(D.D.C. 2004). When an agency

offers a sufficient explanation, however, courts presume that it has disclosed what it needs to

unless there is reason to suspect otherwise. See Sussman v. U.S. Marshals Serv.,

(D.C. Cir. 2007); see also Ctr. for Public Integrity, 401 F. Supp. 3d at 116–17.

IV. ANALYSIS

The Bureau has largely satisfied its disclosure obligations under FOIA. As explained

below, the records at issue consist of five sets. The Bureau properly withheld two sets in full and

two sets in part. It needs to do no more to keep those records from the Committee. When it

comes to the final set, however, the Bureau’s justification for categorically withholding the

records falls well short of what FOIA requires. The agency will have to do better to show that it

is entitled to withhold that last group of records.

A. The Records at Issue

Before getting into the Committee’s challenges and the Bureau’s exemption claims, it is

helpful to summarize the records in dispute. They fall into five sets.

6 Four sets are responsive to items 6 and 7 of the Committee’s request. One consists of

records that relate to investigations in which the Bureau has not publicly acknowledged using the

filmmaker technique. 4th Seidel Decl. ¶ 23. The Bureau explains that these documents contain

detailed information about undercover filmmaker operations, including requirements for

authorization, how agents use the technique, and when agents might use the technique over

others. Id. ¶ 36. That is as specific as the agency gets. Citing concerns that revealing the scope

of the technique’s use could jeopardize law enforcement efforts, the Bureau refuses to say in

public court filings how many pages are even responsive to the Committee’s request. Id. ¶¶ 23,

31–36. It has instead provided a declaration and a Vaughn index to the Court for in camera

review (both of which the Court will discuss further below). Id. ¶ 36. The agency claims that

Exemption 7(E) permits it to withhold from the Committee not only the volume of responsive

documents and the descriptive information typically provided in a Vaughn index, but also the

documents themselves in full. Id. ¶ 32. In addition to that categorical claim, the Bureau asserts

that a variety of exemptions—Exemptions 1, 3, 5, 6, 7(C), 7(D), 7(E), and 7(F)—protect the

contents of the documents from disclosure. See id. ¶¶ 30, 37.

The other three sets of records responsive to items 6 and 7 relate to two investigations in

which the Bureau admitted that agents posed as filmmakers (including the Bundy investigation).

Collectively, these records consist of 90 pages of documents. See id. ¶¶ 21–22, 38. The first set

includes 10 pages that the Bureau released to the Committee in part. See 2d Townsend Decl.,

Ex. N, ECF No. 49-3. The 10 pages comprise electronic communications to and from the FBI’s

Cleveland Field Office concerning a proposed undercover operation. See id.; see also Defs.’

Combined Reply and Opp’n, Ex. A (“Public Vaughn Index”), ECF No. 53-3; 4th Seidel Decl.

¶ 86. They are heavily redacted. See 2d Townsend Decl., Ex. N. A reader can determine only

7 that the proposal involved a 2010 homicide and relied on information from a confidential

informant. See id. By each redaction, the Bureau noted which exemptions it believed should

apply. See id. It claimed Exemptions 5, 6, 7(C), 7(D), and 7(E). See id.

The Bureau withheld the next two records sets—together consisting of 80 pages—in full.

4th Seidel Decl. ¶¶ 22, 38. For 26 of those pages, it provided the Committee a table listing

which exemptions applied to each page. See 2d Townsend Decl., Ex. N. It claimed Exemptions

6, 7(D), and 7(E). See id. The Bureau’s public Vaughn index makes clear that the 26 pages are

part of the same file as the 10 Cleveland Field Office communications. See Public Vaughn

Index. Other than that, the most the Bureau’s public filings reveal about the 26 pages is that they

comprise two 13-page documents, each of which claims the same exemptions on the same pages

as the other. See id. The Bureau withheld the remaining 54 pages “categorically” under

Exemption 7(A) and “other underlying exemptions.” 4th Seidel Decl. ¶ 38. The 54 pages

pertain to the Bundy investigation. Bender Decl. ¶ 7.

Finally, one set of records consists of 28 pages that are responsive to item 8 of the

Committee’s request. These pages “includ[e] four revisions of the policy titled Undercover

Activities: Posing as a Member of the News Media or a Documentary Film Crew.” 4th Seidel

Decl. ¶ 25. Each of the four versions is substantively identical (the only differences are the dates

the agency last reviewed and renewed them). See Bender Decl. ¶ 25; see also 2d Townsend

Decl., Ex. M. The Bureau released the policy documents with some redactions, but, unlike the

Cleveland Field Office communications, it left most of the policy’s language unobscured. See 2d

Townsend Decl., Ex. M. Alongside each redaction is a code indicating in general terms why the

agency withheld the omitted information under Exemption 7(E). See id.

Below is a summary table of the records at issue:

8 Request Description of Records Claimed Exemptions Items

Nonpublic uses of technique Undisclosed number of pages withheld Categorical exemption: 7(E) in full, categorically Underlying exemptions: 1, 3, 5, 6, 7(C), 7(D), 7(E), 7(F) 6 and 7 Public uses of technique (90 pages) 10 pages withheld in part, redacted 5, 6, 7(C), 7(D), 7(E) 26 pages withheld in full, page-by-page 6, 7(D), 7(E) 54 pages withheld in full, categorically Categorical exemption: 7(A) “Other underlying exemptions”

Impersonating Filmmakers Policy 8 28 pages withheld in part, redacted 7(E)

B. Exemption 7

The Court begins and ends its discussion with Exemption 7. It agrees with the Bureau

that Exemption 7 protects from disclosure four of the records sets the Committee has requested.

The Bureau says that Exemption 7 permits it to withhold the fifth set of records too, but its

explanation is lacking. It will have another opportunity to justify withholding that last set of

records. For now, the Court does not need to look to other exemptions.

Exemption 7 includes six related exemptions within its umbrella. See

(b)(7). Their common denominator is a threshold requirement that the “records or

information” sought must be “compiled for law enforcement purposes.”

It is unquestioned

that the records at issue here satisfy that requirement. The FBI created the documents responsive

to items 6 and 7 of the Committee’s request in the course of law enforcement investigations. See

Reps. Comm. I,

(holding that the Bureau made the threshold showing for

records responsive to items 6 and 7). And the policies that request item 8 seeks are agency

9 records documenting “guidelines, techniques, sources, and procedures” meant to govern those

kinds of investigations. See Tax Analysts v. IRS,

(D.C. Cir. 2002) (explaining

that internal policies put together outside the context of a specific investigation may still serve

law enforcement purposes).

Rather than debate Exemption 7’s threshold requirement, the parties’ disputes revolve

around its subsidiary exemptions. The Court begins with Exemption 7(E) because it covers most

of the information the Bureau withholds. The Court then moves on to Exemption 7(A), which

the Bureau invokes for the rest.

1. Exemption 7(E)

Exemption 7(E) allows agencies to withhold law enforcement information “only to the

extent that” it “would 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.”

(b)(7)(E). The exemption “does not ordinarily protect ‘routine techniques and procedures

already well known to the public,’” but it does “protect ‘confidential details . . . of program[s]’ if

only their ‘general contours [are] publicly known.’” Elec. Frontier Found. v. Dep’t of Just.,

, 9–10 (D.D.C. 2019) (omission and alterations in original) (first quoting Founding

Church of Scientology of Wash., D.C. v. NSA,

, 832 n.67 (D.C. Cir. 1979); and then

quoting Sussman,

).

There is no dispute that agents impersonating filmmakers is a law enforcement technique.

Reps. Comm. I,

. Nor is there any dispute that the policy governing the

use of that technique is a “guideline” for Bureau investigations. See Bender Decl. ¶ 25

(explaining that the Bureau “actively utilize[s]” the policy “in its planning and execution” of

10 investigations). As a result, the key question is whether disclosure of the withheld information

“could reasonably be expected to risk circumvention of the law.” 1

That standard “sets a relatively low bar for the agency to justify withholding.” Blackwell

v. FBI,

(D.C. Cir. 2011). As the D.C. Circuit has said:

[T]he exemption looks not just for circumvention of the law, but for a risk of circumvention; not just for an actual or certain risk of circumvention, but for an expected risk; not just for an undeniably or universally expected risk, but for a reasonably expected risk; and not just for certitude of a reasonably expected risk, but for the chance of a reasonably expected risk.

Mayer Brown LLP v. IRS,

(D.C. Cir. 2009). Ultimately, the agency need

only “demonstrate logically how the release of the requested information might create a risk of

circumvention of the law.”

(cleaned up) (quoting PHE, Inc. v. Dep’t of Just.,

(D.C. Cir. 1993)). And that showing is not a “highly specific” one.

Finally,

“circumvention of the law” means “that a law will be violated or that past violators will escape

legal consequences.” Id. at 1193.

Contrary to what the Committee says, the FOIA Improvement Act does not heighten the

exemption’s substantive standard. See Pl.’s Mot. at 36–37; Pl.’s Reply at 14–16. For one thing,

applying a higher foreseeability bar “would mean ignoring the D.C. Circuit’s precedents

defining” Exemption 7(E)’s scope. Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of

Homeland Sec., No. 20-cv-1400,

, at *6 (D.D.C. Mar. 12, 2021). This Court

“leav[es] to [the D.C. Circuit] the prerogative of overruling its own decisions.” Brookens v.

1 There is some debate among courts of appeals as to whether Exemption 7(E)’s “circumvention” clause applies to “techniques and procedures” like it does to “guidelines.” See Pub. Emps. for Env’t Resp. v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mex.,

, 205 n.4 (D.C. Cir. 2014). The D.C. Circuit applies the clause to both kinds of records, so this Court does too. See Blackwell v. FBI,

(D.C. Cir. 2011); see also Shapiro v. U.S. Dep’t of Just.,

(D.D.C. 2017).

11 Acosta,

(D.D.C. 2018) (second alteration in original) (quoting Agostini v.

Felton,

(1997)), aff’d, No. 18-5129,

(D.C. Cir. Sept. 19,

2018). And the Circuit has continued to apply its pre–FOIA Improvement Act caselaw in the

Exemption 7(E) context since the law’s enactment. See, e.g., Garza v. U.S. Marshals Serv., No.

18-5311,

, at *1 (D.C. Cir. Jan. 22, 2020). For another thing, Exemption 7(E)’s

text “already contained an explicit requirement that the agency show a reasonable nexus between

the withheld information and a predicted harm.” Citizens for Resp. & Ethics in Wash.,

, at *6 n.4. To the extent the standards of Exemption 7(E) and the FOIA Improvement

Act conflict, the one specific to Exemption 7(E) should control. See Radzanower v. Touche Ross

& Co.,

(1976) (“[A] statute dealing with a narrow, precise, and specific

subject is not submerged by a later enacted statute covering a more generalized spectrum.”). 2

With that background out of the way, the Bureau invokes Exemption 7(E) for four sets of

records: (1) all the records relating to nonpublic uses of the filmmaker technique; (2) nearly all

the information redacted from the Cleveland Field Office communications; (3) each of the 26

pages related to publicly acknowledged uses of the technique that the Bureau withheld in full;

and (4) all the information redacted from the Bureau’s undercover filmmaker policy. The Court

addresses each in turn. While discussing how Exemption 7(E) applies to the first set of records,

2 As another district court in this Circuit noted, “[t]his analysis does not turn the FOIA Improvement Act into mere surplusage.” See Citizens for Resp. & Ethics in Wash.,

, at *6 n.4. The Act retains its bite when an agency claims other exemptions that lack a foreseeability requirement. See

(“The effects of the FOIA Improvement Act are perhaps most strongly felt in cases involving the deliberative process privilege under FOIA Exemption 5.”); see also Ecological Rts. Found. v. U.S. EPA, No. 19-cv-980,

, at *32 (D.D.C. Feb. 13, 2021) (“[T]he agency’s burden to demonstrate that harm would result from disclosure may shift depending on the nature of the interests protected by the specific exemption with respect to which a claim of foreseeable harm is made.”).

12 the Court also assesses whether the exemption allows the Bureau to submit in camera affidavits

(in addition to the public ones it provided) to justify its withholdings.

a. Records Relating to Nonpublic Uses of the Technique and the Bureau’s In Camera Affidavits

To begin, the Bureau claims that Exemption 7(E) covers all the records it found that

relate to investigations where it has not publicly acknowledged using the filmmaker technique.

4th Seidel Decl. ¶ 23. Its public declarations provide an overview of those records. They state:

The exempt in full records contain detailed information about specific requirements for undercover authorization, detailed information concerning the decision-making process for the FBI’s decision to utilize this particular technique rather than many others available, the time frame during which the technique was to be employed, specifics about non-publicly known operation(s), specific details about the implementation of the technique, and information about expenses incurred in the use of the technique, among other things.

; Bender Decl. ¶ 28. The declarations go on to explain that the records “consist of lA

envelopes (FD-340), Electronic Communications (‘ECs’), forms, electronic mail messages,

Sentinel Import Form (FD-1036), FD-302s, FBI letters, and other evidentiary documents.” 4th

Seidel Decl. ¶ 36 n.8. 3 But that is the extent of the descriptive information the Bureau provides

publicly. While it says its search uncovered “approximately 125,000 pages of records potentially

responsive” to the Committee’s requests, it does not disclose in public court filings how many of

those pages are actually responsive.

. According to the Bureau, providing that number

would “reveal the scope of the FBI[’s] reliance on these techniques.”

; accord Bender

Decl. ¶ 27. And even more damaging to law enforcement efforts, the Bureau asserts, would be

the release of details included in a typical Vaughn index, such as dates, geographical

information, and document descriptions. 4th Seidel Decl. ¶¶ 32–36; accord Bender Decl. ¶ 27–

3 Sentinel is the Bureau’s “next generation case management system” that documents electronically “all FBI generated records . . . in case files.” 4th Seidel Decl. ¶ 12,

13 30. It argues that wrongdoers could piece together that information to ascertain “the scope of the

FBI’s reliance on the [filmmaker] technique (or lack thereof) by geographical area and the

targets and[/]or types of investigations in which the technique is most effectively used.” Bender

Decl. ¶ 27. Supposedly, wrongdoers could then “alter their patterns of activity, geographic areas

of operations, contacts, and other behaviors in efforts to circumvent FBI detection.”

.

The sensitive details the Bureau conceals are in the classified declaration and Vaughn

index it submitted ex parte for in camera review. See Notice of Lodging of Classified Decl. of

Michael G. Seidel and Classified Vaughn Index for Ex Parte, In Camera Review, ECF No. 48.

The in camera declaration and index provide information on all the documents responsive to

request items 6 and 7. For each document, the Vaughn index provides a description of its

contents along with a list of the FOIA exemptions the Bureau claims protect it from disclosure.

See Seidel Decl. ¶ 23. The declaration offers context for the documents and supplies additional

detail as to why they purportedly fall under the exemptions the Bureau says they do. See

.

“[T]he use of in camera affidavits has generally been disfavored” in this Circuit.

Armstrong v. Exec. Off. of the President,

(D.C. Cir. 1996). Keeping an

affidavit from a plaintiff makes it harder for the plaintiff to challenge summary judgment and

deprives the court of a complete adverse perspective. Mobley v. Dep’t of Just.,

(D.D.C. 2012). Nevertheless, in camera inspection of an agency affidavit is warranted

when it is necessary to evaluate an agency’s exemption claims and a detailed description of the

withheld documents would risk disclosing information the agency seeks to protect. Elec. Priv.

Info. Ctr. v. U.S. Drug Enf’t Agency,

, 44 (D.D.C. 2019); Am. Immigr.

Council v. U.S. Dep’t of Homeland Sec.,

(D.D.C. 2013); see also

Lykins v. U.S. Dep’t of Just.,

(D.C. Cir. 1984) (upholding in camera review

14 of a letter because “extensive public justification would threaten to reveal the very information

for which a FOIA exemption is claimed”). Whether the circumstances call for an in camera

affidavit “is at the discretion of the trial court.” Lykins,

. But to minimize any

“negative impact on the effective functioning of the adversarial system,” a court that reviews an

agency affidavit in camera must clearly state its reasons for doing so and ensure that as much of

the affidavit as possible is made available to the opposing party. Armstrong, 97 F.3d at 580–81.

Similar to the standards governing in camera agency affidavits are those that apply to “no

number, no list” responses like the one the Bureau issued for the publicly unacknowledged

records. A no number, no list response is what it sounds like: it acknowledges that responsive

documents exist but does not number them or provide other descriptive information about them.

ACLU,

. For such a response to be appropriate, it must be that “any description

of [the responsive] documents would effectively disclose validly exempt information.”

It

could be that a no number, no list response is proper for some subset of responsive documents

but not the remainder.

. In any case, a no number, no list response is justified only “in

unusual circumstances, and only by a particularly persuasive affidavit.”

.

Clearly, the inquiries for assessing the Bureau’s in camera affidavits and its no number,

no list response overlap significantly. Each requires determining whether high-level descriptions

of the disputed records are themselves protected by an exemption. The Court therefore conducts

both analyses concurrently. 4

4 Notably, the Bureau’s in camera affidavits provide information on all the documents responsive to items 6 and 7 of the Committee’s request—not just documents relating to nonpublic uses of the filmmaker technique. But even though the Bureau asserts a no number, no list response for only the publicly unacknowledged investigation records, its mosaic theory for keeping the high-level information in its in camera affidavits from the Committee applies equally to the records relating to publicly acknowledged uses of the technique. The Court can thus still evaluate the two issues at the same time. Because the Court ultimately finds that

15 The Bureau’s rationale for withholding descriptive information about the disputed

records rests on a mosaic theory. See Bender Decl. ¶ 30. “A mosaic theory posits that separate

disclosures of otherwise innocuous information could be assembled by a requester or other

person to reveal ‘how, when, [and] under which circumstances[] certain techniques are

employed’ by law enforcement and investigative agencies.” Whittaker v. U.S. Dep’t of Just., No.

18-cv-01434,

, at *5 (D.D.C. Oct. 15, 2020) (quoting Reps. Comm. for

Freedom of the Press v. FBI, No. 15-cv-1392, --- F. Supp. 3d ----,

, at *11

(D.D.C. Mar. 20, 2020)). If Exemption 7(E) protects the full mosaic from disclosure, it also

“shield[s] each individual piece” of the mosaic “to prevent anyone from constructing” it. Id.; see

also Citizens for Resp. & Ethics in Wash.,

, at *4 (“[I]n some cases . . .

Exemption 7(E) allows agencies to withhold data constituting ‘part of a complex mosaic’ that, if

pieced together, would reveal law enforcement techniques, procedures, or guidelines.” (citation

omitted)). The theory “finds support in both Supreme Court and D.C. Circuit precedent

recognizing that ‘bits and pieces of data may aid in piecing together bits of other information

even when the individual piece is not of obvious importance in itself.’” Shapiro v. U.S. Dep’t of

Just.,

(D.D.C. 2017) (quoting CIA v. Sims,

(1985)).

The Bureau appropriately invokes a mosaic theory here. Forcing the agency to disclose

even high-level information about the records of its uses of the filmmaker technique would

reveal to wrongdoers how often, where, and when the agency uses the technique. There is little

question that divulging an overview of the Bureau’s use of the technique over the past eleven

years would constitute the disclosure of a law enforcement technique or procedure for purposes

Exemption 7(E) permits the Bureau to file in camera affidavits, it will use those affidavits to gauge the agency’s withholdings of all documents responsive to request items 6 and 7.

16 of Exemption 7(E). Cf. Whittaker,

, at *5 (“Plaintiff does not dispute that the

FBI’s strategic allocation of resources qualifies as a law enforcement technique or procedure.”);

Shapiro,

(“Plaintiffs appear to concede that the FBI’s ‘investigative

priorities’ qualify as ‘techniques . . . for law enforcement’ for purposes of Exemption

7(E) . . . .”). Nevertheless, the Committee asserts that the Bureau has not demonstrated that

releasing such an overview would risk circumvention of the law. See Pl.’s Mot. at 30–40.

That position “understates just how low the threshold is to satisfy Exemption 7(E)’s

‘circumvention of the law’ requirement.” Whittaker,

, at *5. Remember, the

exemption requires only that an agency “demonstrate logically how the release of the requested

information might create a risk of circumvention of the law.” Mayer Brown,

(emphasis added) (cleaned up) (quoting PHE,

). The Bureau has satisfied that

“relatively low bar.” See Blackwell,

. It makes sense that wrongdoers could

misuse information about where and in what circumstances the Bureau has used the filmmaker

technique over the past eleven years. If a certain FBI field office is associated with a high

number of responsive documents, for instance, wrongdoers in that office’s footprint may be more

cautious when approached by agents undercover as a film crew. See Shapiro,

(“[K]nowing that the FBI has historically focused its enforcement efforts in a particular

region . . . might aid a criminal in circumventing the law.”). Likewise, if it turns out that the

Bureau uses the technique most frequently when investigating a certain type of crime,

wrongdoers perpetrating that crime may be discouraged from speaking to agents posing as

filmmakers. Cf.

(“[A]ggregate information about the number of files or documents

that bear a designation for domestic terrorism/animal rights extremism may shed considerable

light on the overall resources that a particular office of the FBI has devoted, or is devoting, to

17 investigating related crimes.”). Furthermore, wrongdoers operating in a region or criminal

enterprise associated with a high number of responsive records could infer that the Bureau is

devoting significant resources to catching them and thus attempt to evade detection by relocating

their operations, shifting to a different type of crime, or lying low temporarily. See Whittaker,

, at *5–6. Even releasing the total number of responsive records could give

wrongdoers an idea of how often the Bureau uses the filmmaker technique—and thus how much

effort they should put into avoiding it. Cf. James Madison Project v. Dep’t of Just.,

(D.D.C. 2016) (upholding agency’s no number, no list response under Exemption 5

because providing the number of responsive records would show “the level of importance”

agency lawyers attributed to the FOIA request’s subjects, which was itself privileged information

protected by the exemption). Although the Court cannot “assess with precision the likelihood

of” these harms, the Bureau has still “demonstrated some chance that disclosure . . . risks

circumvention of the law via a mosaic effect.” See Whittaker,

, at *5. 5

The Committee raises two main counterpoints, but neither is persuasive. First, it suggests

that the disputed records may be so old that they would provide wrongdoers little insight into the

Bureau’s current practices. See Pl.’s Mot. at 35–36. The Committee faults the Bureau for failing

to include any “information about the actual or relative age of . . . the records at issue.”

.

5 The Committee’s contrary belief that the Bureau has not shown a risk of circumvention of the law may stem from its misunderstanding that the FOIA Improvement Act heightened the foreseeability showing an agency must make to claim Exemption 7(E). See, e.g., Pl.’s Mot. at 36–38. Indeed, the Committee at one point complains that there must be little risk of wrongdoers evading the law because the Bureau failed to identify any fallout from the news coverage that publicized its use of the filmmaker technique during the Bundy investigation.

. But as the Court explained earlier, the FOIA Improvement Act worked no change to Exemption 7(E)’s substantive standard. See supra section IV.B.1. All the exemption requires is that the information “could reasonably be expected to risk circumvention of the law,” not that is has done so before. See

(b)(7)(E).

18 It relies on Shapiro v. United States Department of Justice, where a court acknowledged that

knowing how the Bureau historically “focused its enforcement efforts . . . might aid a criminal in

circumventing the law” but asked the agency to produce more information about the records

because it was unclear “whether the relevant investigations are open, whether they closed in the

past few years, or whether they closed decades ago.”

. The Committee

also cites another case where a court required Customs and Border Protection to release

historical staffing statistics after recognizing that the agency’s practices had “changed

dramatically in recent months.” Fams. for Freedom v. U.S. Customs & Border Prot.,

, 299–300 (S.D.N.Y. 2011). Together, these cases indicate that information about

an agency’s historical law enforcement practices is unlikely to help wrongdoers circumvent the

law if that information is outdated. But there is no reason to believe that is true of the

information the Committee requested. Because the Committee sought only records generated

since the start of 2010, Defs.’ SMF ¶ 1, all the responsive records are of relatively recent vintage.

See 4th Seidel Decl. ¶ 13 (describing the Bureau’s search as limited to records created since

January 1, 2010). And nothing suggests that the Bureau has meaningfully changed its use of the

filmmaker technique over that time period. See Citizens for Resp. & Ethics in Wash.,

, at *5. Indeed, the Committee presumably submitted its FOIA request not only to learn

about the recent history of the filmmaker technique but also to “shed light” on the Bureau’s

current practice. See Pl.’s Mot. at 3.

The Committee next argues that, even if the Bureau can properly withhold information

describing an investigation’s location and subject-matter focus, there are other details that it can

disclose without risking circumvention of the law. Pl.’s Mot. at 32. Not necessarily. Many of

the details in the Bureau’s in camera Vaughn index could easily serve as proxies for the kinds of

19 data that the Committee appears to concede are sensitive. When coupled with publicly available

information such as news reports or press releases, details like the names of those involved in an

investigation or the addresses of key locations could reveal which Bureau investigations included

the use of the filmmaker technique. The same could be true for the date associated with a

document if the document’s description mentions a public event or investigatory milestone.

And as the Committee admits, see Pl.’s Mot. at 36 n.6, even releasing the case numbers

associated with each responsive document would reveal geographic and subject-matter-related

information because that information is incorporated into the Bureau’s file-numbering system.

See Poitras v. Dep’t of Homeland Sec.,

(D.D.C. 2018) (approving

withholding of FBI case numbers because they identified the agency’s investigative interests);

see also Shapiro,

& n.5 (collecting cases where courts have found that

file numbers revealed law enforcement techniques). The whole purpose of the mosaic theory is

to guard against the misuse of pieces of these seemingly “innocuous” pieces of information that

could “reveal ‘how, when, [and] under which circumstances[] certain techniques are employed’

by law enforcement and investigative agencies.” Whittaker,

, at *5.

In attacking the sufficiency of the Bureau’s public affidavits, the Committee never quite

says what additional information it wants. It suggests that the Bureau could have provided

descriptions of the requested records without revealing sensitive information like an

investigation’s geographic focus. See Pl.’s Mot. at 32. But that is essentially what the Bureau’s

two public declarations do—albeit at a high level. See CREW,

(“Agency

affidavits sometimes take the form of a ‘Vaughn index,’ but there is ‘no fixed rule’ establishing

what such an affidavit must look like. ‘[I]t is the function, not the form, of the index that is

important.’” (alteration in original) (citations omitted)). They explain that the withheld

20 documents contain, among other things, information about the requirements for authorizing a

filmmaker operation, when the Bureau might use the filmmaker technique over others, and

specific details about how agents used the technique in the field. 4th Seidel Decl. ¶ 36; Bender

Decl. ¶ 28. The declarations also list in general terms the kinds of documents withheld: “1A

envelopes (FD-340), Electronic Communications (‘ECs’), forms, electronic mail messages,

Sentinel Import Form (FD-1036), FD-302s, FBI letters, and other evidentiary documents.” 4th

Seidel Decl. ¶ 36; Bender Decl. ¶ 28. And the declarations explain at length why the information

within the withheld documents fit within each of the exemptions the Bureau claims. 4th Seidel

Decl. ¶¶ 42–163; Bender Decl. ¶¶ 31–66. When it comes to Exemption 7(E), the declarations

break their explanations down further. For instance, they say that the documents contain

information about how the Bureau collects information for certain kinds of investigations, 4th

Seidel Decl. ¶¶ 133–34, the focuses and targets of specific investigations,

¶¶ 140–42, and

details of undercover investigations (presumably those using the filmmaker technique), id. ¶ 149.

The Committee does not grapple with any of these justifications for the withholdings. See Pl.’s

Mot. at 29–40.

After reviewing the in camera declaration and Vaughn index, the Court concludes that

the Bureau’s public declarations accurately describe the withheld records. The Committee has

presented no valid ground for second-guessing the agency’s representations by conducting an in

camera review of a sample of the records. See Larson,

(“If the agency’s

affidavits ‘provide specific information sufficient to place the documents within the exemption

category, if this information is not contradicted in the record, and if there is no evidence in the

record of agency bad faith, then summary judgment is appropriate without in camera review of

the documents.’” (citation omitted)). From the Court’s careful review of all the Bureau’s

21 affidavits, it appears that both the in camera affidavits and the records of nonpublic uses of the

filmmaker technique contain sensitive information protected by Exemption 7(E). Because a

wrongdoer could use even seemingly harmless details from those materials—individually or

collectively—to gain insight into when, where, and how FBI agents use the technique, the

Bureau justifiably withheld them categorically and in full. 6

b. The 10 Pages of Cleveland Field Office Communications

As described earlier, the Bureau released in part 10 pages of communications to and from

its Cleveland Field Office regarding a proposed undercover operation. See 2d Townsend Decl.,

Ex. N; see also 4th Seidel Decl. ¶ 86. The released communications are heavily redacted, and

there is a code by each redaction signifying what exemption the redaction relies on. See 2d

Townsend Decl., Ex. N. Almost every redaction rests at least in part on Exemption 7(E). 7 More

specifically, the codes indicate that the redactions omit information regarding agents’ collection

and analysis of information, the identity and location of FBI units, the focus of the investigation,

the undercover aspects of the operation, the targets of the investigation and how agents surveilled

6 Notably, Exemption 7(E) permits the Bureau to withhold all the records relating to nonpublic uses of the filmmaker technique even though it did not claim the exemption for a small number of those records on an individual basis. When an agency demonstrates that a mosaic of information is categorically exempt from disclosure, each tile in that mosaic falls under the relevant exemption’s protective umbrella. See Reps. Comm.,

, at *11 (“While any one piece of information might not compromise the FBI’s techniques or procedures, pieces of information can be assembled—in mosaic fashion—to provide a framework to determine how, when, under which circumstances, certain techniques are employed.” (cleaned up)); Shapiro, 239 F. Supp. 3d at 114–16 (approving the Bureau’s argument that Exemption 7(E) protected records under a mosaic theory, even though the records “standing alone” would not necessarily “disclose protected law enforcement techniques or procedures”). 7 The sole exception is a section under the heading “Subjects.” See 2d Townsend Decl. Ex. N. For that redaction, the Bureau claims Exemptions 6 and 7(C).

Accompanying codes signal that the redaction conceals the names or identifying information of third parties of investigative interest. See id.; 4th Seidel Decl. ¶ 103. The Committee does not challenge this withholding. See Pl.’s Mot. at 25 n.5.

22 them, and what payments agents made to implement investigative techniques. See id.; Public

Vaughn Index.

The Bureau’s declarations elaborate on the coded justifications. They explain that

disclosing redacted information in the Cleveland Field Office communications would reveal

details about how and when agents use the filmmaker and other techniques, which would allow

savvy wrongdoers to “take countermeasures” to reduce their effectiveness. 4th Seidel Decl.

¶ 133; see also

. Likewise, the declarants assert that releasing nonpublic

information about the focus of an investigation or how agents pursued an investigation’s targets

could give wrongdoers insight into the Bureau’s intelligence-gathering capabilities, possibly

jeopardizing similar efforts in the future.

. In addition, the declarants argue that

publicizing the names and locations of specialized FBI units involved in a specific operation

could reveal what kinds of crimes and geographic areas the agency prioritizes.

.

According to them, even disclosing how much the Bureau paid would give wrongdoers a

glimpse of how it allocates its limited resources.

. With that kind of information, the

declarants say, a wrongdoer could adjust his criminal activities to take advantage of Bureau

“weaknesses.”

.

Between the agency declarations and the redacted communications, the Bureau has

established a logical connection between its redactions and would-be criminals’ ability to

circumvent the law. Revealing details as to how agents approached an investigation may very

well create a risk that wrongdoers will exploit the information to violate the law or escape the

consequences of doing so. Accordingly, the Bureau has passed the “relatively low bar” for

withholding much of the communications under Exemption 7(E). In fact, nowhere does the

Committee single out the 10 pages’ redactions as inadequately supported.

23 The Committee instead challenges the Bureau’s segregability assessment. See Pl.’s Mot.

at 12–14. But the agency has done what FOIA requires. A review of the redacted documents

supports the Bureau’s assertion that it made “[e]very effort” to turn over segregable information.

See 4th Seidel Decl. ¶ 38; see also Sussman,

(“Agencies are entitled to a

presumption that they complied with the obligation to disclose reasonably segregable material.”).

Although the 10 pages are heavily redacted, it is unsurprising that it would be difficult to parse

out information that falls under headings like “Undercover Technique,” “Confidential Human

Sources,” and “Budget.” See 2d Townsend Decl., Ex. N; see also Hodge v. FBI,

(D.D.C. 2011) (rejecting plaintiff’s argument that redaction of “large chunks of

material . . . evidences defendants’ failure to segregate” because declarations and annotations

“identif[ied] the exemptions claimed . . . for each redaction”), aff’d,

(D.C. Cir.

2013); cf. Mead Data Ctr.,

(“[I]f only ten percent of the material is non-exempt

and it is interspersed line-by-line throughout the document, an agency claim that it is not

reasonably segregable because . . . the result would be an essentially meaningless set of words

and phrases might be accepted.”). The Bureau rightly claimed Exemption 7(E) to withhold the

information the Committee seeks from the Cleveland Field Office communications. It does not

need to take any further action on those records.

c. The 26 Pages Withheld in Full

Related to the Cleveland Field Office communications are the 26 pages for which the

Bureau provided page-by-page exemptions to justify withholding them in full. One can tell that

the two sets of records are related because, as mentioned, the Bureau’s public Vaughn index

indicates that they are in the same file. See Public Vaughn Index. That index shows that the 26

pages consist of two 13-page documents with the same claimed exemptions for each of their 13

24 pages. See

For every page, the Bureau says that Exemption 7(E) applies because the

information deals with the investigative focus of a specific investigation and an undercover

operation. See

Each document also contains pages with information about FBI units and

monetary payments for investigative techniques. See

The Bureau provides additional

information on what the 26 pages consist of and why it withheld them in its in camera affidavits.

Once again, the Bureau’s declarants assert that releasing the pages’ discussion of an

undercover operation could tip off wrongdoers as to when, how, and where the Bureau is likely

to use the filmmaker technique. See 4th Seidel Decl. ¶¶ 135, 141, 149–150. The Court agrees.

Based on the Bureau’s in camera submissions, the pages appear to be rife with the kinds of

“confidential details” that Exemption 7(E) protects because revealing them would “reduce or

nullify” a law enforcement technique’s effectiveness. See Elec. Frontier Found.,

(first quoting Sussman,

; and then quoting Vazquez v. U.S. Dep’t of

Just.,

(D.D.C. 2012)). Moreover, the Bureau’s description of the

documents corroborates an agency declarant’s claim that “no information could be reasonably

segregated for release” without resulting in only “disjointed words, phrases, or sentences,

which . . . would have minimal or no informational content.” See 4th Seidel Decl. ¶ 164; see

also Mead Data Cent.,

(“It has long been a rule in this Circuit that non-exempt

portions of a document must be disclosed unless they are inextricably intertwined with exempt

portions.”). The Bureau was therefore entitled to withhold the 26 pages in their entirety.

d. The Bureau’s Filmmaker Impersonation Policy

The last set of records that the Bureau seeks to protect under Exemption 7(E) is a policy

entitled Undercover Activities: Posing as a Member of the News Media or a Documentary Film

Crew. 4th Seidel Decl. ¶ 25. When the agency released the policy to the Committee, it disclosed

25 the vast majority of the policy’s language. It made just a handful of redactions per page, and the

redactions covered words and excerpts of sentences as opposed to full passages. See 2d

Townsend Decl., Ex. M. Next to each redaction is a code designating why the agency says

Exemption 7(E) applies. See

The codes indicate that the information redacted from the

policy relates to how the Bureau conducts undercover operations, the investigatory focus of

operations, procedures used in national security investigations, and the names and locations of

specialized FBI units. See id.; see also Public Vaughn Index. 8 As with the Cleveland Field

Office communications, the Bureau’s declarations describe in more detail the kind of

information associated with each code. See 4th Seidel Decl. ¶¶ 135, 140, 149, 152; Bender Decl.

¶¶ 35–36, 38, 47, 53–54.

Even without the redacted information, the policy’s basic terms are clear. At the outset,

the document states that its purpose is to “set forth interim policy in support of the [redacted]

regarding approval levels for sensitive circumstances specifically in situations in which

employees represent, pose, or claim to be members of the news media or a documentary film

crew.” 2d Townsend Decl., Ex. M. It provides that, in general, the FBI’s Deputy Director must

approve a proposed filmmaker operation after consultation with the Deputy Attorney General.

The Deputy Director must then report approved filmmaker operations to the FBI’s

Undercover Review Committee.

In certain “urgent[]” circumstances, the policy permits

lower-level FBI officials to authorize a filmmaker operation on an interim basis.

An official

that grants interim authorization for a filmmaker operation must submit an application to the

Deputy Director and Undercover Review Committee within 48 hours.

8 Some of the redactions remove FBI phone numbers, email addresses, IP addresses, and nonpublic intranet addresses. See 2d Townsend Decl., Ex. M; 4th Seidel Decl. ¶ 132. The Committee does not seek that information. See Pl.’s Mot. at 36 n.6.

26 The Reporters Committee complains that the Bureau did not provide enough detail on the

information it redacted or its justifications for the redactions. Pl.’s Mot. at 12. But in the context

of a policy whose basic tenets are apparent and for which the redactions are fairly specific, the

coded justifications along with longer descriptions in the Bureau’s declarations “provide[] ‘a

reasonable basis to evaluate [each] claim of privilege.’” See Hodge,

(second alteration in original) (citation omitted) (“Because the function, and not the form, of the

index is dispositive, our Circuit has upheld similar agency declarations coupled with coded

categories, in lieu of Vaughn indices.”). Indeed, the redactions are so well-tailored that “[a]ny

more specificity would have entailed disclosure of the very information withheld.” See Keys v.

U.S. Dep’t of Just.,

(D.C. Cir. 1987); see also Fischer v. U.S. Dep’t of Just.,

(D.D.C. 2009).

Upon review of the mostly released policy and the Bureau’s declarations, the Court is

convinced that the agency properly withheld the redacted information under Exemption 7(E) and

demonstrated that it could not reasonably disclose more. The policy and declarations indicate

that the redacted information concerns the circumstances in which the Bureau might conduct a

filmmaker operation, what specialized FBI units would be involved in approving or participating

in such an operation, and how long such an operation can last. See 2d Townsend Decl., Ex. M;

4th Seidel Decl. ¶¶ 140–41; Bender Decl. ¶¶ 47, 53–54. As the Bureau’s declarants explain,

revealing that information could enable wrongdoers “to discern the FBI’s use of undercover

operations, thus allowing them to detect FBI undercover operations” and respond accordingly.

Bender Decl. ¶ 47. The Bureau has therefore shown that the redacted excerpts of its filmmaker

impersonation policy could logically lead to circumvention of the law. And given the Bureau’s

precise redactions, the Court sees nothing to make it doubt that the agency disclosed as much as

27 reasonably possible. See Hodge, 764 F. Supp. 2d at 143–44; Fischer,

; see

also Sussman,

. The Bureau does not need to release more of the filmmaker

impersonation policy.

2. Exemption 7(A)

The Bureau withholds the last remaining set of records categorically under Exemption

7(A). That exemption protects “records or information compiled for law enforcement purposes”

so long as producing them “could reasonably be expected to interfere with enforcement

proceedings.”

(b)(7)(A). It is meant “to prevent disclosures which might

prematurely reveal the government’s cases in court, its evidence and strategies, or the nature,

scope, direction, and focus of its investigations, and thereby enable suspects to establish defenses

or fraudulent alibis or to destroy or alter evidence.” Maydak v. U.S. Dep’t of Just.,

(D.C. Cir. 2000). The exemption “reflects the Congress’s recognition that ‘law enforcement

agencies ha[ve] legitimate needs to keep certain records confidential, lest the agencies be

hindered in their investigations or placed at a disadvantage when it [comes] time to present their

case.’” CREW,

(alterations in original) (quoting NLRB v. Robbins Tire &

Rubber Co.,

(1978)). An agency can withhold law enforcement records under

Exemption 7(A) if it demonstrates that “disclosure (1) could reasonably be expected to interfere

with (2) enforcement proceedings that are (3) pending or reasonably anticipated.”

(quoting

Mapother v. Dep’t of Justice,

(D.C. Cir. 1993)).

As mentioned, the Bureau says that Exemption 7(A) protects 54 pages of records relating

to its investigation of Cliven Bundy. Bender Decl. ¶ 7. Even though a district court dismissed

the indictments of Bundy, two of his sons, and a supporter, a Bureau declarant explains that “the

investigation is still ongoing due to superseding indictments on other subjects.” Id. ¶ 8. The 54

28 pages contain material relevant to those subjects, one of whom is Gregory Burleson. Id.

Burleson was convicted of a variety of counts and has an appeal in his case pending. Id.; see

also Notice of Appeal, United States v. Burleson, No. 16-cr-46 (D. Nev. June 25, 2021), ECF

No. 3,546 (appealing recent denial of motion for new trial). According to the Bureau, releasing

the 54 pages could interfere with its pending investigation by giving subjects insight into its

methods and the evidence it collected, perhaps allowing them to destroy or tamper with

evidence. Bender Decl. ¶ 8.

The Committee takes issue with the Bureau’s justification. It argues that Exemption 7(A)

has no business protecting records of the Bundy investigation because the case against him is

over. See Pl.’s Mot. at 15–16; Pl.’s Reply at 5–7. Moreover, the Committee continues, it makes

no sense that documents from an investigation arising out of events that took place over six years

ago would still be useful to law enforcement proceedings. Pl.’s Reply at 7. But the Bureau has

explained that the 54 pages contain information relevant to the ongoing investigation of other

subjects. See Boyd v. Crim. Div. of U.S. Dep’t of Just.,

(D.C. Cir. 2007)

(upholding Exemption 7(A) withholding despite amicus implying “that no investigations

involving [one target] were still active” because “the government’s affidavit state[d] that the

investigation at issue involves the ‘ongoing collection of data’ and that the withheld records

relate to ‘potential criminal proceedings against individuals’”). Indeed, the Bureau named

Burleson as one subject whom the records relate to, and enforcement proceedings against him

are still ongoing. See Kidder v. FBI,

(D.D.C. 2007) (“A pending appeal

of a criminal conviction qualifies as a pending or prospective law enforcement proceeding for

purposes of Exemption 7(A).”). The Committee’s mere suggestion that the standoff occurred too

long ago for an enforcement proceeding to be occurring is not enough to overcome the

29 presumption of good faith afforded to agency affidavits. See Hammouda v. U.S. Dep’t of Just.

Off. of Info. Pol’y,

(D.D.C. 2013) (explaining that the nine- to eleven-

year-old age of records could not rebut the presumption of good faith afforded to an agency

declaration that said an investigation was ongoing). The Bureau has shown that the withheld

records relate to law enforcement proceedings that are pending or reasonably anticipated.

Yet “Exemption 7(A) does not authorize automatic or wholesale withholding of records

or information simply because the material is related to an enforcement proceeding.” North v.

Walsh,

(D.C. Cir. 1989). An agency must also demonstrate that disclosure

of withheld records would interfere with the related proceeding.

And when an agency seeks

to withhold records categorically under Exemption 7(A), as the Bureau does, its task becomes

“three-fold.” CREW,

(quoting Bevis v. Dep’t of State,

(D.C. Cir. 1986)). “First, it must define its categories functionally. Second, it must conduct a

document-by-document review in order to assign documents to the proper category. Finally, it

must explain to the court how the release of each category would interfere with enforcement

proceedings.”

(quoting Bevis, 801 F.2d at 1389–90).

The Bureau has not done any of that. Rather than dividing the withheld documents into

functional categories, it merely outlines the kinds of documents that comprise the 54 pages: “The

document types at issue within the publicly acknowledged documents withheld pursuant to

Exemption 7(A) are FD-1057 – Electronic Communications (“ECs”), FD-302 – internal FBI

interview forms, FBI letters, and other evidentiary documentation.” Bender Decl. ¶ 8 n. 12.

Those descriptions are not functional; they do not provide enough information to allow the Court

“to trace a rational link between the nature of the document and the alleged likely interference.”

See Crooker v. Bureau of Alcohol, Tobacco & Firearms,

(D.C. Cir. 1986).

30 Indeed, they “give absolutely no indication of the substance of the information contained” at all.

See Bevis,

(holding that the Bureau could not justify withholding documents

using categorical descriptions like “teletypes,” “airtels,” or “letters”).

Nor does the Bureau offer a category-by-category explanation of how release of the

withheld documents would interfere with enforcement proceedings. See CREW,

(remanding to the agency for more explanation when it “identifie[d] two distinct categories

of documents—FD–302s and investigative materials—[but] never explain[ed] how the specific

risks entailed in premature disclosure of one category of document might differ from risk of

disclosure of the other”). All it says is that release of the withheld 54 pages “could result in

foreseeable harms including but not limited to providing investigative subjects insight into what

and how the FBI gathered evidence of their wrongdoing and allowing them to destroy or tamper

with evidence; and/or provide insight into the FBI’s investigative approach.” Bender Decl. ¶ 8.

That bland explanation falls far short of what FOIA requires. “[T]o prevail under Exemption

7(A), the government must show, by more than conclusory statement, how the particular kinds of

investigatory records requested would interfere with a pending enforcement proceeding.” North,

(quoting Campbell v. Dep’t of Health & Hum. Servs.,

(D.C.

Cir. 1982)); see also Voinche v. FBI,

(D.D.C. 1999) (rejecting the Bureau’s

Exemption 7(A) claim because the agency “ma[de] only conclusory statements that the release of

the file as a whole would result in the described adverse effects on the investigation”). The

Bureau leaves open too many questions to make that showing. For example, given that Burleson

was tried and convicted, did the Bureau already disclose the information it now withholds in

criminal discovery? If it did, how would releasing that information here interfere with his

31 ongoing case? The Bureau does not say, so the Court is left to guess. Similar questions arise

with respect to other individuals under investigation. More of an explanation is required.

As a result, the Bureau has not earned summary judgment with respect to the documents

it categorically withheld under Exemption 7(A). That said, the Committee’s request for

summary judgment is premature too. The agency can submit new affidavits with the information

necessary to evaluate whether it properly claimed the exemption. 9 Until then, there is not yet a

need to decide whether, as the Bureau asserts, “other underlying exemptions” apply. See 4th

Seidel Dec. ¶ 38.

* * *

To summarize, the Bureau has properly withheld most of the information that the

Committee seeks. Exemption 7(E) permits it to withhold the requested information in four of the

five sought-after records sets. Because Exemption 7(E) covers those records, the Court does not

need to determine whether other exemptions might also apply. But for records the Bureau claims

are categorically exempt under Exemption 7(A), the Bureau is not entitled to summary judgment.

It should submit supplemental affidavits to justify that withholding. Finally, the Committee has

presented no good reason to audit the agency’s affidavits by sampling some of the disputed

records for in camera review. While the Bureau’s explanation for withholding some records

categorically under Exemption 7(A) was lacking, the affidavits were otherwise sufficient and in

9 In its briefs, the Committee also asserts that the FOIA Improvement Act’s heightened foreseeability requirement applies to claims of Exemption 7(A). See Pl.’s Mot. at 18. The Court doubts the FOIA Improvement Act materially alters the standard articulated in Exemption 7(A)’s text for much the same reasons it held the Act did not do so for Exemption 7(E). See supra section IV.B.1; see also

(b)(7)(A) (exempting law enforcement records that “could reasonably be expected to interfere with enforcement proceedings” (emphasis added)). Nevertheless, because the Bureau failed to properly justify its withholdings under Exemption 7(A), the Court does not need to reach the question of the FOIA Improvement Act’s application. The parties can address this issue in their next round of briefing.

32 no way suggested that the agency misrepresented any record’s contents. See Larson,

. The Court will not yet exercise its “broad discretion” to demand in camera review of the

disputed records. See Loving v. Dep’t of Def.,

(D.C. Cir. 2008) (quoting

Armstrong, 97 F.3d at 577–78).

V. CONCLUSION

For the foregoing reasons, Defendants’ motion for partial summary judgment (ECF No.

47) is GRANTED IN PART AND DENIED IN PART, Plaintiff’s motion for partial summary

judgment (ECF No. 49) is DENIED, and Plaintiff’s motion for in camera review (ECF No. 50)

is DENIED. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: July 12, 2021 RUDOLPH CONTRERAS United States District Judge

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