United States District Court, D. Massachusetts
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF MASSACHUSETTS, Plaintiff,
FEDERAL BUREAU OF INVESTIGATION and CARMEN ORTIZ, UNITED STATES ATTORNEY FOR THE DISTRICT OF MASSACHUSETTS, Defendants.
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS, U.S. DISTRICT COURT JUDGE.
action concerns two identical Freedom of Information Act
(“FOIA”) requests that Plaintiff American Civil
Liberties Union Foundation of Massachusetts
(“ACLUM”) sent to the Federal Bureau of
Investigation (“FBI”) and Carmen Ortiz, U.S.
Attorney for the District of Massachusetts
(“USAO”). These FOIA requests asked for materials
regarding: (A) the structure of the Joint Terrorism Task
Force (“JTTF”) that operates in Massachusetts
(“Request A”); (B) the number and types of
investigations conducted by the FBI Boston Field Office since
2011 (“Request B”); and (C) the Massachusetts
JTTF’s involvement with Ibragim Todashev, who was shot
and killed in Florida while reportedly being questioned about
a September 2011 triple homicide in Waltham, Mass. and the
April 2013 Boston Marathon bombings (“Request
are currently three pending summary judgment motions
concerning the FBI and USAO’s responses to Requests A
and B. The FBI has moved for summary judgment as
to its search for and release of documents responsive to
these two requests. [ECF No. 51]. The ACLUM has cross-moved
for summary judgment against the FBI, objecting to the
FBI’s nondisclosure of certain materials. [ECF No. 60].
The ACLUM has also moved for summary judgment against the
USAO. [ECF No. 56]. The USAO has not searched for or released
any documents responsive to Requests A and B, and the
ACLUM’s motion asks that the Court order it to do so.
reasons stated below, the Court finds that the FBI performed
a reasonable, adequate search for records responsive to
Requests A and B, and that with the exception of its
nondisclosure of certain materials under FOIA Exemption 7(E),
as more fully set forth herein, it properly withheld
information under FOIA’s exemptions. The Court finds,
however, that the ACLUM is entitled to summary judgment with
respect to the USAO and orders the USAO to conduct a
reasonable search for records responsive to Requests A and B.
Factual and Procedural Background
December 9, 2013, the ACLUM sent identical FOIA requests to
the USAO and FBI requesting records regarding the
Massachusetts JTTF. [ECF Nos. 1-1, 1-2]. The letter asked for
“information about how the Massachusetts JTTF
functions, how its authority is divided and shared, what
safeguards are in place to ensure the civil liberties of
those whom it targets, and the number and type of
investigations conducted out of Massachusetts.”
Id. at 2. It also asked for “specific
information about the Massachusetts JTTF’s involvement
in the investigation into and death of a suspect, Ibragim
Todashev.” Id. The letter was divided into
A, regarding the structure of the Massachusetts JTTF, had
seven subparts. It asked for, among other things, records
indicating the purpose of the Massachusetts JTTF; its
organization; its relationship with the FBI, USAO, and other
agencies; and its size and budget. Id. at 2-3.
Request B, regarding the FBI Boston Field Office’s
Investigations, had two subparts. It asked for information
regarding the number of assessments, preliminary
investigations, and full investigations conducted by the FBI
Boston Field Office since 2011. Id. at 3. Request C,
regarding the investigation of Ibragim Todashev, also had two
subparts. It requested all documents relating to Todashev,
including documents describing any involvement of the
Massachusetts JTTF in his death. Id. at 4.
letter requested expedited processing and a fee waiver. The
ACLUM stated that there was “an urgent need to inform
the public about the workings of the Massachusetts JTTF, an
issue that has been of widespread and exceptional media and
public interest . . . .” Id.
ACLUM filed the Complaint in this action on April 10, 2014,
naming both the FBI and Carmen Ortiz as defendants. [ECF No.
1]. The ACLUM alleged that it had not yet received any
documents from either the FBI or USAO in response to its FOIA
requests. Id. ¶ 11. As of the time of the
filing, the USAO had not responded to the FOIA request at
all. The FBI had acknowledged receipt of the request and
begun to process it, but had not yet produced any documents,
and was refusing to release any documents responsive to
Request C. Id. ¶¶ 40-45. The Complaint
brought eight counts: failure to make reasonable effort to
search for records sought by the requests (Count I, against
both defendants); failure to promptly make records available
(Count II, against both defendants); failure to process
requests as soon as practicable (Count III, against both
defendants); failure to grant a fee waiver (Count IV, against
both defendants); failure to grant limitation of fees (Count
V, against both defendants); failure to estimate volume of
records denied (Count VI, against the FBI only); failure to
provide responsive documents (Count VII, against both
defendants); and an appeal of the FBI’s denial of
Request C (Count VIII, against the FBI only).
21, 2014, the parties agreed on a schedule for the search and
production of documents responsive to the ACLUM’s FOIA
requests. [ECF No. 25]. The FBI stated that it expected to
complete its search for documents responsive to all three
portions of the request by July 31, 2014, and agreed to
produce its first interim response by September 2, 2014.
Id. The USAO also agreed to provide its first
interim response, consisting of emails responsive to all
three portions of Plaintiff’s FOIA request, by
September 2, 2014. Id.
processed a total of 1, 849 pages responsive to Requests A
and B. [ECF No. 53 ¶ 4]. Of these pages, 903 were
released in full, 162 were released in part, and 784 were
withheld in full. Id. The USAO did not search for or
produce any documents responsive to Requests A and B,
claiming that a search would be unduly burdensome and
unnecessary, since any records in its possession, responsive
to Requests A and B, are duplicative of records that the FBI
has already processed and released.
24, 2015, the FBI moved for summary judgment with respect to
Requests A and B. [ECF No. 51]. It filed a declaration from
David Hardy, the Section Chief of the Records/Information
Dissemination Section (the “Hardy Declaration”),
that described the FBI’s processing of the two requests
[ECF No. 53], and asked that the Court find as a matter of
law that it has fully discharged its obligations under FOIA.
On August 24, 2015, the ACLUM simultaneously opposed the
FBI’s motion and cross-moved for summary judgment
against the FBI [ECF No. 60], based on its contention that
the FBI improperly used FOIA Exemption 7(E) to withhold
various materials. On that same day, the ACLUM also moved for
summary judgment against the USAO, requesting that the Court
order the USAO to perform a reasonable search for documents
responsive to Requests A and B. [ECF No. 56]. The Court held
oral argument on these three motions on January 28, 2016.
[ECF No. 76].
enacted FOIA to “pierce the veil of administrate
secrecy and to open agency action in the light of public
scrutiny.” Dep’t of Air Force v. Rose,
425 U.S. 352, 361 (1976) (internal quotations omitted).
“The statute embodies a broad policy in favor of
disclosure, reflecting the notion that ‘promot[ing] an
informed citizenry . . . is vital to democracy.’”
Moffat v. U.S. Dep’t of Justice, 716 F.3d 244,
250 (1st Cir. 2013) (quoting Carpenter v. U.S.
Dep’t of Justice, 470 F.3d 434, 437 (1st Cir.
2006)). FOIA acts as an “important tool in holding the
government accountable because it provides citizens a means
to ‘know what the government is up to.’”
Stalcup v. C.I.A., 768 F.3d 65, 69 (1st Cir. 2014)
(quoting Carpenter, 470 F.3d at 437).
FOIA, agencies must disclose all requested records unless one
of nine statutory exemptions applies. 5 U.S.C. § 552(b).
These nine exemptions are “explicitly made exclusive
and must be narrowly construed.” Milner v. U.S.
Dep’t of Navy, 562 U.S. 562, 565 (2011) (internal
quotations and citations omitted). The exemptions are
intended to “effectuate the goals of the FOIA while
safeguarding the efficient administration of the government,
” Carpenter, 470 F.3d at 438, and should
“not obscure the basic policy that disclosure, not
secrecy, is the dominant objective of the Act.”
Rose, 425 U.S. at 361. The government bears the
burden of proving that withheld materials fall within one of
the enumerated exemptions. 5 U.S.C. § 552(a)(4)(B).
response to a FOIA request, an agency must make “a good
faith effort to conduct a search for the requested records,
using methods which can be reasonably expected to produce the
information requested.” Oleskey ex rel Boumediene
v. U.S. Dep’t of Defense, 658 F.Supp.2d 288, 294
(D. Mass. 2009) (quotation marks omitted). The government
bears the burden of showing that it conducted an adequate
search. Moffat, 716 F.3d at 254. The adequacy of a
search is “determined not by whether relevant documents
might exist, but whether the agency’s search was
reasonably calculated to discover the requested
documents.” Id. (internal quotation marks
omitted). To show that it conducted an adequate search, an
agency “may rely upon affidavits provided they are
relatively detailed and nonconclusory, and are submitted by
responsible agency officials in good faith.”
Maynard v. C.I.A., 986 F.2d 547, 599 (1st Cir.