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

THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
JASON LEOPOLD,
)
)
Plaintiff,
)
)
v.
)
)
U.S. DEPARTMENT OF JUSTICE
)
)
Defendant.
)
__________________________________________)

Case No. 15-cv-02117 RDM

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 Courts 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 Defendants 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 Courts in camera, ex parte review. A proposed order is filed
concurrently herewith.
Dated: March 25, 2016

Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
MARCIA BERMAN
Assistant Branch Director
/s/ Jennie L. Kneedler
1

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JENNIE L. KNEEDLER
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, D.C. 20001
Tel. (202) 305-8662
Fax (202) 616-8470
Email: Jennie.L.Kneedler@usdoj.gov
D.C. Bar # 500261

Case 1:15-cv-02117-RDM Document 7 Filed 03/25/16 Page 3 of 29

THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
JASON LEOPOLD,
)
)
Plaintiff,
)
)
v.
)
)
U.S. DEPARTMENT OF JUSTICE
)
)
Defendant.
)
__________________________________________)

Case No. 15-cv-02117 RDM

DEFENDANTS 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 or
indirectly 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, 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
1

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d.
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 the Clinton Server; and
e.
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.
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 plaintiffs 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 Plaintiffs 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 plaintiffs

The FBI split plaintiffs FOIA request into four separate file numbers based on the
categories 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 the
records requested in category 4, above. The final file number, assigned Request No.
1340459, covered the records requested in category 5, above. Id.
2

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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 FBIs 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 plaintiffs 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
plaintiffs 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 FBIs
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 FBIs investigative file, as well as conversations,
correspondence, and briefings that have occurred related to the investigation. Id. Based
on this agents 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 FBIs investigative file, and located three

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

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 Generals Guidelines for Domestic FBI Operations (AGG-DOM), 28 C.F.R.
0.85).
9.

The investigation at issue in plaintiffs FOIA request is being conducted

under the FBIs 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 Clintons use of a private e-mail
server. Hardy Decl. 15 (quoting Oversight of the Federal Bureau of Investigation:

Case 1:15-cv-02117-RDM Document 7 Filed 03/25/16 Page 8 of 29

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 subcategories: (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 FBIs 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 FBIs 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 plaintiffs 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 FBIs

Case 1:15-cv-02117-RDM Document 7 Filed 03/25/16 Page 10 of 29

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.

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 is
submitting an in camera, ex parte declaration to provide additional details demonstrating
that it has properly protected records responsive to plaintiffs request. Hardy Decl. 20,
22.
8

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THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
JASON LEOPOLD,
)
)
Plaintiff,
)
)
v.
)
)
U.S. DEPARTMENT OF JUSTICE
)
)
Defendant.
)
__________________________________________)

Case No. 15-cv-02117 RDM

DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN


SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
MARCIA BERMAN
Assistant Branch Director
/s/ Jennie L. Kneedler
JENNIE L. KNEEDLER
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, D.C. 20001
Tel. (202) 305-8662
Fax (202) 616-8470
Email: Jennie.L.Kneedler@usdoj.gov
D.C. Bar # 500261
Attorneys for Defendant

Case 1:15-cv-02117-RDM Document 7 Filed 03/25/16 Page 12 of 29

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 plaintiffs
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 Clintons 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). Plaintiffs 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, defendants 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:
1

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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 from
Hillary 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, 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
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 the
Clinton 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 Plaintiffs 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

The FBI split plaintiffs FOIA request into four separate file numbers based on the
categories 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 the
records requested in category 4, above. The final file number, assigned Request No.
1340459, covered the records requested in category 5, above. Id.
2

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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 Plaintiffs 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 plaintiffs 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 FBIs response to plaintiffs 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.
3

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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.

These two records are correspondence from the FBI to the Department of State seeking
assistance in furtherance of the FBIs investigation. They cannot be explained in further
detail publicly without disclosing information that could reasonably be expected to
adversely affect the FBIs 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.

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.
4

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III.

ARGUMENT
A.

Legal Standard

Most FOIA cases can be resolved on summary judgment. Elec. Privacy Info.
Ctr. v. Dept of Justice (EPIC), 82 F. Supp. 3d, 307, 314 (D.D.C. 2015). A court
reviews an agencys 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 nonexempt 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. Dept 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. Dept 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 plaintiffs FOIA request. The subject of plaintiffs 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 plaintiffs 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 FBIs
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 FBIs investigative file, as well as conversations,
correspondence, and briefings that have occurred related to the investigation. Id. Based
on this agents 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

Case 1:15-cv-02117-RDM Document 7 Filed 03/25/16 Page 18 of 29

the FBI and the State Department), the SSA reviewed the FBIs 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 FBIs 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 Courts in camera, ex parte review. That
declaration 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.
7

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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. Dept 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 agencys 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.

Case 1:15-cv-02117-RDM Document 7 Filed 03/25/16 Page 20 of 29

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. Intl Boundary & Water Commn (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 agencys principal function is law
enforcement a court is more deferential to the agencys 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 Generals 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.

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 FBIs Exemption 7(A) assertion
expires during the pendency of the litigation or the Court denies the FBIs motion for
summary judgment.
9

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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 agencys 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 Natl 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 FBIs 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 7s threshold.8 See Ctr. for Natl Sec. Studies, 331 F.3d at
926 (records were compiled for law enforcement purposes where the information came to
the Governments 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 Natl Sec.
Studies, 331 F.3d at 928 (Exemption 7(A) explicitly requires a predictive judgment of

The classified declaration lodged for the Courts 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.
10

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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. Dept 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 plaintiffs 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.).

11

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The Hardy Declaration, as well as the declaration submitted for this Courts 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 Clintons 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 FBIs investigation, or may provide leads to or context for
potential evidence. Id. 20. The second sub-category of responsive records withheld

12

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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 FBIs 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 plaintiffs 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 FBIs
pending investigation. See Hardy Decl. 10 & n.3.
13

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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 cases
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 individuals possession
when he died, which the FBI categorized as evidentiary materials).
Third, the Hardy Declaration and the classified declaration lodged for the Courts
in camera, ex parte review provide detailed explanations as to how release of each subcategory 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

14

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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 plaintiffs 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

15

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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 FBIs 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 plaintiffs 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

16

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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 plaintiffs 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

17

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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 defendants motion for

summary judgment.

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Case 1:15-cv-02117-RDM Document 7-2 Filed 03/25/16 Page 1 of 1

THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
U.S. DEPARTMENT OF JUSTICE
)
)
Defendant.
)
__________________________________________)
JASON LEOPOLD,

Case No. 15-cv-02117 RDM

[PROPOSED] ORDER
Upon consideration of Defendants Motion for Summary Judgment, as well as the
briefs and supporting materials filed in support thereof and in opposition thereto, it is
HEREBY ORDERED that:
The Motion for Summary Judgment by Defendant is GRANTED.
It is SO ORDERED.
SO ORDERED, this _______ day of _______________, 2016.

The Honorable Randolph D. Moss


United States District Judge

Case 1:15-cv-02117-RDM Document 8 Filed 03/25/16 Page 1 of 2

THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
JASON LEOPOLD,
)
)
Plaintiff,
)
)
v.
)
)
U.S. DEPARTMENT OF JUSTICE
)
)
Defendant.
)
__________________________________________)

Case No. 15-cv-02117 RDM

NOTICE OF LODGING OF CLASSIFIED,


IN CAMERA, EX PARTE DECLARATION
Defendant hereby provides notice that it is lodging with the Department of
Justices Classified Information Security Officer (CISO) a classified declaration for the
Courts in camera, ex parte review in support of Defendants Motion for Summary
Judgment.1 See Edmonds v. FBI, 272 F. Supp. 2d 35, 46 (D.D.C. 2003) (reviewing ex
parte, in camera classified declaration in FOIA case).

Dated: March 25, 2016

Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
MARCIA BERMAN
Assistant Branch Director
/s/ Jennie L. Kneedler
JENNIE L. KNEEDLER
Trial Attorney
United States Department of Justice

The CISO will make the declaration available for ex parte, in camera review at the
convenience of the Court and will contact Chambers to facilitate that review.
1

Case 1:15-cv-02117-RDM Document 8 Filed 03/25/16 Page 2 of 2

Civil Division, Federal Programs Branch


20 Massachusetts Ave., N.W.
Washington, D.C. 20001
Tel. (202) 305-8662
Fax (202) 616-8470
Email: Jennie.L.Kneedler@usdoj.gov
D.C. Bar # 500261