Case 1:16-cv-01850-TSC Document 1 Filed 09/16/16 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE ASSOCIATED PRESS; 450 West 33rd Street New York, NY 10001
GANNETT SATELLITE INFORMATION NETWORK LLC d/b/a USA TODAY; 7950 Jones Branch Drive McLean, VA 22108
and VICE MEDIA LLC, 49 South 2nd Street Brooklyn, NY 11249
Plaintiffs,
v.
FEDERAL BUREAU OF INVESTIGATION, 935 Pennsylvania Avenue, NW Washington, D.C. 20535-0001
Defendant.

Case No. 16-cv-1850

COMPLAINT
Plaintiffs The Associated Press (“AP”), Gannett Satellite Information Network LLC d/b/a USA TODAY (”USA TODAY”), and Vice Media, LLC (“Vice”) (together, “News Organizations”), by and through their undersigned attorneys, allege:
1. This action is brought pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. §§ 552, et seq., for basic contracting information from the Federal Bureau of Investigation (“FBI”) regarding one of its most publicly-discussed and controversial acquisitions: a technological tool openly purchased from a third-party vendor that was used to circumvent the

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need for a court order to access the locked iPhone of Syed Rizwan Farook, one of the
perpetrators of the mass killings in San Bernardino, California. Mr. Farook and his wife were
both killed in the attack, appear to have acted alone, and investigators long ago stated that they had uncovered no connection between the shooters and any foreign terrorist groups.1 The News
Organizations seek injunctive and other appropriate relief, including release of agency records
from the FBI.
2. More specifically, through this action, the News Organizations seek to compel the
FBI to provide records of the publicly-acknowledged business transaction that resulted in the
purchase this March of the so-called iPhone access tool. The public interest in receiving this
information is significant. The FBI’s purchase of this tool allowed government access to Mr.
Farook’s phone, providing new information about one of the deadliest attacks on American soil
in recent years, but also apparently failing to reveal any evidence of links between Mr. Farook and foreign terrorists or terrorist organizations.2 At the same time, the tool sparked tremendous
nationwide debate about both the proper balance between national security and privacy in
personal communications, and the degree to which law enforcement should be empowered to compel access to encrypted and protected devices.3 FBI Director James Comey has himself
stressed the essential importance of a nationwide “adult conversation” about whether and when
1 See Doug Stanglin and Kevin Johnson, FBI: No evidence San Bernardino killers were part of a cell, USA TODAY (Dec. 5, 2015), available at: http://www.usatoday.com/story/news/nation/2015/12/04/suspects-family-shockedkillings/76773382/. 2 See, e.g. Ellen Nakashima and Adam Goldman, No links to foreign terrorists found on San Bernardino iPhone so far, officials say, The Wash. Post (Apr. 14, 2016), available at https://www.washingtonpost.com/world/national-security/no-links-to-foreign-terrorists-foundon-san-bernardino-iphone-so-far-officials-say/2016/04/14/f1aa52ce-0276-11e6-92037b8670959b88_story.html. 3 See, e.g., Elizabeth Weise, Apple v. FBI timeline: 43 days that rocked tech, USA TODAY (Mar. 30, 2016) (collecting coverage and summarizing history of debate), available at http://www.usatoday.com/story/tech/news/2016/03/15/apple-v-fbi-timeline/81827400/.
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law enforcement should be able to access encrypted devices because, “‘We’ve got to get to a point where we can reach [wrongdoers] as easily as they can reach us and change behavior by that reach-out.’” 4 Mr. Comey also noted the need for increased information sharing with the public, an acknowledgment particularly critical given the potential of future legislative action on this issue, noting, “‘We need to understand in the FBI, how is this exactly affecting our work, and then share that with folks.’”5
3. Moreover, the FBI’s purchase of the technology – and its subsequent verification that it had successfully obtained the data it was seeking thanks to that technology – confirmed that a serious undisclosed security vulnerability existed (and likely still exists) in one of the most popular consumer products in the world.6 And in order to exploit that vulnerability, the FBI contracted with an unidentified third-party vendor, effectively sanctioning that party to retain this potentially dangerous technology without any public assurance about what that vendor represents, whether the vendor has adequate security measures, whether the vendor is a proper recipient of government funds, or whether it will act only in the public interest.
4. Information about the FBI’s contracting arrangement would also ensure transparency about the expenditure of public funds. Understanding the amount that the FBI deemed appropriate to spend on the tool, as well as the identity and reputation of the vendor it did business with, is essential for the public to provide effective oversight of government
4 See, Eric Tucker, Comey: FBI wants ‘adult conversation’ on device encryption, The Associated Press (Aug. 30, 2016), available at: http://bigstory.ap.org/article/7d57f576e3f74b6ca4cd3436fbebf160/comey-fbi-wants-adultconversation-device-encryption. 5 Id. 6 See, e.g., Tami Abdollah, FBI continues to debate sharing iPhone hack with Apple, The Associated Press (Apr. 7, 2016), available at http://bigstory.ap.org/article/7672f8a300f542baaa35a2a237820ec1/fbi-debates-sharing-iphonehacking-details-apple.
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functions and help guard against potential improprieties. Further, the public is entitled to know the nature of the vendors the Government finds it necessary to deal with in cases of access to private information, including whether or not the FBI feels compelled to contract with groups of hackers with suspect reputations, because it will inform the public debate over whether the current legislative apparatus is sufficient to meet the Government’s need for such information.
PARTIES 5. Plaintiff The Associated Press is a not-for-profit cooperative whose members are U.S. newspapers and broadcasters. AP is one of the oldest and most trusted newsgathering organizations in the world, with more than one billion readers, listeners, and viewers. AP’s headquarters are at 450 West 33rd Street, New York, NY 10001. 6. Plaintiff USA TODAY is the nation’s largest-selling daily newspaper and USATODAY.com is one of the top newspaper sites on the Internet. USA TODAY’s headquarters are at 7950 Jones Branch Drive, McLean, VA 22108. 7. Plaintiff Vice Media LLC is a preeminent news organization, youth media company, and content creation studio. Vice operates in over 30 countries, and includes a network of digital channels, a weekly and daily news programming partnership, a television and feature film production studio, a magazine, a book-publishing division, and a television network. Vice’s headquarters are at 49 South 2nd Street, Brooklyn, NY 11249. 8. Defendant Federal Bureau of Investigation is an agency of the federal government within the meaning of 5 U.S.C. § 552(f)(1) that has possession, custody and/or control of the records that the News Organizations seek. The FBI is headquartered at 935 Pennsylvania Avenue, NW, Washington, D.C. 20535-0001.
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JURISDICTION AND VENUE 9. This Court has subject matter jurisdiction over this action and personal jurisdiction over the FBI pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 552(a)(4)(B). 10. Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B). 11. The News Organizations each have exhausted all administrative remedies available in regard to the requests at issue. The FBI denied each of the News Organizations’ timely-filed administrative appeals in their entirety, and therefore the News Organizations are entitled to seek judicial review of those denials pursuant to 5 U.S.C. § 552(a)(4)(B).
FACTS A. Background
12. On December 2, 2015, 14 people were killed and 22 people were seriously injured when Mr. Farook, a county government employee, and his wife, Tashfeen Malik, opened fire on innocent civilians at the Inland Regional Center in San Bernardino, California. The attack was defined as an act of terrorism by President Barack Obama, and evidence emerged that Ms. Malik had sworn allegiance to the Islamic State prior to the attack. Both Mr. Farook and Ms. Malik were subsequently killed by police, and the FBI soon announced that it had uncovered no evidence linking them to foreign terrorist organizations. The mass killing captured significant national attention, particularly in light of the seemingly random and vulnerable civilian targets and the outwardly normal lives led by the perpetrators. The documents sought by the FOIA requests at issue here relate to reporting done by the News Organizations in the aftermath of that attack, and to the subsequent counter-terrorism investigation opened by the FBI.
13. Not long after the FBI had begun its investigation, the agency’s director, James Comey, told a Senate panel on February 9, 2016, that the agency was unable to access one of
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Mr. Farook’s Apple iPhones due to its security and encryption technology. Because the FBI regarded the information contained on the phone as potentially important to its investigation, it asked Apple for its assistance to create software that would allow the phone’s security features to be disabled. When Apple declined, the FBI took the unique step of obtaining a federal court order under the All Writs Act directing the company to assist the agency in obtaining access to the phone. When Apple again refused, the Government moved to compel Apple to do so. See Government’s Motion to Compel Apple to Comply, In the Matter of the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, No. 5:16-cm-10-SP (“All Writs Act Proceeding”) (C.D. Cal. Feb. 19, 2016), Dkt. No. 1 .
14. The public debate over whether Apple should be compelled to assist the FBI was intense and extensive. At issue was not only whether the FBI would be able to adequately obtain evidence to fully investigate an act of terrorism, but also whether a private company should be required to create the means to circumvent its own security protections to further that investigation. Apple, for instance, argued that any tool allowing such a circumvention would inevitably compromise the security of all of its iPhone customers, and would create an undesirable precedent that would invite repeated requests for such circumventions in untold numbers of future investigations, diminishing the value of personal security and privacy.
15. As this public debate intensified, the Government unexpectedly moved to continue the proceedings on the motion to compel. In its court filing, the Government represented that “an outside party demonstrated to the FBI a possible method for unlocking Farook’s iPhone. Testing is required to determine whether it is a viable method that will not compromise data on Farook’s iPhone. If the method is viable, it should eliminate the need for
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the assistance from Apple … set forth in the All Writs Act Order in this case.” All Writs Act Proceeding, Dkt. No. 191 at 3. On March 28, 2016, the Government confirmed it was able to access Farook’s iPhone data, and the original Order directing Apple to assist the FBI was vacated the next day. All Writs Act Proceeding at Dkt. Nos. 209, 210. The Government has not identified or provided any detailed information about this third party, which presumably still possesses the technology to exploit a major iPhone security vulnerability, and which was presumably approved as an appropriate vendor for the receipt of Government funds.
16. Not long after the FBI gained access to the iPhone, federal law enforcement officials confirmed that the data contained within Mr. Farook’s iPhone revealed no links to foreign terrorist organizations. It appears that the access tool in this case is no longer in active use, and the FBI has already obtained whatever data it originally sought.
B. Subsequent Official Disclosures 17. While the Government’s statements in the All Writs Act Proceeding regarding the
method used to unlock Mr. Farook’s phone were somewhat cryptic, the FBI’s director soon began publicly confirming significant details about the technological tool it had obtained, commenting on, among other matters, the financial cost of the tool and the structure of the specific deal the FBI entered into with the vendor to obtain it. Mr. Comey similarly suggested publicly that the tool was not then being used in any other investigations, and that a chief reason why the FBI did not want to disclose more information was to ensure that it would be able to drive a good bargain in potential future technology purchasing negotiations. Mr. Comey has not explained how the FBI vetted the vendor from which it purchased the tool, why the FBI regards the vendor as an appropriate one, or whether that vendor can itself resell the technology to foreign governments, or terrorist or criminal organizations.
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18. On April 21, 2016, Mr. Comey was asked about the cost of the tool by Brooke
Masters of the Financial Times. Mr. Comey responded, “A lot… More than I will make in the
remainder of this job, which is seven years and four months, for sure.” Mr. Comey continued
that this payment was, “in my view, worth it, because it’s a tool that helps us with a 5C running
iOS9.” This statement set off a flurry of news reports, which estimated, based on Mr. Comey’s
publicly-available salary data, a sales price between $1 million and $1.3 million.7
19. At a briefing with reporters on May 11, 2016, Mr. Comey revealed other key
details of the agreement to obtain the tool:8
a. Cost: In response to a question about the cost of the tool, Mr. Comey responded: “I probably shouldn’t have been cute trying to estimate for you how much it costs. It costs a lot of money. . . . In my view it was well worth it.”
b. Lack of Use in Other Cases: In response to a question of whether the tool had been used in other cases, Mr. Comey responded: “I don’t think we have yet. We’re trying to figure out a mechanism where we can use the tool to help in other investigations. Again, it’s a narrow thing which is a 5C operating at on an iOS 9 system. We’re trying to figure out how we can help state and local law enforcement, if they have a court order. How we can do that and still maintain the viability of the tool. That work is underway right now. I expect in the near future we’ll have figured out how we’re going to do it. Then we’ll tell law enforcement, ‘If you send us a phone here are the rules.’ Look, I want to make sure that if there are ways to use it in appropriate cases we do, but I don’t think we’ve used it yet.”
c. Structure of the Purchasing Agreement: In response to a question about whether the FBI was avoiding an internal government process (called “VEP”)
7 See, e.g., Joshua Kopstein, FBI Director: We Paid More Than $1.2 Million for San Bernardino iPhone Hack, Vice Motherboard (Apr. 21, 2016), available at http://motherboard.vice.com/read/fbi-director-we-paid-more-than-1-2-million-for-sanbernardino-iphone-hack; FBI head suggests agency paid more than $1M to access iPhone, The Associated Press (Apr. 21, 2016), available at http://bigstory.ap.org/article/3540c3cb330e4c50a8c4c7f841d383b4/fbi-head-suggests-agencypaid-more-1m-access-iphone. 8 See Director Comey Remarks During May 11 ‘Pen and Pad’ Briefing with Reporters, FBI Press Release, available at https://www.fbi.gov/news/pressrel/press-releases/director-comeyremarks-during-may-11-2018pen-and-pad2019-briefing-with-reporters.
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for vetting whether security vulnerabilities discovered by government agencies should be disclosed to companies for public security reasons by purchasing only a tool, as opposed to the details of the security vulnerability information itself, Mr. Comey responded: “Sometimes you can buy the guts of the tool, right? The software behind it, the code behind it. There’s a difference between those two things. Our goal, I know you’ve all heard me say this many times, the goal in San Bernardino was to investigate the case and get into that phone. We bought what was necessary to get into that phone. We tried not to spend more money than we needed to spend, but we spent the money we needed to to get into that phone. We did not in any form or fashion, structure the transaction of the thing with an eye towards avoiding the VEP. I would be shocked if anybody even thought about the VEP or the VEP at the time this was going on. We bought what we needed to buy, to get into the phone.”
d. Reason for Not Specifying Amount Paid: In response to a question about why Mr. Comey would not be more precise about the cost of the tool, Mr. Comey responded: “A variety of reasons that I don’t want to get into. I’m not comfortable giving you the precise number.” Comey later added that “I don’t want to waste your tax payers money,” presumably by revealing a price point for future negotiations with other companies.
e. Complete Absence of Target Investigations That Would Use Technology: In response to a question about how widely the tool could be used on other types of phones, Mr. Comey responded: “My recollection is we’re highly confident that it works only on a 5C, running on iOS9.” When asked whether any of the roughly 500 additional phones the FBI has identified as important to other investigations but which are currently locked and inaccessible are iPhone 5Cs running iOS9, Mr. Comey responded: “I think, and you can get the answer on this, I think the answer is none. I don’t think any in that set … I think that’s right.”
C. The USA TODAY Request
20. On March 29, 2016, the day after the All Writs Act Order was vacated, USA
TODAY reporter Brad Heath filed a FOIA request (the “USA TODAY Request”) with the FBI
seeking “[c]omplete copies of any records memorializing agreements or expenditures to the
‘outside party’ that assisted the FBI in unlocking Syed Rizwan Farook’s iPhone.” The USA
TODAY Request sought only the agreements or expenditure records themselves, not the actual
content of the purchased technology.
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21. On June 6, 2016, the FBI denied the USA TODAY Request. The FBI stated that it had located responsive records, but that it would withhold those records from disclosure. Specifically, the FBI cited FOIA Exemption 7(A), 5 U.S.C. § 552(b)(7)(A), which permits agencies to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information … could reasonably be expected to interfere with enforcement proceedings.” Rather than explain the basis of its decision to invoke this exemption, the FBI instead merely reiterated the statutory standards by way of analysis: “The 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.”
22. On June 20, 2016, USA TODAY timely appealed the denial, arguing that the FBI had applied Exemption 7(A) in violation of the law.
23. On September 2, 2016, the FBI, through the Department of Justice Office of Information Policy, summarily denied the appeal citing Exemption 7(A).
D. The AP Request 24. On April 21, 2016, AP reporter Eric Tucker filed a FOIA request (the “AP
Request”) with the FBI for records functionally identical to those requested by USA TODAY. The AP Request sought: (i) “Any FBI contract, request for proposal, written arrangement or business transaction, signed between the dates of March 20, 2016 and March 22, 2016, for technology used to unlock the iPhone 5C used by Syed Rizwan Farook”; and (ii) “Alternatively, any record of payment, receipt, etc., that the FBI or U.S. government or any entity acting on its behalf made for [the] technique.” As with the USA TODAY Request, the AP Request sought
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only the financial agreements underlying the business transaction to obtain the technology, not the details of the technology itself.
25. On May 11, 2016, the FBI denied the AP Request. The FBI stated that it had located responsive records, but that it would withhold those records from disclosure. Specifically, the FBI cited Exemption 7(A). Rather than explain the basis of its decision to invoke this exemption, the FBI instead merely reiterated the statutory standards by way of analysis: “The 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.”
26. On June 1, 2016, the AP timely appealed the denial, arguing that the FBI had applied Exemption 7(A) in violation of the law.
27. On June 6, 2016, the FBI, through the Department of Justice Office of Information Policy, summarily denied the appeal citing Exemption 7(A).
E. The Vice Request 28. On April 21, 2016, Vice reporter Jason Leopold filed a FOIA request (the “Vice
Request”) with the FBI for “A copy of financial documents, including approval forms, decision analysis memorandum, authorization documents, copies of any and all electronic check transfers, associated with the payment made by the FBI for technical assistance in accessing an iPhone that was allegedly owned by one of the suspects in the San Bernardino shooting last year.”9
9 For the purposes of this litigation, Vice has limited the scope of its Request to solely those records also responsive to the USA TODAY Request and the AP Request.
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29. On June 6, 2016, the FBI denied the Vice Request. Specifically, the FBI cited Exemption 7(A), stating that it could not turn over responsive records because they are located in an investigative file.
30. On June 13, 2016, Vice timely appealed the denial, arguing that the FBI had applied Exemption 7(A) in violation of the law.
31. On July 22, 2016, the FBI, through the Department of Justice Office of Information Policy, summarily denied the appeal citing Exemption 7(A).
FIRST CAUST OF ACTION (Violation of FOIA for failure to conduct a reasonable search) 32. The News Organizations repeat, reallege, and incorporate the allegations in the foregoing paragraphs as though fully set forth herein. 33. The FBI is an agency subject to FOIA, 5 U.S.C. § 552(f), and therefore had an obligation to conduct a search reasonably calculated to uncover all records responsive to the three Requests. 34. On information and belief, the FBI’s limited search of its records was legally inadequate, and as a result the FBI has manifestly failed to satisfy its obligations to diligently search for responsive records under FOIA, 5 U.S.C. § 552(a)(3).
SECOND CAUSE OF ACTION (Violation of FOIA for failure to make records available) 35. The News Organizations repeat, reallege, and incorporate the allegations in the foregoing paragraphs as though fully set forth herein. 36. The FBI is an agency subject to FOIA, 5 U.S.C. § 552(f), and therefore must disclose in response to a FOIA request all responsive records in its possession at the time of the
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Request that are not specifically exempt from disclosure under FOIA, and must provide a lawful reason for withholding any records as to which it is claiming an exemption.
37. The News Organizations have exhausted all administrative remedies, having filed administrative appeals that were denied. The News Organizations are therefore entitled to seek judicial review of those denials pursuant to 5 U.S.C. § 552(a)(4)(B).
38. There is no lawful basis under FOIA for the FBI’s denial of the three Requests that are the subject of this action, and its withholding of the responsive documents identified in connection with those Requests is unlawful in violation of FOIA.
39. Even if parts of the requested documents are properly subject to an exemption, the FBI has an obligation to redact non-exempt portions of the documents and release those portions that are non-exempt under FOIA.
40. Accordingly, the News Organizations are entitled to an order compelling the FBI to produce the records sought by the Requests.
REQUEST FOR RELIEF WHEREFORE, the News Organizations respectfully request that this Court: a. Declare that the records sought by the three Requests, as more particularly described above, are public records pursuant to 5 U.S.C. § 552, and that the records must be disclosed; b. Order that the FBI conduct an adequate search for the requested records; c. Order the FBI to provide those records to the News Organizations, including electronic copies of records stored in electronic format, within 20 business days of the Court’s order;
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d. Award to the News Organizations the costs of this proceeding, including

reasonable attorney’s fees, as authorized by FOIA; and

e. Grant to the News Organizations such other and further relief as this Court deems

just and proper.

Dated: September 16, 2016 Washington, D.C.

Respectfully submitted, LEVINE SULLIVAN KOCH & SCHULZ, LLP

Of Counsel:
Karen Kaiser Brian Barrett The Associated Press 450 West 33rd Street New York, NY 10001 Telephone: (212) 621-7547 Fax: (212) 506-6131 E-mail: kkaiser@ap.org E-mail: bbarrett@ap.org
Barbara Wall Thomas Curley Gannett Co., Inc. 7950 Jones Branch Drive McLean, VA 22107 Telephone: (703) 854-6417 Fax: (703) 854-2031 E-mail: bwall@gannett.com E-mail: tcurley@gannett.com

By: /s/ Jay Ward Brown Jay Ward Brown (D.C. Bar No. 437686) 1899 L Street, N.W., Suite 200 Washington, D.C. 20036 Telephone: (202) 508-1136 Fax: (202) 861-9888 E-mail: jbrown@lskslaw.com
Jeremy A. Kutner (Pro Hac Vice Application Pending) 321 West 44th Street, Suite 1000 New York, NY 10036 Telephone: (212) 850-6100 Fax: (212) 850-6299 E-mail: jkutner@lskslaw.com
Counsel for Plaintiffs The Associated Press, USA TODAY, and Vice Media LLC.

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ASSOCIATED PRESS, et al., Plaintiffs,
v. FEDERAL BUREAU OF INVESTIGATION,
Defendant.

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Civil Action No. 16-cv-1850 (TSC)

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MEMORANDUM OPINION Before the court are cross motions for summary judgment in this case brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. In 2016, Plaintiffs Associated Press, Gannett Satellite Information Network d/b/a USA Today, and Vice Media, LLC (“Plaintiffs”), each filed FOIA requests to the Federal Bureau of Investigation (“FBI”) for records relating to an agreement with a technology vendor who assisted the FBI in unlocking the iPhone of a suspected terrorist. As part of the parties’ joint agreement in this litigation, the FBI has produced 100 of 123 responsive pages in full or in part, with certain material withheld pursuant to FOIA Exemptions 1, 3, 4, 6, 7(C), and 7(E). Plaintiffs have narrowed their FOIA request on summary judgment to two specific pieces of information—the identity of the vendor, and the price paid to the vendor—such that only Exemptions 1, 3, 4, and 7(E) remain disputed. The FBI claims that Exemptions 1, 3, and 7(E) apply independently to the identity of the vendor and the purchase price, and that Exemption 4 also applies independently to the purchase price.

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Plaintiffs have also moved to supplement the record with then-FBI Director James Comey’s May 3, 2017, Senate testimony. The court will GRANT Plaintiffs’ motion to supplement the record and consider the testimony as part of Plaintiffs’ brief.
Upon consideration of the parties’ filings, the court concludes that Exemptions 1, 3, and 7(E) independently apply to the requested information, and that Exemption 4 does not. Accordingly, as set forth below, the FBI’s motion for summary judgment is GRANTED, and Plaintiffs’ cross-motion for summary judgment is DENIED. I. BACKGROUND
In December 2015, Syed Rizwan Farook and Tashfeen Malik killed fourteen people and injured twenty-two others in an attack on the Inland Regional Center in San Bernardino, California. See Government’s Motion to Compel Apple Inc. to Comply, No. 5:16-cm-10-SP (C.D. Cal.) at 1 ECF No. 1. The FBI led the federal investigation into the attack, and during the course of that investigation, discovered an employer-owned iPhone issued to Farook that was password-protected. See id. at 1, 5. The phone was equipped with an auto-erase function that would result in the permanent destruction of the information in the phone after 10 failed attempts at entering the passcode. Id. at 5. Thus, the FBI was unable to access the phone without risking the loss of its contents. Id. at 10-11. After initially commencing legal action against the phone’s manufacturer, Apple, to compel its assistance in accessing the phone, id. at 6, the FBI moved to stay the proceedings in March 2016 when an “outside party demonstrated to the FBI a possible method for unlocking Farook’s iPhone.” Government’s Ex Parte Application for a Continuance, No. 5:16-cm-10 (C.D. Cal.) at 3 ECF No. 191.
Rather than allow competitive bidding, the FBI sought a waiver to solicit a single source for the contract to unlock the phone. (Declaration of Jay Ward Brown (“Brown Decl.”) Ex. J, at
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AP-19–AP-23). None of the vendors who inquired with the agency about unlocking the phone had demonstrated that they could produce a solution quickly enough to meet the FBI’s investigative requirements, and in fact, none of them had begun to develop or test a solution at the time of the inquiries. (Id. at AP-22). At the end of March 2016, the FBI reported that it had “successfully accessed the data stored on Farook’s iPhone and therefore no longer require[d] the assistance from Apple Inc.” Government’s Status Report, No. 5:16-cm-10 (C.D. Cal.) at 1 ECF No. 209.
Following this revelation, then-FBI Director James Comey gave interviews to reporters on April 21, 2016, and May 11, 2016, during which he confirmed several details regarding the tool and its purchase. (Brown Decl. Ex. G; Ex. H; Ex. I). This information included details about its cost, which Comey believed “for sure” exceeded the salary he was due at the time for the remainder of his seven-year, four-month tenure, about $1.2 million. (Brown Decl. Ex. G). He also stated that the tool was narrowly tailored to only work on an iPhone 5C operating on iOS 9, and the FBI had not identified any other phones on which the tool could be used. (Brown Decl. Ex. I at 3, 16). Moreover, he noted that the urgency of the FBI’s investigation necessitated the FBI’s purchase of the tool and the agency spent what it needed to in order to acquire it. (Id. at 5).
Each Plaintiff filed a separate FOIA request with the FBI between March and April of 2016. (See Declaration of David M. Hardy (“First Hardy Decl.”) Ex. A; Ex. I; Ex. M). They sought records concerning the FBI’s financial agreements with the vendor the agency employed to unlock the iPhone. (See id.) The FBI initially denied each request on the basis of FOIA Exemption 7(A), which permits agencies to withhold records or information compiled for law enforcement purposes to the extent that the production of such records could reasonably be
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expected to interfere with law enforcement proceedings. (First Hardy Decl. Ex. C; Ex. J; Ex. N). Each Plaintiff appealed administratively as provided under FOIA, and the Department of Justice Office of Information Policy affirmed the FBI’s denial of the requests for the records in each case. (First Hardy Decl. Ex. D; Ex. H; Ex. K; Ex. L; Ex. O; Ex. Q).
Plaintiffs then filed this action in September 2016. (ECF No. 1). On January 6, 2017, the FBI produced 100 of 123 responsive pages in full or in part, with certain information withheld or redacted pursuant to FOIA Exemptions 1, 3, 4, 6, 7(C), and 7(E). (First Hardy Decl. ¶ 25; Ex. R; Brown Decl. Ex. J). The FBI then moved for summary judgment (ECF No. 14), and Plaintiffs filed their cross-motion for summary judgment, narrowing their outstanding FOIA request to two pieces of information: (1) the identity of the vendor, and (2) the amount paid to the vendor for the tool in question. (See Pls. Mem at 9, ECF Nos. 15, 16). As a result of this revised request, the remaining issues on summary judgment are whether the FBI properly applied Exemptions 1, 3, and 7(E) to the identity of the vendor, and whether it properly applied Exemptions 1, 3, 4, and 7(E) to the purchase price. II. PLAINTIFFS’ MOTION TO SUPPLEMENT THE RECORD
On May 3, 2017, Director Comey testified before the Senate Judiciary Committee. (See Supplemental Declaration of Jay Ward Brown “Supp. Brown Decl.” Ex. A). During questioning, Senator Dianne Feinstein mentioned the FBI’s hacking of Farook’s iPhone, as excerpted below from the hearing transcript:
FEINSTEIN: Well I – I was so struck when San Bernardino happened and you made overtures to allow that device to be opened, and then the FBI had to spend $900,000 to hack it open. And as I subsequently learned of some of the reason for it, there were good reasons to get into that device. And the concern I have is that once people had been killed in a terrorist attack and that there may be other DNA, there may be other messages that lead an investigative agency
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to believe that there are others out there, isn't to the – for the protection of the public that one would want to be able to see if a device could be opened. And I’ve had a very hard time – I’ve tried – I’ve gone out, I tried to talk to the tech companies that are in my state. One – Facebook was very good and understood the problem. But most do not have. Has the FBI ever talked with the tech companies about this need in particular? COMEY: Yes, senator. We’ve had a lot of conversations, and as I said earlier, they’re – in my sense, they've been getting more productive because I think the tech companies have come to see the darkness a little bit more. My – my concern was privacy’s really important but that they didn't see the public safety costs. I think they’re starting to see that better and what – what nobody wants to have happen is something terrible happen in the United States and it be connected to our inability to access information with lawful authority. That we ought to have the conversations before that happens and the companies more and more get that. I think over the last year and half, and – but it’s vital, we weren't picking on Apple in the San Bernardino case. (Id at 4). On May 12, 2017, Plaintiffs moved to supplement the record on summary judgment with this testimony, citing it as “further evidence in support of [their] arguments on pages 15, 20, 26, and 29” of their memorandum in support of their cross-motion. (ECF No. 20 at 2). Regarding Exemption 1, Plaintiffs note that then-Director Comey has already spoken publicly about the price (namely that it was very high), and thus disclosing the price information would not jeopardize national security interests. (See Pls. Mem. at 15). Regarding Exemption 3, Plaintiffs claim the FBI’s argument that releasing the specific purchase price would aid those seeking to thwart the FBI’s tool is belied by the fact that the information that could provide such aid—that the purchase price was very high—is already publicly available. (See id. at 20). Regarding Exemption 4, Plaintiffs emphasize that the tool’s vendor would not suffer competitive harm from disclosure of the purchase price because Comey already released the general pricerelated information, and potential competitors have a ballpark figure from which to underbid. (See id. at 26). Regarding Exemption 7(E), Plaintiffs argue that releasing the purchase price will
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not risk circumvention of the law because the FBI took that risk when Director Comey revealed that the purchase price was substantial. (See id. at 29).
The court will GRANT Plaintiffs’ motion to supplement the record with the Senate Judiciary Committee hearing transcript, and will consider it part of Plaintiffs’ brief in the sections detailed above. III. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the record shows there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). A fact is material if “a dispute over it might affect the outcome of a suit under governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). An issue is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. (quoting Anderson, 477 U.S. at 248). The party seeking summary judgment “bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified.” Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987).
FOIA cases are typically and appropriately decided on motions for summary judgment. Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Agencies bear the burden of justifying withholding of any records, as FOIA favors a “strong presumption in favor
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of disclosure.” Dep’t of State v. Ray, 502 U.S. 164, 173 (1991). The court therefore analyzes all underlying facts and inferences in the light most favorable to the FOIA requester, even where the requester has moved for summary judgment. See Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904–05 (D.C. Cir. 1999).
In cases where the applicability of certain FOIA exemptions is at issue, agencies may rely on supporting declarations that are reasonably detailed and non-conclusory. See, e.g., ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011); Students Against Genocide v. Dep’t of State, 257 F.3d 828, 838 (D.C. Cir. 2001). “If an agency’s affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency’s bad faith, then summary judgment is warranted on the basis of the affidavit alone.” ACLU, 628 F.3d at 619. “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Id. (internal quotation marks omitted) (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). However, a motion for summary judgment should be granted in favor of the FOIA requester where “an agency seeks to protect material which, even on the agency’s version of the facts, falls outside the proffered exemption.” Coldiron v. U.S. Dep’t of Justice, 310 F. Supp. 2d 44, 48 (D.D.C. 2004) (quoting Petroleum Info. Corp. v. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992)). IV. DISCUSSION
The defendant in a FOIA case must show that its search for responsive records was adequate, that any claimed exemptions are valid, and that any reasonably segregable non-exempt
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portions of records have been disclosed after redaction of exempt information. Light v. Dep’t of Justice, 968 F. Supp. 2d 11, 23 (D.D.C. 2013).
Here, Plaintiffs have conceded that the FBI’s search for responsive records was adequate, and do not challenge the FBI’s segregability determination. They do, however, contest the FBI’s claimed exemptions for the tool vendor’s identity and the tool’s purchase price. The FBI asserts that such information is properly and independently protected under FOIA Exemptions 1, 3, and 7(E), and that the purchase price is also independently protected under FOIA Exemption 4. (Def. Opp. at 1). For the reasons set forth below, the court finds that Exemptions 1, 3, and 7(E) apply to both the vendor’s identity and the purchase price, and Exemption 4 does not apply to the purchase price. Although invocation of a single valid exemption is sufficient to permit the withholding of the information requested and support a grant of summary judgment to the FBI, the court will nevertheless analyze the application of each exemption.
A. FOIA Exemption 1 1. Applicable Legal Standard
FOIA Exemption 1 protects from disclosure records that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). Executive Order 13,526 currently governs the classification of national security information, and requires that:
(1) an original classification authority is classifying the information; (2) the information is owned by, produced by or for, or is under the control of the United
States Government; (3) the information falls within one or more of the categories of information listed in
section 1.4 of this order; and
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(4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.
Classified National Security Information, EO 13,526 § 1.1(a); 75 Fed. Reg. 707 (2009). Plaintiffs do not dispute that the FBI has met the first and second requirements, (see Pls. Mem. at 12-18), as the Hardy Declaration demonstrates that Hardy is an original classification authority and that the withheld information is under the control of the United States Government. (First Hardy Decl. ¶ 2, 33). The FBI asserts that the third requirement is satisfied because the identity of the vendor and the cost of the tool relate to intelligence activities or intelligence sources or methods under Section 1.4(c) of the Executive Order. (First Hardy Decl. ¶ 33) (citing Exec. Order No. 13,526 § 1.4(c); 75 Fed. Reg. at 708). Plaintiffs do not appear to challenge this assertion. (See Pls. Mem. at 12-18; Pls. Reply at 2-5, 7-11).
The parties’ dispute involves the fourth requirement, which permits withholding if the information requested could reasonably be expected to cause an identifiable and describable degree of harm to national security if released. Judicial Watch, Inc. v. Dep’t of Def., 715 F.3d 937, 941 (D.C. Cir. 2013). The court owes “substantial weight” to detailed agency explanations in the national security context; its role is to ensure that the government’s rationale is logical or plausible. Id. at 941, 943; see also Judicial Watch, Inc. v. Dep’t of Commerce, 337 F. Supp. 2d 146, 162 (D.D.C. 2004) (“In light of courts’ presumed lack of expertise in the area of national security, a reviewing court is prohibited from conducting a detailed analysis of the agency’s invocation of Exemption 1.” (citing Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980))). Further, “the text of Exemption 1 suggests that little proof or explanation is required beyond a plausible assertion that information is properly classified.” Morley v. CIA, 508 F.3d 1108, 1124 (D.C. Cir. 2007). However, conclusory affidavits that merely recite statutory standards, or that
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are overly vague or sweeping, will not suffice to carry the government’s burden. Larson, 585 F.3d at 864.
2. Whether the FBI Properly Invoked Exemption 1 with Respect to the Vendor’s Identity
The FBI argues that releasing the vendor’s identity could allow adversaries to use existing public technology created by the vendor to probe for weaknesses and create better encryption technology to thwart the FBI’s ability to use the tool. (Second Declaration of David M. Hardy (“Second Hardy Decl.”) ¶ 8-9). The agency argues that because software companies “update and modernize their old operating systems rather than create a completely new product,” there are programming styles and strategies unique to most companies, likely including the vendor at issue. (Id. ¶ 8). Thus, if the vendor’s identity were made public, a review of the company’s work could lead antagonists to “develop exploits for the vendor’s unique product.” (Id.) Additionally, the FBI notes that because the vendor’s networks are not as sophisticated as the FBI’s cyber-security facilities, releasing the name of the vendor could subject the vendor to attacks by entities who wish to exploit the technology. (Id. ¶ 9). Since the vendor is not as well equipped to guard against these types of attacks as is the FBI, revealing the vendor’s identity “risks disclosure, exploitation, and circumvention of a classified intelligence source and method.” (Id.) Disclosure of the vendor’s identity could thus “reasonably be expected to cause serious damage to national security, as it would allow hostile entities to discover the current intelligence gathering methods used, as well as the capabilities and limitations of those methods.” (First Hardy Decl. ¶ 36).
This line of reasoning logically and plausibly demonstrates how the FBI could reasonably expect the release of the vendor’s identity to cause identifiable harm to national security. If an adversary were determined to learn more information about the iPhone hacking tool the FBI
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acquired, it is certainly logical that the release of the name of the company that created the tool could provide insight into the tool’s technological design. Adversaries could use this information to enhance their own encryption technologies to better guard against this tool or tools the vendor develops for the FBI in the future. Plaintiffs assert that it is unlikely that a public body of work which an adversary could use even exists, (Pls. Reply at 3), given that the vendor is likely sophisticated enough to avoid risking the usefulness of its technology by making such work available, but it is plausible that useful information about a software company’s technological design could be gleaned from its other publicly available products.
Moreover, it is logical and plausible that the vendor may be less capable than the FBI of protecting its proprietary information in the face of a cyber-attack. The FBI’s conclusion that releasing the name of the vendor to the general public could put the vendor’s systems, and thereby crucial information about the technology, at risk of incursion is a reasonable one. Plaintiffs here assume that this is not a legitimate threat, and that if the tool were so critically important to national security, the FBI would not have left it in the hands of a “poorly guarded vendor.” (Pls. Reply at 4 n.1). But the vendor may continue to possess the tool for any number of reasons related to national security interests, and even if the possibility of an attack on the vendor’s systems is remote, the FBI has still demonstrated a logically reasonable risk of harm to national security in this respect.
The court therefore finds that the FBI has shown that the release of the vendor’s identity could be reasonably expected to cause harm to national security interests by limiting the FBI’s present and future ability to gain access to suspected terrorists’ phones. Although as of May 2016 the FBI had not yet identified other phones with which the tool could be utilized, (Brown Decl. Ex. I at 3), any affidavit describing a potential threat to national security “will always be
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speculative to some extent.” ACLU, 628 F.3d at 619. There is no evidence to suggest that the tool will not be valuable in the future, and the FBI has met its burden of providing a detailed, non-conclusory affidavit sufficient to invoke Exemption 1 as applied to the vendor’s identity.
Plaintiffs argue that Director Comey’s public comments about the tool’s efficacy negate the risk that an adversary will attempt to learn more about it, since the route to developing a countermeasure seems fairly straightforward. (Pls. Mem. at 15-16). After Director Comey emphasized that he was “highly confident” that the tool only works on iPhone 5Cs running iOS9 (Brown Decl. Ex. I at 16), any organization intending to prevent the FBI from using the tool to hack its members’ phones could therefore use a different phone or a different operating system. However, this overlooks the tool’s potentially valuable technical capabilities. The FBI may find a way to enhance the tool’s capabilities, choose to continue using advanced versions of similar technology in the future, or re-employ the vendor to develop another similar product. It is certainly plausible that disclosure of the vendor’s name could hurt the FBI’s future efforts to protect national security, despite opportunities to circumvent the tool that may arise from Comey’s comments. The FBI therefore properly invoked Exemption 1 with respect to the vendor’s identity.
3. Whether the FBI Properly Invoked Exemption 1 with Respect to the Purchase Price
The FBI argues that revealing the price paid for the tool would allow adversaries to determine its usefulness and assess its nature, and would reveal where the FBI concentrates its resources in national security investigations. (Second Hardy Decl. ¶ 16-18). Releasing the purchase price would designate a finite value for the technology and help adversaries determine whether the FBI can broadly utilize the technology to access their encrypted devices. (Id. ¶ 16). Since release of this information might “reduce the effectiveness of a critical classified source
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and method,” it is reasonable to expect that disclosure could endanger national security. (Id. ¶ 19).
The court finds that the Second Hardy Declaration logically and plausibly sets forth how the release of the purchase price could cause a reasonably expected risk of harm to national security. “Minor details of intelligence information,” like the price paid for the iPhone hacking tool, “may reveal more information than their apparent insignificance suggests because, much like a piece of jigsaw puzzle, each detail may aid in piecing together other bits of information.” Leopold v. CIA, 106 F. Supp. 3d 51, 59 (D.D.C. 2015) (quoting Larson, 565 F.3d at 864) (internal quotation marks omitted). The price the FBI paid for the tool could logically reveal how much the FBI values gaining access to suspects’ phones, and the breadth of the tool’s capabilities. Accordingly, the FBI has met its burden of providing a detailed, non-conclusory affidavit sufficient to invoke Exemption 1 with respect to the purchase price.
Plaintiffs argue that Director Comey’s public comments about the purchase price negate the possibility of any further harm to national security. (Pls. Mem. at 15). Because he has already disclosed the “only possible useful bit of information about the tool’s price, namely, that it was very high,” they argue that there is no justification for withholding the exact price. (Id.) They further note that the agency’s national security priorities have already been made clear by virtue of Comey’s statement that the government will pay “what is necessary,” (Brown Decl. Ex. I at 5), to access suspected terrorists’ phones. (Pls. Reply at 10). However, Plaintiffs fail to address this Circuit’s test for when an agency’s official disclosure may compel release of otherwise valid exemption claims. Although it is true that “when information has been officially acknowledged, its disclosure may be compelled even over an agency’s otherwise valid
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exemption claim” Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990), the claim must meet the following “strict test”:
To be officially disclosed: (1) the information requested must be as specific as the information previously released; (2) the information requested must match the information previously disclosed; and (3) the information requested must already have been made public through an official and documented disclosure. Thus, a plaintiff asserting a claim of prior disclosure must bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld. Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011) (internal citations omitted). Since this court has found that the FBI’s invocation of Exemption 1 with respect to the purchase price is valid, Director Comey’s public comments must meet the requirements set forth in Moore in order to compel disclosure of the purchase price. The comments fail the first requirement—Comey provided only a general estimate, rather than the specific price paid for the tool. He admitted himself that in making that estimate, he was “just winging that.” (Brown Decl. Ex. I at 2). Plaintiffs’ supplemental evidence fares no better. (See Supp. Brown Decl. Ex. A at 2). Even if Senator Feinstein was correct that the FBI paid $900,000 for the tool, Director Comey did not acknowledge or verify Sen. Feinstein’s comment, and Comey’s testimony therefore fails the third element of the test, since the information was not made public through an agency’s official disclosure. Plaintiffs also insist that the FBI seeks to prevent disclosure of the purchase price in order to prevent embarrassment and restrain competition, not to protect national security, in violation of section 1.7(a) of Executive Order 13,526; 75 Fed. Reg. at 710. Plaintiffs’ allegation is based on Comey’s comment that he would not disclose the exact purchase price, stating “I don’t want to waste your tax payers [sic] money.” (Brown Decl. Ex. I at 11). However, Plaintiffs ignore the context in which this statement was made. It appears Comey was attempting to explain that he did not want to reveal the purchase price because he did not wish to hurt the FBI’s negotiating
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position the next time a similar tool was purchased, thus potentially saving public funds. (See Brown Decl. Ex. I at 10-11). This comment does not reveal any desire to prevent embarrassment to the FBI, and Plaintiffs provide no evidence for their conclusory statement that withholding the purchase price will “artificially alter[] the competitive landscape for technology contracting.” (Pls. Mem. at 15). This single statement from the former FBI Director is an insufficient basis for this court to determine that the FBI’s motive for withholding the purchase price is improper. Plaintiffs must provide something more than conjecture to show that the agency’s withholding decision violates Executive Order 13,526. See Canning v. Dep’t of Justice, 848 F. Supp. 1037, 1048 (D.D.C. 1994). They have failed to do so.
Despite Comey’s assertions about the price the FBI paid for the tool, his statements do not amount to an official disclosure that compels the release of the information over the agency’s valid exemption claim, and there is no evidence that the FBI has an improper motive in invoking the exemption. The agency has provided a logical and plausible affidavit that adequately demonstrates how the release of the purchase price could cause a reasonably expected risk of harm to national security, and thus they have properly invoked Exemption 1 with respect to the purchase price.
B. FOIA Exemption 3 1. Applicable Legal Standard
FOIA Exemption 3 protects from disclosure information that has been specifically exempted by statute, if that statute “(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3)(A). Courts apply a two-pronged inquiry when evaluating Exemption 3 invocations, first determining
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whether the statute is an exempting statute, and then evaluating whether the requested material falls within the scope of that statute. CIA v. Sims, 471 U.S. 159, 167 (1985). Here, the FBI relies on section 102A(i)(1) of the National Security Act of 1947 (the “Act”), which protects intelligence sources and methods from unauthorized disclosure. 50 U.S.C. § 3024(i)(1). Plaintiffs do not dispute that the Act qualifies as an exempting statute for the purpose of Exemption 3. (Pls. Mem. at 18); ACLU, 628 F.3d at 619. Accordingly, the issue here is whether the withheld information protects intelligence sources and methods.
This Circuit has interpreted the Act “broadly,” holding that material is exempt if it relates to intelligence sources and methods, or can reasonably be expected to lead to the unauthorized disclosure of intelligence sources and methods. Leopold, 106 F. Supp. 3d at 57 (citing Larson, 565 F.3d at 865; Halperin, 629 F.2d at 147). The exemption includes the “power to withhold superficially innocuous information on the ground that it might enable an observer to discover the identity of an intelligence source or method.” Id. (quoting Sims, 471 U.S. at 178). The Act presents an easier hurdle for the agency under Exemption 3 than does Executive Order 13,526 under Exemption 1, in that it does not require the FBI to determine that release of the information could reasonably be expected to result in damage to national security. See 50 U.S.C. § 3024(i)(1).1
1 Plaintiffs’ challenge of the FBI’s invocation of Exemption 3 is inconsistent with their challenge of Exemption 1. They do not appear to contest that the information they seek pertains to intelligence sources or methods under Section 1.4(c) of Executive Order 13,526, (see Pls. Mem. at 12-18; Pls. Reply at 2-5, 7-11), but they later contend that it does not “actually relate” to intelligence sources or methods under the Act. (Pls. Mem. at 19) (citing Larson, 565 F.3d at 865). These two positions do not appear reconcilable.
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2. Whether the FBI Properly Invoked Exemption 3 with Respect to the Vendor’s Identity
The FBI considers the iPhone hacking tool itself to be an intelligence source and method, (Second Hardy Decl. ¶ 8), and the court agrees. The tool allows the FBI to access intelligence information on suspects’ phones, therefore logically serving as both a source of intelligence information and method for obtaining intelligence information. The FBI argues that release of the vendor’s identity relates to an intelligence source and method because it could lead to information about the tool, in the same manner as discussed under Exemption 1. (Id. ¶ 8-9). For the reasons set forth in Section III.A.2, supra, the court finds that this is an adequate justification for withholding the vendor’s identity pursuant to Exemption 3.
Plaintiffs argue that the FBI’s position is undercut because it did not claim that the vendor’s identity was an intelligence source. (Pls. Mem. at 20). But this fact is irrelevant under the legal standard, as Plaintiffs acknowledge—the information requested must only relate to intelligence sources or methods. Larson, 565 F.3d at 865. Plaintiffs also claim that the FBI’s assertion that releasing the vendor’s identity could allow an adversary to learn more about the tool’s capabilities is speculative, arguing that the FBI “has identified no rational reason why knowing the vendor’s identity is linked in any way to the substance of the tool, much less how such knowledge would reveal any information about the tool’s application[.]” (Pls. Mem. at 20). However, as the court previously noted, any affidavit that describes a threatened harm to national security “will always be speculative to some extent,” ACLU, 628 F.3d at 619, and the FBI has shown how the vendor’s identity logically relates to an intelligence source and method. Accordingly, the FBI properly invoked Exemption 3 with respect to the vendor’s identity.
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3. Whether the FBI Properly Invoked Exemption 3 with Respect to the Purchase Price
The FBI argues that information regarding the purchase price relates to an intelligence source and method because it could lead to information about the iPhone hacking tool, in the same manner as discussed under Exemption 1. (Second Hardy Decl. ¶ 16-18). For the reasons set forth in Section III.A.3, supra, the court finds that this is an adequate justification for withholding the purchase price pursuant to Exemption 3.
Plaintiffs’ argument again centers on Director Comey’s public statements about the tool’s purchase price, asserting that all relevant information about the price has already been released. (Pls. Reply at 9-11). As the court previously discussed in Section III.A.3, supra, Comey’s comments did not constitute an official disclosure such that the release of the purchase price could be compelled over the FBI’s valid exemption claim. Accordingly, the FBI properly invoked Exemption 3 with respect to the tool’s purchase price.
C. FOIA Exemption 7(E) 1. Applicable Legal Standard
FOIA Exemption 7(E) protects from disclosure “records or information compiled for law enforcement purposes” when production of such records “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). To fall within Exemption 7, information must first meet a threshold requirement: that the records were compiled for law enforcement purposes. Pub. Emps. for Envtl. Responsibility (“PEER”) v. U.S. Section, Int’l Boundary & Water Comm’n, 740 F.3d 195, 202-03 (D.C. Cir. 2014). Here, this threshold is clearly met; Plaintiffs do not dispute that the FBI compiled the withheld information for law
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enforcement purposes, (Pls. Mem. at 28-31), and that the records related to the vendor were clearly compiled to further the law enforcement investigation into the San Bernardino terrorist attack.
Although courts are divided over whether the “risk circumvention of the law” requirement applies to techniques and procedures as well as guidelines, this Circuit has applied the requirement to records containing techniques and procedures as well as those containing guidelines. PEER, 740 F.3d at 204 n.4 (citing Blackwell v. FBI, 646 F.3d 37, 41-42 (D.C. Cir. 2011)). The FBI acknowledges this is the proper test here. (See Second Hardy Decl. ¶ 11). Still, Exemption 7(E) “sets a relatively low bar for the agency to justify withholding.” Blackwell, 646 F.3d at 41. As the court in Mayer Brown LLP v. IRS put it,
the exemption looks not just for circumvention of the law, but for a risk of circumvention; not just for an actual or certain risk of circumvention, but for an expected risk; not just for an undeniably or universally expected risk, but for a reasonably expected risk; and not just for certitude of a reasonably expected risk, but for the chance of a reasonably expected risk. 562 F.3d 1190, 1193 (D.C. Cir. 2009). The exemption does not require a specific showing of how the law will be circumvented, only that the agency demonstrate logically how the release of the requested information might create a risk of circumvention. Id. at 1194; see also Blackwell, 646 F.3d at 42.
2. Whether the FBI Properly Invoked Exemption 7(E) with Respect to the Vendor’s Identity
The FBI argues that, as a law enforcement agency, it could use the iPhone unlocking technology in future law enforcement activities, making the iPhone hacking tool itself a law enforcement technique. (Second Hardy Decl. ¶ 10). The court agrees. Although the vendor’s identity is itself not a law enforcement technique, the FBI contends that disclosing the vendor’s identity will allow hostile entities to discover how the iPhone hacking tool works and then use
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that information to circumvent the technology in the same manner this court found to be logical and plausible under Exemption 1 in Section III.A.2, supra. Bearing in mind that the FBI must only show that release of the information will create a “chance of a reasonably expected risk” of circumvention of the law, Mayer Brown, 562 F.3d at 1193, the agency has met its burden to show that it properly invoked Exemption 7(E).
Plaintiffs argue once again that there is no risk that revealing the vendor’s identity will cause circumvention of the law, because the tool can already be circumvented by using a phone that is not an iPhone 5C or any operating system other than iOS9. (Pls. Mem. at 31). This overlooks the tool’s potential value to the FBI in future iterations of the technology, and Plaintiffs themselves acknowledge that Exemption 7(E) presents a low bar for the agency. The FBI “has not publicly explained how the technology works,” (Second Hardy Decl. ¶ 11), and releasing the vendor’s identity could provide individuals with a recourse to discovering how to circumvent its use in the future. Accordingly, release of the vendor’s identity would risk disclosure of a law enforcement technique and create a reasonably expected risk of circumvention of the law. Therefore, the FBI properly invoked Exemption 7(E) with respect to the vendor’s identity.
3. Whether the FBI Properly Invoked Exemption 7(E) with Respect to the Purchase Price
The FBI argues that although the cost of a single contract is not a law enforcement technique or procedure, it must be considered in conjunction with the law enforcement technique to which it relates, namely, the iPhone hacking tool. (Id. ¶ 16). The FBI’s posits that if the total price paid for the iPhone hacking tool were revealed, adversaries would be able to assess the nature of the tool and determine its likely capabilities. (Id. ¶ 17). The agency further asserts that revealing specific financial allotments for technology acquisition will disclose where the FBI
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concentrates its resources for national security investigations, and that releasing non-public details like a purchase price could allow “potential targets to carefully put together building blocks of information that would result in the degradation of the effectiveness of [intelligence gathering] tools.” (Id. ¶ 18). This in turn could give rise to the development of countermeasures by hostile entities that could cause circumvention of the law. (Id.) The court finds this explanation to be logical and plausible, and it meets Exemption 7(E)’s low bar for records that would reveal law enforcement techniques and risk circumvention of the law.
Plaintiffs again argue that these risks have already been created by Comey’s public comments about the purchase price, and that because this “theory of harm is long since out of the barn,” release of the purchase price would not create a further risk of circumvention of the law. (Pls. Mem. at 30). However, as discussed in Section III.A.3, supra, Comey’s comments do not amount to an official disclosure that compels the release of requested information over the FBI’s valid exemption claim. Accordingly, the FBI properly invoked Exemption 7(E) with respect to the purchase price.
D. FOIA Exemption 4 1. Applicable Legal Standard
FOIA Exemption 4 protects “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). The purpose of this exemption is to “balance the strong public interest in favor of disclosure against the right of private businesses to protect sensitive information.” Nat’l Parks & Conservation Ass’n v. Morton (“Nat’l Parks I”), 498 F.2d 765, 768-69 (D.C. Cir. 1974).
In order to qualify for withholding under Exemption 4, information withheld must “(1) involve trade secrets or commercial or financial information; (2) be obtained from a person
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outside the government; and (3) be privileged or confidential.” Biles v. Dep’t of Health & Human Servs., 931 F. Supp. 2d 211, 219 (D.D.C. 2013) (citing Nat’l Parks I, 498 F.2d at 766); see also CREW v. U.S. Dep’t of Justice, 160 F. Supp. 3d 226, 237 (D.D.C. 2016) (citing Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983)). Plaintiffs do not dispute that the purchase price paid to the vendor qualifies as commercial or financial information, or that it was obtained from a person outside the government. The FBI does not assert that the purchase price is privileged, so the sole issue before the court here is whether the price is confidential.
The court must first decide whether the purchase price constitutes material that was submitted to the government voluntarily, or material that the government required to be submitted. Biles, 931 F. Supp. 2d at 219-20 (citing Critical Mass Energy Project v. NRC, 975 F.2d 871, 878-80 (D.C. Cir. 1992) (en banc)). Information that an entity is required to provide is less rigorously protected than information it voluntarily provides to the government. Id. at 219. The parties here agree that information submitted for a government contract is an involuntary submission. (Def. Mem. at 16; Pls. Mem. at 22); see McDonnell Douglas Corp. v. Dep’t of the Air Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004). When information is required to be submitted to the government, it is considered confidential under FOIA if “disclosure is likely ... (1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.” Nat’l Parks I, 498 F.2d at 770. The FBI argues that its invocation of Exemption 4 is appropriate under either prong.
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2. Whether Disclosure of the Purchase Price is Likely to Impair the FBI’s Ability to Obtain Necessary Information in the Future
The FBI contends that disclosing the purchase price may dissuade future contractors from working with the FBI, for fear that the FBI would publicize information about their own financial transactions. (First Hardy Decl. ¶ 46; Second Hardy Decl. ¶ 15). However, whether an entity will participate in a government program is not relevant in deciding whether the government will be impaired in its ability to obtain information in the future from those entities that do participate. “Where the government obtains information involuntarily, disclosure does not impair the government’s ability to obtain similar information in the future.” In Def. of Animals v. Dep’t of Agric., 656 F. Supp. 2d 68, 72 (D.D.C. 2009); see also Martin Marietta Corp. v. Dalton, 974 F. Supp. 37, 40 (D.D.C. 1997). Accordingly, the FBI’s invocation of Exemption 4 with respect to the purchase price was not appropriate under the first prong of National Parks I.
3. Whether Disclosure of the Purchase Price is Likely to Cause Substantial Harm to the Competitive Position of the Vendor
Under the competitive injury prong, the FBI must establish that the vendor (1) actually faces competition, and (2) substantial competitive injury would likely result from disclosure. Nat’l Parks and Conservation Ass’n v. Kleppe (Nat’l Parks II), 547 F.2d 673, 679 (D.C. Cir. 1976). The competitive injury must “be limited to harm flowing from the affirmative use of the proprietary information by competitors.” Pub. Citizen Health Res. Grp., 704 F.2d at 1291 n.30 (emphasis in original). However, a “sophisticated economic analysis of the likely effects of disclosure” is not required. Id. at 1291 (citing Nat’l Parks II, 547 F.2d at 681). The agency need not “prove that substantial harm is ‘certain’ to result from disclosure, but only that such harm is ‘likely.’” Boeing v. Dep’t of Air Force, 616 F. Supp. 2d 40, 45 (D.D.C. 2009) (citing McDonnell
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Douglas Corp., 375 F.3d at 1187). Further, the agency need only proffer evidence indicating the existence of potential competitive injury or economic harm. Essex Electro Eng’rs, Inc. v. Sec’y of Army, 686 F. Supp. 2d 91, 94 (D.D.C. 2010) (citing Gulf & W. Indus., Inc. v. United States, 615 F.2d 527, 530 (D.C. Cir. 1979)). Evidence of actual harm is not required. Id. However, the agency may not simply offer “conclusory and generalized allegations” of substantial competitive harm. Nat’l Parks II, 547 F.2d at 681. Instead, it must provide “specific factual or evidentiary material to support [its] claim that harm is likely to result.” Boeing, 616 F. Supp. 2d at 45 (citing Nat’l Parks II, 547 F.2d at 679).
a. Whether the Vendor Actually Faces Competition A sole source contract does not preclude a finding of actual competition. Gen. Elec. Co. v. Dep’t of the Air Force, 648 F. Supp. 2d 95, 103 (D.D.C. 2009). The agency need not provide evidence of actual competition for the particular contract, only evidence of actual competition for future contracts. Id. The FBI argues that because the vendor has proved that unlocking these devices is possible, it is reasonable to assume that the vendor’s success will create future competition. (Second Hardy Decl. ¶ 14). However, in General Electric, the company demonstrated actual competition—its competitors were actively producing the parts covered by the relevant government contracts. Here, the FBI has not shown that any other vendor is even capable of producing a similar product, much less that one is actively attempting to do so. They merely speculate that there would be competition if the FBI were to request a similar tool in the future. (See Brown Decl. Ex. J at AP-22). Since there is no evidence that any actual competition exists over current or future contracts, the FBI has failed to demonstrate that the vendor actually faces
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competition. Accordingly, the FBI’s invocation of Exemption 4 was also not appropriate under the second prong of National Parks I.
b. Whether Substantial Competitive Injury is Likely to Result From Disclosure of the Purchase Price
Even if the FBI’s assertion about potential future competition was sufficient to show actual competition, disclosure of the purchase price would be unlikely to cause substantial competitive injury. The FBI argues that releasing this information would grant potential government contractors an opportunity to judge how they might underbid the vendor in the future, hurting the vendor’s ability to obtain government contracts. (First Hardy Decl. ¶ 45; Second Hardy Decl. ¶ 14). But the bidding process for this particular contract was unique and unlikely to be replicated. The contract price was based on time constraints caused by the urgency of the investigation and the vendor’s ability to produce the tool quickly. Any future price paid for a similar contract in competitive bidding would likely be unaffected by the price paid here, as it reflected the unusual circumstances surrounding the investigation. Accordingly, the disclosure of the purchase price is unlikely to cause substantial competitive injury to the vendor.
The agency argues that its determination of substantial competitive injury is entitled to deference, but deference is only granted under Exemption 4 in a “reverse FOIA” case in which the plaintiff is challenging the agency’s impending release of information. Ctr. for Pub. Integrity v. Dep’t of Energy, 191 F. Supp. 2d 187, 196 (D.D.C. 2002) (“The rationale for showing deference in such cases is that… if the agency is willing to release information, it can be safely assumed that the agency is acting to protect its ability to contract in the future. This rationale clearly does not apply where an agency is withholding information”); see also Jurewicz v. Dep’t of Agric., 741 F.3d 1326, 1330-31 (D.C. Cir. 2014).
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In sum, the court finds that disclosure of the purchase price (1) will not impair the FBI’s ability to obtain similar information in the future, and (2) is not likely to cause substantial competitive harm to the vendor, because the vendor does not face actual competition, and even if it did, would not likely suffer competitive injury from disclosure. Accordingly, the purchase price is not confidential within the meaning of Exemption 4, and the FBI’s application of the exemption to the purchase price was improper. V. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion to supplement the record will be GRANTED; the FBI’s motion for summary judgment will be GRANTED; and Plaintiffs’ crossmotion for summary judgment will be DENIED.

A corresponding order will issue separately.

Dated: September 30, 2017

Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge

26

 
 Case: 1:16-cv-1850 As of: 11/02/2017 04:43 PM EDT 1 of 4
CLOSED,TYPE I−FOIA
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:16−cv−01850−TSC

ASSOCIATED PRESS et al v. FEDERAL BUREAU OF INVESTIGATION Assigned to: Judge Tanya S. Chutkan Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 09/16/2016 Date Terminated: 10/03/2017 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

ASSOCIATED PRESS

represented by Jay Ward Brown BALLARD SPAHR LLP 1909 K Street, NW 12th Floor Washington, DC 20006 (202) 508−1136 Fax: (202) 661−2299 Email: brownjay@ballardspahr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy A. Kutner LEVINE SULLIVAN KOCH & SCHULZ, LLP 321 West 44th Street Suite 1000 New York, NY 10036 (212) 850−6107 Fax: (212) 850−6299 Email: jkutner@lskslaw.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
GANNETT SATELLITE INFORMATION NETWORK LLC doing business as USA TODAY

represented by Jay Ward Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy A. Kutner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff VICE MEDIA LLC

represented by Jay Ward Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy A. Kutner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant

Case: 1:16-cv-1850 As of: 11/02/2017 04:43 PM EDT 2 of 4

FEDERAL BUREAU OF INVESTIGATION

represented by Joseph Evan Borson U.S. DEPARTMENT OF JUSTICE P.O. Box 883 Washington, DC 20044 (202) 514−1944 Fax: (202) 616−8460 Email: joseph.borson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/16/2016
09/16/2016 09/16/2016 09/16/2016 09/16/2016 09/19/2016 09/30/2016
09/30/2016
09/30/2016 10/24/2016 10/24/2016
10/25/2016

# Docket Text
1 COMPLAINT against FEDERAL BUREAU OF INVESTIGATION ( Filing fee $ 400 receipt number 0090−4676381) filed by VICE MEDIA LLC, GANNETT SATELLITE INFORMATION NETWORK LLC d/b/a USA TODAY, THE ASSOCIATED PRESS. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Summons as to Federal Bureau of Investigation, # 3 Summons Summons as to United States Attorney's Office, # 4 Summons Summons as to United States Attorney General)(Brown, Jay) (Entered: 09/16/2016)
2 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by THE ASSOCIATED PRESS (Brown, Jay) (Entered: 09/16/2016)
3 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by GANNETT SATELLITE INFORMATION NETWORK LLC d/b/a USA TODAY (Brown, Jay) (Entered: 09/16/2016)
4 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by VICE MEDIA LLC (Brown, Jay) (Entered: 09/16/2016)
Case Assigned to Judge Tanya S. Chutkan. (md) (Entered: 09/19/2016)
5 SUMMONS (3) Issued Electronically as to FEDERAL BUREAU OF INVESTIGATION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Consent Form)(zsb) (Entered: 09/19/2016)
6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. FEDERAL BUREAU OF INVESTIGATION served on 9/23/2016, (Attachments: # 1 Return Receipt)(Brown, Jay) Modified on 9/30/2016 to correct event (zrdj). (Entered: 09/30/2016)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 9/23/2016. Answer due for ALL FEDERAL DEFENDANTS by 10/23/2016. (Attachments: # 1 Return Receipt)(Brown, Jay) (Entered: 09/30/2016)
8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 09/23/2016. (Attachments: # 1 Return Receipt)(Brown, Jay) (Entered: 09/30/2016)
9 NOTICE of Appearance by Joseph Evan Borson on behalf of FEDERAL BUREAU OF INVESTIGATION (Borson, Joseph) (Entered: 10/24/2016)
10 ANSWER to Complaint by FEDERAL BUREAU OF INVESTIGATION. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Borson, Joseph) (Entered: 10/24/2016)
MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. The requirements of LCvR 16.3 and Rule 26(f) of the Federal Rules of Civil procedure appear to be inapplicable. IT IS HEREBY ORDERED that the parties shall meet and confer and propose a schedule for proceeding in this matter. The schedule shall address the status of Plaintiff's FOIA request, the anticipated number of documents responsive to Plaintiff's FOIA request, the anticipated date(s) for release of the documents requested by Plaintiff, whether a motion for an Open America stay is likely in this case, whether a Vaughn index will be required in this case, whether and when either party anticipates filing a dispositive motion, and any other pertinent issues. The

Case: 1:16-cv-1850 As of: 11/02/2017 04:43 PM EDT 3 of 4

10/25/2016 10/26/2016
10/27/2016 10/28/2016 11/15/2016 11/21/2016
11/21/2016 01/30/2017 02/20/2017 02/20/2017 03/13/2017 03/13/2017 03/27/2017

parties shall file a joint status report that addresses these issues and that contains a proposed schedule and order not later than 11/15/16. Signed by Judge Tanya S. Chutkan on 10/25/16. (DJS) (Entered: 10/25/2016)
Set/Reset Deadlines: Status Report due by 11/15/2016 (zsm) (Entered: 10/25/2016)
11 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Jeremy A. Kutner, :Firm− Levine Sullivan Koch & Schulz, LLP, :Address− 321 W. 44th Street, Suite 1000, New York, NY 10036. Phone No. − 212−850−6107. Fax No. − 212−850−6299 Filing fee $ 100, receipt number 0090−4721959. Fee Status: Fee Paid. by ASSOCIATED PRESS, GANNETT SATELLITE INFORMATION NETWORK LLC, VICE MEDIA LLC (Attachments: # 1 Declaration of Jeremy A. Kutner, # 2 Text of Proposed Order)(Brown, Jay) (Entered: 10/26/2016)
MINUTE ORDER: Granting 11 Motion for Leave to Appear Pro Hac Vice. Attorney JEREMY A. KUTNER is hereby admitted pro hac vice to appear in this matter on behalf of Plaintiffs. Signed by Judge Tanya S. Chutkan on 10/27/16. (DJS) (Entered: 10/27/2016)
12 NOTICE of Appearance by Jeremy A. Kutner on behalf of ASSOCIATED PRESS, GANNETT SATELLITE INFORMATION NETWORK LLC, VICE MEDIA LLC (Kutner, Jeremy) (Entered: 10/28/2016)
13 Joint STATUS REPORT by ASSOCIATED PRESS, GANNETT SATELLITE INFORMATION NETWORK LLC, VICE MEDIA LLC. (Brown, Jay) (Entered: 11/15/2016)
MINUTE ORDER: Having considered the parties' Joint Status Report 13 it is hereby ordered that the parties shall adhere to the following schedule: FBI Completion of Document Review due by January 6, 2017. FBI Motion for Summary Judgment due January 30, 2017. Plaintiffs' Opposition and Combined Cross−Motion due February 20, 2017. FBI Reply and Combined Opposition to Cross−Motion due March 13, 2017. Plaintiffs' Reply due March 27, 2017. Signed by Judge Tanya S. Chutkan on 11/21/16. (DJS) (Entered: 11/21/2016)
Set/Reset Deadlines: Summary Judgment motions due by 1/30/2017. Response to Motion for Summary Judgment and Cross Motions due by 2/20/2017. Reply to Motion for Summary Judgment and Response to Cross Motions due by 3/13/2017. Reply to Cross Motions due by 3/27/2017. (gdf) (Entered: 11/21/2016)
14 MOTION for Summary Judgment by FEDERAL BUREAU OF INVESTIGATION (Attachments: # 1 Memorandum in Support, # 2 Declaration Decl. of David M. Hardy, # 3 Exhibit Exs. A−R of Hardy Decl., # 4 Statement of Facts, # 5 Text of Proposed Order)(Borson, Joseph) (Entered: 01/30/2017)
15 Cross MOTION for Summary Judgment by ASSOCIATED PRESS, GANNETT SATELLITE INFORMATION NETWORK LLC, VICE MEDIA LLC (Attachments: # 1 Declaration of Jay Ward Brown, # 2 Exhibits A−J to Brown Decl., # 3 Text of Proposed Order)(Brown, Jay) (Entered: 02/20/2017)
16 Memorandum in opposition to re 14 MOTION for Summary Judgment filed by ASSOCIATED PRESS, GANNETT SATELLITE INFORMATION NETWORK LLC, VICE MEDIA LLC. (Attachments: # 1 Declaration of Jay Ward Brown, # 2 Exhibits A−J to Brown Decl., # 3 Text of Proposed Order)(Brown, Jay) (Entered: 02/20/2017)
17 Memorandum in opposition to re 15 Cross MOTION for Summary Judgment & Opposition to Defendant's Motion for Summary Judgment filed by FEDERAL BUREAU OF INVESTIGATION. (Attachments: # 1 Declaration Second Hardy Decl., # 2 Statement of Facts)(Borson, Joseph) (Entered: 03/13/2017)
18 REPLY to opposition to motion re 14 MOTION for Summary Judgment filed by FEDERAL BUREAU OF INVESTIGATION. (Attachments: # 1 Declaration Second Hardy Decl)(Borson, Joseph) (Entered: 03/13/2017)
19 REPLY to opposition to motion re 15 Cross MOTION for Summary Judgment & Opposition to Defendant's Motion for Summary Judgment filed by ASSOCIATED PRESS, GANNETT SATELLITE INFORMATION NETWORK LLC, VICE MEDIA

Case: 1:16-cv-1850 As of: 11/02/2017 04:43 PM EDT 4 of 4

05/12/2017 05/16/2017 09/30/2017 09/30/2017 09/30/2017

LLC. (Brown, Jay) (Entered: 03/27/2017)
20 MOTION to Supplement Record re 15 Cross MOTION for Summary Judgment & Opposition to Defendant's Motion for Summary Judgment by ASSOCIATED PRESS, GANNETT SATELLITE INFORMATION NETWORK LLC, VICE MEDIA LLC (Attachments: # 1 Supplemental Decl. of Jay Ward Brown, # 2 Exhibit A to Suppl. Brown Decl., # 3 Text of Proposed Order)(Brown, Jay) (Entered: 05/12/2017)
21 RESPONSE re 20 MOTION to Supplement Record re 15 Cross MOTION for Summary Judgment & Opposition to Defendant's Motion for Summary Judgment filed by FEDERAL BUREAU OF INVESTIGATION. (Borson, Joseph) (Entered: 05/16/2017)
22 MEMORANDUM AND OPINION: Re Plaintiffs' Motion 20 to Supplement the Record; Defendant's 14 Motion for Summary Judgment; Plaintiffs' Cross−Motion 15 for Summary Judgment. Signed by Judge Tanya S. Chutkan on 9/30/17. (DJS) (Entered: 09/30/2017)
23 ORDER: Granting 14 Defendant's Motion for Summary Judgment; Denying 15 Plaintiffs' Motion for Summary Judgment; Granting Plaintiffs' 20 Motion to Supplement the Record. Dismissing this action with prejudice. Signed by Judge Tanya S. Chutkan on 9/30/17. (DJS) (Entered: 09/30/2017)
24 SUPPLEMENTAL MEMORANDUM to re 15 Cross MOTION for Summary Judgment & Opposition to Defendant's Motion for Summary Judgment, 14 MOTION for Summary Judgment filed by ASSOCIATED PRESS, VICE MEDIA LLC. (Attachments: # 1 Exhibit A)(znmw) Modified filed date on 10/3/2017 (znmw). (Entered: 10/02/2017)