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Hetzler v. Record/Information Dissemination Section

United States District Court, W.D. New York

September 6, 2012

Deidre McKiernan HETZLER, Plaintiff,
RECORD/INFORMATION DISSEMINATION SECTION, FEDERAL BUREAU OF INVESTIGATION and Director, Office of Information and Privacy, U.S. Department of Justice, Defendants.

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[Copyrighted Material Omitted]

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Deidre McKiernan Hetzler, Fairport, NY, pro se.

Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, for Defendants.


MICHAEL A. TELESCA, District Judge.

I. Introduction

This case arises under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552, and pertains to a request made by pro se plaintiff Dé irdre McKiernan Hetzler (" Hetzler" or " Plaintiff" ) for records maintained by the Federal Bureau of Investigation (" FBI" ). After searching its records, the FBI determined that 187 pages were responsive to Plaintiff's request. It released 99 pages in full, released 67 pages in part, and withheld 21 pages in full. Defendants claim that the redacted information falls within one or more categories exempting it from disclosure under FOIA.

Defendants have moved for summary judgment under Federal Rule of Civil Procedure (" F.R.C.P." ) 56 asserting that they have established that the redacted material properly is withheld under FOIA exemptions protecting classified information affecting national security interests of the United States; confidential source information; information concerning internal agency rules and procedures; and information that potentially affects the privacy of third parties. Defendants have asserted multiple justifications for non-disclosure of some of the same items.

Plaintiff opposed Defendants' motion and cross-moved for summary judgment. In her Motion for Summary Judgment, Plaintiff generally argues that Defendants applied the national security and privacy exemptions in an over broad manner, and specifically argues that six of the 187 pages of documents reviewed by the FBI as responsive to her FOIA request were improperly redacted: documents Bates-stamped McKiernan 42, 46, 50, 64, 65, and 97.[1] Defendants opposed Plaintiff's motion and submitted a reply to Plaintiff's opposition to their summary judgment motion.

Finding that Defendants' Vaughn [2] index was insufficient to determine whether Defendants had complied with the strictures of FOIA and were entitled to summary judgment, the Court directed Defendants to submit, for an in camera review, unredacted copies of the 67 pages that were partially redacted, along with unredacted copies of the 21 pages that were fully withheld. The Court denied without prejudice the parties' competing summary judgment motions until it had an opportunity to view the redacted documents.

On August 23, 2012, Defendants, through their attorney, submitted unredacted copies of 80 of the 88 pages requested by the Court. The remaining 8 pages were deemed " Secret" by the FBI, meaning that an individual with the appropriate

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security clearance was required to transport the documents and remain with them during the in camera review. Accordingly, on August 24, 2012, Special Agent Joseph Testani brought the remaining eight documents for the Court to review and then returned them to the local FBI field office.

The matter is now fully submitted and ready for decision. For the reasons that follow, Defendants' Motion for Summary Judgment is granted in part and denied in part. Plaintiff's Cross-Motion for Summary Judgment is granted in part and denied in part.

II. Discussion

A. General Legal Principles Applicable to FOIA

FOIA provides that " each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules ..., shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(4)(B); DOJ v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (" Reporters Comm. " ). " Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary and capricious, the FOIA expressly places the burden ‘ on the agency to sustain its action’ and directs the district courts to ‘ determine the matter de novo.’ " Reporters Comm., 489 U.S. at 755, 109 S.Ct. 1468 (quoting 5 U.S.C. § 552(a)(4)(B)). " At all times, courts must bear in mind that FOIA mandates a ‘ strong presumption in favor of disclosure’ ...." Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C.Cir.2002) (quoting U.S. Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991)).

B. Adequacy of the FBI's Search

To obtain summary judgment, Defendants must demonstrate " beyond material doubt" that they have " conducted a search reasonably calculated to uncover all relevant documents." Morley v. CIA, 508 F.3d 1108, 1114 (D.C.Cir.2007) (quoting Weisberg v. DOJ, 705 F.2d 1344, 1351(D.C.Cir.1983) (internal quotation mark omitted) (alteration in original)). " [A]ffidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by FOIA." Meeropol v. Meese, 790 F.2d 942, 952 (D.C.Cir.1986) (quotation omitted).

David M. Hardy, Esq., Section Chief of the Record/Information Dissemination Section (" RIDS" ), of the Federal Bureau of Investigation (" FBI" ), submitted a declaration in support of Defendants' motion for summary judgment explains in detail the multiple searches conducted in order to locate documents responsive to Plaintiff's request. See Declaration of David M. Hardy, Esq. (" Hardy Decl." ) at 3-11. In her motion for summary judgment, Plaintiff has not challenged the adequacy of Defendants' search. Moreover, there is no suggestion that Defendants acted in bad faith in conducting the search. See Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir.1981) (citations omitted). Therefore, the Court will grant Defendants' motion for summary judgment on the adequacy-of-search issue. See Judicial Watch, Inc. v. U.S. Dep't of Defense, 857 F.Supp.2d 44, 54-55 (D.D.C.2012).

C. The Propriety of the FBI's Withholdings

Congress exempted nine categories of documents from FOIA's expansive

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scope. " [T]he statutory exemptions, which are exclusive, are to be ‘ narrowly construed[.]’ " Norton, 309 F.3d at 32 (quoting Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)). The government has the burden of showing that any withheld documents fall within an exemption to FOIA. Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir.1994) (citing 5 U.S.C. § 552(a)(4)(B); EPA v. Mink, 410 U.S. 73, 79, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973)). " ‘ [C]onclusory and generalized allegations of exemptions' are unacceptable[.]" Founding Church of Scientology of Wash., D.C., Inc. v. Nat'l Sec. Agency, 610 F.2d 824, 830 (D.C.Cir.1979) (quoting Vaughn, 484 F.2d at 826).

The FBI here relies on Exemptions 1, 2, 6, and 7. See generally Morley, 508 F.3d at 1123, et seq. (discussing exemptions). Exemption 1 applies to materials that are " specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and ... are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). Exemption 2 protects from disclosure records that are " related solely to the internal personnel rules and practices of an agency." 5 U.S.C. § 552(b)(2). Under Exemption 6, a federal agency may withhold " personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Exemption 7 protects records compiled for law enforcement purposes but only to the extent that disclosure of such records would cause one of six statutorily-enumerated harms. 5 U.S.C. § 552(b)(7); see also FBI v. Abramson, 456 U.S. 615, 622, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982).

Defendants have further segregated the redacted material according to various categories within each exemption. See Hardy Decl. at 12-14, ¶¶ 32-33. The documents that contain redactions contain, on their face, coded categories detailing the nature of the information withheld. See id. Attached as Appendix 1 to this Decision and Order is a table summarizing the exemption categories and the pages on which the exemption categories) are applied. This table is based on the " Summary of Justification Categories" contained in the Hardy Declaration.

1. Exemption 1: Information Pertinent to National Security

An agency may invoke Exemption 1, see 5 U.S.C. § 552(b)(1), " only if it complies with classification procedures established by the relevant executive order and withholds only such material as conforms to the order's substantive criteria for classification." King v. DOJ, 830 F.2d 210, 214 (D.C.Cir.1987). The Executive Order (" EO" ) applicable in this case is EO 13526, which " prescribes a uniform system for classifying, safeguarding, and declassifying national security information." Exec. Order No. 13526, 75 Fed.Reg. 707, 707,2009 WL 6066989 (Pres.Exec.Order Dec. 29, 2009). In order for information to be properly classified, and thus properly withheld from disclosure pursuant to Exemption 1, it must meet the requirements set forth in E.O. 13526, § 1.1(a):

(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 § 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

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national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.

E.O. 13526, § 1.1(a)(1)-(4), 2009 WL 6066989. Section 6.1(cc) of E.O. 13526 defines " [n]ational [s]ecurity" as " the national defense or foreign relations of the United States." E.O. 13526, § 6.1(cc), 2009 WL 6066989.

In addition to these substantive requirements, E.O. 13526 contains certain procedural and administrative requirements that must be observed before information can be considered to be properly classified. FOIA requires that " [a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt." 5 U.S.C. § 552(b).

Hardy, who is an " original classification authority," avers that he followed the requisite procedures and " determined that this classified information continues to warrant classification at the ‘ Secret’ or ‘ Confidential’ level, and is exempt from disclosure pursuant to E.O. 13526, § 3.3, categories (b)(1) and (b)(6)." Hardy Decl. at 17, ¶ 38. Executive Order 13526, § 3.3(b)(1) exempts from automatic declassification certain intelligence activities, including special activities, that may reveal information about the application of intelligence sources and methods. The FBI here withheld information pursuant to E.O. 13526, § 3.3(b)(1) where it found that the information (1) contained file numbers assigned to a specific intelligence activity or method; (2) contained standard FBI terminology or phraseology appearing in the most recent FBI investigations; (3) described the character of the case by identifying the specific type of intelligence activity directed at a specific target and the identity of the target of national security interest; (4) identified targets of foreign counterintelligence investigation; and (5) protected an intelligence source. Hardy Decl. at 18, ¶ 42. Hardy contends that " [t]he unauthorized disclosure of the information could reasonably be expected to cause serious damage to the national security." Hardy Decl. at 17, ¶ 38. Hardy avers that no additional reasonably segregable portions could be declassified and released. Hardy Decl. at 16-17, ¶¶ 37-37 & n. 10; see also id., Ex. N.

Plaintiff argues that Defendants have mistakenly asserted the national security exemption as to information concerning, inter alia, the method of investigation and character of the case. noting that " for purposes of historical accuracy" in the biography of Dr. McKiernan she is writing, " it is essential to know of what crime Dr. McKiernan was suspected, if any, and, in particular, whether the [Federal] Bureau [of Investigation] suspected him of IRA membership and if it has any proof." Plaintiff's Response to Defendants' Motion for Summary Judgment (" Pl. Resp." ) at 2, ¶ 2. Plaintiff contends that because the investigation into Dr. McKiernan is decades-old, the information gleaned " cannot be that current or useful, nor can any related security threat any longer exist." Pl. Resp. at 4, ¶¶ 3-4.

Plaintiff also asserts that for the purpose of historical accuracy, " it is essential to know whether the foreign country (or an agency thereof) requesting information/surveillance was England/Great Britain (or another country), since they later sought [Dr. McKiernan's] assistance regarding a Northern Ireland peace." Pl. Resp. at 3, ¶ 2. Plaintiff states that she does " not need the exact source of the foreign intelligence (e.g.[,] England's MI5), but the fact and identit [sic] of the country are critical to" the biography. Id. (emphasis in original).

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2. Documents Fully Withheld Under Exemption 1

Exemption 1 has been asserted to withhold fully McKiernan 96-97 and 159-162. With regard to McKiernan 96-97, Defendants have asserted Exemption (b)(1)-1 to protect the following: an intelligence method used for gathering data, the character of the case, and intelligence source information. See Hardy Decl. at 18 n. 11; id. at 22 n. 14; id. at 23 n. 16. On McKiernan 96, Exemption (b)(1)-1 also has been asserted to protect standard FBI terminology and phraseology.

a. McKiernan 96-97

McKiernan 96-97 is a two-page FBI field memorandum concerning that agency's investigation of Dr. McKiernan's activities and associations. All of the information therein was declassified decades ago apart from several lines, highlighted in red, which remain classified. That a document has been declassified or unclassified does not necessarily preempt the government agency from asserting the national security exemption. See ACLU v. U.S. Dep't of Justice, 321 F.Supp.2d 24, 35 (D.D.C.2004) (" [T]he issue now before the Court is whether the Attorney General's September 2003 decision to declassify the number of section 215 applications granted by the FISA court means that the information that plaintiffs seek can no longer be withheld under Exemption 1. While the resolution of this issue is hardly free from doubt, the Court will uphold the government's claim of exemption because it is mindful of the ‘ long-recognized deference to the executive on national security issues,’ and the need to ...

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