Case No. 15-cv-02117 RDM

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THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

JASON LEOPOLD, ))

Plaintiff, )

)v. )

) Case No. 15-cv-02117 RDM

U.S. DEPARTMENT OF JUSTICE ))

Defendant. )

__________________________________________)

MOTION FOR SUMMARY JUDGMENT

Pursuant to 5 U.S.C. § 552(b)(7)(A), Federal Rule of Civil Procedure 56, Local

Rule 7, and this Court’s Minute Order of February 9, 2016, Defendant, the United States

Department of Justice (“DOJ” or “Defendant”) respectfully moves for summary

judgment. The reasons for this Motion are set forth in the Memorandum of Points and

Authorities in Support of Defendant’s Motion for Summary Judgment, the Statement of

Material Facts as to Which There Is No Genuine Issue, the Declaration of David M.

Hardy (as well as the exhibits thereto), and a classified declaration, which has been

submitted for the Court’s in camera, ex parte review. A proposed order is filed

concurrently herewith.

Dated: March 25, 2016 Respectfully submitted,

BENJAMIN C. MIZERPrincipal Deputy Assistant Attorney General

MARCIA BERMANAssistant Branch Director

/s/ Jennie L. Kneedler

Case 1:15-cv-02117-RDM Document 7 Filed 03/25/16 Page 1 of 29

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JENNIE L. KNEEDLER

Trial AttorneyUnited States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Ave., N.W.

Washington, D.C. 20001Tel. (202) 305-8662

Fax (202) 616-8470

Email: [email protected]. Bar # 500261


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__________________________________________

)

JASON LEOPOLD, ))

Plaintiff, )

)v. )



Defendant. )

__________________________________________)

DEFENDANT’S STATEMENT OF MATERIAL FACTS

AS TO WHICH THERE IS NO GENUINE ISSUE

Pursuant to Local Rule 7(h)(1), Defendant respectfully submits the following

statement of material facts as to which there is no genuine issue:

1. On November 3, 2015, plaintiff submitted a Freedom of Information Act

(“FOIA”) request to the Federal Bureau of Investigation (“FBI”) via electronic mail. The

request sought the following categories of records from December 1, 2014 through the

date of the search:

a. Any and all emails and other records retrieved from the server,

thumb drive, and any other electronic equipment obtained either directly orindirectly from Hillary Clinton (collectively and individually the “Clinton

Server”) which has not already been made public; and

b. Any and all correspondence and other records regarding, relating

to, or referencing authorization for anyone within the FBI to disclose to the media

or any other person or entity outside the FBI the seizure, confiscation, or taking possession of the Clinton Server; and

c. Any and all correspondence and other records regarding, relatingto, or referencing authorization for anyone within the FBI to disclose to the media

or any other person or entity outside the FBI whether and what information has

been obtained from the Clinton Server; and


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d. Any and all correspondence between any person within the FBIand any person within the U.S. Department of State regarding, relating to, or

referencing the Clinton Server; and

e. Any and all correspondence between any person within the FBIand Hillary Clinton or any person representing Hillary Clinton, including, but not

limited to, her attorneys regarding, relating to, or referencing the Clinton Server.

Plaintiff also requested expedited processing and a fee waiver. See Exhibit A to the

Declaration of David M. Hardy (“Hardy Decl.”).

2. The FBI responded to plaintiff’s FOIA request in letters dated December

7, 2015.1 See Hardy Decl. ¶ 8 & Exhibits B-E. Each letter stated that the material

requested “is located in an investigative file which is exempt from disclosure pursuant to

5 U.S.C. § 552(b)(7)(A).” Hardy Decl. Exhibits B-E. The letters continued by saying

that “[t]he records responsive to your request are law enforcement records; there is a

pending or prospective law enforcement proceeding relevant to these responsive records,

and release of the information in these responsive records could reasonably be expected

to interfere with enforcement proceedings.” The letters also stated that it was

unnecessary to adjudicate Plaintiff’s request for a fee waiver “as no additional responsive

main files were located.” Id .

3. Following the filing of this action, the FBI consulted again with

operational personnel regarding records that are potentially responsive to plaintiff’s

1 The FBI split plaintiff’s FOIA request into four separate file numbers based on thecategories of records requested. See Hardy Decl. ¶ 7. The first file number, assigned

Request No. 1340452, covered the records requested in category 1, above. The second

file number, assigned Request No. 1340454, covered the records requested in categories

2 and 3, above. The third file number, assigned Request No. 1340457, covered therecords requested in category 4, above. The final file number, assigned Request No.

1340459, covered the records requested in category 5, above. Id .


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request in order to confirm that disclosure of any such records could reasonably be

expected to interfere with a pending investigation. See Hardy Decl. ¶ 10; 5 U.S.C.

§ 552(b)(7)(A). As a result of these conversations, the FBI identified three documents

containing information responsive to Request No. 1340457 and determined that it

possesses no records responsive to Request No. 1340454 and Request No. 1340459.

Hardy Decl. ¶ 10. The FBI has interpreted Request No. 1340452 to seek all records

retrieved from any electronic equipment obtained from former Secretary Clinton for the

investigation, which have not already been made public. Additional conversations with

operational personnel confirmed that any records responsive to Request No. 1340452 still

cannot be disclosed without adversely affecting the pending investigation. Id .

4. The FBI also consulted with attorneys from its Office of the General

Counsel (“OGC”) who are providing legal support in relation to the pending investigation

to determine whether there is correspondence responsive to Request No. 1340457 other

than the three records located in the investigative file. OGC personnel located two

additional responsive records in OGC files and are aware of no other correspondence

with the Department of State that would be within the scope of Request No. 1340457. Id .

With respect to the five records identified as responsive to Request No. 1340457, the FBI

determined that two of the records should be withheld in full pursuant to Exemption

7(A). These two records are correspondence from the FBI to the Department of State

seeking assistance in furtherance of the FBI’s investigation. Id . ¶ 10 & n.3. The FBI

released the other three records (also consisting of correspondence from the Department

of State to the FBI) to plaintiff without redaction on March 25, 2016. See id . ¶ 10 &

Exhibit F.


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5. After an initial status conference held on February 9, 2016, the Court

ordered Defendant to file a motion for summary judgment based on Exemption 7(A) of

FOIA on or before March 25, 2016. That order also stated that “[b]y filing such a

motion, Defendant does not waive its right to later assert other FOIA exemptions.” See

Feb. 9, 2016 Minute Order.

6. The subject of plaintiff’s request relates to a matter about which the FBI

had previously received FOIA requests, and that is also related to other pending FOIA

lawsuits involving a number of federal agencies, primarily the Department of State.

Hardy Decl. ¶ 11. The FBI knew whether any records existed that were responsive to

plaintiff’s FOIA request, as well as the location of any such potentially responsive

records. Id . Therefore, the FBI did not conduct an independent search of FBI records

systems, such as its Central Records System (“CRS”), to locate potentially responsive

records. Id .

7. The FBI contacted personnel responsible for the pending investigation,

including a Supervisory Special Agent (“SSA”) assigned to lead and supervise the FBI’s

activities regarding any server equipment and related devices obtained from former

Secretary Clinton, to determine whether any responsive records subject to FOIA exist.

See Hardy Decl. ¶ 12. The SSA is very knowledgeable about the records pertaining to

the investigation and the contents of the FBI’s investigative file, as well as conversations,

correspondence, and briefings that have occurred related to the investigation. Id . Based

on this agent’s knowledge and expertise, the FBI determined that there are no records

responsive to Request No. 1340454 and Request No. 1340459. Id . With respect to

Request No. 1340457, the SSA reviewed the FBI’s investigative file, and located three


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records containing information responsive to the request that is subject to FOIA. See id .

¶ 13. Finally, the FBI consulted with attorneys from its Office of the General Counsel

who are providing legal support in relation to the pending investigation to determine

whether there is correspondence responsive to Request No. 1340457 other than the three

records located in the investigative file. OGC personnel located two additional

responsive records in OGC files and are aware of no other correspondence with the

Department of State that would be within the scope of Request No. 1340457. Id . ¶ 10.

8. The FBI is the primary investigative agency of the federal government

with authority and responsibility to investigate all violations of federal law not

exclusively assigned to another agency, to conduct investigations and activities to protect

the United States and its people from terrorism and threats to national security, and to

further the foreign intelligence objectives of the United States. Hardy Decl. ¶ 14

(discussing 28 U.S.C. §§ 533, 534, Executive Order 12,333 as implemented by the

Attorney General’s Guidelines for Domestic FBI Operations (“AGG-DOM”), 28 C.F.R.

§ 0.85).

9. The investigation at issue in plaintiff’s FOIA request is being conducted

under the FBI’s assigned law enforcement authorities and in accordance therewith.

Hardy Decl. ¶ 15. Responsive records that the FBI possesses were obtained by the FBI in

performing its assigned law enforcement functions in relation to the pending

investigation. Id . ¶ 16.

10. The FBI has stated that it received and “is working on a referral [from]

Inspectors General in connection with former Secretary Clinton’s use of a private e-mail

server.” Hardy Decl. ¶ 15 (quoting Oversight of the Federal Bureau of Investigation:


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Hearing Before the H. Comm. on the Judiciary, 114th

Cong. 32 (2015) (statement of FBI

Director James Comey)).

11. The FBI grouped the responsive records subject to FOIA into one main

functional category – Investigative and Evidentiary Materials – comprised of two sub-

categories: (1) materials retrieved from any server equipment and related devices

obtained from former Secretary Clinton for the investigation, and (2) correspondence

with the Department of State regarding the investigation. See Hardy Decl. ¶ 19.

12. Materials that were retrieved from any server equipment and related

devices obtained from former Secretary Clinton that would be responsive to Request No.

1340452 are potential evidence in the FBI’s investigation, or may provide leads to or

context for potential evidence. Hardy Decl. ¶ 20.

13. The second sub-category of responsive records withheld pursuant to

Exemption 7(A) consists of correspondence between FBI personnel and Department of

State personnel concerning any server equipment and related devices obtained from

former Secretary Clinton. Hardy Decl. ¶ 21. The FBI withheld two records in full under

this category. Id . ¶¶ 10, 21, 23. These two records consist of memoranda from the FBI

to the Department of State regarding evidence. Id. ¶ 21. The purpose of these

communications with the Department of State was to solicit assistance in furtherance of

the FBI’s investigation. Id .

14. Other than its acknowledgment of the security referral from the Inspectors

General of the Intelligence Community and the Department of State, the FBI has not and

cannot publicly discuss the specific focus, scope, or potential targets of any such

investigation without adversely affecting the investigation. Hardy Decl. ¶ 15.


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Therefore, the FBI has determined that disclosure of any responsive records, other than

the information contained in three records responsive to Request No. 1340457, in the

midst of this active, ongoing investigation could reasonably be expected to interfere with

and adversely affect the investigation. Id . ¶ 18.

15. Because the investigation at issue in plaintiff’s FOIA request is active and

ongoing, the FBI is continuing to assess the evidentiary value of any materials retrieved

from any such server equipment and related devices for the investigation. Hardy Decl.

¶ 20. Disclosure of evidence, potential evidence, or information that has not yet been

assessed for evidentiary value while the investigation is active and ongoing could

reasonably be expected to undermine the pending investigation by prematurely revealing

its scope and focus. Id . As a general matter, evidence is pertinent and integral to any

investigation, and its premature disclosure could reasonably be expected to interfere with

a pending investigation. For example, if individuals become aware of the scope and

focus of a pending investigation, they can take defensive actions to conceal their

activities, elude detection, and/or suppress or fabricate evidence. Additionally, in

pending investigations, disclosure of evidence, potential evidence, or information that has

not been assessed for evidentiary value could reasonably lead to the public identification

of potential witnesses. This could reasonably be expected to impact a pending

investigation by compromising witnesses. Id .

16. Releasing records of correspondence between FBI personnel and

Department of State personnel concerning any server equipment and related devices

obtained from former Secretary Clinton, which are responsive to Request No. 1340457,

similarly could reasonably be expected to reveal the nature, scope, and focus of the FBI’s


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activities in the investigation, and could reveal information that the FBI is reviewing for

the investigation. Hardy Decl. ¶ 21. Revealing any such information at this juncture

would be premature, and could compromise potential evidence. Id .2

17. With the exception of the three documents released to plaintiff that were

responsive to Request No. 1340457, the FBI concluded that disclosure of any information

related to its ongoing investigation based on the security referral from the Intelligence

Community and State Department Inspectors General could reasonably be expected to

interfere with the investigation, and that there is no reasonably segregable responsive

information that can be released at this time without harming the investigation. Hardy

Decl. ¶ 23.

2 The FBI is limited in the amount of detail it can provide on the public record without

adversely affecting its active, ongoing investigation. For this reason, the FBI issubmitting an in camera, ex parte declaration to provide additional details demonstrating

that it has properly protected records responsive to plaintiff’s request. Hardy Decl. ¶¶ 20,

22.


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__________________________________________

)

JASON LEOPOLD, ))

Plaintiff, )

)v. )



Defendant. )

__________________________________________)

DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES INSUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

BENJAMIN C. MIZER

Principal Deputy Assistant Attorney General

MARCIA BERMAN

Assistant Branch Director

/s/ Jennie L. KneedlerJENNIE L. KNEEDLERTrial Attorney

United States Department of Justice

Civil Division, Federal Programs Branch20 Massachusetts Ave., N.W.

Washington, D.C. 20001

Tel. (202) 305-8662

Fax (202) 616-8470Email: [email protected]

D.C. Bar # 500261

Attorneys for Defendant


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I. INTRODUCTION

This action concerns a Freedom of Information Act (“FOIA”) request by plaintiff

Jason Leopold (“plaintiff”) to the Federal Bureau of Investigation (“FBI”), a component

of defendant the U.S. Department of Justice (“defendant” or “DOJ”), for several

categories of information relating to any records retrieved from electronic equipment

obtained from former Secretary of State Hillary Rodham Clinton. Defendant is entitled

to summary judgment because the FBI has fully complied with its obligations under

FOIA.

First, the FBI conducted a reasonable search for records responsive to plaintiff’s

FOIA request. Second, the FBI properly withheld responsive information pursuant to

FOIA Exemption 7(A). The FBI has stated publicly that it received and “is working on a

referral [from] Inspectors General in connection with former Secretary Clinton’s use of a

private e-mail server.” Oversight of the Federal Bureau of Investigation: Hearing Before

the H. Comm. on the Judiciary, 114th Cong. 32 (2015) (statement of FBI Director James

Comey). Plaintiff’s FOIA request seeks categories of information that courts routinely

hold are exempt from release pursuant to FOIA Exemption 7(A) because disclosure of

the information could reasonably be expected to interfere with a pending investigation.

See 5 U.S.C. § 552(b)(7)(A). Therefore, for the foregoing reasons, and as further

explained below, defendant’s motion for summary judgment should be granted.

II. BACKGROUND

On November 3, 2015, plaintiff submitted a FOIA request to the FBI via

electronic mail. The request sought the following categories of records from December

1, 2014 through the date of the search:


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1. Any and all emails and other records retrieved from the server, thumb

drive, and any other electronic equipment obtained either directly or indirectly fromHillary Clinton (collectively and individually the “Clinton Server”) which has not already

been made public; and

2. Any and all correspondence and other records regarding, relating to, orreferencing authorization for anyone within the FBI to disclose to the media or any other

person or entity outside the FBI the seizure, confiscation, or taking possession of the

Clinton Server; and

3. Any and all correspondence and other records regarding, relating to, or

referencing authorization for anyone within the FBI to disclose to the media or any other person or entity outside the FBI whether and what information has been obtained from

the Clinton Server; and

4. Any and all correspondence between any person within the FBI and any

person within the U.S. Department of State regarding, relating to, or referencing theClinton Server; and

5. Any and all correspondence between any person within the FBI and

Hillary Clinton or any person representing Hillary Clinton, including, but not limited to,

her attorneys regarding, relating to, or referencing the Clinton Server.

See Declaration of David M. Hardy (“Hardy Decl.”) ¶ 6 & Ex. A. Plaintiff also requested

expedited processing and a fee waiver. See id .

The FBI responded to Plaintiff’s FOIA request in letters dated December 7,

2015.1 Hardy Decl. ¶ 8 & Exhibits B-E. Each letter stated that the material requested “is

located in an investigative file which is exempt from disclosure pursuant to 5 U.S.C.

§ 552(b)(7)(A).” See Hardy Decl., Exhibits B-E. The letters continued by saying that

“[t]he records responsive to your request are law enforcement records; there is a pending

1 The FBI split plaintiff’s FOIA request into four separate file numbers based on thecategories of records requested. See Hardy Decl. ¶ 7. The first file number, assigned

Request No. 1340452, covered the records requested in category 1, above. The second

file number, assigned Request No. 1340454, covered the records requested in categories

2 and 3, above. The third file number, assigned Request No. 1340457, covered therecords requested in category 4, above. The final file number, assigned Request No.

1340459, covered the records requested in category 5, above. Id .


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or prospective law enforcement proceeding relevant to these responsive records, and

release of the information in these responsive records could reasonably be expected to

interfere with enforcement proceedings.” Id . The letters also stated that it was

unnecessary to adjudicate Plaintiff’s request for a fee waiver “as no additional responsive

main files were located.” Id .2

Plaintiff filed this action on December 8, 2015. See ECF No. 1. The FBI then

consulted again with operational personnel regarding records that are potentially

responsive to plaintiff’s request in order to confirm that disclosure of any such records

could reasonably be expected to interfere with a pending investigation. See Hardy Decl.

¶ 10; 5 U.S.C. § 552(b)(7)(A). As a result of these conversations, the FBI identified three

documents containing information responsive to Request No. 1340457 (seeking

correspondence between the FBI and the State Department regarding any electronic

equipment obtained) and determined that it possesses no records responsive to Request

No. 1340454 (seeking records regarding authorization to disclose information) and

Request No. 1340459 (seeking correspondence between the FBI and former Secretary

Clinton or her representative regarding any electronic equipment obtained). Hardy Decl.

¶ 10. The FBI has interpreted Request No. 1340452 to seek all records retrieved from

any electronic equipment obtained from former Secretary Clinton for the investigation,

which have not already been made public. Additional conversations with operational

personnel confirmed that any records responsive to Request No. 1340452 still cannot be

disclosed without adversely affecting the pending investigation. Id .

2 The FBI’s response to plaintiff’s FOIA request mooted his request for expedited

processing. See 5 U.S.C. § 552(a)(6)(E)(iv); CREW v. DOJ , 535 F. Supp. 2d 157, 160

n.1 (D.D.C. 2008); Hardy Decl. ¶ 8.


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Finally, the FBI consulted with attorneys from its Office of the General Counsel

(“OGC”), who are providing legal support in relation to the pending investigation, to

determine whether there is correspondence responsive to Request No. 1340457 other than

the three records located in the investigative file. OGC personnel located two additional

responsive records in OGC files and are aware of no other correspondence with the

Department of State that would be within the scope of Request No. 1340457. Id . With

respect to the five records identified as responsive to Request No. 1340457, the FBI

determined that two of them should be withheld in full pursuant to Exemption 7(A)3 and

released the three remaining records (consisting of 14 pages) to plaintiff without

redaction on March 25, 2016.4 See id . ¶ 10 & Exhibit F.

After an initial status conference held on February 9, 2016, see Jan. 21, 2016

Minute Order, the Court ordered defendant to file a motion for summary judgment based

on Exemption 7(A) of FOIA on or before March 25, 2016. See Feb. 9, 2016 Minute

Order.5 Defendant now moves for summary judgment in accordance with the briefing

schedule ordered by the Court. See id .

3 These two records are correspondence from the FBI to the Department of State seeking

assistance in furtherance of the FBI’s investigation. They cannot be explained in further

detail publicly without disclosing information that could reasonably be expected to

adversely affect the FBI’s pending investigation. See Hardy Decl. at 5 n.3.

4 The documents released to plaintiff include two letters from the Department of State to

the FBI, including enclosures referenced in one letter, and one letter from FBI to the

Department of State. All three records are publicly available on the PACER docket in

Judicial Watch v. Department of State, 13-cv-1363 (D.D.C.) at ECF Nos. 37-1 to 37-3.See Hardy Decl. at 5 n.4.

5 That order also stated that “[b]y filing such a motion, Defendant does not waive its

right to later assert other FOIA exemptions.” Feb. 9, 2016 Minute Order.


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III. ARGUMENT

A. Legal Standard

“Most FOIA cases can be resolved on summary judgment.” Elec. Privacy Info.

Ctr. v. Dep’t of Justice (“EPIC”), 82 F. Supp. 3d, 307, 314 (D.D.C. 2015). A court

reviews an agency’s response to a FOIA request de novo. 5 U.S.C. § 552(a)(4)(B). “The

defendant in a FOIA case must show that its search for responsive records was adequate,

that any exemptions claimed actually apply, and that any reasonably segregable non-

exempt parts of records have been disclosed after redaction of exempt information.”

Light v. DOJ , 968 F. Supp. 2d 11, 23 (D.D.C. 2013).

B. The FBI Conducted an Adequate Search for Responsive Records

A defendant agency is entitled to summary judgment in a FOIA case with respect

to the adequacy of its search if the agency shows “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.” Oglesby v. U.S. Dep’t of the Army, 920

F.2d 57, 68 (D.C. Cir. 1990). “There is no requirement that an agency search every

record system.” Id . “[T]he issue to be resolved is not whether there might exist any

other documents possibly responsive to the request, but rather whether the search for

those documents was adequate.” Weisberg v. DOJ , 745 F.2d 1476, 1485 (D.C. Cir.

1984). An agency can establish the reasonableness of its search by “reasonably detailed,

nonconclusory affidavits describing its efforts.” Baker & Hostetler LLP v. Dep’t of

Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006). “Agency affidavits are accorded a

presumption of good faith, which cannot be rebutted by ‘purely speculative claims about


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the existence and discoverability of other documents.’” SafeCard Servs. v. SEC , 926

F.2d 1197, 1200 (D.C. Cir. 1991) (citation omitted).

The Hardy Declaration demonstrates that the FBI conducted an adequate search

for records responsive to plaintiff’s FOIA request. The subject of plaintiff’s request

relates to a matter about which the FBI had previously received FOIA requests, and that

is also related to other pending FOIA lawsuits involving a number of federal agencies,

primarily the Department of State. Hardy Decl. ¶ 11. The FBI knew whether any records

existed that were responsive to plaintiff’s FOIA request, as well as the location of any

such potentially responsive records. Id . Therefore, the FBI did not need to conduct an

independent search of FBI records systems, such as its Central Records System (“CRS”),

to locate potentially responsive records. Id .

Rather, the FBI contacted personnel responsible for the pending investigation,

including a Supervisory Special Agent (“SSA”) assigned to lead and supervise the FBI’s

activities regarding any server equipment and related devices obtained from former

Secretary Clinton, to determine whether any responsive records subject to FOIA exist.

See id . ¶ 12. The SSA is very knowledgeable about the records pertaining to the

investigation and the contents of the FBI’s investigative file, as well as conversations,

correspondence, and briefings that have occurred related to the investigation. Id . Based

on this agent’s knowledge and expertise, the FBI determined that there are no records

responsive to Request No. 1340454 (seeking records regarding authorization to disclose

information) and Request No. 1340459 (seeking correspondence between the FBI and

former Secretary Clinton or her representative regarding any electronic equipment

obtained). Id . With respect to Request No. 1340457 (seeking correspondence between


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the FBI and the State Department), the SSA reviewed the FBI’s investigative file, and

located three records containing information responsive to the request that is subject to

FOIA. See id . ¶ 13.6 Finally, the FBI consulted with attorneys from its Office of the

General Counsel who are providing legal support in relation to the pending investigation

to determine whether there is correspondence responsive to Request No. 1340457 other

than the three records located in the investigative file. OGC personnel located two

additional responsive records in OGC files and are aware of no other correspondence

with the Department of State that would be within the scope of Request No. 1340457.

See id . ¶ 10.

By contacting personnel responsible for the pending investigation – including the

SSA assigned to lead and supervise the FBI’s activities regarding any electronic server

equipment and related devices obtained from former Secretary Clinton and attorneys

providing legal support in relation to the pending investigation – and searching the

locations that were deemed likely to have potentially responsive records, the FBI

employed a reasonable and adequate search “using methods which can be reasonably

expected to produce the information requested.” Oglesby, 920 F.2d at 68 (citations

omitted). Therefore, defendant is entitled to summary judgment on this issue.

C. The FBI Properly Withheld Responsive Records Pursuant to

Exemption 7(A)

The FOIA represents a balance struck by Congress “between the right of the

public to know and the need of the Government to keep information in confidence.”

6 In addition to the Hardy Declaration, the FBI has lodged with the Court Information

Security Officer a classified declaration for the Court’s in camera, ex parte review. Thatdeclaration includes information about the search for records responsive to Request No.

1340452 (seeking records retrieved for the investigation from any electronic equipment

obtained, other than information that has been made public). See Hardy Decl. at 6 n.5.


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John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted).

Congress recognized “that legitimate governmental and private interests could be harmed

by release of certain types of information and provided nine specific exemptions under

which disclosure could be refused.” FBI v. Abramson, 456 U.S. 615, 621 (1982). While

these exemptions are to be “narrowly construed,” id. at 630, courts must not fail to give

them “meaningful reach and application.” John Doe, 493 U.S. at 152.

“An agency that has withheld responsive documents pursuant to a FOIA

exemption can carry its burden to prove the applicability of the claimed exemption by

affidavit.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009). “Summary

judgment is warranted on the basis of agency affidavits when the affidavits describe the

justifications for nondisclosure with reasonably specific detail . . . and are not

controverted by either contrary evidence in the record nor by evidence of agency bad

faith.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (citation omitted). “Ultimately,

an agency’s justification for invoking a FOIA exemption is sufficient if it appears

‘logical’ or ‘plausible.’” Id . at 374-75 (citation omitted).

The FBI has withheld all responsive records, except the information contained in

three records that it has released in full, pursuant to Exemption 7(A). Hardy Decl. ¶ 18.

Exemption 7(A) applies to “records or information compiled for law enforcement

purposes . . . to the extent that the production of such law enforcement records or

information . . . could reasonably be expected to interfere with enforcement proceedings.”


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5 U.S.C. § 552(b)(7)(A). As further explained below, the FBI has established that the

information at issue was properly withheld pursuant to this exemption.7

1. Any Responsive Records Were Compiled for Law Enforcement Purposes

First, “[t]o fall within any of the exemptions under the umbrella of Exemption 7, a

record must have been ‘compiled for law enforcement purposes.’” Pub. Emps. for Envtl.

Responsibility v. Int’l Boundary & Water Comm’n (“ PEER”), 740 F.3d 195, 202 (D.C.

Cir. 2014) (quoting 5 U.S.C. § 552(b)(7)). “According to the Supreme Court, the term

‘compiled’ in Exemption 7 requires that a document be created, gathered, or used by an

agency for law enforcement purposes at some time before the agency invokes the

exemption.” Id . at 203 (citation omitted). “If the agency’s principal function is law

enforcement” a court is “more deferential to the agency’s claimed purpose for particular

records.” Id . (citation omitted).

Pursuant to 28 U.S.C. §§ 533 and 534, Executive Order 12,333 as implemented

by the Attorney General’s Guidelines for Domestic FBI Operations (“AGG-DOM”), and

28 C.F.R. § 0.85, the FBI is the primary investigative agency of the federal government

with authority and responsibility to investigate all violations of federal law not

exclusively assigned to another agency, to conduct investigations and activities to protect

the United States and its people from terrorism and threats to national security, and to

further the foreign intelligence objectives of the United States. Hardy Decl. ¶ 14.

7 The FBI assumes for purposes of this motion that the records withheld pursuant to

Exemption 7(A) are agency records subject to FOIA. See 5 U.S.C. § 552(a)(4)(B). The

FBI preserves the right to argue that the records currently being withheld pursuant to

Exemption 7(A) are not agency records in the event the FBI’s Exemption 7(A) assertionexpires during the pendency of the litigation or the Court denies the FBI’s motion for

summary judgment.


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Therefore, to establish that any responsive records were compiled for law enforcement

purposes, the FBI must demonstrate “a rational nexus between the investigation and one

of the agency’s law enforcement duties” as well as “a connection between an individual

or incident and a possible security risk or violation of federal law.” Ctr. for Nat’l Sec.

Studies v. DOJ , 331 F.3d 918, 926 (D.C. Cir. 2003) (quotation omitted).

As the Hardy Declaration explains, the investigation at issue here is being

conducted under the FBI’s assigned law enforcement authorities and in accordance

therewith. Hardy Decl. ¶ 15. Responsive records that the FBI possesses were obtained

by the FBI in performing its assigned law enforcement functions in relation to the

pending investigation. Id . ¶ 16. Such compilation of records for a law enforcement

purpose satisfies Exemption 7’s threshold.8 See Ctr. for Nat’l Sec. Studies, 331 F.3d at

926 (records were compiled for law enforcement purposes where the information came to

the Government’s attention as a result of the law enforcement investigation).

2. Disclosure of the Information Withheld Could Reasonably Be Expected to

Interfere With a Pending Investigation

Second, the FBI properly withheld responsive information pursuant to Exemption

7(A) because the very categories of information that plaintiff seeks in his FOIA request

are the types of information the disclosure of which courts have repeatedly found could

reasonably be expected to interfere with a pending investigation. See Ctr. for Nat’l Sec.

Studies, 331 F.3d at 928 (“Exemption 7(A) explicitly requires a predictive judgment of

8 The classified declaration lodged for the Court’s in camera, ex parte review provides

more details about the pending investigation, and supplements the demonstration in the

Hardy Declaration that responsive records were compiled for law enforcement purposes.

See Hardy Decl. ¶ 15.


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the harm that will result from disclosure of information, permitting withholding when it

‘could reasonably be expected’ that the harm will result.”) (quoting 5 U.S.C.

§ 552(b)(7)(A).

To demonstrate that production of the records or information could reasonably be

expected to interfere with enforcement proceedings the FBI need not proceed on a

document-by-document basis detailing the interference that could result from the

disclosure of each of them. See Bevis v. Dep’t of State, 801 F.2d 1386, 1389 (D.C. Cir.

1986); Hardy Decl. ¶ 19 (stating that providing a document-by-document listing of any

records responsive to plaintiff’s FOIA request would undermine the very interests that the

FBI seeks to protect under Exemption 7(A)); Judicial Watch v. DHS , 59 F. Supp. 3d 184,

193-94 (D.D.C. 2014) (information properly withheld under Exemption 7(A) where

providing detailed description of investigative documents withheld would undermine the

interests that DHS and FBI sought to protect). Rather, the FBI may “take a generic

approach” by grouping documents into categories and then demonstrating how each

category of documents, if disclosed, could reasonably be expected to interfere with

enforcement proceedings. See Bevis, 801 F.2d at 1389. “The hallmark of an acceptable .

. . category is . . . that it is functional ; it allows the court to trace a rational link between

the nature of the document and the alleged . . . interference.” Id . (quotation omitted); see

also N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 236 (1978) (In Exemption

7(A), “Congress did not intend to prevent the federal courts from determining that, with

respect to particular kinds of enforcement proceedings, disclosure of particular kinds of

investigatory records while a case is pending . . . generally” could reasonably be expected

to interfere with enforcement proceedings.).


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The Hardy Declaration, as well as the declaration submitted for this Court’s in

camera review, explain in sufficient detail the relevant pending enforcement proceedings,

the category of responsive records subject to FOIA, and the interference that could

reasonably be expected to result from disclosure of the category of records. First, the

Hardy Declaration explains that responsive records subject to FOIA relate to a pending

investigation. Hardy Decl. ¶ 18. The FBI has stated that it received and “is working on a

referral [from] Inspectors General in connection with former Secretary Clinton’s use of a

private e-mail server.” Id . ¶ 15 (quoting Oversight of the Federal Bureau of

Investigation: Hearing Before the H. Comm. on the Judiciary, 114th Cong. 32 (2015)

(statement of FBI Director James Comey)). The Hardy Declaration further explains that

this investigation remains pending. See Hardy Decl. ¶ 18.

Second, the Hardy Declaration explains that the FBI has grouped responsive

records subject to FOIA into one main functional category – Investigative and

Evidentiary Materials – comprised of two sub-categories of documents: (1) materials

retrieved from server equipment and related devices obtained from former Secretary

Clinton for the investigation, and (2) FBI correspondence with the Department of State

regarding the investigation. See Hardy Decl. ¶ 19. As for the first sub-category,

materials retrieved from any server equipment/related devices obtained from former

Secretary Clinton for the investigation that would be responsive to Request No. 1340452

are potential evidence in the FBI’s investigation, or may provide leads to or context for

potential evidence. Id . ¶ 20. The second sub-category of responsive records withheld


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pursuant to Exemption 7(A) consists of correspondence from the FBI to the Department

of State seeking assistance in furtherance of the FBI’s investigation.9 Id .

¶¶ 10 & n.3, 21. The FBI withheld two records in full in this sub-category. Id . ¶ 21.

Courts have repeatedly recognized that investigative and evidentiary materials can

qualify as a functional category of records for purposes of withholding pursuant to

Exemption 7(A), especially where the language of the FOIA request seeks precisely that

category of records. See Robbins, Geller, Rudman & Dowd v. SEC , No. 3:14-cv-2197,

2016 WL 950995, at *4-5 (M.D. Tenn. March 12, 2016) (finding that “documents

Walmart produced in response to SEC document[] requests and subpoenas” was a

functional category, where plaintiff’s FOIA request sought all documents provided by

Walmart to the SEC relating to possible violations of the Foreign Corrupt Practices Act,

because “the type of harm caused by their release would be the same”); Dillon v. DOJ ,

102 F. Supp. 3d 272, 291-92 (D.D.C. 2015) (FBI properly withheld category of records

described as “Evidentiary/Investigative Materials,” which included copies of evidence

and derivative communications discussing evidence, under Exemption 7(A)); Kidder v.

FBI , 517 F. Supp. 2d 17, 28-30 (D.D.C. 2007) (category of documents consisting of

“evidentiary or investigative materials” which included “copies of records or evidence,

and derivative communications discussing or incorporating evidence” was properly

withheld under Exemption 7(A)); Edmonds v. FBI , 272 F. Supp. 2d 35, 54-55 (D.D.C.

2003) (information properly withheld under Exemption 7(A) included actual evidence

and material derived from evidence under the category “evidentiary materials”); Cucci v.

9 This correspondence cannot be explained in further detail on the public record without

disclosing information that could reasonably be expected to interfere with the FBI’s

pending investigation. See Hardy Decl. ¶ 10 & n.3.


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DEA, 871 F. Supp. 508, 511-12 (D.D.C. 1994) (information categorized as “evidentiary

matters,” which included “physical evidence” and “documents relating to the case’s

documentary and physical evidence” was properly withheld pursuant to Exemption 7(A);

Korkala v. DOJ , Civ. A. No. 86-0242, 1987 WL 15693, at *2-3 (D.D.C. July 31, 1987)

(FBI properly withheld requested information, materials in an individual’s possession

when he died, which the FBI categorized as “evidentiary materials”).

Third, the Hardy Declaration and the classified declaration lodged for the Court’s

in camera, ex parte review provide detailed explanations as to how release of each sub-

category of information comprising the overarching category of Investigative and

Evidentiary Materials could reasonably be expected to interfere with the pending

investigation. Other than its acknowledgment of the security referral from the Inspectors

General of the Intelligence Community and the Department of State, the FBI has not and

cannot publicly discuss the specific focus, scope, or potential targets of any such

investigation without adversely affecting the investigation. Hardy Decl. ¶ 15.

Therefore, the FBI has determined that disclosure of any responsive records, other than

the information contained in three records responsive to Request No. 1340457, in the

midst of this active, ongoing investigation could reasonably be expected to interfere with

and adversely affect the investigation. Id . ¶ 18.

Specifically, with respect to the first sub-category of documents, because the

investigation at issue is active and ongoing, the FBI is continuing to assess the

evidentiary value of any materials retrieved for the investigation from any server

equipment and related devices obtained. Id . ¶ 20. Disclosure of evidence, potential

evidence, or information that has not yet been assessed for evidentiary value while the


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investigation is active and ongoing could reasonably be expected to undermine the

pending investigation by prematurely revealing its scope and focus. Id .; see Juarez v.

DOJ , 518 F.3d 54, 59 (D.C. Cir. 2008) (“[S]o long as the investigation continues to

gather evidence for a possible future criminal case, and that case would be jeopardized by

the premature release of that evidence, Exemption 7(A) applies.”). The FBI is limited in

the amount of detail it can provide on the public record in order to defend its protection

of the specific information responsive to plaintiff’s FOIA request without adversely

affecting the ongoing investigation. The in camera, ex parte declaration further describes

the harms associated with releasing information responsive to Request No. 1340452.

Hardy Decl. ¶ 20.

As a general matter, however, evidence is pertinent and integral to any

investigation, and its premature disclosure could reasonably be expected to interfere with

a pending investigation. For example, if individuals become aware of the scope and

focus of a pending investigation, they can take defensive actions to conceal their

activities, elude detection, and/or suppress or fabricate evidence. Id . Additionally, in

pending investigations, disclosure of evidence, potential evidence, or information that has

not been assessed for evidentiary value could reasonably lead to the public identification

of potential witnesses. This could reasonably be expected to impact a pending

investigation by compromising witnesses. Id .; see N.L.R.B. v. Robbins Tire & Rubber

Co., 437 U.S. 214, 236 (1978) (In Exemption 7(A), “Congress did not intend to prevent

the federal courts from determining that, with respect to particular kinds of enforcement

proceedings, disclosure of particular kinds of investigatory records while a case is

pending . . . generally” could reasonably be expected to interfere with enforcement


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proceedings.); Mapother v. DOJ , 3 F.3d 1533, 1542 (D.C. Cir. 1993) (saying that NLRB

and other cases “provide support for the proposition that categorical decisions” in

deciding whether material requested under FOIA is exempt “may be appropriate and

individual circumstances disregarded when a case fits into a genus in which the balance

characteristically tips in one direction”) (quoting DOJ v. Reporters Comm. for Freedom

of the Press, 489 U.S. 749, 776 (1989)).

With respect to the second sub-category of documents, releasing correspondence

between FBI personnel and Department of State personnel concerning any server

equipment and related devices obtained from former Secretary Clinton similarly could

reasonably be expected to reveal the nature, scope, and focus of the FBI’s activities in the

investigation, and could reveal information that the FBI is reviewing for the investigation.

Hardy Decl. ¶ 21. Disclosure of any such information at this time would be premature

and could compromise potential evidence. Id .

Courts routinely find that law enforcement agencies, including the FBI, have

properly withheld evidentiary materials and investigatory correspondence where the

agency has identified similar harms that could result from the premature disclosure of

such information during a pending investigation. See, e.g., Alyeska Pipeline Serv. Co. v.

E.P.A., 856 F.2d 309, 312 (D.C. Cir. 1988) (copies of plaintiff’s corporate records that

were provided to the EPA by a third party were properly withheld pursuant to Exemption

7(A) where identification of the specific records submitted could reveal the scope and

direction of the investigation); Robbins, Geller , 2016 WL 950995, at *5-6 (documents

produced by Walmart to the SEC were properly withheld under Exemption 7(A) because

their release could reveal potential witnesses, as well as the focus and scope of the


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investigation); EPIC , 82 F. Supp. 3d at 319-20 (information properly withheld under

Exemption 7(A) where disclosure could reveal the documentary evidence gathered in the

course of the investigation, identify potential witnesses, and expose the scope and

methods of the investigation); Kidder , 517 F. Supp. 2d at 30 (evidence properly withheld

pursuant to Exemption 7(A) where disclosure could permit a formulation of a strategy to

contradict evidence); W. Journalism Ctr. v. Off. of Indep. Counsel , 926 F. Supp. 189, 192

(D.D.C. 1996) (release of information responsive to plaintiff’s request for physical

evidence could contaminate the investigative process); Cucci, 871 F. Supp. at 511-12

(“evidentiary matters” were properly withheld pursuant to Exemption 7(A) where

disclosure could enable persons to alter or destroy evidence); Korkala, 1987 WL 15693,

at *2-3 (FBI properly withheld “evidentiary materials” where disclosure could reveal the

direction and scope of pending investigations). Therefore, the FBI properly withheld this

information pursuant to Exemption 7(A).

D. The FBI Released All Reasonably Segregable Records

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 under this subsection.” 5 U.S.C. § 552(b). The FBI has met that burden here. As

discussed above, with the exception of the three documents released to plaintiff in

response to FOIA Request No. 1340457, the FBI concluded that disclosure of any

information related to its ongoing investigation based on the security referral from the

Intelligence Community and State Department Inspectors General could reasonably be

expected to interfere with the investigation. Hardy Decl. ¶ 23. Therefore, there is no

reasonably segregable responsive information that can be released at this time without


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harming the investigation. Id .; see Dillon, 102 F. Supp. 3d at 298 (FBI satisfied

segregability obligation under FOIA by explaining that segregability was not possible for

a majority of records because they were exempt from disclosure in their entirety pursuant

to Exemption 7(A)); EPIC , 82 F. Supp. 3d at 322 (Government supported its

determination that there was no segregable material in investigative records withheld

under Exemption 7(A)); Robbins, Geller , 2016 WL 950995, at *8 (SEC properly

determined that responsive records did not contain any reasonably segregable information

because of the way the plaintiff phrased its FOIA request, which sought all documents

provided by Walmart to the SEC that related to potential violations of the Foreign

Corrupt Practices Act); Cucci, 871 F. Supp. at 512 (“because [the FBI] has met its burden

of showing that all of its records are exempt and relate to the continuing investigations . .

. there are no non-exempt portions of the records to segregate”). Therefore, the FBI is

entitled to summary judgment on this issue. See Sussman v. U.S. Marshals Serv., 494

F.3d 1106, 1117 (D.C. Cir. 2007) (“Agencies are entitled to a presumption that they

complied with the obligation to disclose reasonably segregable material.”) (citation

omitted).

IV. CONCLUSION

For the foregoing reasons, the Court should grant defendant’s motion for

summary judgment.


Documents

Case No. 15-cv-02117 RDM