National Security, Privacy, Data Protection and Retention, Protection of Sources, Surveillance
Ben Meir v. Prime Minister
Closed Mixed Outcome
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As part of an investigation into numerous classified documents published by WikiLeaks in 2010, the U.S. government — FBI, Department of Justice’s National Security Division (NSD), and its Criminal Division (CRM) — sought and obtained a court order, compelling Twitter to disclose the account information of at least five users associated with WikiLeaks, including its founder, Julian Assange and spokesperson, Jacob Appelbaum. Concerned over a much wider government surveillance of the group’s supporters and associates, Electronic Privacy Information Center (EPIC) submitted Freedom of Information Act (FOIA) requests to each of the government agencies, seeking to obtain records of individuals under surveillance for their support of WikiLeaks, as well as the government communications with social media companies and Google regarding those individuals. The agencies denied the requests by invoking Exemption 7(A) of FOIA.
The U.S. District Court for the District of Columbia granted in part and denied in part the government agencies’ motion for summary judgment, holding that NSD failed to conduct a search reasonably calculated to uncover all relevant documents. But it sided with FBI and CRM that the records sought by EPIC were properly withheld under Exemption 7(A) because the information was obtained during their principal function of law enforcement and that the disclosure would interfere with the ongoing investigation surrounding WikiLeaks.
In November 2010, WikiLeaks website brought the world’s attention to numerous classified U.S. government documents, including the State Department cables, which revealed an unprecedented records of private communications between top diplomats and even the heads of States. Some of the information was obtained by WikiLeaks’ whistleblower Bradley Manning who was sentenced to 35 years in prison in 2013.
Following the publication of the classified records, the U.S. Department of Justice immediately initiated an investigation led by FBI. The government then sought and obtained a court order, compelling Twitter to disclose the customer account information of five users, including WikiLeaks’ founder, Julian Assange and its spokesperson, Jacob Appelbaum. See United States v. Appelbaum, 707 F.3d 283, 287 (4th Cir. 2013).
The court order and subsequent investigations then prompted civil society organizations, such as EPIC, to protest against a systematic surveillance of individuals deemed to associate with or support the work of WikiLeaks. EPIC, for example, cited in its complaint that FBI even questioned two individuals behind creating a website in support of whistleblower Bradley Manning. To obtain more information about the individuals under investigation, EPIC submitted three separate FOIA requests to FBI, NSD, and CRM. It specifically sought all records regarding:
“(1) any individuals targeted for surveillance for support for or interest; (2) lists of names of individuals who have demonstrated support for or interest in WikiLeaks; (3) any agency communications with Internet and social media companies including, but not limited to Facebook and Google, regarding lists of individuals who have demonstrated, through advocacy or other means, support for or interest in WikiLeaks; and (4) any agency communications with financial services companies including, but not limited to Visa, MasterCard, and PayPal, regarding lists of individuals who have demonstrated, through monetary donations or other means, support or interest in WikiLeaks.” [p. 2-3]
All three government agencies refused to disclose the responsive records pursuant to enumerated exemptions, namely Section 7(A) of the Act, which entitles the government to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information  could reasonably be expected to interfere with enforcement proceedings . . .”
In response, EPIC brought the present lawsuit, seeking a judicial review of the adequacy of the FBI and NSD’s searches and each agency’s decision to withhold the responsive information.
U.S. District Court Judge Barbara J. Rothstein delivered the opinion.
The Court addressed two underlying issues: (1) whether the FBI and NSD’s searches of the requested records were adequate within the meaning FOIA and relevant case law; and (2) whether all three government agencies properly invoked the FOIA exemptions in withholding the records.
At the outset, the Court discussed the main objectives behind FOIA and the applicable legal standards in reviewing a government’s decision to withhold information. It reiterated that “FOIA represents a balance struck by Congress between the public’s right to know and the government’s legitimate interest in keeping certain information confidential.” [p. 5] (citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). And when plaintiff challenges withholding of information, the burden is on the respective agency to show that the denial fell within one or more enumerated exemptions under FOIA.
As to the first issue, the adequacy of searching the records, the agency “must show beyond material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant documents.” [p. 6] (citing Weisberg v. United States Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). A government affidavit can be sufficient to show a detailed search of all files likely to contain the requested materials. As to NSD’s search, the Court viewed it as inadequate, reasoning the submitted affidavit lacked the search terms and the type of search performed to locate the information, despite the fact that EPIC had specified the names of individuals and companies for whom its sought information. The court records reflected that NSD limited its search to only one of its attorney who was overseeing the criminal case against WikiLeaks.
The Court, however, ruled that the FBI’s search of the requested records was adequate. In contrast with NSD, FBI first searched its Central Record System by using the term “WikiLeaks.” After the search proved unsuccessful, the agency then conducted a cross-reference search and contacted a case agent associated with a file concerning WikiLeaks. FBI specifically inquired about all records regarding any individual under surveillance for support of WikiLeaks.
As the second main issue, the Court first discussed whether FBI and CRM properly withheld the records pursuant to Exemption 7(A). EPIC argued that while the government was entitled to retain the records of individuals suspected of leaking confidential information, the investigation also targeted those who were simply exercising their First Amendment right in supporting WikiLeaks. Therefore, the government was not justified to deny the FOIA request with respect to latter group of individuals. On the other hand, FBI and CRM argued that their search did not result in finding the requested records because there were no surveillance records for individuals who “simply” supported or expressed interest in WikiLeaks.
An agency withholding records pursuant to Exemption 7 must first establish that “its withheld records were compiled for law enforcement purposes.” [p. 12] (citing Prat v. Webster, 673 F.2d 408, 416 (D.C. Cir. 1982). And a decision to invoke Exemption 7 is subject to deference if the agency specializes in law enforcement. As set out in Pratt, compilation of records for law enforcement purposes is met when first the agency’s investigatory activities that give rise to the documents “is related to the enforcement of federal laws or to the maintenance of national security” and second, “the nexus between the investigation and one of the agency’s law enforcement duties must be based on information sufficient to support at least ‘a colorable claim’ of its rationality.” [p. 13]
Here, the Court found that the documents generated in the course of investigations were “quite obviously” related to the FBI and CRM’s law enforcement duties to enforce criminal laws and protect against national security threats. And because the agencies had identified possible violations of federal law and threats to national security, there was sufficient evidence that they acted within their principal law enforcement function, rather than engaging in general monitoring of private individuals’ activities. The Court also held that existing evidence did not show that both FBI and CRM were targeting individuals who were simply supported or had an interest in WikiLeaks.
As to the second element required under Exemption 7, the agency must show that the disclosure of requested records “(1) could reasonably be expected to interfere with (2) enforcement proceedings that are (3) pending or reasonably anticipated.” Citizens for Responsibility & Ethics in Wash. v. Dep’t of Justice, 746 F.3d 1082, 1096 (D.C. Cir. 2014). The government agencies argued the disclosure of records requested by EPIC, inter alia, would identify potential witness, their investigative methods, and reveal documentary evidence gathered during the course of investigation. EPIC, on the other hand, argued that because the litigation surrounding the court order concerning Twitter accounts had already revealed many of the surveillance methods used in the investigation, the government must release “any records whose content has already been revealed in the litigation over the Twitter Order, and any generalized information about publicly-known surveillance practices.” [p 12-13]
According to the Court, “[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.” (citing Juarez v. Dep’t of Justice, 518 F.3d 54, 59 (D.C. Cir. 2008). It disagreed with EPIC, holding that the release of the Twitter litigation documents does not automatically provide access to “the non-public records, which may describe the same or similar techniques as those discussed in the Twitter litigation.” [p. 17] The Court reasoned that the disclosure of all investigative techniques similar to Twitter order litigation may reveal information concerning the scope the ongoing investigation.
Additionally, the Court addressed EPIC’s claim that the government failed to segregate and release non-exempt portions of the records it had requested. Under FOIA, “any reasonable segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt.” To address this claim, the Court referred to it prior decision in Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242 (D.C. Cir. 1977), in which it held that “non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.” [p. 20] After reviewing the submissions by FBI and CRM, the Court found sufficient evidence showing that no materials could be revealed without jeopardizing current or prospective investigative efforts.
Based on the foregoing analysis, the Court granted in part and denied in part the government agencies’ motion for summary judgment, and granted in part and denied in part EPIC’s motion for summary judgment.
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This ruling produces mixed outcomes because the U.S. District Court for the District of Columbia granted in part and denied in part the government agencies’ motion for summary judgment, holding that NSD failed to conduct a search reasonably calculated to uncover all relevant documents. But it sided with FBI and CRM that the records sought by EPIC were properly withheld under Exemption 7(A) because the information was obtained during their principal function of law enforcement and that the disclosure would interfere with the ongoing investigation surrounding WikiLeaks.
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