Case 1:15-cv-01091 Document 1 Filed 07/13/15 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LAURA POITRAS

)

Praxis Films

)

205 Hudson Street

)

New York, NY 10013,

)

)

Plaintiff,

)

)

v.

)

)

DEPARTMENT OF HOMELAND

)

SECURITY

)

Washington, D.C. 20528,

)

)

and

)

)

DEPARTMENT OF JUSTICE

)

950 Pennsylvania Avenue, N.W.

)

Washington, D.C. 20530,

)

)

and

)

)

OFFICE OF THE DIRECTOR OF

)

NATIONAL INTELLIGENCE

)

Washington, D.C. 20511,

)

)

Defendants.

)

)

_____________________________________________)

Civil Case No.

COMPLAINT FOR INJUNCTIVE RELIEF
1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for injunctive and other appropriate relief and seeking the disclosure and release of agency records improperly withheld from Plaintiff Laura Poitras by Defendant Department of Homeland Security (“DHS”), and its components U.S. Customs and Border Protection (“CBP”), U.S. Citizenship and Immigration Services (“CIS”), U.S. Immigration and Customs Enforcement (“ICE”), and Transportation Security Administration (“TSA”); Defendant Department of Justice

Case 1:15-cv-01091 Document 1 Filed 07/13/15 Page 2 of 15
(“DOJ”), and its component Federal Bureau of Investigation (“FBI”); and Defendant Office of the Director of National Intelligence (“ODNI”). The requested records concern, name, or relate to Plaintiff and, specifically, her routine subjection to secondary security screening and/or detention and questioning during both international and domestic travel to or within the United States between 2006 and 2012.
PARTIES 2. Plaintiff Laura Poitras (“Plaintiff”) is a United States citizen and resident of New York. Plaintiff is a professional journalist and award-winning documentary filmmaker. For the past decade, Plaintiff has been documenting post-September 11 America. 	  Her work has received many awards, including an Oscar, a Pulitzer Prize, and a MacArther “genius” grant. Most recently, Plaintiff received the 2015 Academy Award for Documentary Feature for her film CITIZENFOUR, a documentary about whistleblower and former NSA contractor Edward Snowden. Her other works include The Art of Dissent (2015), a New York Times op-doc (a short “opinioned documentary” film) about dissidents Ai Weiwei and Jacob Appelbaum; The Program (2012), a New York Times op-doc about NSA whistleblower William Binney; The Oath (2010), a two-time Emmy-nominated documentary film about Guantanamo Bay Prison military commissions: and My Country, My Country (2006), an Oscar-nominated documentary film about the U.S. military occupation of Iraq. 3. Between July 2006 and April 2012, Plaintiff traveled frequently for work on her documentary films and was subjected to “Secondary Security Screening Selection,” detained, and questioned at the U.S. Border on every international flight she took to the United States. She was also occasionally subjected to secondary security screening while leaving the United States, while outside of the United States during the course of international travel, and while inside the United States during purely domestic travel. Between July 2006 and April 2012, Plaintiff was subject to secondary security screening on more than fifty (50) occasions. 4. Defendant Department of Homeland Security (“DHS”) is a Department of the Executive Branch of the United States Government. DHS is an “agency” within the meaning of
2

Case 1:15-cv-01091 Document 1 Filed 07/13/15 Page 3 of 15
5 U.S.C. § 552(f). U.S. Customs and Border Protection (“CBP”), U.S. Citizenship and Immigration Services (“CIS”), U.S. Immigration and Customs Enforcement (“ICE”), and the Transportation Security Administration (“TSA”) are components of Defendant DHS.
5. Defendant Department of Justice (“DOJ”) is a Department of the Executive Branch of the United States Government. DOJ is an “agency” within the meaning of 5 U.S.C. § 552(f). The Federal Bureau of Investigation (“FBI”) is a component of Defendant DOJ.
6. Defendant Office of the Director of National Intelligence (“ODNI”) is a Department of the Executive Branch of the United States Government. ODNI is an “agency” within the meaning of 5 U.S.C. § 552(f).
JURISDICTION AND VENUE 7. This Court has both subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 552(a)(6)(C)(i). This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331. 8. Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B).
FACTUAL ALLEGATIONS Plaintiff’s Experiences Being Detained During International and Domestic Travel Between 2006 and 2012 9. In 2006, after releasing her documentary about the occupation of Iraq, My Country, My Country, Plaintiff began being detained and questioned at the U.S border every time she returned to the United States from international travel. She was also occasionally subjected to Secondary Security Screening Selection (“SSSS”)—i.e., increased security inspection—while leaving the United States, while outside of the United States during the course of international travel, and while inside the United States during purely domestic travel. 10. Plaintiff was first detained in July 2006, while she was traveling to the Jerusalem Film Festival to screen My Country, My Country. For the next six (6) years, Plaintiff was detained at the U.S. border every time she entered the United States, and occasionally while
3

Case 1:15-cv-01091 Document 1 Filed 07/13/15 Page 4 of 15
outside the United States in the course of international travel. The detentions ended in April of 2012, following the publication of an article by journalist Glenn Greenwald on Salon.com about Plaintiff’s experiences being detained while traveling1 and the submission of a petition by documentary filmmakers to DHS protesting the routine detention of Plaintiff.
11. Between July 2006 and April 2012, Plaintiff was detained roughly 40 times while returning to the United States from international travel and multiple times in transit overseas.
12. In addition, between July 2006 and April 2012, Plaintiff was subject to Secondary Security Screening Selection during the course of purely domestic travel within the United States and while leaving the United States for international travel. Beginning in June or July 2006, in order for Plaintiff to receive a boarding pass, airline agents were required to call DHS.	  	  Plaintiff’s boarding passes were thereafter marked “SSSS,” and she was subjected to increased security screening at security checkpoints. In the case of domestic travel, this initially lasted only for a few months, until October 2006. But her subjection to secondary security screening during the course of domestic travel resumed again, however, several years later and did not fully cease until in or around April 2012.
13. Between July 2006 and April 2012, Plaintiff was subject to secondary security screening on more than 50 occasions.
14. Plaintiff often took notes during her detentions, recording the names of agents, time detained, and questions asked. The following non-inclusive list provides a few examples of Plaintiff’s experience being detained and questioned between 2006 and 2012:
15. On her first detention—on or around July 12, 2006, while traveling from Jerusalem to Newark International Airport (“Newark”) in New Jersey after attending the Jerusalem Film Festival—Plaintiff was met by CBP agents at the gate (also known as the “Hard Stand”) upon arrival at Newark. Plaintiff was thereafter escorted to a holding room, where she
1 See Glenn Greenwald, U.S. filmmaker repeatedly detained at border, Salon.com (Apr. 8, 2012) (available at http://www.salon.com/2012/04/08/u_s_filmmaker_repeatedly_detained_at _border/).
4

Case 1:15-cv-01091 Document 1 Filed 07/13/15 Page 5 of 15
was detained and questioned for roughly two hours at Newark before being allowed to enter the United States.
16. On or around August 22, 2006, while traveling from Sarajevo, the capital of Bosnia and Herzegovina, to John F. Kennedy International Airport (“JFK”) in New York City after attending the Sarajevo Film Festival, Plaintiff was paged to security while transiting through the Vienna International Airport in Vienna, Austria. Plaintiff was thereafter taken into a van and driven to a security inspection area. All of Plaintiff’s bags were searched and xrayed. The head of airport security at the Vienna International Airport told Plaintiff that her “Threat Score” was 400 out of 400 points. Plaintiff was eventually allowed to board a plane to the United States. Upon her arrival at JFK, CBP agents again met her at the gate. Plaintiff was thereafter escorted to a holding room, where she was detained and questioned for roughly two (2) hours, and where her bags were searched for a second time, before being allowed to enter the United States.
17. On or around November 26, 2006, while traveling from	  Paris, France to Newark on her way home from a vacation, Plaintiff was met by boarder agents upon her arrival at Newark. She was detained and questioned for 30 minutes.
18. On or around December 17, 2006, while traveling from Dubai, United Arab Emirates to JFK after attending the Dubai Film Festival, Plaintiff was met by border agents upon her arrival at JFK. She was again detained and questioned before being allowed entry into the United States. The CBP agents asked Plaintiff when she had last been to Atlanta, Georgia and told her that she had a criminal record, despite that she had never been arrested.
19. On or around March 19, 2007, while traveling from	  London, England to Washington Dulles International Airport in Washington, D.C. after attending a conference on Guantanamo Bay Prison, Plaintiff was detained and questioned upon her arrival in D.C.
20. On or around March 31, 2007, while traveling from Canada to LaGuardia Airport in New York City after conducting a documentary workshop, Plaintiff was detained and questioned before being allowed to board the plane in Canada.
5

Case 1:15-cv-01091 Document 1 Filed 07/13/15 Page 6 of 15
21. On or around May 26, 2007, while traveling from Yemen to JFK after filming families of Guantanamo prisoners, CBP agents met Plaintiff at the gate upon her arrival at JFK. Plaintiff was thereafter detained and questioned. The CBP agents photocopied all of Plaintiff’s reporters’ notebooks, receipts, and business cards.
22. On or around February 10, 2010, while traveling from JFK to Berlin, Germany to attend the Berlin Film Festival, Plaintiff was told by airport security agents at JFK that she was on the No Fly List, a list maintained by FBI’s Terrorist Screening Center. Plaintiff was eventually permitted to board her flight. While departing Berlin several days later, on or around February 16, 2010, Plaintiff was again told by airline representatives that she was on the No Fly List, though she was eventually again allowed to board her flight.
23. On or around August 1, 2010, while traveling from Yemen to New York, Plaintiff was detained and questioned upon her arrival at JFK. During the course of her detention, her laptop, video camera, footage, and cellphone were taken by border agents and held for 41 days.
24. Beginning in mid-2011, when Plaintiff began work on a documentary about Julian Assange and WikiLeaks, on her trips from Europe to the United States, Plaintiff started being questioned by U.S. authorities in Europe before being issued a boarding pass to return to the United States, in addition to being detained and searched in the Unites States upon her arrival. Prior to this time, she had never been stopped in Europe while traveling (other than the single time she had been told by airline officials in Berlin in February 2010 that she was on the No Fly List). For example, on or around April 5, 2012, while traveling from London to Newark after filming with Julian Assange, Plaintiff was questioned in London before being issued a boarding pass. Upon her arrival in Newark, Plaintiff was met by border agents, detained, and questioned. During the course of her detention, several security officers repeatedly threatened to handcuff Plaintiff for attempting to take notes, claiming her pen could be used as a weapon.
25. Plaintiff was also detained and questioned at the U.S. border on or around June 12, 2007 after a flight from Ireland; on or around September 22, 2007 after a flight from Dubai; on or around November 20, 2007 after a flight from Dubai; on or around February 12, 2008 after
6

Case 1:15-cv-01091 Document 1 Filed 07/13/15 Page 7 of 15
a flight from Jordan; on or around March 1, 2008 after a flight from Sweden; on or around June 14, 2008 after a flight from Dubai; on or around August 24, 2008 after a flight from Dubai; on or around December 10, 2008 before a flight to Yemen; on or around January 11, 2009 after a flight from Dubai; on or around February 10, 2009 after a flight from Dubai; on or around July 19, 2009 after a flight from Dubai; on or around August 22, 2009 after a flight from London; and on numerous other occasions.
26. These are only a few of the various instances in which Plaintiff was subjected to secondary security screening and/or detained and questioned during the course of international and domestic travel between July 2006 and April 2012. As indicated above, Plaintiff was detained and questioned at the U.S. Border during every international flight she took to the United States during this six-year time period.
Plaintiff’s FOIA Requests 27. By separate letters to DHS, CBP, CIS, ICE, and TSA, each dated January 24, 2014 and sent via certified mail by attorney David Sobel on Plaintiff’s behalf, Plaintiff submitted FOIA requests pursuant to 5 U.S.C. § 552 for “all agency records concerning, naming, or relating to Ms. Poitras.” 28. By a letter to FBI dated January 24, 2014, sent via certified mail by Mr. Sobel on Plaintiff’s behalf, Plaintiff submitted a FOIA request pursuant to 5 U.S.C. § 552 for “all agency records concerning, naming, or relating to Ms. Poitras” and specifically requesting as follows: “that the FBI perform a complete and thorough search of all filing systems and locations for all records maintained by the Bureau pertaining to Ms. Poitras. Such a search should include, but not be limited to, files and documents captioned in (or whose captions include) her name in the title. The FBI should search the Central Records System, Electronic Surveillance Records (ELSUR), and Electronic Case File (ECF). Further, I [s]pecifically request that the Bureau conduct a text search of the ECF to identify all potentially responsive main and cross-reference files. The FBI’s search should include ‘main’ files and ‘see references.’”
7

Case 1:15-cv-01091 Document 1 Filed 07/13/15 Page 8 of 15

29. By a letter to ODNI dated January 24, 2014, sent via certified mail by Mr. Sobel

on Plaintiff’s behalf, Plaintiff submitted a FOIA request pursuant to 5 U.S.C. § 552 for “all

agency records concerning, naming, or relating to Ms. Poitras” and indicating that the “request

includes, but is not limited to, records maintained by the National Counterterrorism Center

(“NCTC”).”

Defendant DHS’s Improper Withholding of Documents Responsive to Plaintiff’s Request

30. By form letter dated February 3, 2014, DHS acknowledged receipt of Plaintiff’s FOIA request and requested additional information to assist the agency in its search for responsive records. In its letter, DHS assigned Plaintiff’s request reference number 2014HQFO-00300.
31. By letter dated March 5, 2014, sent by Mr. Sobel on Plaintiff’s behalf, Plaintiff provided information concerning the specific difficulties she encountered while traveling on international flights between July 2006 and May 2007, as well her difficulties while traveling on domestic flights between June or July 2006 and October 2006.2
32. By letter dated March 26, 2014, DHS advised that it had referred Plaintiff’s request to the FOIA offices of its components CBP and TSA.
33. To date, DHS has not provided the records requested by Plaintiff in her FOIA request.
34. Plaintiff has exhausted the applicable administrative remedies with respect to her FOIA request to DHS.
35. DHS has wrongfully withheld the requested records from Plaintiff.

2 Although the letter was dated March 5, 2014, it was sent via fax on March 19, 2014 to DHS’s Chief FOIA Officer after an unsuccessful attempt by Mr. Sobel to email the letter to foia@hq.dhs.gov on March 5, 2014.
8

Case 1:15-cv-01091 Document 1 Filed 07/13/15 Page 9 of 15
CBP’s Failure to Timely Comply with, and Improper Withholding of Documents Responsive to, Plaintiff’s Request
36. The United States Postal Service (“USPS”) website’s tracking feature indicates that Plaintiff’s request to CBP was delivered on January 28, 2014.3
37. To date, CBP has neither responded to Plaintiff’s FOIA request, nor provided the requested records, notwithstanding FOIA’s requirement that an agency respond to a record request within twenty (20) working days of receipt of the request.
38. Plaintiff has exhausted the applicable administrative remedies with respect to her FOIA request to CBP.
39. CBP has wrongfully withheld the requested records from Plaintiff. CIS’s Improper Withholding of Documents Responsive to Plaintiff’s Request
40. By form letter dated January 30, 2014, CIS acknowledged receipt of Plaintiff’s FOIA request and indicated that, after a search of two information management systems, it had not located any records responsive to Plaintiff’s request. CIS invited Plaintiff to provide additional information to assist the agency in a further search for responsive records. In its letter, CIS assigned Plaintiff’s request reference number NRC2014009650.
41. By letter dated March 19, 2014, sent by Mr. Sobel on Plaintiff’s behalf, Plaintiff provided information concerning her specific experiences being selected for secondary security screening while traveling on international flights between July 2006 and May 2007, as well her difficulties while traveling on domestic flights between June or July 2006 and October 2006.
42. CIS did not acknowledge receipt of this additional information. Rather, by a subsequent form letter dated April 2, 2014, almost identical to the form letter referenced in paragraph 40 above, CIS again acknowledged Plaintiff’s FOIA request, again indicated that it had not located records responsive to Plaintiff’s request, and again invited Plaintiff to provide
3 See USPS Tracking Results for Certified Mail Tracking Number 70131710000104259922,
https://tools.usps.com/go/TrackConfirmAction?qtc_tLabels1=70131710000104259922 (last visited July 10, 2015).
9

Case 1:15-cv-01091 Document 1 Filed 07/13/15 Page 10 of 15
additional information to assist the agency in a further search for responsive records. CIS further directed Plaintiff to contact CBP regarding records concerning “entry and exit” information. In its letter, CIS assigned Plaintiff’s request a second reference number, NRC2014035155.
43. By letter dated May 6, 2014, sent by Mr. Sobel on Plaintiff’s behalf, Plaintiff appealed CIS’s determination that it had no records responsive to her request.
44. By form letter dated July 7, 2014, CIS denied Plaintiff’s administrative appeal. In its letter, CIS assigned Plaintiff’s appeal reference number APP2014000698. The July 7, 2014 letter advised Plaintiff that she could seek judicial review of its denial of her appeal pursuant to 5 U.S.C. § 522(a)(4)(B).
45. To date, CIS has not provided the records requested by Plaintiff in her FOIA request.
46. Plaintiff has exhausted the applicable administrative remedies with respect to her FOIA request to CIS.
47. CIS has wrongfully withheld the requested records from Plaintiff. ICE’s Failure to Timely Comply with, and Improper Withholding of Documents Responsive to, Plaintiff’s Request
48. The USPS website’s tracking feature indicates that Plaintiff’s request to ICE was delivered on January 25, 2014.4
49. To date, ICE has neither responded to Plaintiff’s FOIA request, nor provided the requested records, notwithstanding FOIA’s requirement that an agency respond to a record request within twenty (20) working days of receipt of the request.
50. Plaintiff has exhausted the applicable administrative remedies with respect to her FOIA request to ICE.
51. ICE has wrongfully withheld the requested records from Plaintiff.
4 See USPS Tracking Results for Certified Mail Tracking Number 70131710000104259908,
https://tools.usps.com/go/TrackConfirmAction?qtc_tLabels1=70131710000104259908 (last visited July 10, 2015).
10

Case 1:15-cv-01091 Document 1 Filed 07/13/15 Page 11 of 15
TSA’s Improper Withholding of Documents Responsive to Plaintiff’s Request
52. By form letter dated February 6, 2014, TSA acknowledged receipt of Plaintiff’s FOIA request and requested additional information on the ground that the request was “too broad in scope or does not specifically identify the records you seek.” In its letter, TSA assigned Plaintiff’s request reference number 2014-TSFO-00168.
53. By letter dated March 19, 2014, sent by Mr. Sobel on Plaintiff’s behalf, Plaintiff provided information concerning the specific difficulties she encountered while traveling on international flights between July 2006 and May 2007, as well her difficulties while traveling on domestic flights between June or July 2006 and October 2006.
54. TSA did not acknowledge receipt of this additional information. Rather, by a subsequent form letter dated March 26, 2014, almost identical to the form letter referenced in paragraph 52 above, TSA again acknowledged receipt of Plaintiff’s FOIA request and again requested additional information on the same grounds as indicated in paragraph 52. In its letter, TSA assigned Plaintiff’s request a second reference number, 2014-TSFO-00269.
55. To date, TSA has not provided the records requested by Plaintiff in her FOIA request.
56. Plaintiff has exhausted the applicable administrative remedies with respect to her FOIA request to TSA.
57. TSA has wrongfully withheld the requested records from Plaintiff. FBI’s and Defendant DOJ’s Improper Withholding of Documents Responsive to Plaintiff’s Request
58. By form letter to plaintiff dated February 19, 2014, FBI acknowledged receipt of Plaintiff’s FOIA request. In its letter, FBI assigned Plaintiff’s request reference number 1250943-000.
59. After over a year of no further response from FBI, by letter dated May 21, 2015, Susan B. Gerson, Assistant Director of the DOJ’s Executive Office for U.S. Attorneys, denied
11

Case 1:15-cv-01091 Document 1 Filed 07/13/15 Page 12 of 15
Plaintiff’s request—which had been referred by FBI to the Executive Office for U.S. Attorneys and which had been relabeled, according to Ms. Gerson’s letter, as request number REFF-201501391. Ms. Gerson’s letter indicated that her agency had located six (6) pages relevant to Plaintiff’s request but that the agency was withholding in full (“WIF”) these documents. Ms. Gerson cited Federal Rule of Criminal Procedure 6(e) as the basis for her refusal to disclose the documents.
60. By letter dated May 29, 2015, sent by Mr. Sobel on Plaintiff’s behalf to DOJ’s Office of Information Policy (as per the instructions in Ms. Gerson’s letter), Plaintiff appealed the denial of her FOIA request.
61. The USPS website’s tracking feature indicates that Plaintiff’s appeal letter to DOJ’s Office of Information of Policy was delivered on June 3, 2015.5
62. On July 6, 2015, Plaintiff received a form letter, dated July 1, 2015 and sent via email to Mr. Sobel from DOJ’s Office of Information Policy, responding to her May 29, 2015 appeal. The letter gave notice that the Office of Information Policy had received Plaintiff’s appeal letter on June 3, 2015 and indicated that the appeal had been assigned reference number AP-2015-04128. The letter provided no indication of when Plaintiff’s appeal would be decided, stating only that the Office of Information Policy would notify her of the decision on her appeal “as soon as we can.”
63. On July 7, 2015, Plaintiff received a second form letter, dated July 7, 2015 and again sent via email to Mr. Sobel from DOJ’s Office of Information Policy, responding to Plaintiff’s May 29, 2015 appeal. The letter again gave notice that the Office of Information Policy had received Plaintiff’s appeal on June 3, 3015. The July 7, 2015 letter assigned Plaintiff’s appeal a second reference number, AP-2015-04130. Other than the date and reference number, the July 7, 2015 letter was identical to the July 1, 2015 letter referenced in paragraph 62
5 See USPS Tracking Results for Certified Mail Tracking Number 70131710000096540398, https://tools.usps.com/go/TrackConfirmAction?qtc_tLabels1=70131710000096540398 (last
visited July 10, 2015).
12

Case 1:15-cv-01091 Document 1 Filed 07/13/15 Page 13 of 15
above. Just as the July 1, 2015 letter, the July 7, 2015 letter provided no indication of when Plaintiff’s appeal would be decided, stating only that the Office of Information Policy would notify her of the decision on her appeal “as soon as we can.”
64. To date, neither FBI nor DOJ have provided the records requested by Plaintiff in her FOIA request.
65. Plaintiff has exhausted the applicable administrative remedies with respect to her FOIA request initially sent to FBI.
66. FBI and DOJ have wrongfully withheld the requested records from Plaintiff. Defendant ODNI’s Improper Withholding of Documents Responsive to Plaintiff’s Request
67. By form letter dated January 31, 2014, ODNI acknowledged receipt of Plaintiff’s FOIA request. In its letter, ODNI assigned Plaintiff’s request reference number DF-2014-00111.
68. By letter dated February 25, 2014, ODNI denied Plaintiff’s FOIA request. In its letter, ODNI indicated that it could “neither confirm nor deny the existence or nonexistence in its files of any information responsive to [Plaintiff’s] request” on the ground that the fact of the existence or nonexistence of the requested records was classified and constituted “intelligence sources and methods information.”
69. By letter dated March 21, 2014, sent by Mr. Sobel on Plaintiff’s behalf, Plaintiff appealed the denial of her FOIA request.
70. The USPS website’s tracking feature indicates that Plaintiff’s appeal letter to ODNI was delivered on March 25, 2014.6
71. To date, Plaintiff has not received a response to her March 21, 2014 appeal. 72. To date, ODNI has not provided the records requested by Plaintiff in her FOIA request.
6 See USPS Tracking Results for Certified Mail Tracking Number 70123050000135142392, https://tools.usps.com/go/TrackConfirmAction?qtc_tLabels1=70123050000135142392 (last
visited July 10, 2015).
13

Case 1:15-cv-01091 Document 1 Filed 07/13/15 Page 14 of 15
73. Plaintiff has exhausted the applicable administrative remedies with respect to her FOIA request to ODNI.
74. ODNI has wrongfully withheld the requested records from Plaintiff. CAUSES OF ACTION
Violation of the Freedom of Information Act for Wrongful Withholding of Agency Records
75. Plaintiff repeats and realleges paragraphs 1 through 74. 76. Defendants have wrongfully withheld agency records requested by Plaintiff by failing to comply with the statutory time limit for the processing of her FOIA requests, and/or by rendering final decisions to withhold the records Plaintiff requested. 77. Plaintiff has exhausted the applicable administrative remedies with respect to Defendants’ wrongful withholding of the requested records. 78. Plaintiff is entitled to injunctive relief with respect to the release and disclosure of the requested records.
REQUESTED RELIEF WHEREFORE, Plaintiff prays that this Court:
A. order Defendants and their components to disclose the requested records in their entireties and make copies available to Plaintiff;
B. provide for expeditious proceedings in this action; C. award Plaintiff her costs and reasonable attorneys’ fees incurred in this action; and D. grant such other relief as the Court may deem just and proper.
14

Case 1:15-cv-01091 Document 1 Filed 07/13/15 Page 15 of 15

 
 Case 1:15-cv-01091-KBJ Document 22 Filed 03/31/17 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LAURA POITRAS, Plaintiff, v.
DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

)

)

)

)

)

)

No. 15-cv-1091 (KBJ)

)

)

)

)

)

)

ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT WITHOUT PREJUDICE AND REQUIRING SUBMISSION OF A VAUGHN INDEX

Plaintiff Laura Poitras is a journalist and a documentary filmmaker. In January

and February of 2014, Poitras submitted requests under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552, to the Federal Bureau of Investigation (“FBI”), the Office of

the Director of National Intelligence (“ODNI”), the Department of Homeland Security

(“DHS”), and four DHS components: U.S. Customs and Border Protection (“CBP”),

U.S. Citizenship and Immigration Services (“CIS”), U.S. Immigration and Customs

Enforcement (“ICE”), and the Transportation Security Administration (“TSA”)

(collectively, “Defendants”). (Compl., ECF No. 1, ¶¶ 27–29.) Poitras’s FOIA requests

sought any records that these entities have relating to her, because Poitras claims that

after producing and releasing a 2006 documentary about U.S. military efforts in Iraq,

U.S. officials started detaining and questioning her at the U.S. border whenever she

returned to the United States after travelling internationally. (Id. ¶ 9.) Poitras further

claims that she has occasionally been subjected to Secondary Security Screening

Selection. (Id.)

Case 1:15-cv-01091-KBJ Document 22 Filed 03/31/17 Page 2 of 7
Each entity to which Poitras sent a FOIA request either failed to respond to her document request or withheld responsive records based on FOIA exemptions, and as a result, on July 13, 2015, Poitras filed the instant action. (See generally id.) Defendants then undertook to process her document requests, with the following results: DHS transferred its request to CBP and TSA; CIS and ICE found no responsive records; ODNI found no records in non-intelligence files and could neither confirm nor deny if any records were located in classified files; and FBI, CBP, and TSA located responsive records, some of which they released and some of which they withheld, either in whole or in part, under various of the FOIA’s statutory exemptions. (See Mem. in Supp. of Defs.’ Mot. for Summ. J., ECF No. 14 (“Defs.’ Mem.”), at 12–13.) In addition, TSA took the position that it could neither confirm nor deny whether it had records indicating Poitras’s status on a Federal Watch List. (See id. at 30–31.)1
Before this Court at present are the parties’ cross motions for summary judgment regarding the various agency defendants’ searches for records. (See Defs.’ Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 14; Pl.’s Cross-Mot. for Summ. J. (“Pl.’s Mot.”), ECF No. 18.) Defendants argue that they are entitled to summary judgment with respect to Poitras’s entire complaint because the FBI, ODNI, and DHS and its subcomponents (1) conducted adequate searches for responsive documents, (2) properly invoked FOIA Exemptions 1, 3, 4, 5, 7(A), 7(D), and 7(E) to withhold responsive documents or portions thereof, and (3) properly issued Glomar responses refusing to confirm or deny the existence of records when doing so would have revealed classified information. (See Defs.’ Mem. at 15–44; Defs.’ Reply in Further Supp. of Defs.’ Mot.,
1 Page numbers herein refer to those that the Court’s electronic case filing system automatically assigns.
2

Case 1:15-cv-01091-KBJ Document 22 Filed 03/31/17 Page 3 of 7
ECF No. 20, at 7–19.) Poitras argues that she is entitled to summary judgment because CBP’s search for responsive documents was inadequate; because the FBI’s withholdings under Exemptions 5, 7(A), 7(D), and 7(E) are improper; and because CBP and the FBI ultimately failed to release all reasonably segregable information. (Pl.’s Mem. in Opp’n to Defs.’ Mot. & in Supp. of Pl.’s Mot., ECF No. 18 (“Pl.’s Mem.”), at 18−30.)2
Although the FBI has submitted two declarations from David M. Hardy that purport to explain the agency’s searches and withholdings (see Decl. of David M. Hardy, ECF No. 14-1 (“Hardy Decl.”); Second Decl. of David M. Hardy, ECF No. 20-1 (“2d Hardy Decl.”)), neither of these declarations contains a full Vaughn Index or any other detailed listing of the documents and information that the agency is withholding, or the particularized justifications for each withholding. Instead, Hardy’s first declaration describes in great detail the government’s general reasons for withholding entire categories of information, but does not connect these generalized justifications to the particular documents that are being withheld in this case in any discernable fashion. (See Hardy Decl. at 18−47.) And his second declaration similarly fails to provide a complete listing of document-specific justifications for the particular withholdings that the agency has made in response to the FOIA requests at issue (see e.g., 2d Hardy Decl. at 6−9); rather, the declaration contains a list of documents that appears to cover only some of the records that the agency has withheld, and with respect to the records that do appear in this listing, the index does not explain the reasons that the particular
2 Poitras expressly states that she is not challenging (1) any of the withholdings of CBP, TSA, and ODNI, (2) any of the FBI’s withholdings under FOIA Exemptions 1, 3, 6, and 7(C), or (3) the adequacy of the searches for documents by department or subdivision other than CBP. (See Pl.’s Mem. at 9.) The Court will therefore enter summary judgment in Defendants’ favor on these issues.
3

Case 1:15-cv-01091-KBJ Document 22 Filed 03/31/17 Page 4 of 7
exemption is being asserted with respect to any document, and instead merely references an FBI code that can only be understood by cross-referencing his first declaration.
To provide a specific example, in paragraph 89 of his first declaration, Hardy generally explains that “Exemption (b)(7)(E)-3 was asserted to protect information pertaining to the types and dates of investigation referenced in the records at issue.” (Hardy Decl. at 43, ¶ 89.) But the “records at issue” are not listed. Instead, in a footnote, the declaration merely reports the page numbers of the Bates-stamped records that purportedly contain information that is being withheld pursuant to this exemption, and does not describe the documents at issue or provide the Court with any further context. (See id. at 43 n.36.) Similarly, in paragraph 91 of his first declaration, Hardy explains that, “[i]n Category b(7)(E)-5, the FBI protected methods the FBI uses to collect and analyze the information it obtains for investigative purpose[,]” adding that “[t]he release of this information would disclose the identity of methods used in the collection and analysis of information[.]” (Id. at 44−45, ¶ 91.) But, again, no specific context is provided—e.g., a description of the particular documents that purportedly contain the withholdings—and the accompanying footnote lists only the “Bates numbered pages” that, according to the FBI, contain the types of information that is being withheld on this basis.
Mr. Hardy’s second declaration ultimately fares no better. To be sure, it purports to contain a listing of the Bates numbers, document dates, general document descriptions, and exemptions that the FBI is citing for certain records. (See 2d Hardy Decl. ¶ 11.) But this listing appears to reference only those records that have been
4

Case 1:15-cv-01091-KBJ Document 22 Filed 03/31/17 Page 5 of 7
withheld in full (see id. (“[F]or pages withheld in full (“WIF”), the below index provides a detailed analysis citing which exemption(s) applied to each document.”)), and thus is seemingly incomplete. (Compare Hardy Decl. at 44 n.37 (referencing Bates numbers as high as 344), with 2d Hardy Decl. at 9, ¶ 11 (listing final Bates number as 247).) Furthermore, even assuming that the numbers that appear in the “Exemptions Cited” column correspond to the various exemptions in the FOIA statute, there is no explanation of the specific reason that the agency believes that the exemption is applicable to document at issue.
This Court has previously held that a general declaration about categories of withholdings is manifestly insufficient to permit the Court to evaluate whether an agency has properly invoked a FOIA exemption. See Sciacca v. FBI, 23 F. Supp. 3d 17, 30 (D.D.C. 2014) (rejecting as insufficient a statement that does not list the responsive documents that purportedly contain the permissibly withheld information, and that does not “explain what types of documents [the] pages belong to, who created the documents and for what purpose, and how the exemptions relate to the nature of the documents themselves”). And such lack of specificity on the agency’s part not only prevents the Court from analyzing the propriety of the exemptions asserted, it also thwarts any effort to “make the required specific findings of segregability regarding the documents to be withheld.” Sciacca, 23 F. Supp. 3d at 29 (internal quotation marks and citation omitted); cf. Wilderness Soc’y v. U.S. Dep’t of Interior, 344 F. Supp. 2d 1, 19 (D.D.C. 2004) (concluding that, with respect to the question of whether an agency has produced all reasonably segregable information, “blanket declaration[s]” do not suffice to carry an agency’s burden of showing that certain documents may be withheld in full).
5

Case 1:15-cv-01091-KBJ Document 22 Filed 03/31/17 Page 6 of 7
When an agency submits a Motion for Summary Judgment in a FOIA case that is not supported by a Vaughn Index or declarations that sufficiently detail the records and information that are being withheld, it is this Court’s practice to deny the pending motion without prejudice and provide the agency with an opportunity to refile the motion with the requisite supporting documents. See Sciacca, 23 F. Supp. 3d at 22. This Court opts to take that approach again here.
Accordingly, it is hereby ORDERED that Defendants’ [14] Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. The motion is granted, as conceded, with respect to (1) the withholdings of CBP, TSA, and ODNI, (2) the FBI’s withholdings under FOIA Exemptions 1, 3, 6, and 7(C), and (3) the adequacy of the searches for documents by the FBI, the ODNI, DHS, CIS, ICE, and TSA. (See supra n.2.) The Defendants’ motion is otherwise denied without prejudice, for the reasons explained above. It is FURTHER ORDERED that the parties shall meet and confer, and on or before April 25, 2017, the parties shall file a joint proposed schedule that proposes due dates for the following filings: (1) a Vaughn Index and/or supplemental declaration with respect to the FBI’s full or partial withholdings under FOIA Exemptions 5, 7(A), 7(D), and 7(E), that comports with the specifications set forth in this Order, and (2) renewed cross-motions for summary judgment with respect to all remaining issues. The Vaughn Index or supplemental declarations that the government submits must include (1) a description of each document that has been redacted or withheld, and, wherever possible, the date the document was created and reason for its creation; (2) the Bates ranges associated with each such document; (3) the exemptions that arguably apply to
6

Case 1:15-cv-01091-KBJ Document 22 Filed 03/31/17 Page 7 of 7

each such document, and (4) the particularized reasons that the government believes that the asserted exemption applies to the particular document at issue. (See, e.g., Ex. D to Decl. of Sabrina Burroughs, ECF No. 14-3, at 32−55.) To the extent that the Government maintains that provision of this information will force it to disclose the information it is authorized to protect, it may file both a public and an ex parte version of its Vaughn Index or supplemental declaration. It is
FURTHER ORDERED that, in light of this Order requiring new filings in support of Defendants’ summary judgment motion, Plaintiff’s [18] Cross Motion for Summary Judgment is also DENIED without prejudice. An updated version may be filed once the government has made its supplemental submissions.

DATE: March 31, 2017

Ketanji Brown Jackson
KETANJI BROWN JACKSON United States District Judge

7

 
 Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 1 of 38

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LAURA POITRAS, Plaintiff, v.
DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Civil Action No. 15-1091 (BAH) Chief Judge Beryl A. Howell

MEMORANDUM OPINION The plaintiff, Laura Poitras, a journalist and documentary filmmaker, Compl. ¶ 2, ECF No. 1, challenges the responses of the Federal Bureau of Investigation (“FBI”), a component of the Department of Justice (“DOJ”), and U.S. Customs and Border Protection (“CBP”), a component of the Department of Homeland Security (“DHS”), to her records requests submitted pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.1 The requests at issue seek “all agency records concerning, naming, or relating” to the plaintiff and arise from repeated detentions, searches, and questioning of the plaintiff during her international travel over a span of six years. Compl. ¶¶ 15–27. Pending before the Court are the defendants’ second motion for summary judgment and the plaintiff’s second cross-motion for summary judgment. See generally Defs.’ Second Mot. Summ. J. (“Defs.’ Mot.”), ECF No. 24; Pl.’s Second Cross-Mot. Summ. J. (“Pl.’s Cross-Mot.”), ECF No. 26. For the reasons set forth below, the defendants’ motion is granted and the plaintiff’s cross-motion is denied.

1

The plaintiff also submitted FOIA requests to the Office of the Director of National Intelligence (“ODNI”),

U.S. Citizenship and Immigration Services (“USCIS”), U.S. Immigration and Customs Enforcement (“ICE”), and

the Transportation Security Administration (“TSA”), but those agencies were previously granted summary

judgment. See Order Denying Mots. Summ. J. Without Prejudice and Requiring Submission of a Vaughn Index

(“Summ. J. Order”) at 6, ECF No. 22 (K.B. Jackson, J.).

1

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 2 of 38
I. BACKGROUND Summarized below is the factual background underlying the plaintiff’s FOIA requests
and a review of the defendants’ responses. A. Background on the Plaintiff The plaintiff is a U.S. citizen and “professional documentary filmmaker, journalist, and
artist” based in New York. Pl.’s Cross-Mot, Ex. 3, Pl.’s Second Statement of Material Facts (“Pl.’s SMF”) ¶ 3, ECF No. 26-3.2 For the past decade, the plaintiff has been documenting “post-9/11 America” and often travels to Europe and the Middle East for her work. Pl.’s First Cross-Mot. Summ. J. (“Pl.’s First Cross-Mot.”), Ex. 2, Declaration of Laura Poitras (“Pl.’s First Decl.”) ¶ 1–2, ECF No. 18-2; Pl.’s SMF ¶¶ 3–4. The plaintiff initiated this action due to her “desire to understand why she was stopped, detained, and questioned at the U.S. border by her own government for every international flight she took entering her own country for six years.” Pl.’s Cross-Mot. at 1 (emphasis in original). The exhibits submitted by the plaintiff appear to provide an explanation: namely, that her presence at, followed by her dissembling about, a fatal ambush of U.S. soldiers in Iraq raised suspicions about her prior knowledge of, and complicity in, the ambush.
The plaintiff submitted exhibits that describe a harrowing ambush of U.S. Forces, on November 20, 2004, in Adhamiya, Iraq, that resulted in the death of one American soldier and serious injuries to several others. See Pl.’s Reply Supp. Second Cross-Mot Summ. J. (“Pl.’s Reply”), Ex. A, Letter from U.S. Army Criminal Investigation Command (“USACIC”) to FBI (“USACIC Package”) at A-1, ECF No. 35-1. In the midst of this ambush, two soldiers witnessed

2

The parties filed multiple exhibits and declarations in connection with the pending cross-motions; each

exhibit and submission from the parties has been reviewed, but only those exhibits necessary to provide context for

resolution of the instant motion are cited herein.

2

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 3 of 38
an “unusual” sight, id. at A-17: “a white female and an Iraqi male on the roof of a building” overlooking the site of the ambush, id. at A-9, with the woman holding, “over her head,” an “expensive looking” video camera “with a sound boom microphone on top,” id. at A-17. The soldiers’ description of this woman resembled the plaintiff, Laura Poitras. Id.
Two days after the ambush, a Lieutenant Colonel from the U.S. Army met at the military base in the area with the Chairman and Vice-Chairman of the Adhamiya District Council. Id. at A-11. The plaintiff also attended this meeting and was denied permission to film the meeting. Id. During the ensuing discussion, the Lieutenant Colonel asked the Vice-Chairman whether he had been present during the ambush. Id. at A-13. The Vice-Chairman said he was not, but Army officers “noticed he was looking up and to the left, as if he were creating a memory, or about to not tell the truth.” Id. The plaintiff was then asked directly “if she had ever seen any of these attacks or gotten these attacks on video.” Id. at A-14. The plaintiff, “who had thus far sat through the entire meeting without saying a word, suddenly appeared nervous” and “made a sound that sounded like no, but her lower lip seized up as she spoke and all that came out was a nervous sound.” Id.
A second Army officer who was present also observed that “Ms. Poitras’ lower lip began quivering” when these questions were asked and that “her body instantly became tense and she leaned forward and crossed her arms” when the Vice-Chairman was asked about his whereabouts at the time of the ambush. Id. This behavior “was not consistent with her average body language throughout the meeting.” Id. The Lieutenant Colonel explained that he asked the plaintiff and the Vice-Chairman these questions because two soldiers at the ambush had “witnessed a white female and an Iraqi male on the roof of a building overlooking” the ambush site. Id. In fact, after the meeting concluded, the plaintiff “was deliberately walked past these
3

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 4 of 38

two soldiers who agreed later that Laura POITRAS was in fact the woman they observed on the roof top,” id. at A-20. This identification of the plaintiff by two eyewitnesses was directly contrary to her mumbled denial about being present at the ambush.
After returning from Iraq, the Lieutenant Colonel was interviewed about his war experiences by a historian, who later provided a sworn statement to the FBI as well as copies of his communications with the plaintiff. In her communications with the historian, the plaintiff confirmed that she “was in Adhamiya on the 19th . . . and 20th filming” and had been “staying in the house of an Iraqi family.” Id. at A-22. She further confirmed that “yes, indeed, I was the western woman w/camera & unarmed Iraqi civilians on the roof.” Id. at A-24. In addition, she stated that her “footage is really focusing on the family. [T]here are a couple telephoto shots of the street, but nothing I’d consider a document of events.” Id.
According to the historian’s sworn statement, before the ambush, “all the businesses along the streets were closed,” “metal gates were barring many of the store fronts,” and “[t]here was no one on the streets, which is unusual for a Saturday morning in downtown Baghdad.” Id. at A-20. In addition, “some of the windows had been taped from the inside to prevent glass from flying into stores and residences should they break,” indicating to him that “[i]t’s obvious that the neighborhood knew about and was prepared for an attack.” Id.3 Based on his communications with the plaintiff and his own observations, the historian reported in his sworn statement that “I believe Laura POITRAS had prior knowledge and the ability to report the forthcoming attack; however, purposely did not report this so she could obtain footage of the attack for her documentary.” Id.

3

The plaintiff does not deny that “windows in her host family’s neighborhood had reportedly been taped up

prior to the incident.” Pl.’s Reply at 1 n.1. Although these circumstances may have raised questions for an

inquisitive journalist—for example, why the windows were taped up or whether the host expected a violent

confrontation—the record does not reflect that the plaintiff expressed any concern about these unusual preparations.

4

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 5 of 38
On January 31, 2006, the Lieutenant Colonel’s final debrief memorandum was sent to USACIC. Id. at A-1. In early 2006, USACIC conducted its own investigation into the plaintiff’s involvement in the ambush, ultimately concluding that “credible information does not presently exist to believe Ms. Poitras committed a criminal offense,” while noting that “this could quickly change if Ms. Poitras were to be interviewed and admitted she had knowledge of the ambush and refused to notify US Forces in order to further her documentary and media interest.” Id. at A-2. USACIC sent this package of documents and reports to the FBI on April 6, 2006, “for any action you deem appropriate.” Id. The FBI opened an investigation into the plaintiff and her possible involvement in the ambush. See Defs.’ Reply Supp. Second Mot. Summ. J. (“Defs.’ Reply”) at 2, ECF No. 30; Pl.’s Reply at 7–8.
In July 2006, shortly after the FBI opened its investigation, the plaintiff began being detained and questioned at the U.S. border when she returned to the United States from international travel. Compl. ¶¶ 9–10. The plaintiff claims that from July 2006 through April 2012, she was detained every time she entered the country and occasionally was detained in foreign countries before boarding a return flight to the United States. Id. ¶¶ 10–25; Pl.’s SMF ¶ 7. Each time she returned to the United States, CBP agents met her at the gate when her flight landed, detained and questioned her, and searched her bags before eventually allowing her to reenter the country. Pl.’s SMF ¶¶ 7–8. Agents frequently would make photocopies of the plaintiff’s travel documents during these encounters, and on about ten occasions, agents made photocopies of the plaintiff’s “reporters’ notebooks and/or the contents of her pockets and wallet, including receipts, credit cards, and business cards.” Id. ¶ 9. The plaintiff estimates that during this time, she was “detained, questioned, and searched on almost 40 occasions.” Id. ¶ 8.
5

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 6 of 38
In April 2012, another journalist published an article about the plaintiff’s detentions and questioning while traveling, and a group of documentary filmmakers submitted a petition to DHS protesting the plaintiff’s routine detentions. Compl. ¶ 10. In June 2012, the plaintiff “was detained, questioned, and searched for the last time and has not been detained at the U.S. border since.” Pl.’s SMF ¶ 8.
B. Plaintiff’s FOIA Request and the Agencies’ Responses On January 24, 2014, the plaintiff sent FOIA requests, pursuant to 5 U.S.C. § 552, to DHS, CBP, U.S. Citizenship and Immigration Services (“USCIS”), U.S. Immigration and Customs Enforcement (“ICE”), and the Transportation Security Administration (“TSA”), seeking “all agency records concerning, naming, or relating to Ms. Poitras.” Compl. ¶ 27; see also Defs.’ First Mot. Summ. J. (“Defs.’ First Mot.”), Ex. 9, Declaration of Kevin L. Tyrrell (DHS) (“Tyrrell Decl.”) ¶ 7, ECF No. 14-8; Defs.’ First Mot., Ex. 4, Declaration of Sabrina Burroughs (CBP) (“Burroughs Decl.”), Attach. A, Letter from David L. Sobel to CBP (“CBP Request”) at 20, ECF No. 14-3; Defs.’ First Mot., Ex. 7, Declaration of Jill A. Eggleston (USCIS) (“Eggleston Decl.”), Attach. A, Letter from David L. Sobel to USCIS (“USCIS Request”) at 7, ECF No. 14-6; Defs.’ First Mot., Ex. 8, Declaration of Fernando Pineiro (ICE) (“Pineiro Decl.”), Attach. A, Letter from David L. Sobel to ICE (“ICE Request”) at 14, ECF No. 14-7; Defs.’ First Mot., Ex. 5, Declaration of Regina Ann McCoy (TSA) (“McCoy Decl.”), Attach. A, Letter from David L. Sobel to TSA (“TSA Request”) at 12, ECF No. 14-4. That request was also sent, on the same day, to the Office of the Director of National Intelligence (“ODNI”) and the FBI, with the identification of specific locations within those agencies to be searched. For example, the request to ODNI sought “records maintained by the National Counterterrorism Center (‘NCTC’),” Compl. ¶ 29, while the request to the FBI asked that “the FBI perform a complete and thorough search of all filing systems and locations for all records
6

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 7 of 38

maintained by the Bureau pertaining to Ms. Poitras,” including “files and documents captioned in (or whose captions include) her name in the title” located on “the Central Records System, Electronic Surveillance Records (ELSUR), and Electronic Case File (ECF),” id. See also Defs.’ First Mot., Ex. 3, Declaration of Jennifer L. Hudson (ODNI) (“Hudson Decl.”), Attach. A, Letter from David L. Sobel to ODNI (“ODNI Request”) at 15, ECF No. 14-2; Defs.’ First Mot., Ex. 2, Public Declaration of David M. Hardy (FBI) (“First Hardy Decl.”), Attach. A, Letter from David L. Sobel to FBI (“FBI Request”) at 57–58, ECF No. 14-1. The plaintiff also “[s]pecifically request[ed] that the Bureau conduct a text search of the ECF to identify all potentially responsive main and cross-reference files,” including both “‘main’ files and ‘see references.’” FBI Request at 57. In her pending cross-motion for summary judgment, the plaintiff challenges only the responses of the FBI and the CBP.4 Accordingly, those agencies’ responses are detailed below.
1. FBI Response Upon receiving the plaintiff’s FOIA request, the FBI opened Request Number 1250943000. First Hardy Decl. ¶ 7. Starting on February 2, 2015, the FBI referred sets of pages to other agencies, including USACIC, the U.S. Army, the Executive Office for United States Attorneys (“EOUSA”), the Department of the Air Force, the U.S. Army Intelligence and Security Command (“USAISC”), the Central Intelligence Agency (“CIA”), CBP, the Department of State, the Department of Transportation, and the National Guard Bureau for direct response to the plaintiff or for coordination with the FBI. Id. ¶¶ 96–109. On May 29, 2015, the plaintiff filed an administrative appeal with the FBI’s Office of Information Policy (“OIP”). Id. ¶ 8. OIP acknowledged the plaintiff’s appeal and assigned it appeal number AP-2015-04130 before

4

On March 31, 2017, summary judgment was granted to the defendants, as conceded, with respect to

“(1) the withholdings of CBP, TSA, and ODNI, (2) the FBI’s withholdings under FOIA Exemptions 1, 3, 6, and

7(C), and (3) the adequacy of the searches for documents by the FBI, the ODNI, DHS, CIS, ICE, and TSA.” Summ.

J. Order at 6 (K.B. Jackson, J.).

7

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 8 of 38
advising the plaintiff, on July 13, 2015, that “no adverse determination ha[d] yet been made by the FBI” so “there was no action for OIP to consider on appeal.” Id. ¶¶ 9–10.
The plaintiff initiated this lawsuit on July 13, 2015. On October 14, 2015, the FBI made its first interim release of records to the plaintiff. Id. ¶ 12. After reviewing 145 pages of records, the FBI released 62 pages, in full or in part, and neither confirmed nor denied the existence of information indicating whether the plaintiff was or had been on a federal watch list. Id. This initial release was followed by a second release, on November 10, 2015, of 8 pages, in full or in part; a third release, on December 14, 2015, of 10 pages, in full or in part; a fourth interim release, on February 16, 2016, of 120 pages, in full or in part; and a final release, on March 4, 2016, of 57 pages, in full or in part. Id. ¶¶ 13–16. While briefing the pending motions, the FBI discovered that six pages “related to the closure of the FBI’s investigation into Plaintiff’s activities in Iraq[ ] had been inadvertently overlooked during the processing phase and were not processed and provided to Plaintiff.” Defs.’ Reply, Ex. 1, Fourth Declaration of David M. Hardy (FBI) (“Fourth Hardy Decl.”) ¶ 4, ECF No. 30-1. Those six pages were provided to the plaintiff in a letter dated September 22, 2017, with some information withheld pursuant to Exemptions 5, 6, 7(C), and 7(E). Id. In total, the FBI identified 350 responsive pages, released in full 1 page, released in part 262 pages, and withheld in full 87 pages. First Hardy Decl. ¶ 110; Fourth Hardy Decl. ¶¶ 4, 8 & n.1.
In conducting its search, the FBI used the terms “Laura Poitras,” “Laura Susan Poitras,” “Lara Susan Poitras,” a three-way phonetic breakdown of “Laura Poitras,” and an on-the-nose search for “Laura Susan Poitras” and “Lara Susan Poitras.” First Hardy Decl. ¶ 28. To justify its withholdings, the FBI relied on FOIA Exemptions 1, 3, 5, 6, 7(A), 7(C), 7(D), and 7(E). Id. ¶¶ 12–15. As relevant to the pending motions, the FBI relied on Exemption 5 to withhold
8

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 9 of 38
“privileged deliberative materials,” including an “intra-agency analysis from the New York Field Office” in which analysts are “discussing results of database checks conducted to aid in the investigation at issue and whether a court order or coordination with other agencies needed to be considered.” Id. ¶¶ 60, 62. Invoking Exemption 7(A), the FBI withheld “file numbers of pending FBI investigations.” Id. ¶ 77. The FBI also withheld, pursuant to Exemption 7(D), “the identity as well as the information provided by an intelligence agency of a foreign government with an implicit understanding of confidentiality,” id. ¶ 81, and “information regarding an individual source who is a source symbol numbered informant under an express grant of confidentiality,” id. ¶ 85. Finally, the FBI withheld eight types of information under Exemption 7(E), including “sensitive case file numbers”; “internal e-mail addresses, non-public intranet web addresses, and a secure internal e-mail tool”; “information pertaining to the types and dates of investigations referenced in the records at issue”; “methods and techniques involving the location and identity of FBI units and/or joint units that were involved in this investigation”; “methods the FBI uses to collect and analyze the information it obtains for investigative purposes”; “the investigative focus of specific FBI investigations”; “strategies and law enforcement techniques utilized by the United States military and the FBI for countering [techniques, tactics, and/or procedures (“TTPs”)] of a terrorist organization in Iraq” and “TTPs utilized by that terrorist organization”; and “monetary amounts requested by FBI personnel and/or paid by the FBI in order to implement particular investigative techniques.” Id. ¶¶ 87–94. The plaintiff now challenges the withholdings under Exemptions 5 and 7.
2. CBP Response After receiving and reviewing the plaintiff’s request, CBP FOIA staff determined that responsive records within CBP’s control were likely to be found within two CBP systems— TECS and the Automated Targeting System (“ATS”)—and performed searches on those
9

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 10 of 38
databases “using Plaintiff’s name and date of birth.” Burroughs Decl. ¶ 5.5 CBP searched TECS and its subsystems for all responsive records through June 16, 2015, and, on November 12, 2015, after the plaintiff initiated this lawsuit, released 492 pages of records from TECS to the plaintiff as part of an initial production. Id. ¶ 18; see also Burroughs Decl., Attach. B, Letter from Christie Sharpe to David Sobel (“CBP Response”) at 23, ECF No. 14-3. As for the ATS records, CBP ran a query “with Plaintiff’s name and date of birth” and on November 12, 2015, CBP released 220 pages of partially redacted records to the plaintiff. Burroughs Decl. ¶ 26. The plaintiff does not challenge any of CBP’s withholdings. See Pl.’s First Cross-Mot. at 2; Order Denying Mots. Summ. J. Without Prejudice and Requiring Submission of a Vaughn Index (“Summ. J. Order”) at 6, ECF No. 22 (K.B. Jackson, J.).
While processing the plaintiff’s request, “CBP FOIA became aware that additional responsive records” were likely to be found in CBP’s New York field office. Burroughs Decl. ¶ 30; see also id. ¶ 5 (“CBP personnel further determined that responsive records, both paper and electronic, were likely to be found within CBP’s New York field office.”). These records specifically related to “an encounter between Plaintiff and CBP on August 1, 2010, at JFK International Airport.” Id. ¶ 30. Following up on this lead, CBP conducted a supplemental search by enlisting personnel from the New York field office to search “paper files known or reasonably believed to include records relating to Plaintiff or the August 1, 2010 encounter.” Id. ¶ 31. In addition to the manual search of paper records in the New York field office, an additional “electronic search” was performed “using search criteria reasonably tailored to identify all records that may be responsive to the Request.” Id. CBP also searched the records of

5

TECS was previously the abbreviation for the Treasury Enforcement Communication System. See Pineiro

Decl. ¶ 34 n.2. After the creation of DHS and the migration of CBP systems to DHS, the system is now known

simply as “TECS” and is no longer an abbreviation. Id.

10

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 11 of 38
“several custodians deemed reasonably likely to have information related to Plaintiff or the August 1, 2010 encounter, us[ing] the timeframe of August 1, 2010 through October 31, 2010 so as to capture all known or reasonably likely to exist records concerning Plaintiff or the August 1, 2010 encounter.” Id. The New York field office’s search “utilized search terms that included ‘Poitras,’ ‘Laura Poitras,’ and the name and email address of Plaintiff’s legal counsel related to the August 1, 2010 encounter, ‘David B. Smallman’ and ‘dbs@smallmanlaw.com.’” Id. On February 27, 2016, CBP released 223 pages of partially redacted documents from the New York field office. Id. In addition, CBP withheld in full 26 documents, totaling 3,182 pages, from the New York field office pursuant to Exemptions 5, 6, 7(C), and 7(E). Id. ¶ 38.
The plaintiff does not challenge CBP’s withholdings in the pending motion but rather challenges the adequacy of CBP’s search. See Summ. J. Order at 3 n.2, 6.
C. The FOIA Lawsuit The plaintiff initiated this lawsuit on July 13, 2015, challenging the agencies’ responses to her request. The parties’ first motions for summary judgment were granted in part and denied in part on March 31, 2017. See supra, n.4; Summ. J. Order at 6. Specifically, the defendants’ motion was granted, as conceded, with respect to “(1) the withholdings of CBP, TSA, and ODNI, (2) the FBI’s withholdings under FOIA Exemptions 1, 3, 6, and 7(C), and (3) the adequacy of the searches for documents by the FBI, the ODNI, DHS, CIS, ICE, and TSA.” Summ. J. Order at 6. The Court noted that neither of the FBI’s two declarations from the FBI’s lead FOIA officer “contain[ed] a full Vaughn Index or any other detailed listing of the documents and information that the agency is withholding, or the particularized justifications for each withholding.” Id. at 3. Thus, the pending motions were granted in part and denied in part to “provide the agency with an opportunity to refile the motion with the requisite supporting documents.” Id. at 6. Although the plaintiff’s first cross-motion challenged the adequacy of CBP’s search on the same grounds
11

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 12 of 38

given in the pending motion, see Pl.’s First Cross-Mot. at 20–23, the first Summary Judgment Order focused only on the FBI’s withholdings and did not address or resolve any issues regarding CBP, see Summ. J. Order at 3–6. The parties’ second motions for summary judgment are now pending before this Court.6 II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “In FOIA cases, ‘summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.’” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (internal quotation marks and alteration omitted) (quoting Consumer Fed’n of Am. v. Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)). Indeed, the D.C. Circuit has observed that “the vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).
The FOIA was enacted “to promote the ‘broad disclosure of Government records’ by generally requiring federal agencies to make their records available to the public on request.” DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (quoting U.S. Dep’t of Justice v. Julian, 486 U.S. 1, 8 (1988)). Reflecting the necessary balance between the public’s interest in governmental transparency and “legitimate governmental and private interests that could be harmed by release of certain types of information,” United Techs. Corp. v. U.S. Dep’t of Def.,

6

This case was reassigned to the undersigned Judge on October 24, 2017.

12

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 13 of 38
601 F.3d 557, 559 (D.C. Cir. 2010) (alteration adopted) (quoting Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc)), the FOIA contains nine exemptions, set forth in 5 U.S.C. § 552(b), which “are explicitly made exclusive and must be narrowly construed,” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011) (internal quotation marks and citation omitted); see also Murphy v. Exec. Office for U.S. Attorneys, 789 F.3d 204, 206 (D.C. Cir. 2015); Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice (“CREW”), 746 F.3d 1082, 1088 (D.C. Cir. 2014); Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir. 2010). “[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976).
In litigation challenging the sufficiency of “the release of information under the FOIA, ‘the agency has the burden of showing that requested information comes within a FOIA exemption.’” Pub. Citizen Health Research Grp. v. Food & Drug Admin., 185 F.3d 898, 904 (D.C. Cir. 1999) (quoting Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy, 169 F.3d 16, 18 (D.C. Cir. 1999)); see also U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 171 (1993) (noting that “[t]he Government bears the burden of establishing that the exemption applies”); Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979) (finding that the agency invoking an exemption bears the burden “to establish that the requested information is exempt”); Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014). This burden does not shift even when the requester files a cross-motion for summary judgment because “the Government ‘ultimately [has] the onus of proving that the [documents] are exempt from disclosure,’” while the “burden upon the requester is merely ‘to establish the absence of material factual issues before a summary disposition of the case could permissibly occur.’” Pub.
13

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 14 of 38
Citizen Health Research Grp., 185 F.3d at 904–05 (alterations in original) (quoting Nat’l Ass’n of Gov’t Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)).7
An agency may carry its burden of showing an exemption was properly invoked by submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, or both, to demonstrate that the government has analyzed carefully any material withheld and provided sufficient information as to the applicability of an exemption to enable the adversary system to operate.8 See Judicial Watch, 726 F.3d at 215 (“In FOIA cases, ‘summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.’” (alteration adopted) (quoting Consumer Fed’n, 455 F.3d at 287)); CREW, 746 F.3d at 1088 (noting that an agency’s burden is sustained by submitting affidavits that “describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith” (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009))); Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (instructing that an agency’s description “should reveal as much detail as possible as to the nature of the document, without actually disclosing information that deserves protection[,] . . . [which] serves the purpose of providing the requestor with a realistic opportunity to challenge the agency’s decision”). “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears

7

“The rule governing cross-motions for summary judgment . . . is that neither party waives the right to a full

trial on the merits by filing its own motion; each side concedes that no material facts are at issue only for the

purposes of its own motion.” McKenzie v. Sawyer, 684 F.2d 62, 68 n.3 (D.C. Cir. 1982).

8

“A Vaughn index describes the documents withheld or redacted and the FOIA exemptions invoked, and

explains why each exemption applies.” Prison Legal News v. Samuels, 787 F.3d 1142, 1145 n.1 (D.C. Cir. 2015).

14

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 15 of 38
‘logical’ or ‘plausible.’” Judicial Watch, Inc. v. U.S. Dep’t of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (quoting ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011)); Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007)).
The FOIA provides federal courts with the power to “enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). District courts must “determine de novo whether nondisclosure was permissible,” Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015), by reviewing the Vaughn index and any supporting declarations “to verify the validity of each claimed exemption,” Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998).
In addition, the court has an “affirmative duty” to consider whether the agency has produced all segregable, nonexempt information. Elliott v. U.S. Dep’t of Agric., 596 F.3d 842, 851 (D.C. Cir. 2010) (referring to court’s “affirmative duty to consider the segregability issue sua sponte” (quoting Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007))); see also StoltNielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008) (“[B]efore approving the application of a FOIA exemption, the district court must make specific findings of segregability regarding the documents to be withheld.” (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007))); Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999) (“[W]e believe that the District Court had an affirmative duty to consider the segregability issue sua sponte . . . even if the issue has not been specifically raised by the FOIA plaintiff.”); 5 U.S.C. § 552(b) (“Any 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.”).
15

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 16 of 38

III. DISCUSSION The issues remaining in this case pertain only to the FBI and CBP. Specifically, the
plaintiff challenges the FBI’s withholdings under Exemptions 5 and 7, the adequacy of CBP’s search, and the agencies’ determinations that no additional nonexempt information could reasonably be segregated from the withheld material. These issues are taken in turn.
A. The FBI’s Withholdings under Exemptions 5 and 7 Were Appropriate 1. Exemption 5
The parties dispute the FBI’s withholding under Exemption 5, pursuant to the deliberative-process privilege, of portions of three pages from an “electronic communication” from the New York field office “documenting and providing intelligence analysis and analytical support for the investigation into Poitras’ potential involvement in an ambush on US forces in Iraq.” Pl.’s Reply at 9; Defs.’ Mot., Ex. 2, Withheld in Full/Release in Part Vaughn Index for Specific Exemptions (“FBI Vaughn Index”) at 46, ECF No. 24-2.9 As explained below, the FBI has provided sufficient explanation for the withholding and redactions of these documents under Exemption 5.
a) Overview of FOIA Exemption 5 Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). Two conditions must be met for a record to qualify for this exemption: (1) “its source must be a Government agency,” and (2) “it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the

9

After the FBI produced, on September 22, 2017, six additional pages documenting its decision to close the

investigation into the plaintiff, see Fourth Hardy Decl. ¶ 4, the plaintiff advised the FBI that “she intend[ed] to

challenge the FBI’s withholding of attorney work product” on one of the six new pages. Defs.’ Reply at 10. The

plaintiff later abandoned this argument. See Pl.’s Reply at 3 n.6.

16

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 17 of 38
agency that holds it.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001); see also Nat’l Inst. of Military Justice v. U.S. Dep’t of Def., 512 F.3d 677, 680 & n.4 (D.C. Cir. 2008). Exemption 5 may be used to withhold records subject to, inter alia, “the deliberative-process privilege, the attorney-client privilege, and the attorney work-product privilege.” Nat’l Ass’n of Criminal Def. Lawyers v. U.S. Dep’t of Justice Exec. Office for U.S. Attorneys, 844 F.3d 246, 249 (D.C. Cir. 2016) (citing Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980)).
For the deliberative-process privilege to apply, the materials must be “both predecisional and deliberative.” Mapother v. Dep’t of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). A document is predecisional if “it was generated before the adoption of an agency policy” and is deliberative if “it reflects the give-and-take of the consultative process.” Coastal States Gas, 617 F.2d at 866. Thus, Exemption 5 “covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.” Id. “Factual material that does not reveal the deliberative process is not protected by this exemption.” Paisley v. CIA, 712 F.2d 686, 698 (D.C. Cir. 1983) (citing EPA v. Mink, 410 U.S. 73, 89–91 (1973)). The D.C. Circuit has emphasized that “[t]he identity of the parties to the memorandum is important; a document from a subordinate to a superior official is more likely to be predecisional, while a document moving in the opposite direction is more likely to contain instructions to staff explaining the reasons for a decision already made.” Coastal States Gas, 617 F.2d at 868.
b) The FBI’s Exemption 5 Withholdings The plaintiff challenges the FBI’s invocation of Exemption 5 and the deliberative-process privilege on three pages, Poitras-158, Poitras-159, and Poitras-163, contending that “the FBI has failed to identify a specific agency decision to which the redacted paragraphs are predecisional or
17

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 18 of 38

a decision-making process to which the redacted paragraphs contributed,” Pl.’s Cross-Mot. at 20 (emphasis in original), and that the FBI’s Vaughn index did not “identify with any particularity the reasons why the FBI was unable to segregate the factual material contained within the eight paragraphs redacted pursuant to Exemption 5’s deliberative process privilege across the three pages at issue,” Pl.’s Reply at 10.10 Based on the details provided in the FBI’s Vaughn index and affidavits, the plaintiff’s Exemption 5 arguments fail.
The FBI has explained, in both its declarations and its Vaughn index, the specific agency decision under deliberation in the redacted pages: whether further investigative steps needed to be taken, or court involvement sought, in light of the FBI’s database checks about the plaintiff’s role, if any, in an ambush resulting in the death of an American soldier. The Vaughn index states that pages Poitras-158, Poitras-159, and Poitras-163 are part of the same document: an electronic communication dated February 12, 2009, from the New York field office, “documenting and providing intelligence analysis and analytical support for the investigation into Poitras’s potential involvement in an ambush on US forces in Iraq.” FBI Vaughn Index at 46.11 The FBI explained that this document is “an intra-agency analysis” reflecting the New York field office “discussing results of database checks conducted to aid in the investigation at issue and whether a court order or coordination with other agencies needed to be considered.” First Hardy Decl. ¶ 62; see also Defs.’ Reply at 7 (noting that the redacted information included “deliberation over what further investigative steps the FBI could or should take in light of the results” and “recommendations to the special agent as to how to proceed in the investigation, including recommendations to

10

The plaintiff requests in camera review of the three pages at issue to determine whether the FBI “has

adequately segregated completely factual material.” Pl.’s Reply at 11. The segregability argument will be

addressed below, infra Part III.C.

11

The FBI uses the term “electronic communication” to refer to communications “within the FBI in a

consistent format that can be uploaded by the originating Division or office, transmitted, and downloaded by

recipient Divisions or offices within the FBI’s internal computer network.” FBI Vaughn Index at 3 n.6.

18

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 19 of 38
consider seeking a court order and coordinating with other agencies.”). Indeed, on Poitras-158, the header above the redacted text reads “Analytical Recommendations.” Pls.’ First Cross-Mot., Ex. A, Poitras-157 to Poitras-167 (“FBI Memo”) at 2, ECF No. 18-1. The portion of Poitras-159 that was redacted pursuant to the deliberative-process privilege is the next paragraph under the “Analytical Recommendations” heading, and Poitras-163 is the final page in this document. Id. at 3, 7. The declaration’s description, contrary to the plaintiff’s arguments, does provide “a specific agency decision,” Pl.’s Cross-Mot. at 20 (emphasis in original), being deliberated in the document in question: “whether a court order or coordination with other agencies needed to be considered” as part of the FBI’s investigation into the plaintiff’s possible involvement in the fatal ambush. First Hardy Decl. ¶ 62. Thus, given the predecisional and deliberative nature of the “[a]nalytical [r]ecommendations” at issue, FBI Memo at 2, the FBI properly invoked Exemption 5 and the plaintiff’s request for in camera review of the disputed pages is denied.
2. Exemption 7 The plaintiff also disputes the FBI’s withholdings on 252 pages in part and 19 pages in full, see Pl.’s Cross-Mot. at 14, pursuant to Exemptions 7(A), 7(D), and 7(E), arguing that “[b]ecause the FBI has failed to meet the threshold” showing of Exemption 7, namely, that the records or information were compiled for law-enforcement purposes, “the Court need not reach the applicability of the specific criteria set forth in 7(A), 7(D), and 7(E),” id. at 11. As discussed below, however, the threshold requirement for Exemption 7 is satisfied and the FBI has properly invoked Exemptions 7(A), 7(D), and 7(E) as the bases for its withholdings.
a) Exemption 7 Threshold Requirement Exemption 7 protects from disclosure “‘records or information’ [ ] ‘compiled for law enforcement purposes,’” but only to the extent that “production of such ‘records or information’ would cause at least one of the specific harms described in the lettered subsections of Exemption
19

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 20 of 38
7.” Sack v. U.S. Dep’t of Def., 823 F.3d 687, 693–94 (D.C. Cir. 2016) (quoting 5 U.S.C. § 552(b)(7)); see also Milner, 562 U.S. at 581 (“Exemption 7 . . . protects ‘information compiled for law enforcement purposes’ that meets one of six criteria” (quoting 5 U.S.C. § 552(b)(7))); John Doe Agency v. John Doe Corp., 493 U.S. 146, 156 (1989) (“Exemption 7 requires the Government to demonstrate that a record is ‘compiled for law enforcement purposes’ and that disclosure would effectuate one or more of the six specified harms.”) (emphasis in original); Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mex. (“PEER”), 740 F.3d 195, 202–03 (D.C. Cir. 2014) (“To fall within Exemption 7, documents must first meet a threshold requirement: that the records were ‘compiled for law enforcement purposes.’” (quoting 5 U.S.C. § 552(b)(7))). “To show that the disputed documents were compiled for law enforcement purposes, the [agency] need only establish a rational nexus between the investigation and one of the agency’s law enforcement duties and a connection between an individual or incident and a possible security risk or violation of federal law.” Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir. 2011) (internal quotation marks and citations omitted).
The plaintiff contends that the FBI “has not established a connection between Plaintiff and a possible violation of federal law or security risk,” Pl.’s Reply at 4, and “cannot establish that its investigatory activities are realistically based on a legitimate concern that federal laws have been or may be violated or that national security may be breached,” id. at 5–6 (emphasis in original) (internal quotation marks omitted). The plaintiff also argues that “the Hardy declarations’ vague and highly generalized references to the FBI’s ‘criminal investigation’ are not sufficient to satisfy the government’s burden,” Pl.’s Cross-Mot. at 16, and that “the Bureau’s investigation of Plaintiff was conducted for intelligence gathering purposes—not law
20

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 21 of 38
enforcement purposes—and that Exemption 7 therefore does not apply to the disputed records,” id. at 14. The plaintiff is wrong.
The FBI has established that its investigation of the plaintiff was realistically based on a legitimate concern that she may have been either an intentional or unwitting tool to film or otherwise document an ambush that resulted in the death of one American soldier and serious injury to several others. As the declarations make clear, “the FBI initiated an investigation on the basis of an allegation and information indicating that the plaintiff may have been involved in an activity constituting a federal crime and/or threat to national security.” Defs.’ Reply Supp. First Mot. Summ. J. (“Defs.’ First Reply”), Ex. 1, Second Declaration of David M. Hardy (FBI) (“Second Hardy Decl.”) ¶ 8, ECF No. 19-1. This investigation stemmed from the plaintiff’s “possible involvement with anti-coalition forces during her time in Iraq as an independent media representative.” First Hardy Decl. ¶ 64. The Hardy declarations provide the requisite specific facts and circumstances giving rise to this investigation: the FBI learned from USACIC that the “plaintiff watched and filmed the ambush from on top of a nearby building and when questioned denied being present on the roof when several U.S. soldiers had positively identified her as being present during the ambush,” Second Hardy Decl. ¶ 9. The FBI also “received further information about Poitras’s involvement, including the possibility that she had prior knowledge of the ambush and purposely chose not to report it.” First Hardy Decl. ¶ 31. The FBI thus opened an investigation into whether “the alleged activities constitute a federal crime and a threat to national security . . . for potential prosecution and intelligence purposes,” Second Hardy Decl. ¶ 9, in furtherance of the agency’s law-enforcement duties of “investigat[ing] all violations of federal law not exclusively assigned to another agency, [ ] conduct[ing] investigations and activities to protect the United States and its people from terrorism and threats to national
21

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 22 of 38
security, and further[ing] the foreign intelligence objectives of the United States.” First Hardy Decl. ¶ 63. Thus, the FBI has established both “a rational nexus between the investigation and one of the agency’s law enforcement duties” and a “connection between an individual or incident and a possible security risk or violation of federal law,” Blackwell, 646 F.3d at 40, thereby satisfying the Exemption 7 threshold requirement.
The plaintiff nevertheless contends that the FBI’s investigation was for purely intelligence-gathering, rather than law-enforcement, purposes, thus making Exemption 7 inapplicable. See Pl.’s Cross-Mot. at 14. She draws support for this argument from the USACIC’s April 2006 package to the FBI, which stated that “credible information does not presently exist to believe Ms. Poitras committed a criminal offense,” USACIC Package at A-2, and from the fact that the FBI never interviewed the plaintiff during its investigation, Pl.’s CrossMot. at 15; Pl.’s Reply at 7 n.10. These arguments are not persuasive. First, the FBI may conduct a criminal investigation without interviewing the subject of the investigation. Second, the USACIC’s determination is not binding on the FBI. The FBI was entitled to carry out its own investigation into whether the plaintiff “may have been involved in an activity constituting a federal crime and/or threat to national security.” Second Hardy Decl. ¶ 8.
The plaintiff’s dissembling about her whereabouts at the time of the fatal ambush and about whether she documented the events, despite two eyewitnesses who saw her on a rooftop over-looking the ambush area with her camera and sound equipment, may reasonably have contributed to the FBI’s view that an investigation was warranted. Indeed, the FBI repeatedly has explained that it was investigating the plaintiff’s involvement in the ambush for both “potential prosecution and intelligence purposes,” id. ¶ 9 (emphasis added), because “Plaintiff’s potential involvement was at once a threat to national security warranting further intelligence
22

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 23 of 38

gathering and a potential federal crime,” Defs.’ Reply at 5–6 (emphasis in original). Given that “[t]he FBI is an agency ‘specializ[ing] in law enforcement,’ [ ] its claim of a law enforcement purpose is entitled to deference.” Kidder v. FBI, 517 F. Supp. 2d 17, 27 (D.D.C. 2007) (second and third alterations in original) (quoting Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998)); see also Manning v. U.S. Dep’t of Justice, 234 F. Supp. 3d 26, 34 (D.D.C. 2017) (“The court must give ‘substantial weight’ to agency declarations absent contrary evidence or evidence of bad faith.” (quoting Judicial Watch, 715 F.3d at 940–41)).12
The plaintiff relies on several cases that, ironically, undercut her position and provide further support for the conclusion that the FBI compiled the records at issue for law-enforcement purposes. Pl.’s Cross-Mot. at 13, 18. In Shapiro v. U.S. Department of Justice, 37 F. Supp. 3d 7 (D.D.C. 2014), the plaintiff sought records concerning the “Occupy Houston” movement and “an alleged plot by unidentified actors to assassinate the leaders” of that movement. Id. at 13–14. The declaration submitted by the FBI was found insufficient to justify withholding documents under the exemption for law-enforcement records, due in part to the fact that the FBI had compiled the documents at issue “as a result of assistance FBI rendered to various state and local law enforcement agencies which were investigating potential criminal activity by protestors.” Id. at 29. The declaration never “suppl[ied] specific facts as to the basis for FBI’s belief that the Occupy protestors might have been engaged in terroristic or other criminal activity.” Id. In this case, by contrast, the FBI has identified the specific facts giving rise to its investigation, namely,

12

The plaintiff further claims that the FBI “has consistently mischaracterized the circumstances surrounding

its initiation of its investigation” by claiming that USACIC asked the FBI to investigate the plaintiff, thereby

“attempt[ing] to establish a law enforcement purpose after the fact.” Pl.’s Reply at 7 (capitalization omitted). While

the parties dispute which agency requested the investigation into the plaintiff’s involvement in this ambush, they

agree that the FBI opened an investigation. See Defs.’ Mot., Ex. 1, Mem. Supp. Second Mot. Summ. J. (“Defs.’

Mem.”) at 7, ECF No. 24-1; Pl.’s Cross-Mot. at 3. Whether USACIC requested the investigation or the FBI

independently initiated the investigation does not change the fact that the FBI was investigating the plaintiff’s

involvement “in an activity constituting a federal crime and/or threat to national security.” Second Hardy Decl. ¶ 8.

23

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 24 of 38
that the plaintiff “watched and filmed the ambush from on top of a nearby building and when questioned denied being present on the roof when several U.S. soldiers had positively identified her as being present during the ambush.” Second Hardy Decl. ¶ 9.
The plaintiff also relies on Lamont v. Department of Justice, 475 F. Supp. 761 (S.D.N.Y. 1979), and Weissman v. CIA, 565 F.2d 692 (D.C. Cir. 1977), to argue that the FBI’s “six years of generalized monitoring of Plaintiff” was not conducted for law-enforcement purposes. Pl.’s Reply at 6; see also Pl.’s Cross-Mot. at 18. In Lamont, the plaintiff, who was the subject of “a three-decade period of surveillance,” sought all FBI records containing information relating to himself. Lamont, 475 F. Supp. at 764. The plaintiff in that case conceded that the FBI was acting with a law-enforcement purpose while the agency was investigating his alleged association with the Communist Party, but he claimed that the seventeen years of surveillance conducted after the FBI closed its investigation was not carried out for any law-enforcement purpose. Id. at 774. The Court agreed that for this post-investigation period, “there [wa]s nothing in the record . . . to indicate that the FBI conceived of” the plaintiff’s association with various educational and political organizations “as violative of the Smith Act or evidencing a possibility of future violation of that law,” id., and that, accordingly, the seventeen years of postinvestigation surveillance was not “related to the Bureau’s law enforcement duties,” id. at 775. Here, however, the FBI did not close its investigation into the plaintiff until sometime in 2012, as evidenced by an internal memorandum “relating to the closure of the investigation into Plaintiff’s activities involving anti-coalition forces in Iraq,” Def.’s Reply at 10, dated August 28, 2012, concluding that “[n]o potential criminal violations or priority threats to national security warranting further investigation were identified.” Pl.’s Reply, Ex. E, Poitras-345 to Poitras-349 (“Closure Memo”) at E-1, E-5, ECF No. 35-5. Unlike in Lamont, then, the FBI’s investigation
24

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 25 of 38
of the plaintiff in this case was “related to the FBI’s duties to enforce federal law,” Lamont, 475 F. Supp. at 775, for the entire six-year span of the plaintiff’s airport detentions and questionings.
Finally, in Weissman, the plaintiff was concerned about CIA investigative activity directed at left-of-center political activists, like himself, and sought “all files completed on [him] by the CIA.” Weissman, 565 F.2d at 693. Unbeknownst to the plaintiff in that case, the CIA previously had considered him for employment some twenty years earlier and had, “without his knowledge or permission,” placed him “under a periodic but continuing investigation,” conducted over five years, regarding his fitness for employment at the agency. Id. The D.C. Circuit acknowledged that the employment investigation, twenty years before the FOIA request, “may well have been a genuine attempt to determine whether he was a safe candidate for recruiting by the Agency,” but nevertheless concluded that “[i]t cannot be contended that this activity was for law-enforcement purposes.” Id. at 695. Unlike Weissman, in which no pending criminal or national-security investigation was pending, the FBI’s investigation in this case was conducted for the express purpose of determining whether the plaintiff violated any criminal laws or breached the national security. Accordingly, the FBI has satisfied Exemption 7’s threshold requirement.
b) The FBI’s Withholdings under Exemption 7 Were Proper The FBI also asserts that its withholdings under Exemptions 7(A), 7(D), and 7(E) were proper. See Defs.’ Mot., Ex. 1, Mem. Supp. Second Mot. Summ. J. (“Defs.’ Mem.”) at 11–17, ECF No. 24-1. The plaintiff presents no arguments regarding the withholdings made under these exemptions and limits her challenge to the Exemption 7 threshold. As explained below, the FBI has met its burden of establishing that these withholdings were appropriate.
25

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 26 of 38
i) Exemption 7(A) Exemption 7(A) protects from disclosure “records or information compiled for law enforcement purposes,” but only to the extent that the production of such records or information “could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). The exemption contemplates enforcement proceedings that are “pending or reasonably anticipated.” Mapother, 3 F.3d at 1540 (emphasis omitted). Thus, to justify withholdings under Exemption 7(A), the agency must demonstrate that disclosure of the materials “(1) could reasonably be expected to interfere with (2) enforcement proceedings that are (3) pending or reasonably anticipated.” CREW, 746 F.3d at 1096 (quoting Mapother, 3 F.3d at 1540). Importantly, however, “Exemption 7(A) is temporal in nature,” and an agency seeking to invoke the exception must “‘show that the material withheld relates to a concrete prospective law enforcement proceeding.’” Id. at 1097 (quoting Juarez v. Dep’t of Justice, 518 F.3d 54, 58 (D.C. Cir. 2008)). “Thus, reliance on Exemption 7(A) may become outdated when the proceeding at issue comes to a close.” Id. Here, the FBI relied on Exemption 7(A) to withhold the “file numbers of pending FBI investigations.” First Hardy Decl. ¶ 77. These investigations “pertain[ ] to investigative activities of third parties of an on-going FBI investigation,” and the file numbers are “intertwined with other ongoing investigations of known and suspected third party terrorists.” Id. Consequently, the FBI avers, “the release of this information would interfere with pending and prospective enforcement proceedings, including investigations and prosecutions,” and would “jeopardize the investigation.” Id. As of the filing of that declaration, the investigations were “pending” and “ongoing,” satisfying the temporal requirements of Exemption 7(A). Id. Accordingly, the FBI properly invoked Exemption 7(A) to withhold these file numbers.
26

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 27 of 38
ii) Exemption 7(D) Exemption 7(D) applies to records or information compiled for law-enforcement purposes that “could reasonably be expected to disclose the identity of a confidential source” who “furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation . . . , information furnished by a confidential source.” 5 U.S.C. § 552(b)(7)(D). “[T]he Government is not entitled to a presumption that a source is confidential within the meaning of Exemption 7(D) whenever [a] source provides information [to a law-enforcement agency] in the course of a criminal investigation.” Landano, 508 U.S. at 181. Rather, a source’s confidentiality must be determined on a case-by-case basis. Id. at 179–80. “A source is confidential within the meaning of [E]xemption 7(D) if the source ‘provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred.’” Williams v. FBI, 69 F.3d 1155, 1159 (D.C. Cir. 1995) (per curiam) (quoting Landano, 508 U.S. at 170–74). “An ‘implied’ assurance may be inferred from evidence showing the circumstances surrounding the imparting of the information, including the nature of the criminal investigation and the confidential source’s relationship to the target.” Willis v. U.S. Dep’t of Justice, 581 F. Supp. 2d 57, 77 (D.D.C. 2008) (citing Landano, 508 U.S. at 171–72). The FBI relied on Exemption 7(D) to withhold “two categories of sources: confidential information from foreign governments, and information from third parties who provided information under an implied assurance of confidentiality.” Defs.’ Mem. at 14; see also First Hardy Decl. ¶¶ 81–85. According to the FBI, the Foreign Government Information Classification Guide #1, which “governs classification of foreign government information that foreign governments have asked the FBI to protect over the course of time,” First Hardy Decl. ¶ 81, indicates that “the foreign agency referenced in the records at issue here requested its
27

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 28 of 38

relationship with the FBI be classified,” id. ¶ 83, thus providing “an express assurance of confidentiality,” Williams, 69 F.3d at 1159. Accordingly, the FBI properly withheld confidential information provided by foreign governments.
The FBI also withheld information “regarding an individual source who is a source symbol numbered informant under an express grant of confidentiality.” First Hardy Decl. ¶ 85. This Court previously has recognized that “it is the FBI’s practice to assign source symbols to informants only if those individuals report information to the FBI on a regular basis pursuant to an express grant of confidentiality.” Clemente v. FBI, 741 F. Supp. 2d 64, 87 (D.D.C. 2010) (internal quotation marks omitted); see also Amuso v. U.S. Dep’t of Justice, 600 F. Supp. 2d 78, 99 (D.D.C. 2009) (“As a matter of policy and practice, all symbol numbered sources are given an express grant of confidentiality.” (internal quotation marks omitted)). Given this express grant of confidentiality, the FBI’s withholding of the source’s “name, social security number, phone number, file number, source number, and [ ] type of source expenditures” under Exemption 7(D) was proper. First Hardy Decl. ¶ 85.
iii) Exemption 7(E) Finally, the FBI withheld certain information under Exemption 7(E), which protects from disclosure “records or information compiled for law enforcement purposes” that “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). The “requirement that disclosure risk circumvention of the law ‘sets a relatively low bar for the agency to justify withholding.’” PEER, 740 F.3d at 204–05 (quoting Blackwell, 646 F.3d at 42).13 The D.C.

13

Despite some disagreement among the circuits as to whether the phrase “could reasonably be expected to

risk circumvention of the law” applies only to “guidelines for law enforcement investigations,” or to “techniques and

28

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 29 of 38
Circuit has held that “[t]o clear that relatively low bar, an agency must demonstrate only that release of a document might increase the risk ‘that a law will be violated or that past violators will escape legal consequences.’” Id. at 205 (quoting Mayer Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009)). “Rather than requiring a highly specific burden of showing how the law will be circumvented, exemption 7(E) only requires that the agency demonstrate logically how the release of the requested information might create a risk of circumvention of the law.” Blackwell, 646 F.3d at 42 (internal quotation marks and alteration omitted) (quoting Mayer Brown, 562 F.3d at 1194).
The FBI invoked Exemption 7(E) to withhold “(1) sensitive file numbers or sub-file names; (2) internal, non-public email or IP addresses; (3) dates or types of investigations; (4) identity or location of FBI or Joint Units, Squads, or Divisions; (5) collection or analysis of information; (6) investigative focus; (7) law enforcement strategies or techniques for addressing the techniques, tactics or procedures (TTPs) used by an organization; [and] (8) monetary payments for investigative techniques.” Defs.’ Mem. at 16 (citing First Hardy Decl. ¶¶ 87–95). This information properly was withheld to prevent the disclosure of FBI techniques and procedures and to prevent the dissemination of information that might be gleaned from those techniques and procedures.
For example, releasing sensitive case file numbers would “identif[y] the investigative interest or priority given to such matters” because, “[a]pplying a mosaic analysis, suspects could use these numbers (indicative of investigative priority), in conjunction with other information known about other individuals and/or techniques, to change their pattern of activity to avoid
procedures” as well, the D.C. Circuit “has applied the ‘risk circumvention of the law’ requirement both to records containing guidelines and to records containing techniques and procedures,” noting that “given the low bar posed by the ‘risk circumvention of the law’ requirement, it is not clear that the difference matters much in practice.” PEER, 740 F.3d at 204 n.4.
29

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 30 of 38
detection, apprehension, or create alibis for suspected activities.” First Hardy Decl. ¶ 87; see also Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 928 (D.C. Cir. 2003) (noting that “courts have relied on [ ] mosaic arguments in the context of national security”). The disclosure of information pertaining to other internal procedures, including “protected internal email addresses, non-public intranet web addresses, and a secure internal e-mail tool,” would increase the likelihood that “individuals under investigation [could] exploit the FBI’s Information Technology system to gain unauthorized access to, view and manipulate data on, or otherwise interfere with the FBI’s non-public intranet protocol.” First Hardy Decl. ¶ 88. Still other information, if disclosed, would reveal sensitive strategic decisions made by the FBI: “Revealing the amount of money the FBI has paid or plans to pay in order to implement certain investigative techniques would reveal the FBI’s level of focus on certain types of law enforcement or intelligence gathering efforts,” id. at 46, while disclosing “the investigative focus of specific FBI investigations” would “reveal the scope of the FBI’s programs and the strategies it plans to pursue in preventing and disrupting criminal activity,” id. ¶ 92. As even this brief recounting establishes, the First Hardy Declaration “demonstrate[s] logically how the release of the requested information might create a risk of circumvention of the law,” Blackwell, 646 F.3d at 42 (internal quotation marks omitted), and describes the harms attendant to the disclosure of each category of withheld information. See First Hardy Decl. ¶¶ 87–95. Thus, the FBI’s withholdings under Exemption 7(E) were proper.
B. The CBP’s Search of the New York Field Office Was Adequate The plaintiff next challenges the adequacy of CBP’s search. See Pl.’s Cross-Mot. at 25– 28. The CBP has carried its burden of establishing that its search was adequate.
30

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 31 of 38
1. Legal Standard for Evaluating the Adequacy of a FOIA Search An agency “fulfills its obligations under [the] FOIA if it can demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents” and “perform[s] more than a perfunctory search” to identify responsive records. Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (internal quotation marks omitted); see also Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990). “[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. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (emphasis in original). In this regard, “[t]here is no requirement that an agency search every record system,” although “the agency cannot limit its search to only one record system if there are others that are likely to turn up the information requested.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Further, agencies are not obligated to search “beyond ‘the four corners of the request,’ nor are they ‘required to divine a requester’s intent.’” Am. Chemistry Council, Inc. v. U.S. Dep’t of Health & Human Servs., 922 F. Supp. 2d 56, 62 (D.D.C. 2013) (quoting Landmark Legal Found. v. EPA, 272 F. Supp. 2d 59, 64 (D.D.C. 2003)); see also Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996). At the summary judgment stage, an agency meets its burden of demonstrating beyond material doubt that it “made a ‘good faith effort to conduct a search using methods which can be reasonably expected to produce the information requested,’” DiBacco, 795 F.3d at 188 (alterations adopted) (quoting Oglesby, 920 F.2d at 68), by submitting to the court a “reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched,” Ancient Coin Collectors Guild, 641 F.3d at 514 (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d
31

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 32 of 38
321, 326 (D.C. Cir. 1999)). Agency affidavits or declarations explaining search scope and methodology are “accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted); Chambers v. U.S. Dep’t of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009) (recognizing substantial weight traditionally accorded to agency affidavits in FOIA adequacy-of-search cases). The FOIA requester bears the burden, then, of overcoming the presumption of good faith afforded to agency declarations by “rais[ing] substantial doubt, particularly in view of well defined requests and positive indications of overlooked materials,” DiBacco, 795 F.3d at 188 (internal quotation marks omitted), that the search was adequate. See also Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013) (upholding agency response to FOIA request when requester “ha[d] not presented sufficient evidence to rebut [the] presumption” accorded to the agency’s averments).
2. CBP’s Search CBP conducted two searches: one of CBP’s central office and another of its New York field office. The adequacy of each of those searches is examined. In support of its motion, CBP submitted the declaration of the Director of CBP’s FOIA Division, who averred that “CBP personnel determined that responsive records within CBP’s control were likely to be found” within the TECS and ATS databases, and searches were performed on those databases “using Plaintiff’s name and date of birth.” Burroughs Decl. ¶¶ 1, 5. The plaintiff contends that this search was inadequate because “CBP has failed to provide the actual search terms used for its searches of the TECS an[d] ATS databases” and has “provided only descriptions of those search terms.” Pl.’s Reply at 17. CBP explained, however, that “Plaintiff’s name and date of birth were the search terms utilized by CBP,” Defs.’ Reply at 15 (emphasis in original), a description specific enough to target CBP records about the plaintiff. See Strunk v. U.S. Dep’t of State, 845
32

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 33 of 38
F. Supp. 2d 38, 44 (D.D.C. 2012) (finding that CBP’s search of TECS “using variations of the subject’s name and date of birth as search terms” was adequate); cf. Reporters Comm. for Freedom of Press v. FBI, 877 F.3d 399, 404 (D.C. Cir. 2017) (rejecting as inadequate a search when the declaration was “utterly silent” regarding “which search terms were used to hunt within electronically stored materials”). Given the broad nature of the plaintiff’s request, a search using her name and date of birth “can be reasonably expected to produce the information requested.” DiBacco, 795 F.3d at 188 (internal quotation marks omitted).
The plaintiff also argues that CBP’s searches of its central office and its New York field office were inadequate because she “has identified paper documents that are missing from the agency’s production,” namely, “photocopies of Plaintiff’s reporter notebooks and/or the contents of her pockets and wallet . . . which were made by local CBP agents during her detentions.” Pl.’s Reply at 15–16. The law is well established in this Circuit, however, that the adequacy of a FOIA search is judged not by the results of an agency’s search but by the appropriateness of the agency’s search methods. Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). Thus, a search is not automatically rendered inadequate by an agency’s failure to locate a specific document, id., or by an agency’s refusal to take every step desired by a requester, Wright v. Admin. for Children & Families, No. 15-cv-218, 2016 WL 5922293, at *6 (D.D.C. Oct. 11, 2016) (citing Valencia-Lucena, 180 F.3d at 325); see also Reporters Comm. for Freedom of Press, 877 F.3d at 408 (“That a few responsive documents may have slipped through the cracks does not, without more, call into question the search’s overall adequacy.”); Mobley v. CIA, 806 F.3d 568, 583 (D.C. Cir. 2015) (“[A] search, under FOIA, is not unreasonable simply because it fails to produce all relevant material.” (internal quotation marks omitted)). As the defendants note, “there are numerous reasons why such photocopies, to the extent they were even retained
33

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 34 of 38
by CBP, may not have been included in CBP’s production.” Defs.’ Reply at 15. For example, “particular documents may have been accidentally lost or destroyed, or a reasonable and thorough search may have missed them.” Id. (quoting Iturralde, 315 F.3d at 315). The fact that the plaintiff expected to, but did not, receive certain documents does not render CBP’s search inadequate.
The plaintiff raises additional concerns about the adequacy of CBP’s supplemental search at the New York field office. As noted, while processing the plaintiff’s request, CBP “became aware that additional responsive records,” relating specifically to “an encounter between Plaintiff and CBP on August 1, 2010, at JFK International Airport,” were “reasonably likely to exist in files located within CBP’s New York field office.” Burroughs Decl. ¶ 30. Staff at the New York field office thus “reviewed paper files known or reasonably believed to include records relating to Plaintiff or the August 1, 2010 encounter” and conducted an electronic search of “several custodians deemed reasonably likely to have information related to Plaintiff or the August 1, 2010 encounter, us[ing] the timeframe of August 1, 2010 through October 31, 2010 so as to capture all known or reasonably likely to exist records concerning Plaintiff or the August 1, 2010 encounter.” Id. ¶ 31. The New York field office “utilized search terms that included ‘Poitras,’ ‘Laura Poitras,’ and the name and email address of Plaintiff’s legal counsel related to the August 1, 2010 encounter.” Id.
The plaintiff contends that this search was inadequate because it was limited “to a threemonth period and failed to search any other New York field office files likely to contain records responsive to Plaintiff’s request—which covers six years of airport detentions.” Pl.’s Reply at 13–14. As the Burroughs declaration makes clear, however, the search of the New York field office was conducted only because “additional responsive records,” specifically related to the
34

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 35 of 38
August 1, 2010, encounter, were likely to be found at the New York field office. Burroughs Decl. ¶ 30. Importantly, the FOIA requires only that an agency conduct a reasonable search that is tailored to the “four corners of the request.” Am. Chemistry Council, 922 F. Supp. 2d at 62 (internal quotation marks omitted); see also Kowalczyk, 73 F.3d at 389 (“[T]he [agency] is not obliged to look beyond the four corners of the request for leads to the location of responsive documents.”). The four corners of the plaintiff’s request to CBP did not offer any details about her encounters with airport officials, the locations of those encounters, or the dates for which she expected to find documents pertaining to those encounters. See CBP Request at 20. The plaintiff provided a wholly different agency—USCIS—with detailed information about several detentions or encounters between herself and CBP officials at airports in Newark and New York City, see Eggleston Decl. ¶ 8, but these details were not provided to CBP. In fact, USCIS FOIA officials repeatedly informed the plaintiff that she should request any CBP-related information for these specific encounters from the CBP FOIA Division—not from USCIS, id. ¶¶ 8–9, but the plaintiff does not appear to have done so. CBP’s search of TECS and ATS provided reason to believe that documents related specifically to the August 1, 2010, encounter would be found in the New York office, but no other encounters raised similar concerns. Burroughs Decl. ¶ 30. Thus, CBP’s search was “reasonably calculated to uncover all relevant documents.” Truitt, 897 F.2d at 542 (internal quotation marks omitted); see also Cause of Action v. IRS, 253 F. Supp. 3d 149, 159–60 (D.D.C. 2017).
The plaintiff further contends that CBP’s search of its New York office was inadequate because the Burroughs declaration does not “identify the specific files searched at the New York field office.” Pl.’s Reply at 18. “To prevail on summary judgment,” however, CBP must show only that “it made a good faith effort to conduct a search for the requested records, using
35

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 36 of 38
methods which can be reasonably expected to produce the information requested.” Reporters Comm. for Freedom of Press, 877 F.3d at 402 (quoting Oglesby, 920 F.2d at 68). This burden is satisfied by “submitting ‘[a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.’” Id. (quoting Oglesby, 920 F.2d at 68). CBP met this standard by conducting, in good faith, an additional search of the New York field office after recognizing that certain responsive records, pertaining to the August 1, 2010, encounter, might be found in that office. Burroughs Decl. ¶ 30. The declaration explains that CBP FOIA officials “perform[ed] an electronic search using search criteria reasonably tailored to identify all records that may be responsive to the Request” and conducted a thorough search of “paper files related to Plaintiff.” Id. ¶ 31. Moreover, the search terms used in this additional search were even broader than those used in the search of the main office, including not only the plaintiff’s name but also “the name and email address of Plaintiff’s legal counsel related to the August 1, 2010 encounter.” Id. Admittedly, the Burroughs Declaration could have been more specific regarding the method used to identify the custodians and which of their files were searched—but “[t]he arguable inadequacy of the search description[ ] here is, however, no more than marginal and does not render the grant of summary judgment inappropriate.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). CBP has adequately explained “in reasonable detail the scope and method of the search conducted by the agency,” which “suffice[s] to demonstrate compliance with the obligations imposed by the FOIA.” Id.; see also Cause of Action, 253 F. Supp. 3d at 160 (“The law is clear that FOIA does not provide requesters with a right to demand an all-encompassing fishing expedition of files in every office within an agency.”) (internal quotation marks omitted).
36

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 37 of 38
C. The FBI and the CBP Have Satisfied Their Segregability Obligations Finally, the plaintiff argues that the FBI and the CBP failed to satisfy their segregability obligations. See Pl.’s Cross-Mot. at 23–24. “The 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.’” Morley, 508 F.3d at 1123 (alteration in original) (quoting 5 U.S.C. § 552(b)). To satisfy its segregability obligation, an “agency must provide a ‘detailed justification’ for [ ] non-segregability,” but the agency “is not required to provide so much detail that the exempt material would be effectively disclosed.” Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977)). An agency may provide sufficient justification by describing the materials withheld, the exemption under which they were withheld, and an affidavit attesting that “it released all segregable material.” Loving v. Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008) (stating that “the description of the document set forth in the Vaughn index and the agency’s declaration that it released all segregable material” are “sufficient for [the segregability] determination”). Notably, “[a]gencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material.” Sussman, 494 F.3d at 1117. Here, the FBI and the CBP met their segregability burdens by submitting Vaughn indices, in combination with the attestations of their respective declarants, that the responsive documents were reviewed on a line-by-line basis and that no further segregation would be possible. See Judicial Watch, Inc. v. Consumer Fin. Prot. Bureau, 60 F. Supp. 3d 1, 13 (D.D.C. 2014) (“The reviewing court may rely on the description of the withheld records set forth in the Vaughn index and the agency’s declaration that it released all segregable information.”); Canning v. U.S. Dep’t of State, 134 F. Supp. 3d 490, 517–18 (D.D.C. 2015) (same). Specifically, the FBI averred that “[d]uring the processing of plaintiff’s request, each responsive page was individually examined
37

Case 1:15-cv-01091-BAH Document 37 Filed 03/29/18 Page 38 of 38
to identify non-exempt information that could be reasonably segregated from exempt information for release” and that “[t]he FBI conducted a page-by-page, line-by-line review of all responsive information.” Second Hardy Decl. ¶ 10. Similarly, the CBP stated that its officials “conducted a line-by-line review of the records determined to be responsive, to identify information exempt from disclosure or for which a discretionary waiver of exemption could apply,” and that they were “satisfied that all reasonably segregable portions of the relevant record have been released to the Plaintiff.” Burroughs Decl. ¶ 52. The plaintiff offers no reason to rebut the “presumption that [the agencies] complied with the obligation to disclose reasonably segregable material.” Sussman, 494 F.3d at 1117. Thus, based on the FBI’s and the CBP’s supporting declarations, the agencies have adequately specified “which portions of the document[s] are disclosable and which are allegedly exempt.” Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973). IV. CONCLUSION
For the foregoing reasons, the defendants’ Second Motion for Summary Judgment is GRANTED and the plaintiff’s Second Cross-Motion for Summary Judgment is DENIED. An appropriate Order accompanies this Memorandum Opinion.
Date: March 29, 2018
__________________________ BERYL A. HOWELL Chief Judge
38

 
 Case 1:15-cv-01091-BAH Document 52 Filed 04/11/19 Page 1 of 20

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LAURA POITRAS, Plaintiff, v.
DEPARTMENT OF HOMELAND SECURITY, et al.,
Defendants.

Civil Action No. 15-1091 (BAH) Chief Judge Beryl A. Howell

MEMORANDUM OPINION Pending before the Court is the plaintiff Laura Poitras’s motion for attorneys’ fees and costs, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(E), against the defendants Department of Homeland Security (“DHS”), the Department of Justice, and the Office of the Director of National Intelligence (“ODNI”). See Pl.’s Mot. Att’ys Fees (“Pl.’s Mot.”), ECF No. 45. The underlying FOIA requests sought records related to the “plaintiff and her repeated border stops and detentions at airports while traveling in pursuit of her journalistic endeavors.” Id. at 1. Shortly after the plaintiff initiated this lawsuit, several of the defendants’ components released previously withheld records responsive to the plaintiff’s FOIA requests, prompting the plaintiff to contend that she is both eligible for, and entitled to, attorneys’ fees. See generally id. The defendants concede the plaintiff’s eligibility but contest her entitlement to attorneys’ fees. See generally Defs.’ Opp’n to Pl.’s Mot. (“Defs.’ Opp’n”), ECF No. 48. For the following reasons, the plaintiff’s motion is denied. I. BACKGROUND Set out below is the procedural and factual background relevant to the plaintiff’s pending motion, with a fuller account provided in the Court’s previous opinions resolving the parties’
1

Case 1:15-cv-01091-BAH Document 52 Filed 04/11/19 Page 2 of 20
cross-motions for summary judgment. See Poitras v. U.S. Dep’t of Homeland Sec. (“Poitras II”), 303 F. Supp. 3d 136, 143–49 (D.D.C. 2018); Poitras v. U.S. Dep’t of Homeland Sec. (“Poitras I”), No. 15-CV-1091 (KBJ), 2017 WL 7053929 (D.D.C. Mar. 31, 2017).
A. The Plaintiff’s FOIA requests The plaintiff is a U.S. citizen, a journalist, and an Oscar-winning filmmaker who, between July 2006 and April 2012, was subjected to “Secondary Security Screening Selection” at the United States border for every international flight she took into the country. Compl. ¶¶ 2– 3. The plaintiff was subjected to the same screening prior to several international flights out of the United States and some domestic flights. Id. ¶ 3. In total, the plaintiff was detained for secondary screening more than 50 times over the six-year period. Id. ¶ 3. “[O]ut of [her] desire to understand why she was stopped, detained, and questioned at the U.S. border by her own government for every international flight she took entering her own country for six years,” see Pl.’s Mem. Opp’n to Defs.’ Second Mot. Summ. J. & Mem. Supp. Pl.’s Second Cross-Mot. Summ. J. (“Pl.’s Second Mem.”) at 1, ECF No. 26 (emphasis in original), the plaintiff, on January 24, 2014, sent FOIA requests to the Federal Bureau of Investigation (“FBI”), to ODNI, to DHS, and to several DHS components, including U.S. Customs and Border Protection (“CBP”), U.S. Citizenship and Immigration Services (“USCIS”), U.S. Immigration and Customs Enforcement (“ICE”), the Transportation Security Administration (“TSA”), for “all agency records concerning, naming, or relating to Ms. Poitras.” Compl. ¶¶ 27–29. B. The Defendants’ Responses to the Plaintiff’s FOIA Requests Initial responses to the plaintiff’s FOIA requests varied. DHS sent the plaintiff a letter on February 3, 2014 confirming receipt of her request and asking for additional search parameters.
2

Case 1:15-cv-01091-BAH Document 52 Filed 04/11/19 Page 3 of 20
Defs.’ First. Mot. Summ. J. (“Defs.’ First Mot.”), Decl. of Kevin L. Tyrell (“DHS Decl.”) ¶ 8, ECF No. 14-8. After the plaintiff provided clarification, DHS responded, on March 26, 2014, informing the plaintiff that her request had been referred to CBP and TSA. Id. ¶¶ 10–11.
TSA, for its part, on February 6, 2014, and again on March 26, 2014, acknowledged receipt of the plaintiff’s FOIA request but asked for additional information to help identify the requested records. Defs.’ First Mot., Decl. of Regina Ann McCoy (“TSA Decl.”) ¶¶ 7, 10, ECF No. 14-4. The plaintiff never provided the information TSA solicited. Id. ¶¶ 9, 11.
Although CBP did not acknowledge to the plaintiff receipt of her FOIA request, Compl. ¶ 37, upon such receipt, CBP began searching databases thought most likely to have responsive records, Defs.’ First Mot., Decl. of Sabrina Burroughs (“CBP Decl.”) ¶ 5, ECF No. 14-3.
The FOIA request sent to ICE was delivered to the wrong address, and so, unremarkably, ICE was unaware of the plaintiff’s request until the civil complaint was filed. Defs.’ First Mot., Decl. of Fernando Pineiro (“ICE Decl.”) ¶¶ 5-11, ECF No. 14-7. In any event, ICE did not have responsive records. Id. ¶ 37.
USCIS, upon receipt of the plaintiff’s request, sent two letters—one on January 30, 2014 and the other on April 2, 2014—informing the plaintiff that USCIS had no responsive records. Defs.’ First Mot., Decl. of Jill A. Eggleston (“USCIS Decl.”) ¶¶ 7–8, ECF No. 14-6. The plaintiff administratively appealed USCIS’s determination that it had no responsive records, but that appeal was denied. Id. ¶ 9.
ODNI, on January 31, 2014, confirmed receipt of the plaintiff’s FOIA request, Compl. ¶ 67, but informed her, on February 25, 2014, that the agency could neither confirm nor deny the existence of responsive information that may have been classified, Defs.’ First Mot., Decl. of Jennifer L. Hudson (“ODNI Decl.”) ¶ 21, ECF No. 14-2. The plaintiff administratively appealed
3

Case 1:15-cv-01091-BAH Document 52 Filed 04/11/19 Page 4 of 20
the denial the request sent to ODNI, id. ¶ 22, which appeal was pending at the time the plaintiff filed her complaint, Compl. ¶¶ 69, 71.
Finally, the FBI sent the plaintiff a letter on February 19, 2014 acknowledging receipt of the FOIA request, see Defs.’ First Mot., First Decl. of David M. Hardy (“First FBI Decl.”) ¶ 7, ECF No. 14-1, and then, on February 2, 2015, referred “sets of pages to other agencies, including [U.S. Army Criminal Investigation Command], the U.S. Army, the Executive Office for United States Attorneys (“EOUSA”), the Department of the Air Force, the U.S. Army Intelligence and Security Command (“USAISC”), the Central Intelligence Agency (“CIA”), CBP, the Department of State, the Department of Transportation, and the National Guard Bureau for direct response to the plaintiff or for coordination with the FBI,” Poitras II, 303 F. Supp. 3d at 146 (citing First FBI Decl. ¶¶ 96–109). Despite the lack of any adverse determination on the plaintiff’s FOIA request, the plaintiff, on May 29, 2015, filed an administrative appeal with the FBI’s Office of Information Policy. First FBI Decl. ¶ 8. On July 13, 2015, the same day that the plaintiff initiated this lawsuit, the Office of Information Policy informed the plaintiff that the FBI had not made any decisions about the plaintiff’s FOIA request and, consequently, no decision was subject to administrative review. Id. ¶ 9.
At bottom, although several of the agencies had responded to the plaintiff’s FOIA request, or were in the process of doing so, as of July 2015, none of the entities to which the plaintiff had submitted a FOIA request had produced responsive records. See Poitras I, 2017 WL 7053929, at *1. Accordingly, the plaintiff filed her complaint, on July 13, 2015, alleging that each agency to which she submitted a FOIA request had “wrongfully withheld agency records requested by Plaintiff by failing to comply with the statutory time limit for the
4

Case 1:15-cv-01091-BAH Document 52 Filed 04/11/19 Page 5 of 20

processing of her FOIA requests, and/or by rendering final decisions to withhold the records Plaintiff requested.” Compl. ¶ 76.
After the plaintiff filed her complaint, the Court ordered the parties to confer about a proposed schedule either for briefing or for the disclosure of records responsive to the FOIA requests. Min. Order (Sept. 18, 2015). The result was an agreement “that FBI, CBP, and TSA [would] begin producing non-exempt responsive records no later than November 13, 2015.” Joint Status Report (Oct. 1, 2015) at 2, ECF No. 8. Additionally, by the same date, ODNI agreed to “provide Plaintiff with an interim or final response to her administrative appeal.” Id.
To identify responsive records, the FBI used the search terms “‘Laura Poitras,’ ‘Laura Susan Poitras,’ ‘Lara Susan Poitras,’ a three-way phonetic breakdown of ‘Laura Poitras,’ and an on-the-nose search for ‘Laura Susan Poitras’ and ‘Lara Susan Poitras.’” Poitras II, 303 F. Supp. 3d at 147. From those searches, the FBI made five releases of information between October 14, 2015 and March 4, 2016. First FBI Decl. ¶¶ 12–16.1 “In total, the FBI identified 350 responsive pages, released in full 1 page, released in part 262 pages, and withheld in full 87 pages.” Poitras II, 303 F. Supp. 3d at 146–47. The redactions were applied pursuant to FOIA Exemptions 1, 3, 5, 6, 7(A), 7(C), 7(D), and 7(E). Id. at 147. Later, between the two rounds of summary judgment briefing that eventually ensued, “the FBI discovered that three records relating to the closure of the investigation into Plaintiff’s activities in Iraq had been inadvertently missed and not previously produced to Plaintiff.” Joint Mot. to Temporarily Suspend Briefing at 1, ECF No. 27; see also Defs.’ Reply Supp. Second Mot. Summ. J & Opp’n Pl.’s Second Cross-Mot. Summ. J., Fourth Decl. of David M. Hardy (“Fourth FBI Decl.”) ¶ 4, ECF No. 29-1 (“Upon review of the final production of this [FOIA/Privacy Act] request, it was determined that three (3) serials,

1

Separately, the FBI referred 35 pages to the U.S. Army Criminal Investigation Command, which released

24 of those pages on October 2, 2015. Pl.’s Mot. at 4. In turn, the Criminal Investigation Command referred eight

pages to the U.S. Army, which provided those pages to the plaintiff on February 12, 2018. Id. at 4 n.3.

5

Case 1:15-cv-01091-BAH Document 52 Filed 04/11/19 Page 6 of 20
consisting of six (6) pages related to the closure of the FBI’s investigation into Plaintiff’s activities in Iraq, had been inadvertently overlooked during the processing phase and were not processed and provided to Plaintiff.”). The plaintiff received those six pages on September 25, 2017, revealing that the FBI had investigated the plaintiff’s involvement in a November 2004 ambush of U.S. Soldiers in Iraq, which resulted in the death of one soldier, but, as of August 30, 2012, the FBI had concluded that “[b]ased on the investigation to date, it is not believed that POITRAS is involved in terrorist activities and investigative methods have not revealed threats to national security warranting further action.” Pl.’s Mot., Ex. A, FBI Electronic Communication (Aug. 30, 2012), ECF No. 45-1.
As for CBP, that agency, upon receipt of the plaintiff’s FOIA request, searched two internal systems—TECS and the Automated Targeting System—“using Plaintiff’s name and date of birth.” Poitras II, 303 F. Supp. 3d at 147. On November 12, 2015, after the plaintiff initiated this lawsuit, CBP released 492 pages of records from TECS and 220 pages of partially redacted records found in the Automated Targeting System. Id. Later, CBP became aware of records likely to be found in a New York office related to an August 1, 2010 incident at JFK International Airport, and, on February 27, 2016, after conducting a supplemental search utilizing search terms including “Poitras,” “Laura Poitras,” and the name and email address of the plaintiff’s legal counsel during that encounter, released 223 pages of partially redacted records. Id. at 148. Twenty-six CBP documents, totaling 3,182 pages, were withheld in full. Id.
TSA produced 21 pages of responsive records, with redactions, on November 12, 2015. TSA Decl. ¶ 27.
6

Case 1:15-cv-01091-BAH Document 52 Filed 04/11/19 Page 7 of 20
On November 12, 2015, ODNI confirmed no responsive records existed in the agency’s personnel files and that the agency could not confirm or deny the existence of any records in its classified holdings. ODNI Decl. ¶ 25.
C. Summary Judgment Briefing On June 2, 2016, all defendants moved for summary judgment claiming that they had adequately searched for responsive records and that any withholdings were proper under FOIA’s exemptions. Defs.’ Mem. Supp. First Mot. Summ. J. (“Defs.’ First Mem.”) at 1, ECF No. 14. The plaintiff, for her part, cross-moved for summary judgment, Pl.’s First Cross-Mot. Summ. J., ECF No. 18, but challenged only the adequacy of CBP’s search, whether the FBI’s withholdings under Exemptions 5, 7(A), 7(D), and 7(E) were proper, and whether CBP and the FBI produced all reasonably segregable information, Poitras I, 2017 WL 7053929, at *1. The plaintiff did not contest any of CBP’s, TSA’s, or ODNI’s withholdings, the FBI’s withholdings under Exemptions 1, 3, 6, and 7(c), or the adequacy of any component’s search other than that of CBP. Pl.’s Mem. Opp’n Defs.’ Mot. Summ. J. & Supp. Pl.’s Cross-Mot. Summ J. (“Pl.’s First Mem.”) at 2, ECF No. 18. Thus, the defendants were granted summary judgment as to each of those issues. Poitras I, 2017 WL 7053929, at *1 n.2. As to the disputed matters, each cross-motion for summary judgment was denied without prejudice and the defendants were instructed to explain more thoroughly the basis of the FBI’s withholdings under FOIA Exemptions 5, 7(A), 7(D), and 7(E). Id. at *2–3. The Court reserved judgment on the remaining issues. Id. Three and a half months after the Court’s first ruling, the defendants filed their second motion for summary judgment, see Defs.’ Second Mot. Summ. J., ECF No. 24, which included an index explaining the bases for their withholdings, see Vaughn Index, ECF No. 24-2. Again, the plaintiff cross moved for summary judgment, see Pl.’s Second Cross-Mot. Summ. J., ECF
7

Case 1:15-cv-01091-BAH Document 52 Filed 04/11/19 Page 8 of 20
No. 26, renewing her arguments that the FBI misapplied Exemptions 5, 7(A), 7(D), and 7(E) and failed to segregate non-exempt information, and that CBP failed to conduct a sufficient search of its records, see Pl.’s Second Mem. at 2. While briefing was ongoing, this case was transferred to the undersigned judge. Following a brief stay, entered at the parties’ request, see Consent Mot. Stay, ECF No. 32, the defendants’ motion for summary judgment was granted, and the plaintiff’s cross-motion was denied, Poitras II, 303 F. Supp. 3d at 164. The FBI’s exemptions were proper and sufficiently explained, id. at 151–59, the CBP’s search was adequate, id. at 160–63, and the defendants satisfied their segregability obligations, id. at 163–64.
D. The Plaintiff’s Attorneys’ Fee Motion The denial of her summary judgment cross-motion notwithstanding, the plaintiff filed a motion for attorneys’ fees and costs on October 1, 2018. See generally Pl.’s Mot. Following several extensions, the defendants’ filed an opposition, see Defs.’ Opp’n, and the plaintiff filed her reply, see Pl.’s Reply. Supp. Pl.’s Mot. (“Pl.’s Reply”), ECF No. 50. The plaintiff’s motion for attorneys’ fees is now ripe. II. LEGAL STANDARD The FOIA authorizes the “assess[ment] against the United States [of] reasonable attorney fees and other litigation costs reasonably incurred in any case . . . in which the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). This provision “‘was not enacted to provide a reward for any litigant who successfully forces the government to disclose information it wished to withhold,’ but instead ‘had a more limited purpose—to remove the incentive for administrative resistance to disclosure requests based not on the merits of exemption claims, but on the knowledge that many FOIA plaintiffs do not have the financial resources or economic incentives to pursue their requests through expensive litigation.’” Davy v. CIA (“Davy II”), 550
8

Case 1:15-cv-01091-BAH Document 52 Filed 04/11/19 Page 9 of 20
F. 3d 1155, 1158 (D.C. Cir. 2008) (quoting Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 711 (D.C. Cir. 1977)).
The D.C. Circuit recognizes that “[t]he statute contains no express limitation on who counts as an eligible ‘complainant’ or whose work is compensable by payment of ‘attorney fees,’” Nat’l Sec. Counselors v. CIA, 811 F.3d 22, 28 (D.C. Cir. 2016), but this statutory provision has been interpreted to divide “the attorney-fee inquiry into two prongs, which our case law has long described as fee ‘eligibility’ and fee ‘entitlement,’” Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011) (citing Judicial Watch, Inc. v. U.S. Dep’t of Commerce, 470 F.3d 363, 368–69 (D.C. Cir. 2006)). Thus, the plaintiff must demonstrate both eligibility and entitlement to the award. See McKinley v. Fed. Hous. Fin. Agency, 739 F.3d 707, 710 (D.C. Cir. 2014); Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1495 (D.C. Cir. 1984) (“[E]ligibility alone is not enough. . . . [T]he complainant must [also] show that he or she is ‘entitled’ to an award.”). Upon establishing both eligibility and entitlement, the plaintiff must then show the reasonableness of the fee request. See Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995).
To satisfy the eligibility requirement, the plaintiff must show that she “substantially prevailed” in the underlying FOIA litigation by gaining relief from either: “(I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii). Under the first option, the claimant substantially prevails when “‘the order changed the legal relationship between [the parties],’ and [] the plaintiff ‘was awarded some relief on the merits of his claim.’” Judicial Watch, Inc. v. FBI, 522 F.3d 364, 367 (D.C. Cir. 2008) (quoting Davy v. CIA, 456 F.3d 162, 165 (D.C. Cir. 2006)). Under the second option,
9

Case 1:15-cv-01091-BAH Document 52 Filed 04/11/19 Page 10 of 20

attorneys’ fees may be awarded solely due to a change in an agency’s position, for example, when the plaintiff’s lawsuit “substantially caused the government to release the requested documents before final judgment.” Brayton, 641 F.3d at 524–25; see also Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 811 F.Supp.2d 216, 232 (D.D.C. 2011) (“The key question under this ‘catalyst theory’ is whether ‘the institution and prosecution of the litigation cause[d] the agency to release the documents obtained during the pendency of the litigation.’” (alteration in original) (quoting Church of Scientology of Cal. v. Harris, 653 F.2d 584, 587 (D.C. Cir. 1981))).2
If the plaintiff has substantially prevailed, the court proceeds to the entitlement prong. The D.C. Circuit “has long applied a multi-factor standard for evaluating whether a plaintiff who is eligible for attorneys’ fees is also entitled to such fees.” McKinley, 739 F.3d at 711. “Four non-exclusive factors typically govern the entitlement inquiry: ‘(1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff’s interest in the records; and (4) the reasonableness of the agency’s withholding’ of the requested documents.” Id. (quoting Tax Analysts v. U.S. Dep’t of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992)); see also Morley v. CIA, 719 F.3d 689, 690 (D.C. Cir. 2013).3 “No one factor is

2

The catalyst theory was utilized in this Circuit until 2001, when the Supreme Court held that “the ‘catalyst

theory’ is not a permissible basis for the award of attorney’s fees.” Buckhannon Bd. & Care Home, Inc. v. W. Va.

Dep’t of Health & Human Res., 532 U.S. 598, 610 (2001). Congress responded by resurrecting the catalyst theory

for FOIA cases in the Open Government Act of 2007. See Davis v. U.S. Dep’t of Justice, 610 F.3d 750, 752 (D.C.

Cir. 2010). “The purpose and effect of this law, which remains in effect today, was to change the ‘eligibility’ prong

back to its pre-Buckhannon form.” Brayton, 641 F.3d at 525. As a result, “plaintiffs can now qualify as

‘substantially prevail[ing],’ and thus become eligible for attorney fees, without winning court-ordered relief on the

merits of their FOIA claims.” Id. (alteration in original).

3

In his concurring opinion in Morley v. CIA, then-Judge Kavanaugh urged that the D.C. Circuit “should

ditch the four-factor standard,” as “hav[ing] no basis in the statutory text.” 719 F.3d at 690 (Kavanaugh, J.,

concurring). He strongly criticized the factors as “so vague and malleable that they provide very little guidance to

district courts,” leading “to unpredictable and inconsistent fees results from case to case and judge to judge,” id. at

692, and “caus[ing] continuing real-world problems—among other things, drawing arbitrary and unfair distinctions

among FOIA requesters and requests, and generating satellite litigation that is wasteful and unnecessary, id. at 693.

This four-factor standard, however, remains binding on this Court.

10

Case 1:15-cv-01091-BAH Document 52 Filed 04/11/19 Page 11 of 20
dispositive,” Davy II, 550 F.3d at 1159, and balancing is left to the district court’s discretion, Morley v. CIA, 894 F.3d 389, 391 (D.C. Cir. 2018).
If the plaintiff has established eligibility and entitlement, the plaintiff must then establish the reasonableness of the calculation in her fee request. See Covington, 57 F.3d at 1107. The reasonableness determination involves three parts: “(1) determination of the number of hours reasonably expanded [sic] in litigation; (2) determination of a reasonable hourly rate or ‘lodestar’; and (3) the use of multipliers as merited.” Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1517 (D.C. Cir. 1988). The plaintiff must submit evidence regarding “the attorneys’ billing practices; the attorneys’ skill, experience, and reputation; and the prevailing market rates in the relevant community.” Covington, 57 F.3d at 1107. Provided that the plaintiff has submitted the required information, the presumption is that the number of hours billed and the hourly rates are reasonable. Jackson v. District of Columbia, 696 F. Supp. 2d 97, 101 (D.D.C. 2010). Reasonable hourly rates often begin by comparing counsel’s requested rate to a fee matrix maintained by the Civil Division of the local United States Attorney’s Office—the USAO matrix. See Gatore v. U.S. Dep’t Homeland Sec., 286 F. Supp. 3d 25, 32–47 (D.D.C. 2017); Elec. Privacy Info. Ctr. v. DEA, 266 F. Supp. 3d 162, 171 (D.D.C. 2017); see also Salazar v. District of Columbia, 809 F.3d 58, 62 (D.C. Cir. 2015) (explaining that a fee matrix may establish “a general guideline for awarding attorneys’ fees based on experience”). The burden then shifts to the defendant to “provide specific contrary evidence tending to show that a lower rate would be appropriate.” Covington, 57 F.3d at 1110.
11

Case 1:15-cv-01091-BAH Document 52 Filed 04/11/19 Page 12 of 20
III. DISCUSSION As noted, the defendants concede that the plaintiff is eligible for attorneys’ fees, Defs.’
Opp’n at 8, but object to the plaintiff’s entitlement to attorneys’ fees, id. at 8–15. The factors informing a FOIA plaintiff’s entitlement to attorneys’ fees are considered in order.
A. Public Benefit Under the first factor, “both the effect of the litigation for which fees are requested and the potential public value of the information sought” are considered. Davy II, 550 F.3d at 1159. Public value is judged ex ante, which is to say value must be assessed based on the nature of the FOIA request, rather than the actual documents received. Morley v. CIA (“Morley II”), 810 F.3d 841, 844 (D.C. Cir. 2016). Ex ante, the request must have “at least a modest probability of generating useful new information about a matter of public concern.” Id. Records’ public value depends on “the significance of the contribution that the released information makes to the fund of public knowledge.” McKinley, 739 F.3d at 711. “Generally, released documents have an insufficient public benefit when they pertain to such highly particularized interactions with an agency that non-participants would have only a limited interest in the records as a means of learning what the agency was doing.” Dorsen v. SEC, 15 F. Supp. 3d 112, 121 (D.D.C. 2014). Thus, released documents that are relevant to only a subset of the public, such as contractors or a private litigant, confer little public benefit. See Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995); Fenster v. Brown, 617 F.2d 740, 744–45 (D.C. Cir. 1979). Conversely, the release of documents relevant to historically important events—a presidential assassination, for example— benefit the public. Davy II, 550 F.3d at 1159. Here, the plaintiff insists that her FOIA requests conferred a public benefit because they “had ‘at least a modest probability of generating useful new information about a matter of public
12

Case 1:15-cv-01091-BAH Document 52 Filed 04/11/19 Page 13 of 20
concern.’” Pl.’s Mot. at 10 (quoting Morley II, 810 F.3d at 844). To substantiate that her border stops were a matter of public concern, the plaintiff notes contemporaneous news coverage of her detentions. Id. at 10–11; Pl.’s Reply at 3. Beyond that, the plaintiff curated an art exhibition at the Whitney Museum of American Art utilizing some documents received through the FOIA requests. Pl.’s Mot. at 11; Pl.’s Reply at 3. Finally, the plaintiff’s FOIA litigation generated its own news coverage. Pl.’s Mot. at 12; Pl.’s Reply at 3.
The defendants answer that from the outset this case has been about the plaintiff obtaining records of her own detentions. Defs.’ Opp’n at 9. Thus, the defendants contend, the requested records are of “‘highly particularized interactions[s]’ between a private individual and a government agency that the public had only a limited interest in.” Id. (quoting Dorsen, 15 F. Supp. 3d at 121).
Despite some public interest, the plaintiff’s FOIA requests always have been about her access to records that would explain her own experiences, much like the plaintiff’s FOIA requests at issue in Dorsen v. SEC, 15 F. Supp. 3d 112 (D.D.C. 2014). There, the FOIA request was “primarily relevant to Lauer in his attempt to vacate the civil judgment against him.” Id. at 122. Thus, the disclosed information, which related to the SEC’s authorization of a civil action against the requester, “had limited public benefit.” Id. Yet, limited public benefit is not no public benefit, and even if the requests were individualized, “some value attaches to the disclosure of the SEC’s discrete decisions by shedding light on this enforcement activity.” Id. Balancing those competing considerations, in Dorsen the first factor was neutral. Id.
As in Dorsen, certainly some value attaches to information illuminative of a U.S. agency’s treatment of a U.S. citizen. Here, however, the public benefit is stronger given both the plaintiff’s notoriety and that the FOIA requests might reasonably been viewed as likely to shed
13

Case 1:15-cv-01091-BAH Document 52 Filed 04/11/19 Page 14 of 20
light on regulation of air travel, a topic of broader public interest than SEC enforcement actions. In particular, ex ante, the plaintiff’s FOIA requests could have been expected to illuminate why someone is designated for “Secondary Security Screening Selection,” whether the plaintiff’s persistent detentions were related to suspicions that she had advance knowledge of a 2004 attack in Iraq that led to the death of an American soldier, or whether the regular stops were connected to the plaintiff’s professional work. See, e.g., Pl.’s Mot, Ex. C, Rachel Bunn, Oscar-nominated Filmmaker Detained at U.S. Border Sparks Debate Over Searches of Electronic Devices, REPS. COMM. FOR FREEDOM OF THE PRESS, Apr. 12, 2012 at 1, ECF No. 45-3 (contextualizing the plaintiff’s border detentions as “renewing the legal debate over electronic device searches at U.S. borders and their implications for newsgathering”); see also id., Ex. D, Peter Maass, How Laura Poitras Helped Snowden Spill His Secrets, N.Y. TIMES MAG., Aug. 13, 2013 (“Maass Article”) at 6–8, ECF No. 45-4 (hypothesizing that allegations of plaintiff’s knowledge of the 2004 ambush “may be related to [her] many detentions and searches” and noting that the Secondary Security list has “been criticized by civil rights groups for being too broad and arbitrary and for violating the right of Americans who are on them”). All three of those possibilities are of public concern.
Accordingly, this factor favors an award of attorneys’ fees. B. Commercial Benefit and Nature of Interest The second factor—the request’s commercial benefit to the plaintiff—and the third factor—the plaintiff’s interest in the records—often have been combined “into a single factor assessing whether a plaintiff ‘has sufficient private incentive to seek disclosure’ of the documents without expecting to be compensated for it.” McKinley, 739 F.3d at 711 (quoting Davy II, 550 F.3d at 1160). “When a litigant seeks disclosure for a commercial benefit or other
14

Case 1:15-cv-01091-BAH Document 52 Filed 04/11/19 Page 15 of 20
personal reasons, an award of fees is usually inappropriate.” Cotton, 63 F.3d at 1120; see also Fenster, 617 F.2d at 744 (“[T]he private self-interest motive of, and . . . pecuniary benefit to, the complainant (is) sufficient to insure the vindication of the rights given in the FOIA.” (quoting S. Rep. No. 854, 93d Cong., 2d Sess. 19 (1974)).
As to her personal interest in the records, the plaintiff insists that she “is a professional journalist and filmmaker who sought the released records for the purpose of public dissemination” and that “[p]ursuit of information through FOIA for journalistic purposes is not deemed to be for ‘commercial benefit.’” Pl.’s Mot. at 13 (citing Davy II, 550 F.3d at 1162); see also Tax Analysts, 965 F.2d at 1096 (“We have said (quoting a Senate Report on FOIA) that ‘news interests should not be considered commercial interests,’ and that ‘a court would generally award fees if the complainant’s interest in the information was . . . journalistic.’” (quoting Fenster, 617 F.2d at 742 n. 4)). While the defendants agree that “FOIA requests for journalistic purposes are typically not deemed to be for commercial benefit,” the defendants dispute that the plaintiff’s requests were made for any journalistic purpose. Defs.’ Opp’n at 12.
Importantly, the D.C. Circuit has disclaimed any automatic rule that a news organization can have no self-interested reason for making a FOIA request. Tax Analysts, 965 F.3d at 1096; see also Barnard v. Dep’t of Homeland Sec., 656 F. Supp. 2d 91, 99–100 (D.D.C. 2009) (“Upon consideration of the second and third factors, the undersigned finds that because Plaintiff’s interest in the records was personal, rather than scholarly or journalistic, ‘an award of fees is usually inappropriate.’” (quoting Cotton, 63 F.3d at 1120)). Journalists, like anyone else, can act with self-interest. Indeed, here, irrespective of her profession, the plaintiff’s FOIA requests patently were self-interested.
15

Case 1:15-cv-01091-BAH Document 52 Filed 04/11/19 Page 16 of 20
The best evidence of the plaintiff’s motivation is her own filings. The opening paragraph in the plaintiff’s memorandum in support of her second cross-motion for summary judgment explains, “[t]his case arises out of a U.S. citizen’s desire to understand why she was stopped, detained, and questioned at the U.S. border by her own government for every international flight she took entering her own country for six years.” Pl.’s Second Mem. at 1 (emphasis in original). Although the memorandum goes on to describe the plaintiff’s profession and history of covering controversial subjects, “like the U.S. military occupation of Iraq, mass spying, and Guantanamo Bay,” id., that information is presented to imply why the plaintiff may have been subjected to stops, not why she was making her FOIA requests. As for the impetus of the FOIA request, the plaintiff notes that “[s]he was never provided any rationale” for the detentions. Id.; see also Pl.’s First Mem. at 1 (“Plaintiff, who has no criminal record and was never provided with any rationale for her treatment, sought information concerning the government’s actions through the Freedom of Information Act . . . .”); Pl.’s First. Cross-Mot. Summ. J, Decl. of Laura Poitras ¶ 55, ECF No. 18-2 (“Prior to my receipt of responsive documents in the course of this FOIA litigation, I was never provided with any indication of why I had been subjected to heightened security screenings and airport detentions on a routine basis for a period of 6 years . . .’”).
Further, when the plaintiff spoke publicly about this case, she couched the FOIA requests as an effort to learn why she had been stopped every time she flew. See Maass Article at 8 (“Poitras has never received any explanation for why she was put on a watch list. ‘It’s infuriating that I have to speculate why,’ she said.”); Pl.’s Mot., Ex. H, Government Documents Show FBI Cleared Filmmaker Laura Poitras After Six-Year Fishing Expedition, ELEC. FRONTIER FOUND., Dec. 6, 2017 at 3, ECF No. 45-8 (“Poitras filed her FOIA lawsuit in 2015 to find out not only
16

Case 1:15-cv-01091-BAH Document 52 Filed 04/11/19 Page 17 of 20
why her detentions started in the first place, but also why they abruptly stopped in June 2012, coincidentally (or not) just two months after her detentions made national news.”).
The plaintiff now back pedals to contend that the requests were made for information of public interest and, since she was the only requester who could access the information, her request must not have been self-motivated. Pl.’s Reply at 5–6. Certainly, the plaintiff could have made the requests to satiate a public appetite for information about her border detentions. As the record lays bare, that did not happen.
Through her FOIA requests, the plaintiff discovered why she had been stopped at the border for six years. From the beginning, that was the motivation behind the her FOIA requests. Nothing is wrong with self-interested FOIA requests, they just are less likely to result in an award of attorneys’ fees. Consequently, this factor counsels against attorneys’ fees.
C. The Reasonableness of the Defendants’ Withholdings The final factor “‘considers whether the agency’s opposition to disclosure had a reasonable basis in law’ and ‘whether the agency had not been recalcitrant in its opposition to a valid claim or otherwise engaged in obdurate behavior.’” McKinley, 739 F.3d at 712 (quoting Davy II, 550 F.3d at 1162). The relevant agency opposition is not limited to an agency’s litigation posture, but rather factors “whether the agency has shown that it had any colorable or reasonable basis for not disclosing the material until after [the plaintiff] filed suit.” Davy II, 550 F.3d at 1163. The purpose of the final factor is “to disincentivize requesters from complaining about reasonable withholdings while incentivizing the government to promptly turn over— before litigation is required—any documents that it ought not withhold. That purpose will be illserved if the government can prevail on this factor by saying nothing and forcing the requester to sue . . . .” Id. at 1166.
17

Case 1:15-cv-01091-BAH Document 52 Filed 04/11/19 Page 18 of 20
As to this factor, the plaintiff faces an uphill battle. The defendants’ withholdings were not only reasonable, but ultimately were upheld. Poitras II, 303 F. Supp. 3d at 164 (D.D.C. 2018). Nevertheless, the plaintiff argues that the defendants’ pre-litigation conduct was unreasonable, underscoring that she did not receive any records responsive to her FOIA requests until bringing this lawsuit, which followed the FOIA requests by nearly 18 months. Pl.’s Mot. at 14; see also 5 U.S.C. § 552(a)(6)(A)(i) (requiring that “[e]ach agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall determine within 20 days . . . after the receipt of any such request whether to comply with such request” and notify the requester of that determination).
Yet, an agency’s failure to respond to a FOIA request within the statutory timeline is not automatically unreasonable. Indeed, in every case in which the plaintiff has prevailed in some respect, and thus is eligible for an award of attorneys’ fee, the defendants will have fallen short of their statutory duties somehow. Elec. Privacy Information Ctr. v. U.S. Dep’t Homeland Sec., 999 F. Supp. 2d 61, 69 (D.D.C. 2013). Thus, the defendants’ departure from the statutory obligation must truly have been unreasonable. Id. Here, that is not the case.
To start, USCIS told the plaintiff within six days of the plaintiff’s request that it had no responsive records and confirmed that fact two months later. USCIS Decl. ¶¶ 7–8. ICE never received the plaintiff’s request because she sent it to the wrong address. ICE Decl. ¶¶ 5–11. Thus, neither USCIS nor ICE even departed from FOIA’s obligations. ODNI told the plaintiff just a month after she submitted her request that the agency did not have responsive information. ODNI Decl. ¶ 21. DHS notified the plaintiff within two months that the request had been referred to CBP and TSA. DHS Decl. ¶¶ 10–11. Although both of these responses fell outside the 20-day window, neither missed by too much.
18

Case 1:15-cv-01091-BAH Document 52 Filed 04/11/19 Page 19 of 20
Of the three agencies that ultimately had responsive records, TSA twice, including once within two weeks of receiving the plaintiff’s request, asked for additional information to help locate responsive records. TSA Decl. ¶¶ 7, 10. The plaintiff did not provide the information that TSA requested. Id. ¶¶ 9, 11. When TSA eventually received a copy of the plaintiff’s complaint, the agency had enough information to search for, and produce, responsive records. Id. ¶¶ 13, 27. The FBI acknowledged the plaintiff’s request on February 19, 2014 and advised her that the FBI was searching for records. First FBI Decl. ¶ 7. Referrals were sent out to other components on February 2, 2015, id. ¶¶ 96–109, before the plaintiff brought this action. Production of FBI records began shortly after the plaintiff initiated her complaint and was thought to be complete as of March 4, 2016. Id. ¶¶ 12–16. CBP’s response is less impressive. While the agency, “[u]pon receiving the request” began evaluating where to search for responsive records, CBP Decl. ¶ 5, CBP did not communicate with the plaintiff about its receipt of her request or offer any contemporaneous account of its effort to respond, see generally id. Nor has CBP provided any details during this FOIA litigation about its search that explain the delay. Of the defendants, CBP’s withholdings come closest to unreasonable. For the remainder, the withholdings were perfectly reasonable.
In addition, the plaintiff insists that the FBI’s withholding, until September 2017, of six pages of records related to the conclusion of its investigation lacked a reasonable basis in the law. Pl.’s Mot. at 15; Pl.’s Reply at 7–8. The plaintiff is right insofar as the defendants do not attempt to offer any legal justification for that delayed production. Rather, the defendants explain that the delayed release of that handful of records was inadvertent, see Fourth FBI Decl. ¶ 4, an explanation that the plaintiff gives no reason to doubt.
19

Case 1:15-cv-01091-BAH Document 52 Filed 04/11/19 Page 20 of 20

Contrary to the plaintiff’s argument, see Pl.’s Mot. at 15; Pl.’s Reply at 9, the delayed production of six pages does not resemble the facts in Negley v. FBI, in which the FBI had “repeatedly ‘found’ responsive documents long after it should have.” 818 F. Supp. 2d 69, 77 (D.D.C. 2011). There, the FBI had “stonewalled” and “delayed” its response to the plaintiff’s FOIA request for nearly ten years. Id. Here, the FBI discovered these documents in preparation for its opposition to Plaintiff’s motion for summary judgment. A single instance of oversight, quickly corrected, is not “obdurate behavior.” The FBI was not stonewalling, delaying, or repeatedly finding responsive documents.
Thus, the final factor moderately favors the defendants. * * *
In sum, the first factor slightly favors the award of attorneys’ fees. The second and third factors, however, counsel against the award of fees, a conclusion that the fourth factor tends to support. On balance, then, the plaintiff has not demonstrated an entitlement to an attorneys’ fees award.4 IV. CONCLUSION
For the foregoing reasons, the Plaintiff’s Motion for an Award of Attorneys’ Fees and Costs, ECF No. 45, is DENIED. An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED. Date: April 11, 2019
__________________________ BERYL A. HOWELL Chief Judge

4

The defendants argue that even if the plaintiff is entitled to attorneys’ fees, the amount of fees she seeks,

$63,627, see Pl.’s Reply at 11, is unreasonable, see Defs.’ Opp’n at 15–18. That argument need not be considered

because the plaintiff is not entitled to any fee award.

20

 
 CLOSED,STAYED,TYPE I−FOIA
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:15−cv−01091−BAH

POITRAS v. DEPARTMENT OF HOMELAND SECURITY et Date Filed: 07/13/2015

al

Date Terminated: 03/29/2018

Assigned to: Chief Judge Beryl A. Howell

Jury Demand: None

Demand: $0

Nature of Suit: 895 Freedom of

Cause: 05:552 Freedom of Information Act

Information Act

Jurisdiction: U.S. Government Defendant

Plaintiff

LAURA POITRAS

represented by David L. Sobel LAW OFFICE OF DAVID L. SOBEL 5335 Wisconsin Ave., NW Suite 640 Washington, DC 20015 (202) 246−6180 Fax: (415) 436−9993 Email: sobel@att.net ATTORNEY TO BE NOTICED

V. Defendant DEPARTMENT OF HOMELAND SECURITY
Defendant DEPARTMENT OF JUSTICE
Defendant OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

represented by Marsha Stelson Edney U.S. DEPARTMENT OF JUSTICE 1100 L Street, NW Room 11014 Washington, DC 20005 (202) 514−4520 Email: marsha.edney@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sam M. Singer U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 (202) 616−8014 Fax: (202) 616−8470 Email: samuel.m.singer@usdoj.gov TERMINATED: 08/24/2018
represented by Marsha Stelson Edney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sam M. Singer (See above for address) TERMINATED: 08/24/2018
represented by Marsha Stelson Edney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sam M. Singer (See above for address) TERMINATED: 08/24/2018

Date Filed 07/13/2015
07/13/2015 07/13/2015
07/17/2015
07/22/2015
07/22/2015 07/22/2015 08/19/2015 09/18/2015 10/01/2015 10/22/2015
11/16/2015

# Docket Text
1 COMPLAINT for Injunctive Relief against DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE ( Filing fee $ 400 receipt number 0090−4172989) filed by LAURA POITRAS . (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons)(Sobel, David) Modified on 7/13/2015 to correct plaintiff(jf). (Entered: 07/13/2015)
Case Assigned to Judge Ketanji Brown Jackson. (sth) (Entered: 07/13/2015)
2 SUMMONS (5) Issued Electronically as to DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons)(sth) (Entered: 07/13/2015)
3 GENERAL ORDER AND GUIDELINES FOR CIVIL CASES BEFORE JUDGE KETANJI BROWN JACKSON. The Court will hold the parties and counsel responsible for following these directives; failure to conform to this Order may, when appropriate, result in the imposition of sanctions. Signed by Judge Ketanji Brown Jackson on 07/17/2015. (lckbj1) (Entered: 07/17/2015)
4 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF HOMELAND SECURITY served on 7/20/2015; DEPARTMENT OF JUSTICE served on 7/20/2015; OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE served on 7/20/2015 (Sobel, David) (Entered: 07/22/2015)
5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 7/20/2015. (Sobel, David) (Entered: 07/22/2015)
6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/20/2015. Answer due for ALL FEDERAL DEFENDANTS by 8/19/2015. (Sobel, David) (Entered: 07/22/2015)
7 ANSWER to Complaint by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE.(Singer, Sam) (Entered: 08/19/2015)
MINUTE ORDER. Before the Court in this FOIA case are a complaint and an answer. It is hereby ORDERED that the parties shall promptly confer and file a joint proposed schedule for briefing or disclosure, by 10/2/2015. Signed by Judge Ketanji Brown Jackson on 09/18/2015. (lckbj1) (Entered: 09/18/2015)
8 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Singer, Sam) (Entered: 10/01/2015)
MINUTE ORDER. Based on the representations made in the parties' 8 Joint Status Report, it is hereby ORDERED that the parties shall file a further status report on or before 11/16/2015, which shall include a proposed schedule for further proceedings, if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 10/22/2015. (lckbj1) (Entered: 10/22/2015)
9 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Singer, Sam) (Entered: 11/16/2015)

11/18/2015 02/16/2016 02/18/2016 03/15/2016 03/20/2016
06/06/2016 06/06/2016 06/06/2016
06/07/2016 06/07/2016 06/07/2016 06/30/2016

MINUTE ORDER. Based on the representations made in the parties' 9 Joint Status Report, it is hereby ORDERED that the parties shall file a further status report on or before 2/15/2016, which shall include a proposed schedule for further proceedings, if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 11/18/2015. (lckbj1) (Entered: 11/18/2015)
10 Joint STATUS REPORT (third) by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Singer, Sam) (Entered: 02/16/2016)
MINUTE ORDER. Based on the representations made in the parties' 10 Joint Status Report, it is hereby ORDERED that the parties shall file a further status report on or before 3/15/2016, which shall include a proposed schedule for further proceedings, if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 2/18/2016. (lckbj1) (Entered: 02/18/2016)
11 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Singer, Sam) (Entered: 03/15/2016)
MINUTE ORDER. Based on the representations in the parties' 11 Joint Status Report, it is hereby ORDERED that the following briefing schedule for dispositive motions is set in this matter: Defendant's Motion for Summary Judgment is due by 6/6/2016. Plaintiff's Consolidated Opposition to Defendant's Motion for Summary Judgment and Cross Motion for Summary Judgment is due by 7/18/2016. Plaintiff's Consolidated Reply in Support of its Motion for Summary Judgment and Opposition to Defendant's Cross Motion for Summary Judgment is due by 8/8/2016. Plaintiff's Reply in Support of its Cross Motion for Summary Judgment is due by 8/29/2016. Signed by Judge Ketanji Brown Jackson on 03/20/2016. (lckbj1) (Entered: 03/20/2016)
12 Unopposed MOTION for Extension of Time to submit ex parte, in camera declaration in support of Defendants' motion for summary judgment by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Singer, Sam) (Entered: 06/06/2016)
13 ENTERED IN ERROR.....MOTION for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Singer, Sam) Modified on 6/7/2016 (jf). (Entered: 06/06/2016)
14 MOTION for Summary Judgment (Memorandum in Support) by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Declaration Hardy Declaration (FBI), # 2 Declaration Hudson Declaration (ODNI), # 3 Declaration Burroughs Declaration (CBP), # 4 Declaration McCoy Declaration (TSA), # 5 Declaration Blair Declaration (TSA), # 6 Declaration Eggleston Declaration (USCIS), # 7 Declaration Pineiro Declaration (ICE), # 8 Declaration Tyrrell Declaration (DHS), # 9 Statement of Facts)(Singer, Sam) (Main Document 14 replaced on 6/7/2016) (jf). (Entered: 06/06/2016)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 13 MOTION for Summary Judgment was entered in error and combined with entry 14 . (jf) (Entered: 06/07/2016)
15 NOTICE of Lodging of Classified Declaration by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE re 14 MOTION for Summary Judgment (Memorandum in Support) (Singer, Sam) (Entered: 06/07/2016)
MINUTE ORDER granting 12 Consent Motion for Extension of Time to File Declaration, nunc pro tunc. Defendants' declaration shall be filed on or before 6/7/2016. Signed by Judge Ketanji Brown Jackson on 06/07/2016. (lckbj1) (Entered: 06/07/2016)
16 Consent MOTION for Briefing Schedule to be Revised by LAURA POITRAS (Attachments: # 1 Text of Proposed Order)(Sobel, David) (Entered: 06/30/2016)

07/01/2016
08/24/2016 08/24/2016 09/26/2016 09/26/2016 10/17/2016 03/31/2017 04/25/2017 05/10/2017
07/24/2017

MINUTE ORDER granting, for good cause shown, 16 Consent Motion to Revise Briefing Schedule. It is hereby ORDERED that the briefing schedule for dispositive motions in this matter is amended as follows: Plaintiff's Consolidated Opposition to Defendants' Motion for Summary Judgment and Cross−Motion for Summary Judgment is due on or before 8/24/2016. Defendants' Consolidated Reply in Support of its Motion for Summary Judgment and Opposition to Plaintiff's Cross−Motion for Summary Judgment is due on or before 9/26/2016. Plaintiff's Reply in Support of its Cross−Motion for Summary Judgment is due on or before 10/17/2016. Absent extraordinary and unexpected circumstances, no further extensions with respect to Plaintiff's Consolidated Opposition to Defendants' Motion for Summary Judgment and Cross−Motion for Summary Judgment will be granted. Signed by Judge Ketanji Brown Jackson on 7/1/2016. (lckbj1) (Entered: 07/01/2016)
17 Memorandum in opposition to re 14 MOTION for Summary Judgment (Memorandum in Support) filed by LAURA POITRAS. (Attachments: # 1 Exhibit A, # 2 Declaration of Laura Poitras, # 3 Statement of Facts, # 4 Text of Proposed Order)(Sobel, David) (Entered: 08/24/2016)
18 Cross MOTION for Summary Judgment by LAURA POITRAS (Attachments: # 1 Exhibit A, # 2 Declaration of Laura Poitras, # 3 Statement of Facts, # 4 Text of Proposed Order)(Sobel, David) (Entered: 08/24/2016)
19 Memorandum in opposition to re 18 Cross MOTION for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Attachments: # 1 Declaration Second Declaration of David M. Hardy, # 2 Statement of Facts Response to Plaintiff's Statement of Material Facts)(Singer, Sam) (Entered: 09/26/2016)
20 REPLY to opposition to motion re 14 MOTION for Summary Judgment (Memorandum in Support) filed by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Attachments: # 1 Declaration Second Declaration of David M. Hardy, # 2 Statement of Facts Response to Plaintiff's Statement of Facts)(Singer, Sam) (Entered: 09/26/2016)
21 REPLY to opposition to motion re 18 Cross MOTION for Summary Judgment filed by LAURA POITRAS. (Attachments: # 1 Exhibit A)(Sobel, David) (Entered: 10/17/2016)
22 ORDER GRANTING in part and DENYING in part without prejudice Defendants' 14 Motion for Summary Judgment; DENYING without prejudice Plaintiff's 18 Motion for Summary Judgment; and requiring the parties to submit, on or before 4/25/2017, a proposed schedule for submission of a revised Vaughn Index or supplemental declaration and renewed cross−motions for summary judgment. See attached Order for details. Signed by Judge Ketanji Brown Jackson on 03/31/2017. (lckbj1) (Entered: 03/31/2017)
23 PROPOSED BRIEFING SCHEDULE by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Singer, Sam) (Entered: 04/25/2017)
MINUTE ORDER. It is hereby ORDERED that the following schedule for briefing summary judgment shall govern in this matter: Defendants' Motion for Summary Judgment and accompanying Vaughn Index and/or supplemental FBI declaration is due on or before 7/24/2017; Plaintiff's consolidated Opposition to Defendants' Motion and Cross−Motion for Summary Judgment is due on or before 8/25/2017; Defendants' consolidated Reply in Support of Their Motion and Opposition to Plaintiff's Cross−Motion is due on or before 9/15/2017; Plaintiff's Reply in Support of its Cross−Motion is due on or before 10/3/2017. Signed by Judge Ketanji Brown Jackson on 05/10/2017. (lckbj1) (lckbj1) (Entered: 05/10/2017)
24 Second MOTION for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Exhibit FBI's Vaughn Index, # 3 Exhibit Third Hardy Declaration, # 4 Statement of Facts)(Singer, Sam) (Entered: 07/24/2017)

08/21/2017
08/21/2017 09/14/2017 09/18/2017
10/02/2017 10/05/2017
10/10/2017 10/13/2017
10/13/2017
10/24/2017 11/03/2017 11/06/2017
11/06/2017 12/06/2017 12/06/2017
12/06/2017 01/16/2018

25 Memorandum in opposition to re 24 Second MOTION for Summary Judgment filed by LAURA POITRAS. (Attachments: # 1 Exhibit A, # 2 Declaration of Laura Poitras, # 3 Statement of Facts, # 4 Text of Proposed Order)(Sobel, David) (Entered: 08/21/2017)
26 Cross MOTION for Summary Judgment by LAURA POITRAS (Attachments: # 1 Exhibit A, # 2 Declaration of Laura Poitras, # 3 Statement of Facts, # 4 Text of Proposed Order)(Sobel, David) (Entered: 08/21/2017)
27 Joint MOTION for Briefing Schedule Temporary Suspension by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE (Singer, Sam) (Entered: 09/14/2017)
MINUTE ORDER granting 27 Joint Motion for Temporary Suspension of Briefing Schedule. It is hereby ORDERED that the remaining deadlines for briefing renewed motions for summary judgment in this matter are VACATED, and that the parties shall file a joint status report on or before 10/2/2017, which shall contain a proposed schedule for further proceedings, if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 09/18/2017. (lckbj1, ) (Entered: 09/18/2017)
28 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE. (Singer, Sam) (Entered: 10/02/2017)
MINUTE ORDER adopting parties' proposed briefing schedule. It is hereby ORDERED that Defendants' consolidated reply and cross−motion opposition is due on or before 10/13/2017, and that Plaintiff's cross−motion reply is due on or before by 11/6/2017. Signed by Judge Ketanji Brown Jackson on 10/5/2017. (lckbj1) (Entered: 10/05/2017)
Set/Reset Deadlines: Reply to Motion for Summary Judgment due by 10/13/2017. (gdf) (Entered: 10/10/2017)
29 Memorandum in opposition to re 26 Cross MOTION for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration, # 2 Statement of Facts)(Singer, Sam) (Entered: 10/13/2017)
30 REPLY to opposition to motion re 24 Second MOTION for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration, # 2 Statement of Facts)(Singer, Sam) (Entered: 10/13/2017)
31 Case directly reassigned to Chief Judge Beryl A. Howell by consent. Judge Ketanji Brown Jackson is no longer assigned to the case. (ztnr) (Entered: 10/25/2017)
32 Consent MOTION to Stay Further Briefing by LAURA POITRAS (Attachments: # 1 Text of Proposed Order)(Sobel, David) (Entered: 11/03/2017)
MINUTE ORDER (paperless) GRANTING the parties' 32 Consent Motion to Stay Further Briefing. Accordingly, further briefing on the parties' pending motions for summary judgment is STAYED. The parties are DIRECTED to file, by December 6, 2017, a Joint Status Report proposing a schedule to govern future proceedings in this case. Signed by Chief Judge Beryl A. Howell on November 6, 2017. (lcbah1) (Entered: 11/06/2017)
Set/Reset Deadlines: Joint Status Report due by 12/6/2017. (tg) (Entered: 11/06/2017)
33 Joint STATUS REPORT by LAURA POITRAS. (Sobel, David) (Entered: 12/06/2017)
MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 33 Joint Status Report, the plaintiff to file, by January 19, 2018, a reply brief in support of the plaintiff's cross−motion for summary judgment. Signed by Chief Judge Beryl A. Howell on December 6, 2017. (lcbah4) (Entered: 12/06/2017)
Set/Reset Deadlines: Plaintiff's reply in support of plaintiff's cross−motion for summary judgment due by 1/19/2018. (tg) (Entered: 12/06/2017)
34 Consent MOTION for Extension of Time to File Response/Reply as to 26 Cross MOTION for Summary Judgment by LAURA POITRAS (Attachments: # 1 Text of

01/17/2018
01/17/2018 02/15/2018 03/29/2018
03/29/2018
04/10/2018 04/10/2018
04/10/2018 05/23/2018
05/24/2018
05/24/2018 07/09/2018 07/09/2018
07/10/2018 08/16/2018 08/17/2018

Proposed Order)(Sobel, David) (Entered: 01/16/2018)
MINUTE ORDER (paperless) GRANTING the plaintiff's 34 Consent Motion for Extension of Time. Accordingly, the plaintiff shall, by February 15, 2018, file a reply in support of her cross−motion for summary judgment. Signed by Chief Judge Beryl A. Howell on January 17, 2018. (lcbah4) (Entered: 01/17/2018)
Set/Reset Deadlines: Plaintiff's reply in support of her cross−motion for summary judgment due by 2/15/2018. (tg) (Entered: 01/17/2018)
35 REPLY to opposition to motion re 26 Cross MOTION for Summary Judgment filed by LAURA POITRAS. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Sobel, David) (Entered: 02/15/2018)
36 ORDER GRANTING the defendants' 24 Second Motion for Summary Judgment and DENYING the plaintiff's 26 Second Cross−Motion for Summary Judgment. See Order for further details. The Clerk of the Court is directed to close this case. Signed by Chief Judge Beryl A. Howell on March 29, 2018. (lcbah4) (Entered: 03/29/2018)
37 MEMORANDUM OPINION regarding the defendants' 24 Second Motion for Summary Judgment and the plaintiff's 26 Second Cross−Motion for Summary Judgment. Signed by Chief Judge Beryl A. Howell on March 29, 2018. (lcbah4) Document type modified on 4/3/2018 (lcbah4). (Entered: 03/29/2018)
38 Consent MOTION for Extension of Time to Move for an Award of Attorney's Fees and Costs by LAURA POITRAS (Attachments: # 1 Text of Proposed Order)(Sobel, David) (Entered: 04/10/2018)
MINUTE ORDER (paperless) GRANTING the plaintiff's 38 Consent Motion for an Extension of Time in Which to Move for an Award of Attorney's Fees and Costs. The plaintiff shall, by May 31, 2018, file any motion for an award of attorney's fees and costs. The defendants shall, by June 14, 2018, file any response to the plaintiff's motion. The plaintiff shall, by June 21, 2018, file any reply. Signed by Chief Judge Beryl A. Howell on April 10, 2018. (lcbah4) (Entered: 04/10/2018)
Set/Reset Deadlines: Motion for Attorney's Fees due by 5/31/2018; Response due by 6/14/2018; Reply due by 6/21/2018. (tg) (Entered: 04/10/2018)
39 Joint MOTION to Stay deadline for seeking attorney's fees pending resolution of negotiations over a potential fee settlement by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Text of Proposed Order)(Singer, Sam) (Entered: 05/23/2018)
MINUTE ORDER (paperless) GRANTING the parties' 39 Joint Motion to Stay Deadline for Motion for Attorney's Fees. The parties shall, by July 9, 2018, file a joint status report proposing a schedule to govern future proceedings in this case. The current briefing schedule for any motion for attorney's fees and costs is VACATED. Signed by Chief Judge Beryl A. Howell on May 24, 2018. (lcbah4) (Entered: 05/24/2018)
Set/Reset Deadlines: Joint Status Report due by 7/9/2018. (hmc) (Entered: 05/24/2018)
40 Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE. (Singer, Sam) (Entered: 07/09/2018)
MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 40 Joint Status Report, the parties to file, by August 17, 2018, a joint status report proposing a schedule to govern future proceedings in this case. Signed by Chief Judge Beryl A. Howell on July 9, 2018. (lcbah4) (Entered: 07/09/2018)
Set/Reset Deadlines: Joint Status Report due by 8/17/2018. (tg) (Entered: 07/10/2018)
41 Joint STATUS REPORT by LAURA POITRAS. (Sobel, David) (Entered: 08/16/2018)
MINUTE ORDER (paperless) ISSUING, upon consideration of the parties' 41 Joint Status Report, the following SCHEDULING ORDER to control further proceedings. The plaintiff shall, by October 1, 2018, file any motion for attorney's fees and costs. The defendants shall, by October 15, 2018, file any opposition. The plaintiff shall, by

08/17/2018 08/24/2018 08/27/2018 08/27/2018 09/26/2018 10/01/2018 10/09/2018 10/09/2018 10/09/2018 10/24/2018 10/25/2018
10/25/2018 11/19/2018

October 22, 2018, file any reply. Signed by Chief Judge Beryl A. Howell on August 17, 2018. (lcbah4) (Entered: 08/17/2018)
Set/Reset Deadlines: Plaintiff's motion for attorney's fees and costs, if any, due by 10/1/2018; defendants' opposition due by 10/15/2018; plaintiff's reply due by 10/22/2018. (tg) (Entered: 08/17/2018)
42 ENTERED IN ERROR.....NOTICE OF SUBSTITUTION OF COUNSEL by Marsha Stelson Edney on behalf of All Defendants Substituting for attorney Samuel Singer (Edney, Marsha) Modified on 8/27/2018 (znmw). (Entered: 08/24/2018)
NOTICE OF ERROR re 42 Substitution of Counsel; emailed to marsha.edney@usdoj.gov, cc'd 6 associated attorneys −− The PDF file you docketed contained errors: 1. Incorrect header/caption/case number, 2. Please refile document, 3. ENTERED IN ERROR; Incorrect case number/caption. Please refile. (znmw, ) (Entered: 08/27/2018)
43 NOTICE OF SUBSTITUTION OF COUNSEL by Marsha Stelson Edney on behalf of All Defendants Substituting for attorney Samuel Singer (Edney, Marsha) (Entered: 08/27/2018)
44 NOTICE of Change of Address by Marsha Stelson Edney (Edney, Marsha) (Entered: 09/26/2018)
45 MOTION for Attorney Fees and Costs by LAURA POITRAS (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 Declaration of David L. Sobel, # 10 Declaration of Jamie Lee Williams, # 11 Declaration of Nathan Cardozo, # 12 Text of Proposed Order)(Sobel, David) (Entered: 10/01/2018)
46 Joint MOTION for Extension of Time to File Response/Reply as to 45 MOTION for Attorney Fees and Costs by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Text of Proposed Order)(Edney, Marsha) (Entered: 10/09/2018)
MINUTE ORDER (paperless) GRANTING the 46 Joint Motion for Extension of Time and ISSUING the following scheduling order: (1) by October 29, 2018, the defendant shall file any opposition to the 45 Plaintiff's Motion for an Award of Attorneys' Fees and Costs; (2) by November 9, 2018, the plaintiff shall file any reply. Signed by Chief Judge Beryl A. Howell on October 9, 2018. (lcbah1) (Entered: 10/09/2018)
Set/Reset Deadlines: Defendant's opposition to plaintiff's 45 Motion for an Award of Attorneys' Fees and Costs due by 10/29/2018; plaintiff's Reply by 11/9/2018. (tg) (Entered: 10/09/2018)
47 Consent MOTION for Extension of Time to File Response/Reply as to 45 MOTION for Attorney Fees and Costs by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE (Attachments: # 1 Text of Proposed Order)(Edney, Marsha) (Entered: 10/24/2018)
MINUTE ORDER (paperless) DIRECTING, upon consideration of the parties' 47 Consent Motion for Extension of Time, that: (1) by November 19, 2018, the defendants shall file any opposition to the 45 Plaintiff's Motion for an Award of Attorneys' Fees and Costs; and (2) by December 3, 2018, the plaintiff shall file any reply in support of the 45 Plaintiff's Motion for an Award of Attorneys' Fees and Costs. Signed by Chief Judge Beryl A. Howell on October 25, 2018. (lcbah1) (Entered: 10/25/2018)
Set/Reset Deadlines: Defendants' response to 45 Plaintiff's Motion for an Award of Attorneys' Fees and Costs due by 11/19/2018; Plaintiff's reply due by 12/3/2018. (tg) (Entered: 10/25/2018)
48 Memorandum in opposition to re 45 MOTION for Attorney Fees and Costs filed by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE. (Edney, Marsha) (Entered: 11/19/2018)

11/29/2018 11/29/2018
11/29/2018 12/17/2018 04/11/2019 04/11/2019

49 Consent MOTION for Extension of Time to File Response/Reply as to 45 MOTION for Attorney Fees and Costs by LAURA POITRAS (Attachments: # 1 Text of Proposed Order)(Sobel, David) (Entered: 11/29/2018)
MINUTE ORDER (paperless) GRANTING the 49 Plaintiff's Consent Motion for Extension of Time and DIRECTING the plaintiff to file any reply memorandum by December 17, 2018. Signed by Chief Judge Beryl A. Howell on November 29, 2018. (lcbah1) (Entered: 11/29/2018)
Set/Reset Deadlines: Plaintiff's reply memorandu due by 12/17/2018. (tg) (Entered: 11/29/2018)
50 REPLY to opposition to motion re 45 MOTION for Attorney Fees and Costs filed by LAURA POITRAS. (Sobel, David) (Entered: 12/17/2018)
51 ORDER DENYING the plaintiff's 45 Motion for an Award of Attorneys' Fees and Costs. See Order for further details. Signed by Chief Judge Beryl A. Howell on April 11, 2019. (lcbah1) (Entered: 04/11/2019)
52 MEMORANDUM OPINION regarding the plaintiff's 45 Motion for an Award of Attorneys' Fees and Costs. Signed by Chief Judge Beryl A. Howell on April 11, 2019. (lcbah1) (Entered: 04/11/2019)