United States District Court, S.D. New York
BRENNAN CENTER FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW, Plaintiff,
DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, Defendants.
OPINION AND ORDER
KATHERINE POLK FAILLA, DISTRICT JUDGE
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.
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.).
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
The Countering Violent Extremism Initiative
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).
Plaintiff's FOIA Requests
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).
The FOIA Requests to the FBI
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).
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).
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).
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).
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).
The FOIA Requests to DHS
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).
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).
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.
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.
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).
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.
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). 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)).
Resolving FOIA Claims at Summary Judgment
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.
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.
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.
The Adequacy of the FBI's Search for SRC Records
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).
The Specifics of the FBI's Search
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).
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.).
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,  the FBI processed and
released “several later communications regarding the
draft MOU[.]” (Id.).
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.”
The FBI's ...