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Brennan Center for Justice at New York University School of Law v. Department of Homeland Security

United States District Court, S.D. New York

August 3, 2018

BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW, Plaintiff,
v.
DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, Defendants.

          OPINION AND ORDER

          KATHERINE POLK FAILLA, DISTRICT JUDGE

         The Brennan Center for Justice at New York University School of Law (“Plaintiff” or the “Brennan Center”) brought this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, against the Department of Homeland Security and the Department of Justice (collectively, the “Government” or “Defendants”); it seeks documents regarding certain initiatives under the rubric “Countering Violent Extremism” that were first established by the White House in 2011. Defendants have disclosed various documents in response to Plaintiff's FOIA claims, but the parties dispute Defendants' withholdings of a limited set of information. Now that the parties have had an opportunity to refine the issues, Defendants have moved for summary judgment, and Plaintiff has cross-moved for summary judgment. For the reasons that follow, Defendants' motion is granted in full.

         BACKGROUND[1]

         A. Factual Background

         1. The Parties

         The Brennan Center for Justice at New York University School of Law is “a non-profit, non-partisan corporation, organized under section 501(c)(3) of the Internal Revenue Code.” (Compl. ¶ 12). It describes itself as “a nonpartisan research and policy institution … focused on fundamental issues of democracy and justice.” (Id.). In furtherance of that aim, the Brennan Center's Liberty and National Security Program utilizes “policy recommendations, litigation, and public advocacy to advance effective national security policies, ” including those related to “ensuring that domestic surveillance and counterterrorism policies are properly targeted to the threat and do not discriminate against particular communities.” (Id.).

         This dispute concerns FOIA requests that the Brennan Center issued to the following governmental entities: the Department of Homeland Security (“DHS”), within which Plaintiff seeks records from the DHS Office of Intelligence and Analysis (“I&A”); and the Department of Justice (“DOJ”), within which Plaintiff seeks records from the Federal Bureau of Investigation (“FBI”). (Compl. ¶¶ 13-14). The following sections detail Plaintiff's requests and Defendants' responses.

         2. The Countering Violent Extremism Initiative

         “In August 2011, President Obama issued the National Strategy for Empowering Local Partners to Prevent Violent Extremism in the United States, which outlined a strategy for the federal government to ‘support and help empower American communities and their local partners in their grassroots efforts to prevent violent extremists.'” (Def. Br. 2 (citation omitted)). In December 2011, the White House issued a corresponding “Strategic Implementation Plan” (or “SIP”) in furtherance of the President's efforts toward “countering violent extremism” (or “CVE”); the SIP detailed then-current CVE efforts, as well as initiatives that were to be performed by government agencies and their components, including DOJ, DHS, the U.S. Attorneys' Offices, and the FBI. (See generally Price Decl., Ex. 1). As framed by the Brennan Center, “CVE aims to deploy the resources of the federal government - both law enforcement and social services - to encourage and assist American Muslim communities in identifying persons who … might hold extremist views and be at risk of becoming violent.” (Compl. ¶ 2).

         3. Plaintiff's FOIA Requests

         In 2014 and 2015, Plaintiff issued 13 FOIA requests to various government agencies seeking documents related to CVE initiatives. (See Compl. ¶¶ 15-49). At present, a limited number of Plaintiff's requests to two government entities - the FBI and I&A - remain at issue. (See Pl. Br. 4-5).

         a. The FOIA Requests to the FBI

         On December 23, 2014, Plaintiff submitted a FOIA request to the FBI seeking records related to the FBI's participation in CVE programs. (See Hardy Decl., Ex. F). On June 3, 2015, the FBI released 28 pages of documents, some of which contained redactions. (See Id. at Ex. H; Compl. ¶ 36). On July 31, 2015, Plaintiff appealed the adequacy of the FBI's search and the redactions of the FBI's disclosed materials. (Hardy Decl., Ex. I). On November 24, 2015, the FBI remanded the FOIA request for further processing of records that had previously been withheld. (Id. at ¶ 22).

         Also on December 23, 2014, Plaintiff submitted a second FOIA request to the FBI seeking various documents generated by the FBI's Countering Violent Extremism Office (the “CVEO”). (See Hardy Decl., Ex. A; Compl. ¶ 31). On January 9, 2015, the FBI acknowledged receipt of the request, and on June 3, 2015, the FBI released 25 pages of responsive documents, some of which contained redactions. (See Hardy Decl., Ex. B-C; Compl. ¶ 33). On July 31, 2015, Plaintiff appealed the adequacy of the FBI's search and challenged the FBI's redactions. (See Hardy Decl. Ex. D). The FBI denied the appeal on September 15, 2015. (Compl. ¶ 33).

         On November 4, 2015, Plaintiff submitted an additional FOIA request to the FBI seeking records related to certain CVE-related activities. Among those requests, Plaintiff sought “records pertaining to the FBI's plan for ‘Shared Responsibility Committees, '” or “SRCs, ” which were “described as ‘proposed groups of community leaders and FBI representatives who could discuss cases of specific youths.'” (Hardy Decl., Ex. K (footnote call number omitted); see also Pl. Br. 4). “By letter dated November 19, 2015, the FBI informed Plaintiff [that] a search of the FBI's Central Records System failed to locate any main file records responsive” to the request. (Hardy Decl. ¶ 28). On December 4, 2015, Plaintiff appealed the adequacy of the FBI's search for responsive records, which appeal the FBI denied on January 13, 2016. (Id. at ¶¶ 30-32).[2]

         After Plaintiff filed the Complaint in this action on January 29, 2016, the FBI released additional responsive documents to Plaintiff. (See Hardy Decl. ¶¶ 14, 24, 33-34). On August 29, 2017, after summary judgment briefing closed, the FBI performed another search and produced additional responsive documents related to the FBI's proposals for SRCs. (See Dkt. #53).

         In addition to a broad-based challenge to the adequacy of the FBI's search for records related to the proposed SRCs, Plaintiff offers specific challenges to the FBI's redactions to two documents: (i) the “FBI Field Office CVE Model, ” which “is a PowerPoint presentation that is almost entirely redacted”; and (ii) an intelligence assessment entitled FBI Strategic Plan to Curb Violent Extremism, which is “partially redacted.” (Pl. Br. 4). In addition, from the FBI's supplemental post-briefing disclosure, Plaintiff seeks the release of three documents: (i) a July 2015 draft Memorandum of Understanding reflecting the SRC proposal as of that date; (ii) a March 2015 presentation explaining an SRC proposal; and (iii) a November 2015 executive summary of an SRC proposal. (See Dkt. #57).

         b. The FOIA Requests to DHS

         On December 23, 2014, Plaintiff submitted two FOIA requests to DHS regarding that agency's involvement in CVE programs. (See Sepeta Decl. ¶¶ 10, 13). I&A acknowledged receipt of both requests by letter dated January 16, 2015. (Id. at ¶¶ 12, 14). After the initiation of this litigation, I&A provided records responsive to Plaintiff's FOIA request, some of which were released in full and others only in part. (Id. at ¶ 15).

         Plaintiff challenges I&A's redactions to three intelligence assessments: (i) Empowering Somali [redacted] Key for Countering Youth Radicalization and Their Travel Abroad for Terrorism; (ii) Syria-Based U.S. and UK Persons' Public Social Media Activity Effective but Provides Terrorism Prevention Opportunities; and (iii) Pre-Travel Activities Exhibited by U.S. Persons Aspiring to Fight in Syria Provide Detection Opportunities. (Pl. Br. 5).

         B. Procedural Background

         As mentioned above, Plaintiff filed its Complaint in this action on January 29, 2016. (Dkt. #1). On May 24, 2016, the Court endorsed a joint letter from the parties setting a schedule for further document processing in an attempt to resolve any remaining disputes between the parties. (Dkt. #25). The parties could not resolve their disputes fully, however, and on February 15, 2017, the Court approved a schedule for the parties to file cross-motions for summary judgment. (Dkt. #29).

         On May 1, 2017, Defendants moved for summary judgment, and on June 7, 2017, Plaintiff cross-moved for summary judgment. (Dkt. #37-41, 45-50). On July 11, 2017, Defendants filed a reply memorandum of law in further support of their motion for summary judgment, and on August 11, 2017, Plaintiff filed its reply in further support of its motion for summary judgment. (Dkt. #45-51).

         On September 15, 2017, Plaintiff informed the Court of the FBI's post-briefing disclosure and requested further briefing to address Plaintiff's challenges to the adequacy of that disclosure, which further briefing the Court approved that same day. (Dkt. #52-53). Accordingly, on October 13, 2017, Defendants submitted a letter brief and accompanying declaration in response to Plaintiff's September 15, 2017 letter. (Dkt. #57-58). Plaintiff submitted a letter brief in opposition on October 24, 2017. (Dkt. #59).

         On February 28, 2018, the Government informed the Court that it had produced an additional set of documents to Plaintiff; the Government thus requested that Plaintiff be permitted time to review these documents and, by June 8, 2018, inform the Court whether the additional disclosure would require further briefing. (Dkt. #62). After conferring with the parties via telephone, on March 1, 2018, the Court granted the Government's request and stayed the case pending Plaintiff's review of the additional disclosure. (Dkt. #63). On June 6, 2018, Plaintiff informed the Court that no further briefing was necessary. (Dkt. #67). The Court now lifts the stay in order to resolve the parties' motions.

         DISCUSSION

         A. Applicable Law

         1. FOIA Generally

         FOIA vests federal courts with “jurisdiction to enjoin [a federal] agency from withholding agency records and to order the production of any agency records improperly withheld[.]” 5 U.S.C. § 552(a)(4)(B).[3] The statute demands disclosure of any requested “agency records” unless they fall within one of FOIA's enumerated exemptions. See Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999); Adamowicz v. IRS, 672 F.Supp.2d 454, 460-61 (S.D.N.Y. 2009), aff'd, 402 Fed.Appx. 648 (2d Cir. 2010) (summary order). “The government bears the burden of demonstrating that an exemption applies to each item of information it seeks to withhold, and all doubts as to the applicability of the exemption must be resolved in favor of disclosure.” Florez v. Cent. Intelligence Agency, 829 F.3d 178, 182 (2d Cir. 2016) (quoting Ctr. for Constitutional Rights v. CIA, 765 F.3d 161, 166 (2d Cir. 2014)).

         2. Resolving FOIA Claims at Summary Judgment

         Summary judgment is the usual mechanism for resolving disputes under FOIA. See Kaye v. U.S. Dep't of Homeland Sec., No. 16 Civ. 9384 (VEC), 2018 WL 456303, at *1 (S.D.N.Y. Jan. 17, 2018); N.Y. Times Co. v. U.S. Dep't of Justice, 235 F.Supp.3d 522, 529 (S.D.N.Y. 2017). A district court considering a FOIA claim “may grant summary judgment in favor of an agency ‘on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.'” Cuomo, 166 F.3d at 478 (quoting Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994)); see also Garcia v. U.S. Dep't of Justice, Office of Info. & Privacy, 181 F.Supp.2d 356, 366 (S.D.N.Y. 2002) (“If the agency's submissions are facially adequate, summary judgment is warranted unless the plaintiff can make a showing of bad faith on the part of the agency or present evidence that the exemptions claimed by the agency should not apply.”). “As such, where the agency's submissions are ‘adequate on their face,' district courts ‘may forgo discovery and award summary judgment on the basis of affidavits.'” N.Y. Times Co., 235 F.Supp.3d at 529 (quoting Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994)). Conversely, “[s]ummary judgment in favor of the FOIA plaintiff is appropriate when an agency seeks to protect material which, even on the agency's version of the facts, falls outside the proffered exemption.” Nat. Res. Def. Council, Inc. v. U.S. Dep't of Interior, 36 F.Supp.3d 384, 398 (S.D.N.Y. 2014) (quoting N.Y. Times Co. v. U.S. Dep't of Def., 499 F.Supp.2d 501, 509 (S.D.N.Y. 2007)).

         B. Analysis

         Defendants invoke four FOIA exemptions: (i) FOIA's first exemption, covering records that are “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” if they “are in fact properly classified” as such, 5 U.S.C. § 552(b)(1); (ii) FOIA's third exemption, covering material “specifically exempted from disclosure by statute, ” id. § 552(b)(3); (iii) FOIA's fifth exemption, covering “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, ” id. § 552(b)(5); and (iv) FOIA's seventh exemption, covering “records or information compiled for law enforcement purposes, ” id. § 552(b)(7).

         The Court considers the Government's invocation of these exemptions in turn. But first, the Court considers the adequacy of the FBI's search for records related to proposals for SRCs.

         1. The Adequacy of the FBI's Search for SRC Records

         a. Applicable Law

         To prevail on a summary judgment motion in a FOIA case, the defending agency bears the burden of establishing the adequacy of its search, and it may satisfy this burden by submitting “[a]ffidavits or declarations supplying facts indicating that the agency has conducted a thorough search[.]” Long v. Office of Pers. Mgmt., 692 F.3d 185, 190-91 (2d Cir. 2012) (quoting Carney, 19 F.3d at 812). “[A]gency affidavits must show that the agency made a good faith effort to search for the requested documents, using methods ‘reasonably calculated' to produce documents responsive to the FOIA request.” Seife v. U.S. Dep't of State, 298 F.Supp.3d 592, 607 (S.D.N.Y. 2018) (quoting Garcia, 181 F.Supp.2d at 366). “The adequacy of a search is not measured by its results, but rather by its method, ” and therefore, “a search is not inadequate merely because it does not identify all responsive records.” N.Y. Times Co. v. U.S. Dep't of Justice, 756 F.3d 100, 123-24 (2d Cir.), opinion amended on denial of reh'g, 758 F.3d 436 (2d Cir. 2014), supplemented, 762 F.3d 233 (2d Cir. 2014).

         b. The Specifics of the FBI's Search

         To substantiate the adequacy of its search, the FBI has submitted the declaration of David M. Hardy, the Section Chief of the Record/Information Dissemination Section within the FBI. (See Hardy Decl. ¶ 1). Hardy attests that upon receipt of Plaintiff's FOIA requests, the FBI searched its Central Records System (“CRS”) and Sentinel for responsive records. (Id. at ¶ 35). He then distinguishes the two systems: CRS “is an extensive system of records consisting of applicant, investigative, intelligence, personnel, administrative, and general files compiled and maintained by the FBI in the course of fulfilling its integrated missions and functions as a law enforcement, counterterrorism, and intelligence agency.” (Id. at ¶ 35 n.3). “Sentinel is the FBI's next-generation case management system that became effective FBI-wide on July 1, 2012”; after that date, “all FBI generated records [have been] created electronically in case files via Sentinel” and “indexed for future retrieval.” (Id. at ¶ 35 n.4). The FBI determined that because of the design of these two information systems, it would be unable to locate responsive records “through the FBI's regular search protocols based on the manner in which FBI investigative records are indexed, since the subject matter of [Plaintiff]'s request was not a named individual or victim or a common investigation subject pursued by the FBI.” (Id. at ¶ 35).

         The FBI determined that its “Office of Partner Engagement (‘OPE'), Countering Violent Extremism Office (‘CVEO'), was the office most likely to have records responsive” to Plaintiff's requests. (Hardy Decl. ¶ 36). It also ascertained that the SRC proposal was “reflected in a draft [Memorandum of Understanding (“MOU”)], which was never finalized or adopted, ” and that “all FBI [SRC] records originated with the CVEO.” (Id.). Thereafter, copies of Plaintiff's FOIA request were distributed to personnel within the CVEO, along with instructions to search paper files and electronic systems “including the CVE shared drive, email folders … and personal document folders for any and all responsive documents[.]” (Id. at ¶ 37). “These personnel searched for records pertaining to the ‘Shared Responsibility Committee' using the following search terms: Shared Responsibility Committee, SRC, Memorandum of Understanding and MOU.” (Id.). In addition, the Acting Section Chief of the CVEO and the Office of General Counsel searched their systems for responsive documents. (Id.).

         After conducting these searches and identifying the employee who drafted the MOU regarding the SRC proposal, the FBI concluded that “[n]either that employee [n]or any other CVEO or other FBI personnel located any records documenting discussions or deliberations regarding” the SRC proposal that predated the MOU. (Hardy Decl. ¶ 38). And although the draft MOU was withheld, [4] the FBI processed and released “several later communications regarding the draft MOU[.]” (Id.).

         After receiving Plaintiff's cross-motion for summary judgment, the FBI provided another declaration from Brian J. Murphy, the Section Chief of the FBI's Partner Engagement Section in the OPE, and the individual who had drafted the MOU regarding the SRC proposal. (See Murphy Decl. ¶¶ 1, 6). Murphy explained that, in response to a FOIA request, the “FBI's general practice [is] to search its Central Records System to determine if the FBI has records about particular investigative subjects, ” but that this approach was unsuitable for Plaintiff's request because the topics it involved were “not themselves of an investigative nature.” (Id. at ¶¶ 3-4). Further, “following receipt of Plaintiff's cross-motion, the FBI undertook searches of eight additional FBI offices - OPE as a whole and 7 field offices” in Los Angeles, Minneapolis, Chicago, Pittsburgh, Washington, Louisville, and Phoenix. (Id. at ¶ 5). Personnel at these offices followed the same search procedures as those applied to the initial FBI search, which resulted in the discovery of five additional responsive records that, at the time that Murphy executed the declaration, were “being processed to determine whether they [could] be released in whole or part, or whether they are exempt from disclosure under FOIA.” (Id.). According to a letter from Plaintiff submitted after summary judgment briefing, as a result of this later search, “[t]he FBI produced 9 pages of material, 2 pages in full and 7 in part, and withheld 65 pages of material.” (Dkt. #53).

         c. The FBI's ...


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