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On November 28, 2010, the organization WikiLeaks published numerous documents that it contended were Department of State embassy cables. The following day, Attorney General Eric H. Holder, Jr. stated that the Department of Justice had initiated a criminal investigation into the potential unauthorized release of classified information. Compl. [Paragraph][Paragraph] 15-16. That investigation continues to this day.
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The requests set forth EPICs suspicions about the scope of the Governments investigation, and seek four categories of records that would reveal whether, and to what extent, the Government has employed particular investigative techniques in its attempts to identify suspects and obtain evidence.
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In response to EPICs requests, the FBI, NSD, and the Criminal Division have determined that all responsive documents are protected from disclosure by Exemption 7(A), and accordingly each component has properly refused to produce responsive records.
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Here, Defendants have determined that certain information concerning the requested documents and the bases for their withholding cannot be provided publicly. The Government should not be required to divulge sensitive information concerning an investigation, including non-public information concerning the scope or size of the investigation...
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EPIC seeks records concerning a government investigation into the unauthorized disclosure of classified information.
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Specifically, the FBI indicates that it conducted a search of its Central Records System ('CRS') using the search term 'WikiLeaks,' and identified a file containing cross-references to certain agency files. See Hardy Decl. (Ex. 1) [Paragraph][Paragraph] 17-19. Through consultations with the case agents assigned to the file, the FBI identified investigative files likely to contain responsive information. Id. [Paragraph] 19.
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Upon receiving the request, NSD FOIA personnel determined that the Counterespionage Section ('CES') was the only location within NSD that was reasonably likely to possess responsive records.
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Upon receiving the request, NSD FOIA personnel determined that the Counterespionage Section ('CES') was the only location within NSD that was reasonably likely to possess responsive records. Bradley Decl. (Ex. 3) [Paragraph] 9. NSD searched all of the electronic files pertaining to the investigation of the lead CES attorney assigned to the matter, after determining that such a search would locate any potentially responsive records because any other files would be duplicative of those records. Id. That search was sufficiently comprehensive. Additional detail regarding how NSD conducted its search is included in NSDs ex parte declaration, since its disclosure would provide non-public information regarding the scope of NSDs involvement in the investigation that would itself compromise the investigation. See Bradley Ex Parte Decl. (Ex. 4) [Paragraph] 4.
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Finally, the Criminal Division determined that the only entities likely to have responsive documents were the Computer Crimes and Intellectual Property Section ('CCIPS') and the Office of International Affairs ('OIA'). Cunningham Decl. (Ex. 5) [Paragraph] 10. Those entities conducted searches, employing a variety of search terms designed to locate potentially responsive materials. Id. The Criminal Divisions FOIA personnel determined that those searches were likely to locate any responsive documents. Id.
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In response to EPICs requests, Defendants determined that all records responsive to the requests are subject to one or more of FOIAs nine statutory exemptions to disclosure. All of the records are being withheld pursuant to Exemption 7(A), which applies to 'records or information compiled for law enforcement purposes' to the extent that the production of such records 'could reasonably be expected to interfere with enforcement proceedings.'
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Here, each components declaration makes clear that the information withheld under this exemption was 'compiled for law enforcement purposes' because it is part of a broader investigation being conducted by the Department of Justice into the unauthorized disclosure of classified information. See Hardy Decl. (Ex. 1) [Paragraph] 23; Bradley Decl. (Ex. 3) [Paragraph] 13; Cunningham Decl. (Ex. 5) [Paragraph] 12. The investigation of criminal conduct, particularly when it entails serious threats to the national security, is plainly a high-priority law enforcement duty of the Department. See Ctr. for Natl Sec. Studies, 331 F.3d at 926 (recognizing that the Exemption 7(A) threshold is satisfied by an investigation concerning 'a heinous violation of federal law as well as a breach of this nations security'). Insofar as individuals are being investigated for their role in the unauthorized disclosure of classified information, there is a clear nexus between the subjects 'and a possible security risk or violation of federal law.' Id. Because the records at issue were compiled as part of a Department of Justice investigation into possible violations of federal law, they were 'compiled for law enforcement purposes,' and the threshold inquiry under Exemption 7(A) is satisfied.
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Defendants have also determined that the disclosure of the responsive records could reasonably be expected to interfere with ongoing enforcement proceedings.
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In justifying its reliance on Exemption 7(A), the Government need not discuss the exemption on a document-by document basis. To do so could itself impede the investigation, as providing details such as the volume of the responsive material or the nature of particular documents could itself reveal sensitive information that could impede the investigation.
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The declarations explain that the requested documents relate to an ongoing national security investigation. In November 2010, the Attorney General announced that the Department of Justice was conducting a criminal investigation into the possible disclosure of classified information that was published on the WikiLeaks website. Bradley Decl. (Ex. 3) [Paragraph] 13. That investigation concerns potential violations of federal criminal laws, in the form of serious threats to the national security, and the investigation continues today. Id.; Hardy Decl. (Ex. 1) [Paragraph] 23; Cunningham Decl. (Ex. 5) [Paragraph] 12. From the terms of their request, it is clear that EPIC seeks to obtain documents concerning that investigation.
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Defendants declarations also describe the types of records at issue. The declarations explain that the records responsive to EPICs request consist of evidentiary, investigative, and administrative materials related to the investigation. See Hardy Decl. (Ex. 1) [Paragraph][Paragraph] 26, 29-38; Bradley Decl. (Ex. 3), [Paragraph][Paragraph] 14-16; Cunningham Decl. (Ex. 5) [Paragraph][Paragraph] 14-19. The records are further described by type such as confidential source statements, communications between government investigators and attorneys, and summaries of evidence obtained during the investigation in ways that indicate the information contained in the materials.
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For example, Defendants have withheld information that, if disclosed, would identify potential witnesses and other individuals who have cooperated with the investigation. Specifically, the FBI has explained that the documents include statements made to the FBI by sources who were given expressed or implied assurances that their identities would remain confidential. Hardy Decl. (Ex. 1) [Paragraph] 30. These statements contain information provided by individuals with knowledge of potential criminal activities. Id. As the FBI explains, disclosure of the information would mean that 'the sources that have chosen to cooperate with law enforcement could be subjected to retaliation, intimidation, or physical or mental harm.' Id. Aside from the harms that disclosure would cause to the sources themselves, it is the judgment of the FBI that '[t]his would have a chilling effect on these investigations and any future prosecutions resulting from these cases.' Id. NSD and the Criminal Division have made similar determinations |
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Name(s:) |
Scott Risner |
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Title: |
Trial Attorney |
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Agency(ies): |
Civil Division, Department of Justice |
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Concerning: |
Epic FOIA, Criminal Division, National Security Division, Federal Bureau of Investigation, Department of Justice, FBI File, Counterespionage Section, CES, Computer Crimes and Intellectual Property Section, CCIPS, Office of International Affairs, OIA |
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The FBI subsequently conducted a second search of the CRS to locate any reference entries that might be responsive to plaintiffs request, using the term 'WikiLeaks.' [Footnote] 2 ['Reference entries, or cross-references, are mere mentions of a subject, individual, or organization in files that are indexed to other subjects, individuals, organization, events, or activities.']
The second search ofthe CRS identified a file containing reference entries pertaining to WikiLeaks. The case agents assigned to this file were contacted about whether it might contain information responsive to plaintiffs request for 'all records regarding any individual targeted for surveillance for support for or interest in WikiLeaks,' for 'lists of names of individuals who have supported or shown interest in WikiLeaks,' and for communications with internet, social media, and financial services companies regarding 'lists of individuals who have demonstrated ... support for or interest in WikiLeaks.' As a result of these consultations, the FBI identified investigative files that likely contain information responsive to plaintiffs FOIA request. [Footnote] 3 ['Plaintiffs request seeks '[a]ll records regarding any individuals targeted for surveillance for support for or interest in WikiLeaks,' as well as certain information regarding 'lists of individuals who have demonstrated support for or interest in WikiLeaks.' The FBI is not investigating individuals who simply support or have an interest in WikiLeaks. However, reading Plaintiffs request broadly, the FBI concluded that records concerning its investigation of the disclosure of classified information that was published on the WikiLeaks website would be responsive to Plaintiffs request. The FBI does not, however, maintain lists of individuals who have demonstrated support for or interest in WikiLeaks, and thus has no records responsive to this portion of Plaintiffs request.']
The files containing information potentially responsive to plaintiffs request are part of active, ongoing criminal investigations. The FBI has determined that all potentially responsive records in these files are exempt from disclosure pursuant to FOIA Exemption 7(A) 5 U.S.C. [Section] 552(b)(7)(A).
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Here, responsive records are contained in files pertaining to the FBI's investigation of the disclosure of classified information that was published on the WikiLeaks website. The FBI's Washington Field Office opened these files in 2010 and maintains them per applicable Attorney General Guidelines. The investigations are ongoing and clearly are within the law enforcement duties of the FBI to detect and undertake investigations into possible violations of Federal criminal laws. See 28 U.S.C. [Section] 533. Thus, all ofthe records responsive to plaintiffs FOIA request were compiled for law enforcement purposes and readily meet the threshold for applying FOIA Exemption 7. [Footnote] 4 [The FBI's files contain potentially responsive records originating from other government agencies ('OGAs'). Because the FBI is withholding all records pursuant to Exemption 7(A), it has not referred these records to their originating OGAs for review and application of other exemptions. The FBI believes that these records are also subject to one or more of the other exemptions described in this declaration. If the FBI's Exemption 7(A) with holdings are not upheld, it will refer the records to the originating OGAs for review and a direct response to plaintiff.
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The FBI has withheld all responsive records pursuant to Exemption 7(A). As established above, these records are law enforcement records related to pending FBI investigations. The FBI has determined that disclosure of any responsive records in the midst of these active, on going investigations is reasonably expected to interfere with those investigations as well as any resulting prosecutions. Moreover, disclosure of records from the FBI's pending investigative files is reasonably expected to interfere with the U.S. Department of the Army's pending prosecution of Private Bradley Manning in relation to the disclosure of classified information that was published on the WikiLeaks website. As such, the release of these records would interfere with pending and prospective enforcement proceedings, including investigations and prosecutions.
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Types of Documents Protected By Exemption 7(A)
(26) Providing a document-by-document description or listing of the records potentially responsive to plaintiffs request would undermine the very interests that the FBI seeks to protect under Exemption 7(A), in addition to the other exemptions identified below. In order to protect these interests, the FBI instead has described the types of potentially responsive records in the pending investigative files that are being withheld in full pursuant to Exemption 7(A). 5 The pending investigative files contain the following types of documents:
(a) Electronic Communication ('EC'): The purpose of an EC is to communicate within the FBI in a consistent format that can be uploaded by the originating Division or office, transmitted, and downloaded by recipient Divisions or offices within the FBI's internal computer network.
(b) FBI Letter: This is a letter or formal correspondence in a format used by the FBI to communicate with the Department of Justice ('DOJ'), U.S. Attorneys' Offices, other government agencies ('OGAs'), other law enforcement agencies (including federal, state, local, and tribal), commercial businesses, and private citizens. Its format is identical to the business letters utilized by commercial agencies except that it contains the FBI Seal at the top of the first page, as well as specific identifying information regarding the originating office within the FBI that sent the letter (e.g.Omaha Division or FBIHQ).
(c) FD-302 (Interview Form) [Footnote] 6 [All forms with the designation 'FD-' are forms created and utilized internally by the FBI.] This is an internal FBI form on which the results of FBI interviews of persons are recorded. Such interview information may later be used as evidence at criminal trials. These interview forms are often incorporated into FBI Investigative Reports. The contents of these forms may also be incorporated into ECs for purposes of setting/covering leads.
(d) FD-542 (Investigative Accomplishment Form): This is an internal FBI form on which employees claim accomplishments and investigative methods used in investigations.
(e) FD- 794 (Payment Request): This is an internal FBI form used by employees to request payment for reimbursement of expenses incurred during an investigation.
(f) Memorandum: This is ordinarily a communication from the FBI to the Attorney General and/or other DOJ component officials; from one employee/official to another at FBIHQ; or from one employee/official to another within an FBI field division. It serves to assist in the overall supervision of a case by summarizing pertinent details of an investigation.
(g) Emails: These documents include electronic messages exchanged between and among FBI Special Agents, other FBI employees, and personnel from OGAs, concerning these investigations.
(h) Letterhead Memorandum ('LHM'): This memorandum is an interim summary that reports information, usually derived from FD-302s, concerning the subject of an investigation. It is designed to alert other field offices and/or FBIHQ about pertinent developments in an investigation. Usually, an LHM is attached to a cover sheet, which is typically an FBI letter. The LHM can also be detached from the cover sheet and disseminated to other Government agencies, as a 'Law Enforcement Sensitive/For Official Use Only' document.
(i) FBI Records Checks: These are computerized print-outs of the results of checks of databases concerning FBI records, local law enforcement records and/or business records. The information from these records checks is often incorporated into Investigative Reports and ECs for lead purposes.
(j) FBI Investigative Reports: These are summaries of investigations as of the date of the report. The purpose of these documents is to advise FBIHQ and FBI field offices of the investigative infor |
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Name(s:) |
David Hardy |
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Title: |
Section Chief |
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Agency(ies): |
Records/Information Dissemination Section Records Management Division, FBI, Federal Bureau of Investigation |
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Concerning: |
FBI File, Grand Jury, Epic FOIA, Federal Bureau of Investigation, FBI |
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Url Link
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In addition to this declaration, which is being filed on the public record, I am also submitting a second declaration ex parte and in camera for the Court's review. That declaration includes information that cannot be disclosed publicly concerning active law enforcement proceedings and NSD's assertion of certain exemptions.
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In response to plaintiff's FOIA request, NSD FOIA personnel determined whoch component(s) within NSD would be likely to possess records. Specifically, NSD FOIA personnel contacted CES [Counterespionage Section]. the component whoch they deemed was likely to possess responsive records. CES stated that there was a pending criminal investigation concerning WikiLeaks and the unauthorized disclosure of classified information. CES's subject matter expert-- the lead CES attorney assigned to the investigation-- indictaed that any potentially responsive documents would be contained in his/her electronic files, and that any other responsive records in NSD's possession would, to the best of his/her knowledge and belief, be duplicative of those files. NSD FOIA was given access to all of the lead attorney's electronic files pertaining to the WikiLeaks investigation and located documents responsive to plaintiff's request, including documents that originated with other Department of Justice components or government agencies. No other locations within NSD are reasonably likley to have responsive records that are not duplicated in the electronic files of the lead attorney.
10. After completing its search, NSD determined that all of the responsive records are part of a pending criminal investigation and are therefore exempt from disclosure pursuant to FOIA exemption (b)(7)(A). In addition, certain responsive records or portions thereof are exempt from disclosure pursuant to FOIA Exemptions (b)(1), (b)(3), (b)(5), (b)(6), (b)(7)(C), and (b)(7)(D).
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11. Exemption (b)(7) of the FOIA protects from mandatory disclosures records of information compiled for law enforcement purposes whose disclosure could reasonably be expected to cause one of the harms enumerated in the subpart of the exemption. See 5 U.S.C. [Section] 522(b)(7). In this case, the harm could reasonably be expected to result from disclosure concerns the potential interference with ongoing law enforcement proceedings.
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12. All of NSD's responsive records are protected from disclosure pursuant to FOIA Exemption (b)(7)(A) because they are part of an on-going criminal investigation, and there release would interfere with that investigation.[Footnote] 1 [Footnote 1: NSD's files contain potentially responsive records originating from other government agencies ('OGAs')...]
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13. On or about November 29, 2010, the Attorney General announced that the Department of Justice was conducting a criminal investigation into disclosures of classified information that was published on the WikiLeaks website. The investigation concerns possible violations of federal criminal laws, and is within the law enforcement duties of NSD and the broader Department of Justice. All of NSD's responsive records reside in the files of that open investigation, which continues to this day.
14. Any release of information from the responsive records within NSD's criminal investigative files is reasonably likely to harm the pending law enforcement proceedings.
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15. Each of the responsive documents consist of investigative or evidentiary materials created as part of the investigation, including communications between attorneys at NSD and other Department of Justice components. The following paragraphs describe the types of investigative materials in the responsive records, along with the potential harm that could result from their disclosure:
a. Documents concerning potential targets: These documents include communications discussing potential targets of the investigation. Once documents are released and are in the public domain, information concerning this ongoing investigation could reach the target of the investigation and allow these targets to critically analyze materials concerning the investigation.
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b. Documents concerning investigative strategies: NSD has identified certain documents that include discussions of potential investigative strategies and techniques. The disclosure of such infomation would reveal the methods by which the Government is (or is not) conducting the investigation, thus enabling targets to evade detection.
c. Documents concerning witnesses: This category includes information that the Government has obtained from witnesses (whether testimony or documentary evidence). If this information is released, individuals and potential witnesses who possess information relevant to the investigation will be identified...
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d. Documents concerning other exchanges of information between NSD and other entities: Disclosure of such information would reveal investigative information and evidence developed by the government agencies and other entities that have cooperated as part of the investigation.
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19. In the course of its search, NSD identified records which are classified. The information contained in these documents is owned by and under the control of the U.S. Government. The withheld information is classified SECRET
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20. In this case, the information in the responsive, classified materials relates to intelligence activities, sources, and methods. Disclosure of this information would reveal the scope of sensitive U.S. intelligence gathering operations. The documents discuss ongoing intelligence operations, including gathering methods. Disclosure of this information would provide out adversaries and foreign intelligence targets with insight into the United States Government's foreign intelligence collection capabilities, which in turn could be used to develop the means to degrade or evade those collection capabilities.
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23. NSD has also determined that certain responsive records are exempt from disclosure pursuant to FOIA Exemption (b)(5). FOIA Exemption (b)(5) protects 'inter-agency or intra-agency memorandums or letters which would not be available by law or to a party other than an agency in litigation with th agency'...Among the provledges incorporated into Exemption 5 is the Attorney Work Product privldge, which protects documents prepared by an attorney as part of, or in reasonable anticipation of, [sic] litigation. The purpose of the privledge is to protect the adversarial process by insulating the attorney's preparation.
24. In this case, NSD's responsive records consist of materials that were prepard by an attorney, or under the direction of an attorney, in reasonable anticipation of litigation. These materials include email messages and memorandums between attorneys at NSD and the FBI and/or other DOJ components. Thse materials were all prepared in anticipation of possible criminal prosecutions arising out of the pending investigation into the disclosure of classified information that was published on the WikiLeaks website. For example, one of NSD's records consists of an email from an NSD lawyer which provides the lawyer's impression about the investigation...
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25. ...The deliberative process privledge applies to documents in the pending investigative files that rflect decision-making by NSD, alone or in conjunctions with other DOJ compenents, regarding the scope and focus of the investigations, as well as pending and prospective prosecutions. For example one of the deliberative materials consist of an email discussing what investigative techniques should be used.
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30. [...] All of this information was compiled for the criminal investigation described above.
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32. With respect to Federal Government personnel and other law enforcement agencts, NSD has withheld names and/or identifying information of individuals who have participated in teh investigation as part of their official duties.
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33. [...] NSD has also applied these exemptions (in conjunction with Exemption (b)(7)(D), discussed below) to withhold the names and/or identifying information of individuals who have provided in |
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Name(s:) |
Mark A. Bradley |
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Title: |
Director |
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Agency(ies): |
Freedom of Information Act (FOIA) and Declassification Unit, Office of Law and Policy, National Security Division, Department of Justice |
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Concerning: |
Grand Jury, Counterintelligence Section (CES), CES, Epic FOIA, National Security Division, NSD, Department of Justice |
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Url: |
Url Link
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10. In response to the plaintiff's June 23, 2011 FOIA request for records relating to WikiLeaks, the Criminal Division determined that the only entities that were reasonably likely to have records responsive to the request were the Computer Crimes and Intellectual Property Section (CCIPS) and the Office of International Affairs (OIA). Both CCIPS and OIA subsequently conducted searches of their electronic files for responsive records after determining that their electronic files would contain all responsive records in their possession. [_] The searches conducted by CCIPS and OIA were reasonably calculated to locate all responsive files, and included the following search terms: 'WikiLeaks'; 'surveillance'; 'social media'; 'Facebook'; 'Google'; 'Twitter'; 'Private Bradley Manning'; 'Julian Assange'; 'Jacob Appelbaum'; 'David House'; 'Rop Gonggrijp'; and 'Birgitta Jonsdottir.' Both components also searched utilizing the following Boolean connectors: 'communications' AND ('financial services company/(ies)' OR 'Visa' OR 'Mastercard' OR 'Paypal'). ANd CCIPS also conducted additional searches utilizing the following Boolean connectors: 'WikiLeaks' AND ('Facebook' OR 'Google' OR 'Twitter') AND ('Manning' OR 'Assange' OR 'Appelbaum' OR 'House' OR 'Gonggrijp' Or [sic] 'Jonsdottir.') [_] As a result of these searches, the Criminal Division identified electronic and paper files reviewed the responsive records, and have determined that they must be withheld in their entirety for the reasons described below.
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In this case, the Criminal Division has determined that all of the potentially responsive records are protected by Exemption (b)(7)(A) because their release could reasonably be expected to interfere with an ongoing law enforcement investigation.
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12. [_] Here, the responsive records in the possession of the Criminal Division are all part of the Department of Justice's investigation into the unauthorized disclosure of classified information that resulted in the publication of materials on the WikiLeaks website. This matter is an active ongoing criminal law enforcement investigation, and is clearly within the law enforcement duties of the Criminal Division, which include the investigation and prosecutions of violations of federal criminal laws.
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The Criminal Division has exempted from disclosure all responsive records within the pending investigative file pursuant to FOIA exemption 7(A) because the Criminal Division has determined that the disclosure of these laws enforcement records could reasonably be expected to interfere with the Department's national security investigation into the unauthorized disclosure of classified information.
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14. The Criminal Division cannot provide a public description of each individual document withheld under Exemption (b)(7)(A). To do so would itself reveal protected information concerning the Government's ongoing investigation, including the size and scope of the investigation (or at least the Criminal Division's role in it) and the particular Division offices involved in the investigation (and, by implication, the offices that are not involved).
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15. The responsive records withheld from the pending investigative files pursuant to Exemption (b)(7)(A) include the following types of documents:
a. Emails: These documents include electronic messages exchanged between and among Criminal Division attorneys, employees, and Assistant United States Attorneys concerning an ongoing investigation.
b. Legal Pleadings: This category includes legal documents that have been filed under seal with the United States courts in connection with either pending or prospective litigation.
c. Memoranda: The documents in this category summarize both the deliberative and legal aspects of an investigation or matter, and contain predecisional [sic], deliberative, proposed or recommended courses of action.
d. Transmittal Memoranda: A transmittal memorandum provides an addressee with a brief or synopsis or a separate underlying document. A transmittal document can be detached from the underlying document, and may further be identified as having such language as: 'Law Enforcement Sensitive - Limited Official Use.'
e. Case Tracking Summary: These documents list ongoing investigations or matters, including open, ongoing, and closed investigations and cases.
f. Miscellaneous Administrative Documents: The Criminal Division uses various types of documentary forms throughout criminal investigation, which includes facsimile cover sheets, routing slips, tracking system cover documents, notes, memoranda, letters, and other attachments of an administrative nature that would identify the ongoing law enforcement investigation or matter.
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16. The Criminal Division has determined that any release of the records described above to the plaintiff would be premature and likely cause harm to pending law enforcement proceedings.
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[_] responsive records generally fall within two categories: evidentiary and investigative materials, and administrative materials.
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17. Evidentiary and investigative materials: This category includes copies of emails among Department attorneys as well as memoranda and pleadings filed under seal that are not publically [sic] available. The information contained in these records includes discussion of litigation and prosecutions strategies, summaries of evidence, attempts to obtain evidence form third parties, and the identification of persons of interest to the investigation. The disclosure of such information would halrm the ongoing investigation in numerous ways.
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18. Administrative materials: The Criminal Division has also determined that the release of administrative materials within the investigative file would likely interfere with the ongoing investigation. These materials include the transmittal memoranda, cover sheets, and other administrative guidance in the file. These materials are often attached to or directly related to the evidentiary and investigative materials discussed able, and the release of these documents creates the potential for the same harms discussed in the previous paragraph. These documents could also reveal the particular offices or employees within the Criminal Division that are involved in the investigation, as well as the other Department components or Government agencies participating in the investigation, and the disclosure of this information could reasonably be expected to harm the investigation by revealing non-public information regarding the scope and status of a complex national security investigation. Administrative materials also record information such as the identities of sources or persons of interest to the investigation, and the dates and locations of events of interest to investigators. Releasing such materials would also reveal what facts have been obtained as part of the investigation, which could provide meaningful insight to potential targets such that they could change their behavior in ways that would frustrate the investigation.
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Attorney Work Product [_] 25. The Criminal Division relies on Exemption 5 to protect materials create by Criminal Division and other Department attorneys in anticipation of potential prosecutions arising out of the pending investigation. The documents being withheld are tangible items that reflect the sorting and assembling of factual information, as well as the underlying legal analyses reflect the sorting and assembling of factual information, as well as the underlying legal analyses and recommendations of DOJ attorneys about how best to prosecute an ongoing matter.
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29. The Criminal Division has withheld documents that reflect the decision-making process as it has played out during the investigation. The materials as issue include discussion and suggestions regarding potential investigative steps. The material also include drafts of affidavits, pleadings, and memorandum, that were subject to revisions. Accordingly, the Criminal Division has properly asserted FOIA Exemption (b)(5) to withhold certain documents from disclosure.
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31. The Criminal Division relies on Exemption 6 (general privacy p |
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Name(s:) |
John E. Cunningham III |
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Title: |
Trial Attorney |
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Agency(ies): |
Office of Enforcement Operations, Freedom of Information Act/Privacy Act (FOIA/PA) Unit, Criminal Division, Department of Justice |
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Concerning: |
Grand Jury, Computer Crimes and Intellectual Property Section (CCIPS), CCIPS, Office of International Affairs (OIA), OIA, Epic FOIA, Criminal Division, Department of Justice, FBI File, FBI, Federal Bureau of Investigation, Counterespionage Section (CES),C |
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1. In November 2010, the Attorney General announced that the Department of Justice was conducting a ciminal investigation into the possible disclosure of classified information hat was published on the website of the organization WikiLeaks. Bradley Decl. (Ex. 3) [Paragraph] 13
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5. The FBI conducted its search using the Central Records System (CRS), which is a comprehensive system that includes administrative, applicant, criminal, personnel, and other files compiled for law enforcement purposes. Id. [Paragraph] 11, 17-19. The FBI determined that its search of the CRS ws likely to locate any responsive documents. Id.
6. The FBI determined that all of the responsive records within its possession or control are protected from disclosure under Exemption 7(A). Id [Section] 20. The FBI furtehr determined that certain information is also protected by Exemptions 1, 3, 5, 6, 7(C), 7(D), 7(E), and 7(F). Id [Paragraph] 39.
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7. After receiving the request, NSD determined that the Counterespionage Section ('CES') was the only location within NSD that was reasonably likely to possess responsive records. Bradley Decl. (Ex. 3) [Section] 9. NSD further determined that any potentially responsive records would exist within the electronic files of the lead CES attorney assigned to the matter, and NSD reviewed those documents in order to identify responsive records. Id.
8. NSD determined that all of the responsive records wthinn its possession or control are protected from disclosure under Exemption 7(A). Id. [Paragraph] 10. NSD further determined that certain information is also protected by Exemption 1, 3, 5, 7(C), and 7(D). Id.
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9. After receiving the request, the Criminal Division determined that its entities were likely to have responsive documents were the Computer Crimes and Intellectual Property Section ('CCIPS') and the Office of International Affairs ('OIA'). Cunningham Decl. (Ex. 5) [Paragraph] 10.
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10. The Criminal Division determined that all of the responsive records within its possession or control are protected from disclosure under Exemption 7(A). Id. [Paragraph] 11. The Criminal Division further determined that certain information is also protected by Exemption 3, 5, 6, 7(C), and 7(D).
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12. Each component determined that all of the responsive records were compiled for law enforcement purposes because the documents are part of the investigative file pertaining to the Department of Justice's ongoing investigation ino the unauthorized disclosure of classified information. Hardy Decl. (Ex. 1) [Paragraph] 23; Bradley Decl. (Ex. 3) [Section] 13; Cunningham Decl. (Ex. 5) [Paragraph] 12. Such an investigation concerns criminal conduct and threats to national security. Id.
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13. Each component determined that the disclosure of responsive records could reasonably be expected to interfere with the ongoing investigation. Hardy Decl. (Ex. 1) [Paragraph] 27-38; Bradley Decl. (Ex. 3) [Paragraph] 11-16; Cunningham Decl. (Ex. 5) [Paragraph] 11-19. The components have provided declarations that describe the responsive records in functiona; categories that connect the nature of the documents to the interference that disclosures could cause to the investigation. Id.
14. Each component has determined that the disclosure of certain responsive records would identify potential witnesses and other individuals who have cooperated with the investigation...
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15. Each component has determined that the disclosure of certain responsive records would reveal documentary evidence or other information gathered in the course of the investigation, which would undermine pending or prospective prosecutions by revealing the scope and focus of the investigation, thereby revealing to targets the scope of the Government's evidence against them and the invetigative techniques that have been employed. Hardy Decl. (Ex. 1) [Paragraph] 32; Bradley Decl. (Ex. 3) [Section] 8(b); Cunningham Decl. (ex. 5) [Paragraph] 17.
16. Each component has determined that the disclosure of certain responsive records would identify the subjects of, and person of investigative interest to, the investigation. Hardy Decl. (Ex. 1) [Paragraph] 32; Bradley Decl. (Ex. 3) [Paragraph] 8(a); Cunningham Decl. (ex. 5) [Paragraph] 17.
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17. FBI and NSD personnel who are authorized to classify national security information have determined that certain responsive information must be withheld because it is properly classified pursuant to the requirements of Executive Order 13526. Hardy Decl. (Ex. 1) [Paragraph] 2, 44; Bradley Decl. (Ex. 3) [Paragraph] 2, 19.
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19. The FBI has determined that certain information is subject to sections 1.4(b) of Executive Order 13526 because it concerns foreign government information. Hardy Decl. (Ex. 1) [Paragraph] 45-51. The FBI has determined that the release of information would identify foreign governments and reveal information provided by those governments in confidence, which would harm the relationshiop and cooperative endeavors between the foreign governments and the FBI. Id. [Paragraph] 50(A).
20. The FBI and NSD have determined that certain information is subject to section 1.4(c) of Executive Order 13526 because it concerns intelligence activities, sources, or methods. Hardy Decl. (Ex. 1) [Section] 52; Bradley Decl. (Ex. 3) [Paragraph] 20. The FBI and NSD have determined that the release of information would reveal actual intelligence activities and methods used by the Government, which could reveal specific targets of the investigation and allow hostile entities to develop countermeasures that would disrupt the use of those activities and methods. Id.
21. The FBI has determined that certain information is subject to sections 1.4(d) of Executive Order 13526 because its release would impair U.S. government relations with foreign governments by disclosing sensitive intelligence information gathered by the United States either about or from a foreign country. Hardy Decl. (Ex. 1) [Paragraph] 74-75
24. Each component has withheld materials that constitute atorney work product. Hardy Decl. (Ex. 1) [Section] 82; Bradley Decl. (Ex. 3) [Section] 24; Cuningham Decl. (Ex. 5) [Paragraph] 25. The FBI's declaration explains that it witheld materials and communications created by Government attorneys 'in relation to the pending prosecution of PFC Bradley Manning' and 'in anticipation of potential other prosecutions arising out of the pending investigations into the disclosures of classified information that was subsequently published on the WikiLeaks website.' Hardy Decl. (Ex. 1) [Paragraph] 82. The Criminal Division's declaration explains that the component witheld 'materials created by Criminal Division and other Department attorneys...that reflect the sortng and assembling of factual information, as well as the underlying legal analysis and recommendations of DOJ attorneys about how to prosecute an ongoing matter.' Cunningham Decl. (Ex. 5) [Paragraph] 25. NSD's declaration explains that it withheld e-mail messages and memoranda between attorneys at NSD and other DOJ components concerning potential prosecutions, such as an email from an NSD lawyer providing the lawyer's impressions about the investigation. Bradley Decl. (Ex. 3) [Paragraph] 24.
25. The FBI witheld materials protected by the attorney-client privledge, including 'communications between and among FBI counsel and their FBI clients and employees that reflect the seeking and/or providing of legal advice with respect to aspects of the ongoing investigations and related pending prospective prosecutions.' Hardy Decl. (Ex. 1) [Paragraph] 84.
26. Each component witheld materials protected by the deliberative process privledge. These materials include draft affidavots, pleadings, and memoranda that were created as part of the investigation. Cunningham Decl. (Ex. 5) [Section] 29. They also include materials that reflect the decision-making process among agency officials regarding the scope and focus of the pending investigation. Hardy Decl. (Ex. 1) [Paragraph] 87; Bradley Decl. (Ex. 3) [Paragraph] 26; Cunningham Decl. (ex. 5) [Paragraph] 29.
[...] |
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Name(s:) |
Stuart Delery, Elizabeth Shapiro, Scott Risner |
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Title: |
Principal Deputy Assistant Attorney General, Deputy Branch Director, Trial Attorney |
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Agency(ies): |
Civil Division, Federal Programs Branch, Department of Justice |
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Concerning: |
Epic FOIA, Criminal Division, National Security Division, Federal Bureau of Investigation, FBI, Department of Justice, Computer Crimes and Intellectual Property Section (CCIPS), CCIPS, Office of International Affairs (OIA), OIA, FBI File, Counterespionage |
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Url: |
Url Link
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Title: |
MOTION for Summary Judgment by FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE, NATIONAL SECURITY DIVISION (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 3, # 4 Exhibit 5, # 5 Statement of Facts, # 6 Text of Proposed Order)(Risner, Scott) (Entered: 01/31/2013) |
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Concerning: |
"Epic FOIA, Criminal Division, National Security Division, Federal Bureau of Investigation, FBI, Department of Justice |
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