MEMORANDUM OPINION AND ORDER
PAUL L. FRIEDMAN, United States District Judge.
This is a Freedom of Information Act case brought by plaintiff Ryan Noah Shapiro against the United States Department of Justice. On March 31, 2014, the Court granted defendant's motion for summary judgment with respect to information withheld under Exemptions 6 and 7(C), but held the parties' cross-motions for summary judgment in abeyance with respect to the adequacy of the FBI's search and ordered defendant to provide further explanation as to three aspects of its search. The Court now is satisfied that defendant has conducted an adequate search of those systems of records likely to possess the information requested by plaintiff, as required under the FOIA, despite the unnecessarily piecemeal approach adopted by defendant in this case. The Court therefore will grant defendant's motion for summary judgment and deny plaintiff's motion for summary judgment with respect to the adequacy of defendant's search.
In supplementing its production following the Court's March 31, 2014 Order, however, defendant located an additional 68 pages of responsive documents, 23 pages of which defendant withheld in part and 9 pages of which were withheld entirely pursuant to FOIA Exemptions 3, 6, 7(C), 7(E), and 7(F). Because defendant has provided only conclusory statements of its rationale for withholding these pages as to Exemptions 3 and 7(E), the Court must order defendant to provide additional specificity. It therefore will again hold portions of the parties' cross-motions for summary
On March 31, 2014, this Court held the parties' cross-motions for summary judgment in abeyance in part, pending further briefing and the FBI's processing of additional records, if necessary.
The FBI's renewed search identified 24 third-party FOIA requests pertaining to Aaron Swartz, 22 of which resulted in the same release of documents as those that had been provided to plaintiff; a twenty-third requestor received one additional page now provided to plaintiff. Second Hardy Decl. ¶ 9. John Greenewald, Jr. made the final request and requested documents pertaining to Aaron Swartz with specific reference to case number 288A-WF-238943, the same case number listed on each of the 23 pages of documents previously produced to plaintiff by defendant. Third Hardy Decl. ¶ 6. But the FBI ultimately identified an additional 68 pages of documents in that case file not previously processed and therefore not previously released to plaintiff, but that had been produced to Mr. Greenewald. Of these 68 pages of documents, defendant produced 35 to plaintiff in full, withheld 23 in part, and withheld 9 in full, invoking FOIA Exemptions 3, 6, 7(C), 7(E), and 7(F); one page is a duplicate page previously provided to plaintiff. Third Hardy Decl. ¶¶ 7-8. Plaintiff does not challenge defendant's withholding pursuant to Exemptions 6, 7(C), and 7(F), but does argue that defendant has improperly withheld information pursuant to Exemptions 3 and 7(E).
II. LEGAL STANDARD
"FOIA cases typically and appropriately are decided on motions for summary judgment."
To establish that its search for responsive records was adequate, an agency must show that it made a "good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested."
An agency can satisfy its burden with supporting affidavits or declarations if they are "relatively detailed and non-conclusory,"
The Court first will consider defendant's supplemental responses as to the adequacy of its search, and then will discuss defendant's withholding of certain responsive documents pursuant to FOIA Exemptions 3 and 7(E).
A. Adequacy of the Search
Plaintiff makes no arguments that the government inappropriately limited its search to records related to criminal investigations or that the government has not now released to plaintiff all third-party requests previously withheld due to the search cut-off date for plaintiff's FOIA request. It is also clear that the FBI has done most of what the Court directed it to do.
In support of its response to the Court's Order, the government submitted two additional declarations from David Hardy. The government now explains that, in its experience, "full-text searches generally return a significant number of `hits' that are random and incomplete references" such that "the net result of a full-text search is typically a significant use of time and resources yielding little or no additional responsive information." Second Hardy Decl. ¶ 7;
The government now has provided sufficient detail explaining its search methodology such that the Hardy declarations must be accorded "a presumption of good faith."
Plaintiff argues that "[t]here is reason to believe that the FBI has still further records on Aaron Swartz" because one of the documents recently released to plaintiff references a certain case number. Pl. Resp. to Def. Supp. Memo at 11. Plaintiff thus asserts that the FBI must conduct numerous additional searches.
B. FOIA Exemptions 3 and 7(E)
In responding to the Court's Order, the government identified an additional 68 responsive pages of documents not previously processed and released to plaintiff that had been produced to a third party. Of these 68 pages of documents, the government withheld 23 in part and 9 in full,
As to Exemption 3, the government has explained only that "the investigative files contain copies of specific records received in response to a federal grand jury subpoena" and that "[a]ny disclosure of this information would clearly violate the secrecy of the grand jury proceedings and could reveal the inner workings of a federal grand jury." Third Hardy Decl. ¶ 18. Such conclusory statements are insufficient to justify withholding a document pursuant to FOIA Exemption 3.
Similarly, as to Exemption 7(E), the government states that the FBI withheld "database search results located through non-public databases used for official law enforcement purposes" and that "[d]isclosure of the printouts or information compiled from these search results could enable criminals to employ countermeasures to avoid detection." Third Hardy Decl. ¶ 20. The government's only explanation is that those "non-public databases serve as repositories for counterterrorism and investigative data" and that they are "one-stop shops" for law enforcement to "query information and develop investigative leads."
Because the government has provided insufficient information for the Court to determine whether the relevant documents have been properly withheld pursuant to FOIA Exemptions 3 and 7(E), the Court will hold the parties' cross-motions for summary judgment in abeyance, in part, and order the government to file a supplemental brief accompanied by a declaration or declarations providing additional detail and explanation.
The Court now is satisfied that the FBI has adequately searched for and produced records responsive to plaintiff's request. The government's justifications as to the documents it withheld pursuant to FOIA Exemptions 3 and 7(E), however, are insufficient. The Court therefore will grant summary judgment to defendant as to the adequacy of the search, but hold the parties'
For the foregoing reasons, it is hereby
ORDERED that defendant's motion for summary judgment [Dkt. No. 5] is GRANTED in part and HELD IN ABEYANCE in part; it is
FURTHER ORDERED that plaintiff's motion for summary judgment [Dkt. No. 7] is DENIED in part and HELD IN ABEYANCE in part; and it is
FURTHER ORDERED that on or before October 14, 2016, defendant shall file a supplemental brief accompanied by a declaration or declarations providing additional detail and explanation as to the government's justification for withholding documents pursuant to FOIA Exemptions 3 and 7(E).