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I Case3:13-cv-02295-JSC Document1-1 Filed05/21/13 Page1 of 36

1 PILLSBURY WINTHROP SHAW PITTMAN LLP THOMAS V. LORAN III #95255
2 thomas.loran@ pillsburylaw.com
MARLEY DEGNER #251923 3 marley.degner@pillsburylaw.com
LAURA C. HURTADO #267044 4 laura.hurtado@pillsburylaw.com
Four Embarcadero Center, 22nd Floor 5 San Francisco, California 94111
Telephone: (415) 983-1000 6 Facsimile: (415) 983-1200
7 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
8 JULIA HARUMI MASS #189649 jmass@aclunc.org
9 LINDA LYE #215584 llye@aclunc.org
10 39 Drumm Street San Francisco, California 94111
11 Telephone: (415) 621-2493 F csimile: (415) 255-8437
Attorneys for Plaintiffs

1

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

SAN FRANCISCO DIVISION

Jsc

c 17
18 DENNIS JOSEPH RAIMONDO (a.k.a.

No.

29 5

JUSTIN RAIMONDO), an individual, and )

19 ERIC ANTHONY GARRIS, an individual, ) COMPLAINT FOR DECLARATORY

) AND INJUNCTIVE RELIEF FOR

20

Plaintiffs,

) VIOLATION OF THE FREEDOM OF

) INFORMATION ACT, 5 U.S.C. § 552

21

vs.

) et seq. AND THE PRIVACY ACT,

) 5 U.S .C. § 552a et seq.

22 FEDERAL BUREAU OF INVESTIGATION)

)

23

Defendant.

)

)

24 _____________________________))

25

26

27

28

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L 0

1

INTRODUCTION

2

1. Through this lawsuit, Eric Anthony Garris and Dennis Joseph Raimondo

3 seer disclosure of records maintained by the Federal Bureau of Investigation ("FBI" or

4 "A$ency") related to each of them as individuals and related to their online magazine

5 An.iwar.com. The case arises following the discovery that the FBI conducted a "threat

6 ass~ssment" of Antiwar.com-an anti-interventionist website that publishes news and

7 opinion articles about U.S. foreign and military policy. A year after Garris and Raimondo

8 (collectively "Plaintiffs") requested records they are entitled to under the Freedom of

9 Information Act ("FOIA"), 5 U.S.C. § 552 et seq., as amended, and the Privacy Act,

10 5 U.S.C. § 552a et seq., as amended, the FBI has failed to deny their requests, has failed to

11 provide any responsive records, and has failed to assert any grounds upon which the

12 requested records could be withheld.

13

2. Plaintiffs are long-time peace activists and proponents of non-

14 int~rventionism. Plaintiff Raimondo is the editorial director of Antiwar.com, and Plaintiff

15 Garris is the managing editor and webmaster of the site. Plaintiffs have worked for the

16 online magazine Antiwar.com since 1995 when Plaintiff Garris founded it as a means to

17 express opposition to U.S. intervention in the Balkans. Antiwar.com is an anti-

18 interventionist, pro-peace website with a purely journalistic mission: revealing the truth

19 about America's foreign policy.

20

3. Plaintiffs became aware that they and Antiwar.com had become the subject

21 of FBI surveillance upon their discovery of documents responsive to another person's FOIA

22 request posted on the website Scribd.com in August 2011. Included in the posting was a

23 FBI memorandum that names both Plaintiffs, states their positions of employment at

24 Antiwar.com, describes their First Amendment activities, and recommends opening a

25 preliminary investigation. Two news articles by Plaintiff Raimondo were listed as

26 attachments to the FBI memorandum and also posted on the website Scribd.com.

27 Following publication of the FBI memo by Antiwar.com and others, Antiwar.com lost

28 significant financial support.

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1

4. Troubled by their discovery that they and Antiwar.com had become the

2 su,ject of FBI surveillance, Plaintiffs, in October 2011, filed requests under the FOIA and

3 the Privacy Act seeking disclosure ofrecords pertaining to themselves. After an

4 adfllllstrative appeals process, Plaintiffs perfected their requests in May 2012 to include a

5 clear request for records referring or relating to Antiwar.com. A year later, Plaintiffs have

6 not received a substantive response for records relating to themselves or Antiwar.com.

7

5. Plaintiffs seek to enjoin the FBI from continuing improperly to withhold

8 Agency records referring or relating to each ofPlaintiffs and Antiwar.com. The FBI's

9 failure to provide a substantive response not only violates the FOIA and the Privacy Act,

10 but it denies Plaintiffs and the public insight into the FBI's surveillance practices with

11 respect to media organizations and private citizens engaged in First Amendment protected

12 speech. Disclosure of records describing or constituting surveillance of Plaintiffs and

13 Antiwar.com would shed significant light on the Agency's surveillance system and how it

14 operates when protected political expression is targeted.

15

JURISDICTION

16

6. This Court has jurisdiction over this action pursuant to 5 U.S.C.

17 § 5S2(a)(4)(B), 5 U.S.C. § 552(a)(6)(C)(i), 5 U.S.C. § 552a(g)(1), and 28 U.S.C. § 1331.

18

VENUE

19

7. Venue is proper in the Northern District of California pursuant to 5 U.S.C.

I
20 § 5$2(a)(4)(B), 5 U.S.C. § 552a(g)(5), and 28 U.S.C. § 1391. Plaintiff Garris is a resident

21 of San Francisco, California, and Plaintiff Raimondo is a resident of Sebastopol, California,

22 both of which are within the Northern District of California.

23

INTRADISTRICT ASSIGNMENT

24

8. Assignment to the San Francisco Division of this Court is proper under Civil

25 Local Rule 3-2(c), (d) because a substantial part of the events or omissions giving rise to

26 Plaintiffs' claims occurred, and continues to occur, in the City and County of San

27 Francisco.

28

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1

PARTIES

2

9. Plaintiff Eric Anthony Garris resides in the City and County of San

3 Francisco. He is a citizen of the United States of America. Plaintiff Garris is the founder,

4 managing editor, and webmaster of the online magazine Antiwar.com, whose principal

5 place of business is in San Francisco, California. Plaintiff Garris is a member of the news

6 media.

7

10. Plaintiff Dennis Joseph Raimondo resides in the City of Sebastopol, which is

8 within Sonoma County. He is a citizen of the United States of America. Plaintiff

9 Raimondo is the editorial director for the online magazine Antiwar.com. Plaintiff

10 Raimondo is a member of the news media.

11

11. Defendant FBI is an agency within the meaning of 5 U.S.C. § 552(f) of the

12 FOIA and 5 U.S.C. § 552a(a)(l) of the Privacy Act, and is in possession and/or control of

13 records referring or relating to Plaintiffs and referring or relating to the online magazine

14 Antiwar.com.

15

LEGAL FRAMEWORK

16

12. The FOIA requires that federal agencies make reasonable efforts to maintain

17 thejr records in forms or formats that are reproducible and provide copies of agency records

18 that are reasonably described in requests by members of the public, subject to certain

19 objections. 5 U.S.C. § 552(a).

20

13. Under the Privacy Act, federal agencies that maintain a "system of records"

21 concerning individuals must do so "with such accuracy, relevance, timeliness, and

22 completeness as is reasonably necessary to assure fairness to the individual." 5 U.S.C.

23 § 552a(e)(5). In addition, agencies are prohibited from maintaining any record "describing

24 how any individual exercises rights guaranteed by the First Amendment unless ... pertinent

25 to ~d within the scope of an authorized law enforcement activity." 5 U.S.C. § 552a(e)(7).

26 For enforcement of these record-keeping limitations, the Privacy Act provides individuals

27 with the right to access their records upon request and allows them to request amendment or

28 cortection of their records. 5 U.S.C. §§ 552a(d)(1) and (2).

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1

FACTS

3

14. In August 2011, Plaintiffs Garris and Raimondo discovered ninety-four

4 pa~es of redacted documents produced by the FBI in response to a FOIA request filed by

5 the author of the blog "Zionism Stinks." Of the ninety-four pages, twenty-three referred or

6 related to Antiwar.com and its staff, including Plaintiffs. The twenty-three pages of

7 documents, which include an internal FBI memorandum dated April30, 2004 (the

8 "April30 Memo") and two articles by Plaintiff Raimondo, evidence the FBI's surveillance

9 of Plaintiffs and the online magazine Antiwar.com. A true and correct copy of the April30

10 Memo is attached hereto as Exhibit "A" and incorporated by this reference.

11

15. Based on the April 30 Memo, it appears that the FBI conducted a search of

12 the Universal Index; Electronic Case File; Dun and Bradstreet; Department of Motor

13 Vehicles; and Lexis Nexis for references to Antiwar.com and one or more individuals. The

14 April 30 Memo contains a list and description of the files searched, both of which contain

15 numerous redactions.

16

16. The April 30 Memo indicates that eleven enclosures are attached to it,

17 including an untitled Excel spreadsheet dated October 3, 2001; a copy of a document

18 written in Italian with an FBI Suspect List dated May 22, 2002; a copy of aLexis Nexis

19 business summary on Antiwar.com; five news articles downloaded from Lexis Nexis; and

20 three Internet postings. Of the eleven enclosures only two are included in the document

21 containing the April 30 Memo posted on Scribd.com; the two that are included are both

22 news articles authored by Plaintiff Raimondo.

23

17. The April 30 Memo describes information obtained from the FBI's

24 inv~stigation and surveillance of Antiwar.com and one or more individuals. Specifically,

25 the April30 Memo describes: (a) an article by an author, whose name has been redacted,

26 on U.S. assistance to Israel, which cited Antiwar.com as one of its sources; (b) an article

27 pas$ed out at a peaceful protest in Fairford, Gloucestershire, England, on November 9,

28 200f, that referred to Israeli spies being held by the United States and included

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1 Antiwar.com as a resource for additional information; (c) a statement made at a Western

2 Regional Conference ofthe National Alliance Sacramento Unit ("NASU"), wherein a

3 member ofNASU discussed the Antiwar.com website; and (d) an FBI special agent's

4 review of computer hard drives seized during an investigation of an unidentified subjec~ in 5 2~3 and statement that the hard drive showed that between July 25, 2002 and June 15, 6 20~3, the unidentified subject had visited Antiwar.com, among many other websites.

7

18. The April 30 Memo names Plaintiff Garris by name, stating that he is the

8 mattaging editor of Antiwar.com; it also names Plaintiff Raimondo by name, stating that he

9 is the editorial director of Antiwar.com. The April 30 Memo further states that comments

10 on Antiwar.com harshly criticize Plaintiffs for their views.

11

19. The section of the April 30 Memo titled "Analyst Comments" reports on the

12 "threat assessment" and states:

13

The rights of individuals to post information and to express personal views

on the Internet should be honored and protected; however, some material

14

that is circulated on the Internet can compromise current active FBI

15

investigations. The discovery of two detailed Excel spreadsheets posted on www.antiwar.com may not be significant itself since distribution ofthe

16

information on such lists are wide spread .... Still, it is unclear whether

www.antiwar.com may only be posting research material compiled from

17

multiple sources or if there is material posted that is singular in nature and

not suitable for public release. There are several unanswered questions

18

about www.antiwar.com. It describes itself as a non-profit group that

19

survives on generous contributions from its readers. Who are these contributors and what are the funds utilized for? [two lines redacted] If

20

this is so, then what is his true name? Two facts have been established by

this assessment. Many individuals worldwide do view this website

21

including individuals who are currently under investigation and [two lines

redacted].
22

23

20. The FBI analyst who authored the April30 Memo concluded with two

24 recr mmendations:

25

It is recommended that ECAU further monitor the postings on website

www.antiwar.com .... It is recommended that a [preliminary

26

investigation] be opened to determine if [redaction] are engaging in, or

have engaged in, activities which constitute a threat to National Security

27

on behalf of a foreign power.

28

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1

21. The remainder of the twenty-three pages pertaining to Antiwar.com and its

2 staff, including Plaintiffs, includes copies of two news articles by Plaintiff Raimondo, both

3 of which concern the five Israeli nationals who appear to be the subject of the FOIA request

4 submitted by the author of the blog "Zionism Stinks."

5

22. The April 30 Memo demonstrates that the FBI is in possession of documents

6 responsive to Plaintiffs' FOIA and Privacy Act requests.

7 FBI's Surveillance Chilled Plaintiffs' Speech

8

23. After Plaintiffs' discovery of the FBI's surveillance of Antiwar.com and of

9 Plaintiffs themselves, Antiwar.com ran editorials about the FBI's surveillance, shedding

10 light on the Agency's monitoring of Antiwar.com and its staff and their exercise of their I
11 right to free speech.

12

24. In October 2011, one of Antiwar.com's major donors withdrew his financial

13 support from Antiwar.com out of concern that the FBI would monitor him if he continued

14 to provide, as he wished to do, fmancial support to Antiwar.com. Since then, three

15 significant donors have also withdrawn financial support, citing their fear that FBI interest

16 in Antiwar.com would lead to surveillance of the donors as a reason for withdrawing

17 financial support. As a result, Antiwar.com has lost approximately $75,000 per year since

18 2011 in otherwise expected contributions.

19

25. In 2010, Plaintiffs discovered that Antiwar.com was listed in a section of a

20 S~te and Local Anti-Terrorism Training ("SLATT") disk, entitled "Special Interest

21 Terrorism," produced by the United States Department of Justice ("DOJ") and provided to

22 state and local law enforcement representatives at a nation-wide anti-terrorism training

23 coqference in New Orleans, Louisiana

24

26. After Plaintiffs learned about the April30 Memo, they considered issuing

25 editorials to publicize the federal government's misleading and inappropriate inclusion of

26 Antiwar.com in its counterterrorism training materials. However, based on their concern

27 that more donors and supporters would withdraw their support from Antiwar.com from fear

28 that they would also be subject to scrutiny by federal intelligence agencies, Plaintiffs

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1 dec~ded not to do so. Instead, they sought records related to Antiwar.com and themselves

2 throogh the Privacy Act and FOIA requests that are the subject of this Complaint.

3 Plaintiffs' History of Activism and Contacts with Law Enforcement Reinforce

4 Plaintiffs' Belief that the FBI Has Records Relating to Them and Antiwar.com

5

27. During the 1960s, Plaintiff Garris became active in the Peace and Freedom

6 Par1;y, serving as National Committeeman and Vice-Chairman. Plaintiff Garris left the

7 Peace and Freedom Party in 1975 and became active in the Libertarian Party.

8

28. Plaintiff Garris ran for public office in 1972, 1974, 1980, 1983, and 1990, as

9 a member of the Peace and Freedom Party, Libertarian Party, and Republican Party.

10

29. Plaintiff Raimondo became active in the Libertarian Party in the 1970s.

11

30. Plaintiff Raimondo ran for public office in 1980, 1982, and 1996 as a

12 member of the Libertarian Party and Republican Party.

13

31. Both Plaintiffs worked for an organization called Students for a Libertarian

14 Society in San Francisco, California from 1978 to 1980.

15

32. Plaintiffs ran a bookstore in San Francisco called Libertarian Books and

16 Periodicals. The San Francisco Police Department raided the bookstore in 1981. Plaintiffs

17 wene arrested in the raid and later prevailed in a civil lawsuit challenging the legality of the

18 raiq.

19

33. Plaintiff Garris participated in an interview with the United States Secret

20 Service in 1992 regarding a threat to a presidential candidate he had reported.

21

34. In December 2005, upon returning from a trip to Malaysia to attend the

22 Perpana Peace Conference, Plaintiff Garris, who spoke at the conference and was travelling

23 back to the United States alone, was flagged for secondary inspection when his passport

w~ 24

scanned at Customs.

25

35. Plaintiff Garris was detained for forty-five minutes while agents believed to

26 be ~mployed by the Department of Homeland Security questioned Plaintiff Garris about his

27 triA to Malaysia. The agents searched through Plaintiff Garris' s luggage, paying particular

28 attqntion to the papers, books, and posters contained therein. The agents questioned

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1 Plaintiff Garris about Antiwar.com, the purpose ofhis trip, and asked him whether he had

2 met any Muslims or terrorists during the course of his trip.

3

36. Plaintiffs believe based on the facts alleged herein, including their

4 documented history of activism, previous contact with law enforcement, and the April 30

5 Memo documenting a threat assessment and recommending continued monitoring of

6 Plaintiffs and Antiwar.com, that the FBI has records pertaining to Plaintiffs and to

7 Antiwar.com.

8 Plaintiffs' FOIA and Privacy Act Letter Requests to the FBI

9

37. On October 4, 2011, the American Civil Liberties Union of Northern

10 California ("ACLU-NC"), on behalf of Plaintiff Garris, submitted a FOIA and Privacy Act

11 request to the FBI at its Winchester and San Francisco offices, along with Plaintiff Garris's

12 Certification of Identity and Authorization to Release Information to his counsel. Plaintiff

13 Garris identified himself as the founder, managing editor, and webmaster of the online

14 magazine Antiwar.com and provided a link to the April 30 Memo.

15

38. On October 4, 2011, the ACLU-NC, on behalf of Plaintiff Raimondo,

16 submitted a FOIA and Privacy Act request to the FBI at its Winchester, San Francisco, and

17 Santa Rosa offices, along with Plaintiff Raimondo's Certification ofldentity and

18 Authorization to Release Information to his counsel. Plaintiff Raimondo identified himself

19 as the editorial director of the online magazine Antiwar.com and provided a link to the

20 April 30 Memo.

21

39. On the same day, October 4, 2011, the ACLU-NC, on behalf of five others

22 theq. employed by Antiwar.com also made requests like those described in paragraphs 37

23 and 38. Those requests are not at issue in this lawsuit.

24 "No Records" Denials By the FBI

25

40. On November 2, 2011, in separate, but identical form letters signed by

26 David M. Hardy, Section Chief of the Record/Information Dissemination Section of the

27 Records Management Division, the FBI notified Plaintiffs that the FBI had conducted a

28

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1 search ofthe Central Records System, and based on that search was unable to identify main

2 file records responsive to Plaintiffs' requests.

3 Plaintiffs' Administratively Appeal FBI's "No Records" Denials

4

41. On December 22, 2011, through counsel, Plaintiff Garris mailed a certified

5 letter to the DOJ's Office oflnformation Policy ("OIP") appealing the FBI's denial ofhis

6 FOIA and Privacy Act request. In his appeal, Plaintiff Garris observed that the FBI's

7 blanket and identical form "no records" response to him seemingly overlooked responsive

8 records that Plaintiff Garris knows exist, based on Agency documents disclosed in response

9 to a FOIA request made by another. Plaintiff Garris further observed in his appeal that the

10 FBI appeared to have improperly invoked a national security exemption and that the FBI's

11 "no records" response based on its search of main file records suggests the FBI's search

12 was inadequate, as it seemingly failed to perform a "cross-reference" search for files that

13 mention Plaintiff Garris or Antiwar.com.

14

42. On December 22, 2011 , through counsel, Plaintiff Raimondo mailed a

15 certified letter to OIP appealing the FBI's denial of his FOIA and Privacy Act request. In

16 his &ppeal, Plaintiff Raimondo observed that the FBI's blanket and identical form "no

17 records" response to him seemingly overlooked responsive records that Plaintiff Raimondo

18 knows exist, based on Agency documents disclosed in response to a different FOIA request.

19 Plaintiff Raimondo further observed in his appeal that the FBI appeared to have improperly

20 invoked a national security exemption and that the FBI's "no records" response based on its

21 search of main file records suggests the FBI's search was inadequate, as it seemingly failed

22 to perform a "cross-reference" search for files that mention Plaintiff Raimondo or

23 Antiwar.com.

24

43. By letter dated January 4, 2012, signed by Priscilla Jones, Supervisory

25 Administrative Specialist, OIP acknowledged receipt of Plaintiffs' administrative appeals.

26

44. On March 29, 2012, in a letter signed by Anne D. Work, Senior Counsel for

27 Administrative Appeals Staff, OIP affirmed the FBI's action on Plaintiff Raimondo's

28 Oc her 4 FOIA and Privacy Act request. With regard to Plaintiff Raimondo's request for a - 10 - COMPLAINT UNDER FOIA AND PRIVACY ACT FOR
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..

1 cross-reference search, the letter indicated Plaintiff Raimondo would need to submit

2 additional information to provide the FBI with information sufficient to enable the FBI to

3 determine that any cross-references it locates are identifiable to the subject of Plaintiff

4 Raimondo's request. The letter also stated that the FBI had not improperly invoked a FOIA

5 excl~sion.

6

45. On September 17, 2012, in a letter signed by Janice Galli McLeod,

7 Associate Director, OIP affirmed the FBI's action on Plaintiff Garris's October 4 FOIA and

8 Privacy Act request. With regard to Plaintiff Garris's request for a cross-reference search,

9 the letter indicated Plaintiff Garris would need to submit additional information to provide

10 the FBI with information sufficient to enable the FBI to determine that any cross-references

11 it locates are identifiable to the subject of Plaintiff Garris's request. The letter also stated

12 that the FBI had not improperly invoked a FOIA exclusion.

13 Plaintiffs Submit Amended Privacy Act and FOIA Requests and Add FOIA

14 Request for All Records Referring or Relating to Antiwar.com

15

46. On May 24, 2012, through counsel, and in a letter directed to the FBI's

16 Winchester field office and OIP, Plaintiffs provided additional personal and identifying

17 information to assist the FBI in locating responsive records. Plaintiffs' May 24letter

18 referenced the April30 Memo and its naming of Antiwar.com and Plaintiffs Garris and

19 Raimondo and detailed Plaintiffs' long history of activism. A true and correct copy of the

20 May 24 letter is attached hereto as Exhibit "B" and incorporated by this reference.

21

47. The May 24letter, submitted by counsel on behalf of Plaintiffs and the five

22 other requesters, also asserted a clear request to the FBI under the FOIA for all records

23 referring or relating to Antiwar.com, whether or not filed, described, or otherwise identified

24 as pertaining to any Plaintiffs, and without redaction for identifying information that refers

25 to any of the requesters.

26

48. The May 24 letter also reiterated Plaintiffs' requests under the FOIA and the

27 Privacy Act for records relating or referring to themselves.

28

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49. By letters dated June 8, 2012 and signed by Mr. Hardy the FBI

2 acknowledged receipt of Plaintiffs' FOIA and Privacy Act requests for records pertaining to 3 them~elves as individuals and of their FOIA request for records referring or relating to the

4 onliif magazine Antiwar.com.

5

50. By separate but identical form letters dated August 31, 2012, signed by Mr.

6 Hardy, the FBI informed the five non-plaintiff requesters whose requests were also

7 referenced in the May 24 letter that based on its search of the indices to its Central Records

8 System, the FBI was unable to identify file records responsive to their requests under the

FOit. 9

Plaintiffs did not receive any such letter.

10

51. On November 9, 2012, in separate but identical form letters signed by Mr.

11 Hardy, Plaintiffs were notified that their FOIA and Privacy Act requests were being

12 administratively closed and that the material responsive to those requests would be

13 processed in conjunction with Plaintiffs' May 24 FOIA requests for records referring or

14 relating to the subject Antiwar.com. True and correct copies of these letters are attached

15 hereto as Exhibits "C" and "D" and incorporated by this reference.

16

52. Plaintiffs have received no further response from the FBI.

17 Plaint iffs have Exhausted Their Administrative Remedies

18

53. Plaintiffs have exhausted their administrative remedies as to Defendant FBI

19 with regard to their Privacy Act requests. See 5 U.S.C. § 552a(g)(1)(B). Plaintiffs filed

20 administrative requests under the Privacy Act, amended the requests in conformance with

21 the Agency's response to their administrative appeals, and received notice that their

22 amended Privacy Act requests were being processed, but have received no Agency

23 determination setting forth whether Defendant FBI intends to produce records or any basis

24 for withholding them. Defendant FBI has failed to provide a determination for nearly a

25 year since Plaintiffs' amended request of May 24, 2012.

26

54. By the terms of 5 U.S.C. § 552(a)(6)(A)(i), Defendant FBI's responses to

27 Plaintiffs' May 24 FOIA requests were due twenty (20) days after receipt of those requests.

28 Altllough this time has elapsed, Plaintiffs have yet to receive the Agency's response to their
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1 requ~sts. Plaintiffs are deemed to have exhausted their administrative remedies for their

2 FOIA requests by reason of Defendant FBI's failure to meet the statutory time limits. See

3 5 U.$.C. § 552(a)(6)(C)(i).

4

55. Defendant has wrongfully withheld records sought by Plaintiffs. Further,

5 Defefdant has asserted no statutory basis for withholding any records sought by Plaintiffs

6 in their May 24 FOIA and Privacy Act requests. There is a strong public interest in the

7 disclosure of the records sought. Defendant's failure to release responsive documents that

8 are believed to be within their custody and control constitutes an abuse of the Agency's

9 discrFtion.

10

FIRST CLAIM FOR RELIEF

11

Violation of the FOIA for Failure to Make Promptly Available

12

the Records Sought by Plaintiffs' Requests (5 U.S.C. §§ 552(a)(3), (a)(6))

13

56. Plaintiffs Garris and Raimondo repeat and reallege the allegations contained

14 in paragraphs 1 through 55 above, inclusive.

15

57. Plaintiffs Garris and Raimondo have a legal right under the FOIA to obtain

16 the Agency records requested on May 24, 2012. Plaintiffs' requests clearly described the

17 records sought and were in accordance with the published rules. There exists no legal basis

18 for Defendant FBI's failure to make such records available.

19

58. Defendant FBI's failure to make promptly available the records sought by

20 Plaintiffs Garris and Raimondo's requests violates the FOIA, 5 U.S.C. § 552(a)(3) and

21 (a)(6).

22

59. Plaintiffs are entitled to injunctive relief with respect to the release and

23 disclosure of the requested documents. 5 U.S.C. § 552(a)(4)(B).

24

SECOND CLAIM FOR RELIEF

25 Violation of the Privacy Act for Failure to Allow Plaintiffs' Garris and Raimondo

26

Access to Records (5 U.S.C. §§ 552a(d)(l), (g)(l)(B))

27

60. Plaintiffs Garris and Raimondo repeat and reallege the allegations contained

28 in pa,agraphs 1 through 59 above, inclusive. - 13 - COMPLAINT UNDER FOIA AND PRIVACY ACT FOR
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1

61. Plaintiffs Garris and Raimondo have a legal right under the Privacy Act to

2 g access to Agency records and any information pertaining to themselves maintained by

3 Def~ndant FBI.

4

62. Plaintiffs have each properly requested from Defendant FBI such

5 information and records.

6

63. Defendant FBI's failure to make available to Plaintiffs the requested records

7 or/and information violates the Privacy Act, 5 U.S.C. § 552a(d)(1).

8

64. Plaintiffs are entitled to injunctive relief with respect to the Agency's failure

9 to ptovide access to and disclose the requested documents. 5 U.S.C. § 552a(g)(3)(A).

10

PRAYER FOR RELIEF

11

WHEREFORE, Plaintiffs request the Court award them the following relief:

12

a. Declare that Defendant FBI violated the FOIA and the Privacy Act;

13

b. Order Defendant FBI immediately to disclose the requested records in their

14

entireties and make copies available to Plaintiffs Garris and Raimondo;

15

c. Order Defendant FBI immediately to grant Plaintiffs Garris and Raimondo

16

access to records or to any information pertaining to themselves maintained

17

by Defendant FBI;

18

19

20

21

22

23
24

25

26 27

28

- 14 -

COMPLAINTUNDERFOIAANDPRIVACY ACfFOR DECLARATORY AND INJUNCTIVE RELIEF

Case3:13-cv-02295-JSC Document1-1 Filed05/21/13 Page15 of 36 •

I

d. Award Plaintiffs their reasonable costs and attorneys' fees;

2

e. Expedite this action in every way pursuant to 28 U.S.C. § I657(a); and

3

f.

Grant such other relief as the Court may deem just and proper.

4 Date~: May 21, 2013.

5

JULIA HARUMI MASS

LINDA LYE

6

ACLU CIVIL LIBERTIES UNION FOUNDATION

OF NORTHERN CALIFORNIA

7

39 Drumm Street

San Francisco, California 94III

8 PILLSBURY WINTHROP SHAW PITTMAN LLP

9

THOMAS V. LORAN III

MARLEY DEGNER

IO

LAURA C. HURTADO

Four Embarcadero Center, 22nd Floor

II

San Francisco, California 94II1

I2

By: ~~r=J..-

13

Laura C. Hurtado

Attorneys for Plaintiffs

I4

I5

I6

I7

I8

I9

20

2I
22

23

24

25

26 . 27

28 - I5- COMPLAINT UNDER FOIA AND PRIVAC_:,t.cr FOR
DECLARATORY AND INJUNCftvr RELIEF

Case3:13-cv-02295-JSC Document1-1 Filed05/21/13 Page16 of 36
Exhibit A
Exhibit A

.. .

(Rev. 01-31-2003)

Case3:13-cv-02295-JSC Document1-1

~ DATE: 09-10-2010

Ftli INP'O.

•

CLASSIFIED BY UC6 LP/PLJ/CC

REASON: 1.4 (b,c,d) DECLASSIFY ON: 09-10-2035

~T·

Filed05/21/13 Page17 of 36

•

ALL INFORMATION CONTAINED
HEREIN IS UNCLASSIFIED EXCEPT ~RE SHOUN OTHERUISE

FEDERAL BUREAU OF INVESTIGATION

Precedence: ROUTINE To: Counterterrorism
New York Philadelphia St. Louis San Francisco From: Newark
GMRA2
Contact·: IA

Date: 04/30/2004

Attn: ITOS IL CONUS IL Team 3

SSA I

I

osl

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(Ut ··..--. Administrative: 'ts:( This document contains information obtained under the authorify'bf the Foreign Intelligence Surveillance Act
(FISA), 50 u.s.c., Section 1801. Such FISA derived information
shall not be used in any criminal proceeding, including grand

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Case3:13-cv-02295-JSC Document1-1 Filed05/21/13 Page18 of 36

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From: Newark 9394/3 0/2 004

jury proceedings and warrant affidavits, without the express written approval of the Attorney General of the United States.
FISA derived infor.mation concerning any u.s. Person may not be
disseminated to a foreign government without prior Attorney General approval.

)s:t (U) · Enclosure(s) ~.

There are eleven enclosures attached to this

ass~ssment. They are as follows: (1) an untitled Excel

spr adsheet, 22 pages, dated 10/03/2001; (2) a copy of a

doc ment written in Italian with the 22 page FBI Suspect List,

dat$d 05/22/2002; (3) a Lexis Nexis business summary on

antjwar.com; (4) five news articles downloaded from Lexis Nexis;

(5) three Internet postings.

(U) - ~~:~;~~~-~~:, e~;~~~= ~~m:~~i~~;~~noi~~~e~~edated

03/24/2004, advised that the post-9/11 11watch list, 11 "Project Lookout," was posted on the Internet and may contain the names of individuals of active· investigative interest. Different versions of these lists may be found on the Internet. This assessment was conducted on the findings discovered on www.antiwar.com.

(Ul -···-···--·-·

I 1
......

··):S:( While

conducting

research

on

the

Internet,

an

untitled spreadsheet, dated 10/03/2001, was discovered on ·website

www.antiwar.com under antiwar.com/justin/finnlist.pdf. This

spreadsheet contained names, DOBs, SSANs, addresses and other

columns. The last column labeled as ID con ai

n

~ssem~nate

b6

by the Counterterrorism Unit as Priority on

b7C

Forms (ICF) . The names contained on hi

b7E

s readsheet

!Ul ··---···-----~-~u-n+d-i;g- ·-l~ s'Oh ara e of

antiwar.com interest to

website all who

describes itself as are concerned about

a U.s.

foreign policy and its implications. It also states that

antiwar.com has become the Internet newspaper of records for a

growing international movement, the central locus of opposition to a new imperialism that masks its ambitions in the rhetoric of

human rights, humanitarianism, freedom from terror and global

democracy. It also describes itself as a non-profit group that

survives on generous contributions from its readers. The

Managing Editor is listed as Eric Garris, and the Editorial

Director is listed as Justin Raimondo.

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2

. ,

--e-· •• Case3:13-cv-02295-JSC Document1-1 Filed05/21/13 Page19 of 36
---+--- - --+-
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To: Counterterrorism ~m: Newark (U) . Re-: -ts([!_l5B-NK-C8693.!:J04/30/2004

b6

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(U) ·-~--·-·~-------~~~A~s-e_a_r_c_h~o-f~~~I~r-e_y_e_a_l_e_d~l~~~~~~~~~~~~~f ·' .

(U)

1 ·•

)':(A search of UNI for www.antiwar.com was negative.

0 (U) nu~e~~u~ - d~!n~~a~ ~j the Eleqtmpi c Case FiJ e (E1~drevealed anti~ar.com ~

(U) ···

·······~

I

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· · · ·Jm:l

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~ File 65T-HQ-1427774 serial 26, dated 04/14/2004,

~ounteri~telligenc7 Unit CD-4E/ll869 to the Washington

·

e~ved

Referral/Consult

Case3:13-cv-02295-JSC Document1-1 Filed05/21/13 Page20 of 36

._ .

• • ~ ~

To: 1 Coun~rterrorism ~~m: Newark (U) ······-·Re+····r~ t:JSB-NK-C86934.:J 04/30/200.4

Ref erra l/Cons ult

(S) ·~~~-~~-----------~~-~-~-~~~:---------------~ bl

bl

is a LHM

bl

(S)

T is ser1al also restate t e

1n ormat1on conta1ne 1n ser1a 152 regarding the document found

·* on www.antiwar.com.

(U) -·--·---""7-:---·t-······---

File .L...,......-...,.--.:-~~--------,t--~------'

dated 05/21/2002, indicated that

wrote a page

b6 b7A b7C

length article reporting on the magn1 u e an value of American

military and economic assistance to Israel. I

!reported in

detail on all types of assistance to Israel citing one of his

source~ of information as www.antiwar.com.

(U) --·-----11"/~;;;-o~ox:~~~!d a peaceful protest at the mal~a~=~e of RAF b7A

Fairford, UK, on 11/09/2002. The protesters handed out several articles during the protest. One article referred to suspected
Israeli spies being held by u.s. authorities since the terrorist
attaqks in the U.S. The article was from an Internet web page,
dated 12/12/2001, entitled "Suspected Israeli Spies Held by '!J.S." An insert at the bottom of the page provided a website,
www . antiwar.com. where more information could be obtained on the suspected Israeli spies.

(U) ··· ··· · ·· · - ~File lOOA-PG- 67150-302 serial 970, dated 10/03/2002, indicated that during a Western Regional Conference of the National Alliance Sacramento Unit (NASU), a member
~T

4

. .

u Case3:13-cv-02295-JSC Document1-1 Filed05/21/13 Page21 of 36

e

)J(RET

To: Count~+terrorism !~: ~e~k
(U) ····· ·· Re : l- ~1SB-NK-C8693~A/30/2004

discussed a website, antiwar.com. This individual told NASU membrrs to educate themselves about the Middle East conflict.

!U) ---··-····· ··--·-··----·-t·-··---·-·····)5:( File 174A-LA-234485 serial 55, dated 11/10/2003,

indipated that on 10/27/2003, a special agent reviewed t~e----~
com uter hard drive seize d rin the investi a i n f

b6
b7C

v~s~ts to many we s~tes One of the websites listed

(U) documented
b6
b7A b7C

(U) ..

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----t·----
Newark. e

There are four FISA derived references located at are 315B-NK-102595-EL6 serials 65, 71, 72 and 80.

(U)

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Case3:13-cv-02295-JSC Document1-1 Filed05/21/13 Page22 of 36
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~~ SB-NK-C8

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b6 b7C

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A search of Dun and Bradstreet (D&B) revealed that

b6

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(U) ·----·-----·'--+--···--·--·-·· One business summary was located on D&B listed to Anti~ C ., 0 Box 575, Big Sur, CA 93920, with no further
infoju~tion available.

?J !Ul ·----··-·· · Rc~d.1,ii#J20~2~,iL-~~~~~Aiin~g~a~m~e~,hbC~A;i~9:4~0!1s0n. !~T~ih~eof;i~l~inn~g~;d!;a~te~~w~~amsa1~0~v/2;3~;/2~0e0a;0.

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b6

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I t:tle

one number osted on www.antiwar.com is listed to

~~~~----~~---------------------, This telephone number was

b6 b7C b7E

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negative.

b6 b7C b7E

Case3:13-cv-02295-JSC Document1-1

II ~ •
I

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·-······-····-··Re.;..

lC)osu:n(t~.t.elr5rBo-rNiKs-rCn869~3~~r0n:4/3DN/e2w0a0r4k

Filed05/21/13
•

Page23 of 36

b6

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b7C

lrevealed ~~----------~------------------~--~

\

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b6

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.----======::::;-___. A CCH search fori
I I A D&B search for

was negative .

lwas negative.

b6 b7C

was negative.

A~search for i
I s A D search for

lwas negative.

b6 b7C

Iwas negative.

b7E

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Lex(i,~1\i~sAresveaeraclehdonfumtheeroNueswas ratincdleBsusriengeasrsdSinegction
land www.antiwar.com. Six articles were

lo~at:dl
se ec ed

b6 b7C

for ~nclus~on ~n this assessment.

b6 b7C

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7

Case3:13-cv-02295-JSC Document1-1 Filed05/21/13 Page24 of 36

.. ~

•

To: ~~terrorism !~: Newark (U) ---Re:-+~ t::SB-NK-C8693~.:.f4/30/2004

b6 b7C

(~ ;s1 There are numerous websites that comment on the
postin~ found on www.antiwar.com. Many individuals harshly

critize Eric Garris and Justin Raimondo for their views. Three

postings were selected to be included in this assessment.

\~~On Just~n Yaimondo,

the Pravada website was posted an article by 11 Did Al Qaeda shoot recently released footage

of

9/11 WTC attack or was it someone else? 11

\ \)) Jji( On www.jdl-ny.org, a harsh aritizism of
www.an~.com was posted that included photographs of Eric Garris and Justin R~imondo.

~On www.chroniclesmagazine.org, an article by Justin

Rai;do, Chronicles Intelligence Assessment - The Terror

Eni :Israel and the September 11 Connection, 11 outlined the

acti ties of the Mossad. It also included information obtained

from a story in the Bergen Record dated 09/12/2002 regarding a

group of Isr~elis detained by FBI, ~rk, for possible

involvement ~n the events of 9/11. (An active investigation was

c:.o!ld':':7~~d on t~e f~ve Israeli Nationa s. of thJ.s investJ.gat·J.on see J

For a detati~ ed report bl

(ANALYST COMMENTS: The rights of individuals to post information and to express personal views on the Internet should be honored and protected; however, some material that is circulated on the Internet can compromise current active FBI investigations. The discovery of two detailed Excel spreadsheets posted on www.antiwar.com may not be significant by itself since distribution of the information on such lists are wide spread. Many agencies outside of law enforcement have been utilizing this information to screen their employees. Still, it is unclear whether www.~ntiwar.com may only be posting research material compiled from mutiple sources or if there is material posted that is si~gular in nature and not suitable for public release. There
~T
8

Case3:13-cv-02295-JSC Document1-1 Filed05/21/13 Page25 of 36
~T
To: ~~~=~terrorism From: Newark (U) ----·-·---RaJ....t···~L,;lSB-NK-C8693.!J 04/30/2004

are several unanswered questions regarding www.antiwar.com. It

desqribes itself as a non-profit group that survives on generous

con~ributions from its readers. Who are these contributors and

what are the funds utilized for? I

I

I

i on www.antiwar.com. If this

b6

is so, then what is his true name? Two facts have been

b7C

established by this assessment. Many individuals worldwide do

view this website includi individuals who are currentl under

investi ation and

~
9

4

•A •

e • -4-C-as-e3+:1-3-c-v~-02~2~95~-J-SC--D-oc-um-e-nt1--1--Fi-led05/21/13 Page26 of 36
To: 1 ~~~fterrorism From: Newark (U) ··· Re: ··t·-~ t:!-SB-NK-C8693:J04/30/2004

Set Lead 1: (Discretionary)

COUNTERTERRORISM

AT AT WASHINGTQN, DC

(U)

·· ·· \ .. posQings

~- ~ ~bsiItt eiswrwecwo.manmteiwndaerd.cotmha. t

ECAU

further

monitor

the

Set Lead 2: (Action)

SAN FRl\NCISCO

AT AT SAN FRANCISCO, CA.

b6

b7C

It 'is recommended that a PI be opened to determine ~------~------~~~----~~----~~~--~are engaging in, or
~n, act~v~t~es w ~c const~tute a threat to National on behalf of a foreign power.

Set Lead 3: (Info)

ALL RECEIVING OFFICES

(U) Read and clear.

++

s~
10

. . ~ .__.

Case3:13-cv-02295-JSC Document1-1 Filed05/21/13 Page27 of 36

DATE: 09~ib~201~

~

1£... ..

FBI UJP'O,

•

(J {

(Rev. 01-31-2003)1 CLASSIP'I!:D BY UC 2LP /PLJ ..J .(.

~

ALL INFORMATION CONTAINED HEREIM IS UNCLASSIFIED EXCEPT

REASOM: 1.4 (b ,c,
DECLASSIFY ON: 09-10-2035

S~ 7',.E1 T

..., WHERE SHOYN OTHERUISE

FEDERAL BUREAU OF INVESTIGATION

(U)

DOB:

- DOB:
.....

b6
b7C

(U) ···· · ····Audnmdie~~istthreata~uvteh:o-·r·ff-Y~'oTf htihsedFocourmeiegnnt

contains information obtained Intelligence Surveillance Act

(FISA), 50 u.s.c., Section 1801. Such FISA derived information

shall not be used in any criminal proceeding, including grand

3 :::•~"•'~-1~''~i : ·L' ::x ·; .~ (..

-···- ----- ....

.... ..._ ... ~.,..-,.- _,.,.,..,..,...:~

. .

Ca• se3:1> 3-cv-02295-JSC Document1-1 Filed05/21/13 Page28 of 36
Exhibit B
Exhibit B

Case3:13-cv-02295-JSC Document1-1 Filed05/21/13 Page29 of 36
. . . "' -··--- --- ···-...---····- -···"-···

ACLU

-

-

AMERICAN CIVIL LIBERTIES UNION

of

May24,2012

Via Facsimile
Federal Bureau of Investigation Attn: FOI/PA Request, David M. Hardy Record/Information Dissemination section 170 Marcel Drive .. Winchester, VA 22602-4843 Fax Number: (540) 868-4391
Office of Information Policy (OIP) U.S. Department of Justice Attn: Anne D. Work 1425 New York Ave., NW, Suite 11050 WasJljngton, D.C. 20530-0001 Fax]iutnber: (202)514-1009
Re: Additional information and clarification regarding: FOIPA Request No. 1175603, AP-2012-00971, Subject: Jeremy Sapienza FOIPA Request No. 1175592, AP-2012-00972, Subject: Justin Raimondo FOIPA Request No. 1175594, AP-2012-00978, Subject: Daniel Scott Horton FOIPA Request No. 1175598, AP-2012-00979, Subject: Margaret Griffis FOIPA Request No. 1175595, AP-2012-00977, Subject: Eric Garris FOIPA Request No. 1175601, AP-2012-00980, Subject: Jason Charles Ditz FOIPA Request No. 1175604, AP-2012-00970, Subject: Michael Barrett Austin
Dear Mr. Hardy and Ms. Work:
We write to provide additional information and to clarify the scope ofthe abovereferenced requests and appeals. Thus far, the seven individuals who have sought infonnation related to themselves and the online magazine Antiwar.com have received no records. However, we already know that the FBI has maintained records related to Antiwar.com that name at least two ofthe requestors. We referenced these records in our original request. They are available online beginning at page 62 ofthis link: http;//wWw.empt;ywheel.net/mzcontent/uploads/2011/08/110821-Antiwar-documents.pdf. One ofthe documents, an FBI memo dated April 30, 2004 ("2004 Memo"), references searches, documents, and continued · ·
MICMEUI A. WILSH, CHAIRPERSON I DENNIS MCNALLY, AJAY KRISHNAN, FARAH IRiiLVI, ALlEN ASCH, 14CfClllollli'ERSOHS I kENN!lH SUGARMAN, SECRETARYITREASURfR AID11iOLTAN~ UECI/rMDIRECTOR I k£W EVANS, ASSOCIATEDIRECTOR I CNERIIRYANT, DEVfl.OPNENTO/RfC1DR I SHAYNA OELENDER, ORIJANIZINO ACOJIHIJNIT'fENGAGSIENTDIRfCI'OR LAUIA SAPONARA, COioiHI/NICATIONSOIRECTOR I ALAN iCHLDSSEII, LEGAl. DIRECTOR I MAROARIT C. CIIDSIY, !LIZABETH GILL, LINDA LYI, JULIA HAIIUMI MASS, MICHAEL RISNQI, JOllY STULl, STAFFATTDRHEI'S
PMYLLIDA IURLINDAME, ALLEN HOPPER, NATASHA MINSKI!.R, NICOLlA, DZER, DIANA TATE VERMEIRE, POLICYOIREC1DRS I STEPHEN V. BOMSE, GENERAL cOUWL
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
l!t ORUNM STREET, SAN FRANCISCO, CA 94111 I T/415.621.2493 I F/U5.255.1478 I TTY/416. 863.7132 I WWW.ACLUNC.ORO

. .

Case3:13-cv-02295-JSC Document1-1 Filed05/21/13 Page30 of 36

Federal Bureau ofInve&tigation, Attn: FOIIPA Reqeust Director, Office ofInformation Policy, Department ofJustice, Attn: Anne D. Work May24, 2012 Pagel

recommended surveillance that suggest additional records related to Antiwar.com and/or some of the requestors exists. For these reasons, we believe the FBI has misunderstood the requests, failed to read them thoroughly, or has purposefully withheld documents that should be produced in accordance with the FBI's obligations under FOIA and the Privacy Act. We have also identified additional information that may be useful to the FBI's search of its records. In order to facilitate the agency's full and prompt compliance with its FOIPA requirements, and to attempt to dispel any remaining confusion about what the requestors seek, we detail the following additional information about the requests.

1. Records related to Antiwar.com.

Each ofthe original requests sought files about each requestor and specified the

requestor's connection to the online magazine Antiwar.com. In the appeals from the initial "no

records" responses, we clarified that the agency needed to search for records related to

Antiwar.com in order to determine whether there were responsive records for the requestors.

Because no records have been produced, each ofthe requestors referenced hereby asserts a clear

request for all records referring or relating to Antiwar.com, whether or not filed, described, or

otherwise identified as pertaining to any ofthe individual requestors as individuals. Redaction of

identifying information that refers to any ofthe requestors is unnecessary because the requests

docrnts are being made under both FOIA and the Privacy Act and the requestors are specifically seeking ·

that may name them.1

.

.

.

Based on the 2004 Memo, we expect there should be many records related to Antiwar.com. The requestors seek not only records that name them individually, but all records related or referring to Antiwar.com, without redactions for requestors names or other identifying information. Thus, at the very least, the 2004 Memo should be produced, with any identifying information regarding any of the requestors unredacted. In addition, the 2004 Memo ends with a recommendation that a preliminary investigation be opened. Ifthat preliminary investigation was to be directed at Antiwar.com or any persons affiliated with Antiwar.com, the requestors seek records related to that recommendation, including records related to any preliminary investigation that was opened or records indicating that the recommendation was not followed.

2. Additional information about Justin Raimondo.

We have received a letter dated March 29, 2012, from the Office oflnfonnation Policy affmning the FBI's original "no records, response. Given the existence of the 2004 Memo and other documents that were previously produced--as well as the content of that memo that

1 Requestors do not seek seven duplicate copies ofthe same documents. One set ofall responsive documents without redactions of names and other identifying information for the requestors is sufficient for the requestors' purposes. We understand that agency rules may require you to produce differently redacted versions of each document to each requestor and would be happy to complete additional Privacy Act waivers as necessary to avoid duplication, particularly ifproduction ofdifferently redacted but otherwise duplicate copies is burdensome to the agency.

'•
AMERICAN CIVIL LIURTIIiS UNION FOUNDATION OF IIOitTIII:Illl t:Alll· nnUIA .

. .. . .
' ~

Case3:13-cv-02295-JSC Document1-1 Filed05/21/13 Page31 of 36 · - -·-·--.. -

Federal Bureau ofInvestigation, Attn: FOIIPA Reqeust Director, Office oflriformatlon Policy, Department ofJustice, Attn: Anne D. Work MayU, 2012 Page3
sugge~ts additional agency knowledge about Justin Raimondo, we find this response inadequate. Nonetheless, we provide this additional information with the hope that it will aid your search:
• Mr. Raimondo's legal name is Dennis Joseph Raimondo. • Mr. Raimondo never legally changed his first name to Justin, but has been known
as "Justin Raimondo" since he was fourteen years old, and he is referenced in the 2004 Memo as "Justin Raimondo." In his original request, we identified him as "Justin Raimondo (aka Dennis Raimondo)." • Mr. Raimondo's address has changed since we filed his FOIPA request on October 4, 2011. It is now 4349 Hessel Road, Sebastapol, CA 95472. • Mr. Raimondo and co-requestor Eric Garris ran a bookstore in San Francisco called Libertarian Books and Periodicals. That bookstore was raided in 1981 by the San Francisco Police Department. Mssrs. Raimondo and Garris were arrested in the raid and eventually prevailed in a civil lawsuit challenging the legality of the raid. • Mr. Raimondo worked for an organization called Students for a Libertarian Society in San Franicsco, California from 1978 to 1980. • Mr. Raimondo has run for office as a Libertarian candidate several times. • As noted in the 2004 EC memo, Mr. Raimondo is the subject ofa Wikipedia page which can be found here: htt,p://en.wikipedia.org/wiki/Justin Raimondo. Information contained in this page may also help the FBI identify responsive records.
3. Additional information about Eric Garris.
We have not yet received a response to our appeal ofthe FBI's "no records" response to Mr. Garris's request and we take·this opportunity to share additional information to facilitate the agency's search for records we believe are maintained by the FBt
• Mr. Garris's middle name is "An~ony." His full name is "Brie Anthony Garris." • There may be records related to Mr. Garris with a last name spelled "Garriss." • Mr..Garris was arrested in 1981 during a San Francisco Police Department raid of
the bookstore that he ran with co-requestor Justin Raimondo, Libertarian Books and Periodicals. Mr. Garris later participated in a successful lawsuit against the San Francisco Police Department, challenging the raid and arrest. • Mr. Garris is a well known political activist and thinker. There is a Wlkipedia page about him, htq,://en.wikipedia.org/wiki/Eric Garris. • Mr. Ganis worked for an organization called Students for a Libertarian Society in San Francisco, California from 1978 to 1980. • Mr. Garris has run for office several times, as a member ofthe Peace and Freedom Party, the Libertarian Party, and the Republican Party. • Mr. Garris participated in an interview with the Secret Service in 1992 regarding a threat to a presidential candidate that Mr. Gariss had reported.

AMeRICAN CIVIL LIIUTIU UNION FOUNDATION OF liOIC Ill!' nil r.AI.II'-IIIIIIIA

. .

Case3:13-cv-02295-JSC Document1-1 Filed05/21/13 Page32 of 36
'·-----,....- - ·-·· ...

Federal Bureau ofInvesligatlon, Attn: FOI/PA Rsqeusl Director, 0./flce ofInformation Policy, Department ofJustice, Attn: Anne D. Work May24, 2012 Page4
• Mr. Garris was questioned at length by the Department of Homeland Security in 2005 when he entered the United States after travel to Malaysia for a peace conference.
4. Clarification regarding Jason Charles Ditz.
The original FOIA/Privacy Act request submitted for Jason Charles Ditz contained a typographical error, identifying him as "Justin Charles Ditz." The Certification of Identity · submitted with that request properly identified him as "Jason Charles Ditz/' but all subsequent correspondence repeated the initial error, and refer to the requestor as "Justin Charles Ditz." We are sorry for any inconvenience caused by this error and request that you please ensure that the FOIPA request was properly processed for Jason Charles Ditz.
Thank you for your attention to this additional information and please do not hesitate to contact us ifyou have any questions. We look forward to your prompt response.

Sincerely,
~~ild~ ass ~~ Staff Attorney

cc: Eric Garris . Justin Raimondo Jason Charles Ditz Margaret Griffis Michael Barrett Austin Jeremy Spazienza Daniel Scott Horton

AMERICAN CIVIL LIBERTIES UNION FOUNDt.TION OF llllfiTIII-IIII I!AI.II'Illl~l•\

Case3:13-cv-02295-JSC Document1-1 Filed05/21/13 Page33 of 36
Exhibit C
Exhibit C

Case3:13-cv-02295-JSC Document1-1 Filed05/21/13 Page34 of 36
U.S. Department of Justice

Ms. Julia t1aruml Mass ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111

Federal Bureau of Investigation Washington, D.C. 20535 November 9, 2012
FOIPA Request No.: 1175595·001 Subject: Garris, Eric

Dear Ms. Mass:

This is in response to your Freedom of Information-Privacy Acts (FOIPA) request.

Please be advised that your FOIPA request number 1175595-001 for the above listed subject is being closed

administratively. The material responsive to tHis request will be processed In conjunction with your requeSit for records

in FOIA number 1192179-000, subject Antiwar.com, as they share the same information.

........... .. . .

. .

. .

.. .

........................ . .

When making Inquiries or mailing any correspondence concerning this request please reference FOIPA

number 11921 79-000.

Sincerely,
~
David M. Hardy Section Chief Record/Information
Dissemination Section Records Management Division

Case3:13-cv-02295-JSC Document1-1 Filed05/21/13 Page35 of 36
Exhibit D
Exhibit D

Case3:13-cv-02295-JSC Document1-1 Filed05/21/13 Page36 of 36
U.S. Department of Justice

Ms. Julia Harumi Mass
ACLU Foundation of Northern Califomil'! 39 Drumm Street San Francisco, CA 94111

Federal Bureau of Investigation Washington, D. C. 20535 November 9, 2012
FOIPA Request No.: 1175592-001· Subject: Raimondo, Justin

Dear Ms. Mass:
1''' is in response to your Freedom of Information-Privacy Acts (FOIPA) request.
Please be advised that your FOiPA request number 1175592-001 for the above listed subject is being closed administratively. The material responsive to tHis request will be processed in conjunction with your reque&t.for records in FOIA number 1192179-000, subject Antiwar.com, as they share the same information.
When making inquiries or mailing any correspondence concerning this request please reference FOIPA number 1192179-000.

. -·-·"·. ''. ;., .

Sincerely, .
~
David M. Hardy Section Chief Record/Information
Dissemination Section Records Management Division

 
 1

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8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

United States District Court Northern District of California

10

11 DENNIS JOSEPH RAIMONDO, et al.,

12

Plaintiffs,

13

v.

Case No. 13-cv-02295-JSC
ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT

14 FEDERAL BUREAU OF INVESTIGATION,

15

Defendant.

16

Re: Dkt. Nos. 69, 82

17

Plaintiffs Dennis Raimondo and Eric Garris bring claims under the Freedom of

18 Information Act and the Privacy Act against Defendant the Federal Bureau of Investigation

19 (“FBI”). Plaintiffs seek records regarding a 2004 threat assessment the FBI conducted of a

20 website, Antiwar.com, with which the Plaintiffs are affiliated, and related investigations that the

21 FBI conducted of Plaintiffs. Plaintiffs also seek expungement of certain records related to the

22 exercise of their First Amendment rights, and Plaintiff Garris seeks expungement of a record that

23 admittedly contains inaccurate information. Now pending before the Court are the parties’ cross24 motions for summary judgment.1 (Dkt. Nos. 69 & 82.)

25

BACKGROUND

26

In August of 2011, Raimondo and Garris discovered that they and the website,

27

28

1 Both parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 8 & 11.)

1 Antiwar.com, had been subject to FBI surveillance. (Dkt. No. 28-1 ¶ 15.) 2 In particular, Plaintiffs

2 discovered a heavily redacted FBI memorandum from April 30, 2004 (“April 30 Memo”) which

United States District Court Northern District of California

3 suggested that the FBI had conducted a threat assessment of Antiwar.com “an anti-interventionist

4 website that publishes news and opinion articles regarding U.S. foreign and military policy.” (Id.

5 ¶ 2.) Garris is the founder, managing editor, and webmaster of Antiwar.com, and Raimondo is the

6 editorial director. (Id. ¶¶ 8-9.) Plaintiffs contend that the FBI initiated investigations into each of

7 them based on First Amendment protected speech activity which was memorialized in the April

8 30 Memo. (Id. ¶ 3.)

9

1. Plaintiffs’ Freedom of Information Act and Privacy Act Requests

10

In October 2011, Plaintiffs separately filed Freedom of Information Act (“FOIA”) and

11 Privacy Act requests (collectively known as “FOIPA requests”) seeking disclosure of records

12 maintained by the FBI regarding themselves. (Dkt. No. 71 at ¶ 7.) The FBI responded a month

13 later in separate form letters stating that it had been unable to identify main file records responsive
to Plaintiffs’ requests in its Central Records System. (Id. ¶ 8.) Over the course of the next year, 14
Plaintiffs, through counsel, pursued various administrative appeals and challenges to the FBI’s 15
denial of their FOIPA requests. (Id. ¶¶ 9-11.) In particular, in a May 24, 2012 letter, Plaintiffs 16
requested additional information and clarification regarding seven FOIPA requests explaining that 17
“[e]ach of the original requests sought files about each requester and specified the requester’s 18
connection to the online magazine Antiwar.com. As such, the FBI needed to search for records 19
related to Antiwar.com in order to determine whether there were responsive records for the 20
requesters” and suggesting that additional records related to Raimondo, Garris and Antiwar.com 21
existed in light of the April 30 Memo. (Id. ¶ 12.) The May 24 letter also provided Raimondo and 22
Garris’s full legal names. (Id. ¶ 13.)
23 The FBI thereafter reopened Plaintiffs’ FOIPA requests and assigned the request for
24 records regarding Antiwar.com a separate FOIPA number. (Id. ¶ 14.) On November 9, 2012, the
25 FBI notified Plaintiffs that their FOIPA requests were being administratively closed and
26

27

28

2 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents.

2

1 consolidated with Plaintiffs’ request regarding Antiwar.com. (Id. ¶ 17.)

2

2. This Lawsuit and Plaintiffs’ Request Under the Privacy Act Section 552a

3

In May 2013, Plaintiffs filed this action seeking disclosure of documents pursuant to FOIA

4 and the Privacy Act. That same day, Plaintiffs separately filed requests with the FBI seeking

5 expungement of all records maintained by the FBI that describe each Plaintiff’s exercise of First

United States District Court Northern District of California

6 Amendment rights. (Id. at ¶ 103; Dkt. No. 78 at 18.) In August 2013, the FBI responded that
7 maintenance of records regarding Plaintiffs was proper under Section 552a(j)(2) of the Privacy
8 Act. (Dkt. No. 71 at ¶ 40; Dkt. No. 78 at 25.) Plaintiffs filed a timely appeal of this decision and
9 the FBI responded nearly a year later that because the matter was subject to judicial review the
10 appeal had been administratively closed. (Dkt. No. 71 at ¶¶105-106; Dkt. No. 78 at 27.) Around
11 the same time Plaintiffs appealed the denial of the expungement request, Plaintiffs submitted
12 requests pursuant to Privacy Act Sections 552a(d)(2) and 552a(e)(7) seeking amendment of any
13 records that pertain to Garris or Raimondo that are inaccurate, irrelevant, untimely, or incomplete. (Dkt. No. 71 at ¶¶ 107-108; 112-113.) The FBI denied the request as to Raimondo, but issued an
14 Electronic Communication (“EC”) with respect to Garris. (Id. at ¶¶ 109-110; 115-116; Dkt. No.
15 71-4 at 20.) Plaintiff Garris appealed this action on the grounds that the EC falls short of the
16 necessary corrective action. (Id. at ¶ 117.) The FBI denied the appeal because the matter was
17 currently subject to judicial review. (Id. at ¶ 118.)
18 Plaintiffs thereafter filed the operative First Amended Complaint alleging four claims for
19 relief, including the two previously pled claims under FOIA and the Privacy Act for failure to
20 promptly and properly disclose documents in response to Plaintiffs’ FOIAP requests, and two new
21 claims under the Privacy Act. (Dkt. No. 28-1, FAC.) The new Privacy Act claims are brought
22 pursuant to Section 552a(e)(7) which provides that an agency shall not maintain “any record
23 describing how any individual exercises rights guaranteed by the First Amendment unless
24 expressly authorized by statute or by the individual about whom the record is maintained or unless
25 pertinent to and within the scope of an authorized law enforcement activity,” and under Section
26 552a(d)(2) challenging the FBI’s maintenance of records which are inaccurate, untimely,
27 irrelevant, or incomplete, respectively. (Id. at ¶¶ 86-83.)
28

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1

Because this case includes both FOIA and Privacy Act claims, the parties conducted some

2 discovery prior to submission of the now pending cross-motions for summary judgment.

3

3. The FBI’s Document Production

4

Five months after this lawsuit was filed, the FBI made its first interim release of records.

5 Having reviewed 170 pages, the FBI released in full or part 47 pages and withheld others under

United States District Court Northern District of California

6 Privacy Act Exemption (j)(2) and FOIA Exemptions 1, 3, 4, 6, 7(A), 7(C), 7(D) and 7(E). (Dkt.

7 No. 71 at ¶ 20.) This production included a less redacted version of the previously discovered

8 April 30 Memo as well as 11 of the Memo’s enclosures, a memo from September 18, 1972 (the

9 “September 1972 Memo”) which references Plaintiff Garris (Id. at ¶ 119-122), and a July 29, 2004

10 memo from the San Francisco FBI Field Office declining to initiate a preliminary investigation

11 into Plaintiffs (the “July 2004 Memo”), (Id. at ¶ 20, n.8; Dkt. No. 73-5.).

12

The FBI made a second interim release of records the following month: of the 54 pages

13 reviewed, the FBI released 36 in whole or part and withheld certain other information pursuant to

the same FOIA exemptions previously asserted. (Id. at ¶ 21.) Three months later, the FBI made 14

its third and final interim release of records. Having reviewed another 69 pages, the FBI released 15

50 pages in full or part and withheld certain information pursuant to the same FOIA exemptions. 16
(Id. at ¶ 22.) In January 2014, the FBI provided Plaintiffs with a description of the search 17
conducted in response to Plaintiffs’ FOIPA requests and provided an initial Vaughn index. (Id. at ¶ 18
24.) In total, the FBI has identified 290 responsive pages of records: of these, 26 pages have been 19
released in full, 104 pages were released in part, 117 pages were withheld in full, and 43 pages 20
were withheld in full as duplicates. (Id. at ¶ 4.) 21
EVIDENTIARY OBJECTIONS
22 As a preliminary matter, the Court must address Plaintiffs’ objections to the two
23 declarations the FBI submitted in support of its motion for summary judgment.
24 1. The Campi Declaration
25 The FBI submitted the Declaration of Andrew Campi who is the Assistant Special Agent
26 in Charge of the FBI’s Newark Field Office. (Dkt. No. 70.) Plaintiffs object to those portions of
27 the Campi Declaration which discuss the April 30 Memo because Campi has no personal
28

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1 knowledge of the memo or its attachments—he was not stationed in Newark at the time it was

2 prepared and attests that his knowledge is based on “his experience and review of information

3 provided to me in the course of my official duties, including the April 30 2004 EC and the

4 attachments thereto.” (Id. at ¶ 3.)

5

The FBI counters that personal knowledge can come from review of the contents of agency

6 files and records and that as the Assistant Special Agent in charge of the Newark office Campi has

7 knowledge to testify regarding the AG guidelines, the procedure regarding development of ECs

8 and the attachments thereto, any further investigative activity into Plaintiffs, and the extent to

9 which the April 30 Memo is relevant to ongoing and future activity.

10

Campi has adequate personal knowledge to address these matters. As a general matter in

11 FOIA cases, “[a]n affidavit from an agency employee responsible for supervising a FOIA search is

United States District Court Northern District of California

12 all that is needed to satisfy the personal knowledge requirement of Federal Rule of Civil Procedure

13 56(e).” Lahr v. National Transp. Safety Bd., 569 F.3d 964, 989 (9th Cir. 2009). Courts routinely

14 deny hearsay and lack of personal knowledge objections in FOIA cases based on agency affidavits

15 similar to those submitted here. See, e.g., Our Children's Earth Found. v. Nat’l Marine Fisheries

16 Serv., No. 14-1130 SC, 2015 WL 6331268, at *2 (N.D. Cal. Oct. 21, 2015) (overruling hearsay

17 and personal knowledge objections with respect to a declaration submitted by the agency’s San

18 Francisco Branch Chief); Hersh & Hersh v. U.S. Dep’t of Health & Human Servs., No. C 06-

19 4234, 2008 WL 901539, at *4 (N.D. Cal. Mar. 31, 2008) (same with respect to a declaration

20 submitted by the Health and Human Services FOIA officer). The same rationale applies equally

21 here notwithstanding Plaintiffs’ assertion of Privacy Act claims in addition to the FOIA claims.

22

Plaintiffs’ objections to the Campi Declaration are therefore overruled.

23

2. Hardy Declaration

24

Plaintiffs also object to the Declaration of David M. Hardy, the Section Chief of the FBI’s

25 Record/Dissemination Section, Records Management Division in Winchester Virginia. Mr. Hardy

26 has submitted a lengthy declaration primarily addressing the FBI’s claims of exemptions under

27 FOIA and the Privacy Act, and attaching the Vaughn Index. (Dtk. No. 71.) In particular,

28 Plaintiffs object to Hardy’s statements regarding the September 1972 Memo as not based on his

5

1 personal knowledge.

2

Plaintiffs’ objections to the Hardy Declaration are overruled for the same reason their

3 objections to the Campi Declaration are overruled. See Council on Am.-Islamic Relations,

4 California v. F.B.I., 749 F. Supp. 2d 1104, 1119 (S.D. Cal. 2010) (overruling objections to a

5 declaration from David Hardy in a FOIA case).

6

DISCUSSION

7

Plaintiffs’ claims are divisible into three categories: (1) Plaintiffs’ disclosure claims under

8 FOIA, Section 522(a)(3), (a)(6), and under the Privacy Act, Sections 552a(d)(1), (g)(1)(B), (g)(3);

9 (2) Plaintiffs’ Privacy Act claim based on retention of documents reflecting Plaintiffs’ exercise of

10 their First Amendment Rights under Sections 552a(e)(7), (d), (g)(1)(A), (D), (g)(2)(A); and (3)

11 Plaintiff Garris’s Privacy Act claim based on maintenance of inaccurate records under Sections

United States District Court Northern District of California

12 552a(d), (e)(1) and (5), (g)(1)(A), (g)(2)(A).

13 I. Plaintiffs’ Disclosure Claims

14

The FOIA calls for “broad disclosure of Government records.” CIA v. Sims, 471 U.S. 159,

15 166 (1985). To ensure broad disclosure, the FOIA “gives individuals a judicially-enforceable

16 right of access to government agency documents.” Lion Raisins v. Dep’t of Agric., 354 F.3d 1072,

17 1079 (9th Cir. 2004); 5 U.S.C. § 552. The FOIA specifically provides, in relevant part, that:

18 “each agency, upon any request for records which (i) reasonably describes such records and (ii) is

19 made in accordance with published rules stating the time, place, fees (if any), and procedures to be

20 followed, shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A).

21 There is a strong presumption in favor of disclosure. See U.S. Dep’t of State v. Ray, 502 U.S. 164,

22 173 (1991). This “general philosophy of full agency disclosure [applies] unless information is

23 exempted under clearly delineated statutory language.” John Doe Agency v. John Doe Corp., 493

24 U.S. 146, 151-52 (1989) (quotation marks and citation omitted). These exemptions “must be

25 narrowly construed.” John Doe Agency, 493 U.S. at 154. “[L]ike FOIA, the Privacy Act provides

26 for a cause of action to compel compliance [under Section 552a](d)(1).” Mobley v. C.I.A., 806

27 F.3d 568, 586 (D.C. Cir. 2015).

28

The government agency bears the burden to prove a particular document or redaction falls

6

1 within one of the nine statutory exemptions from disclosure. Ray, 502 U.S. at 173; Lahr v. NTSB,

2 569 F.3d 964, 973 (9th Cir. 2009); see also Chambers v. U.S. Dep’t of Interior, 568 F.3d 998,

3 1003 (D.C. Cir. 2009)(noting that the burden is on the government in both FOIA and Privacy Act

4 cases to demonstrate that it acted in accordance with the applicable statute). The government may

5 rely on affidavits to satisfy its burden of demonstrating that an exemption applies, but the

6 affidavits must contain “reasonably detailed descriptions of the documents and allege facts

7 sufficient to establish an exemption.” Kamman v. IRS, 56 F.3d 46, 48 (9th Cir. 1995) (quoting

8 Lewis v. IRS, 823 F.2d 375, 378 (9th Cir. 1987)); see also Shannahan v. IRS, 672 F.3d 1142, 1148

9 (9th Cir. 2012) (“To justify withholding, the government must provide tailored reasons in response

10 to a FOIA request. It may not respond with boilerplate or conclusory statements.”); Church of

11 Scientology v. Dep’t of the Army, 611 F.2d 738, 742 (9th Cir. 1980) (noting that the government

United States District Court Northern District of California

12 “may not rely on conclusory and generalized allegations of exemptions”); Chambers, 568 F.3d at

13 1003 (“the court may rely on a reasonably detailed affidavit” in reviewing a Privacy Act

14 disclosure claim). “[S]ummary judgment on the basis of such agency affidavits is warranted if the

15 affidavits describe the documents and the justifications for nondisclosure with reasonably specific

16 detail, demonstrate that the information withheld logically falls within the claimed exemption, and

17 are not controverted by either contrary evidence in the record nor by evidence of agency bad

18 faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

19

Even if an exemption applies, an agency may only withhold the information to which the

20 exemption applies. Yonemoto v. Dep’t of Veterans Affairs, 686 F.3d 681, 688 (9th Cir. 2012).

21 The agency is therefore required to provide all “reasonably segregable” portions of the records to

22 the requester. 5 U.S.C. § 552(b). “The burden is on the agency to establish that all reasonably

23 segregable portions of a document have been segregated and disclosed.” Pac. Fisheries, Inc. v.

24 United States, 539 F.3d 1143, 148 (9th Cir. 2008). “To meet its burden in this regard, the agency

25 must provide[ ] a detailed justification and not just conclusory statements.” ACLU of N. Cal. v.

26 FBI, No. C 12-03728 SI, 2014 WL 4629110, at *3 (N.D. Cal. Sept. 16, 2014) (internal quotation

27 marks and citation omitted). In contrast, under the Privacy Act, the head of the agency can exempt

28 an entire system of records from disclosure, but only where they meet certain criteria. See 5

7

1 U.S.C. § 552a(j)-(k); see also Mobley, 806 F.3d at 586 (discussing requirements for claiming

2 exemption under subsection (j)).

3

In response to Plaintiffs’ FOIA and Privacy Act requests, the FBI has asserted certain

4 statutory exemptions. For purposes of their FOIA disclosure claim, Plaintiffs only challenge one 5 category of exemptions—those under Exemption 7.3 Plaintiffs contend that the same arguments

6 apply with respect their claim for disclosure under the Privacy Act, Section 552a(d)(1), because

7 the Privacy Act exemption claimed by the FBI only applies if the documents are withheld for a 8 law enforcement purpose, which mirrors the Exemption 7 standard.4 The Court’s analysis of the

9 disclosure claim thus focuses on the FOIA claim, but applies equally to the Privacy Act disclosure

10 claim. See News-Press v. U.S. Dep’t of Homeland Sec., 489 F.3d 1173, 1189 (11th Cir. 2007)

11 (“The net effect of the interaction between the two statutes is that where the FOIA requires

United States District Court Northern District of California

12 disclosure, the Privacy Act will not stand in its way, but where the FOIA would permit

13 withholding under an exemption, the Privacy Act makes such withholding mandatory upon the

14 agency.”).

15

A. Exemption 7, Law Enforcement Objective

16

Exemption 7 permits the government to withhold “records or information compiled for law

17 enforcement purposes” under certain enumerated conditions. 5 U.S.C. § 552(b)(7). Here, the FBI

18

19 3 Plaintiffs do not contest the FBI’s claim of Exemptions 1, 3, or 4. Plaintiffs also challenge
Exemption 6, but the FBI has asserted Exemption 6 in conjunction with its assertion of Exemption 20 7(C) and the Court thus analyzes it under 7(C).

21

4 The FBI contends that the records are exempt from disclosure under Section 552a(j)(2) which states the agency head may exempt records from disclosure if they are

22

maintained by an agency or component thereof which performs as

23

its principal function any activity pertaining to the enforcement of criminal laws … and which consists of (A) information compiled for

24

the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of

25

arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status; (B)

26

information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated

27

with an identifiable individual; or (C) reports identifiable to an individual compiled at any stage of the process of enforcement of

28

the criminal laws from arrest or indictment through release from supervision.

8

1 has divided the withheld or redacted documents into four categories: A through D as described in

2 the Hardy Declaration. (Dkt. No. 71 at ¶¶ 67-100.) Category A documents discuss the threat

3 assessment (Id. at ¶¶ 67-79), Category B documents are records in pending FBI investigations of

4 third parties which mention Plaintiffs and/or Antiwar.com (Id. at ¶¶ 80-95), Category C

5 documents detail the status of FBI investigations into third party subjects which mention Plaintiffs

6 and/or Antiwar.com (Id. at ¶¶ 96-99), and Category D documents are complaint forms and

7 communications that reference Plaintiff Garris. (Id. at ¶¶ 100.) Plaintiffs contend that the

8 Category A documents were not compiled for a law enforcement purpose and therefore Exemption

9 7 does not apply. Their argument that the Category B, C and D documents have not been

10 described with sufficiently particularity and were not reasonably segregated and therefore any

11 claimed exemption should be rejected is discussed infra at Section I.A.3.

United States District Court Northern District of California

12

1. Rationale Nexus Test

13

“An agency which has a clear law enforcement mandate, such as the FBI, need only

14 establish a rational nexus between enforcement of a federal law and the document for which an

15 exemption is claimed.” Church of Scientology, 611 F.2d at 748 (internal quotation marks

16 omitted). “The rational nexus test requires courts to accord a degree of deference to a law

17 enforcement agency’s decisions to investigate.” Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803,

18 808 (9th Cir. 1995). However, “generalized monitoring and information-gathering” do not suffice

19 for Exemption 7. Id. at 809. Moreover, “[i]nformation need not have been originally compiled for

20 law enforcement purposes in order to qualify for the ‘law enforcement’ exemption, so long as it

21 was compiled for law enforcement purposes at the time the FOIA request was made.” Lion

22 Raisins, 354 F.3d at 1082 (citing John Doe Agency, 493 U.S. at 155).

23

The FBI has failed to satisfy its threshold burden of demonstrating a rational nexus

24 between a legitimate law enforcement purpose and the withheld documents. The Hardy

25 declaration attests that the records were

26

compiled for a myriad of law enforcement and national security

investigative purposes, including but not limited to, investigations

27

concerning civil rights matters and violent criminal threats, domestic

terrorism investigations, international terrorism investigations, and

28

counterintelligence investigations.

9

1 (Dkt. No. 71 at ¶ 49.) This description is inadequate.5 In Wiener v. F.B.I., 943 F.2d 972, 985 (9th

2 Cir. 1991), the court held that the FBI had failed to establish a rational nexus between law

3 enforcement and the at-issue documents because citation to “[t]he Civil Obedience Act and the

4 Anti-Riot Act [which] are very broad criminal statutes, prohibiting a wide variety of conduct”

5 “d[id] little to inform Wiener of the claimed law enforcement purpose underlying the

6 investigation” and without “further details of the kinds of criminal activity of which John Lennon

7 was allegedly suspected, Wiener cannot effectively argue that the claimed law enforcement

8 purpose was in fact a pretext.” Id. at 986; see also Am. Civil Liberties Union of N. California v.

9 Fed. Bureau of Investigation, No. 10-CV-03759-RS, 2015 WL 1346680, at *4 (N.D. Cal. Mar. 23,

10 2015) (concluding that the FBI failed to establish a rational nexus because its pleadings did not

11 “tether the activities the withheld documents concern to the enforcement of any particular law.”);

United States District Court Northern District of California

12 Am. Civil Liberties Union v. Fed. Bureau of Investigation, No. C 12-03728 SI, 2013 WL 3346845,

13 at *6 (N.D. Cal. July 1, 2013) (concluding that the FBI failed to establish a rationale nexus where

14 “the FBI refers only vaguely to ‘crimes’ and ‘federal laws,’ but does not cite the specific laws that

15 it was enforcing.”).

16

The same is true here. The FBI’s vague reference to everything from “civil rights matters”

17 to “violent criminal threat, domestic terrorism investigations, international terrorism

18 investigations, and counterintelligence investigations” does not adequately identify a law

19 enforcement objective which justifies withholding under Exemption 7. For this reason alone,

20 Defendant’s motion for summary judgment as to Exemption 7 and the related Privacy Act

21 violation must be denied.

22

2. Specific Exemptions Claimed

23

a) Exemption 7(A)

24

Exemption 7(A) provides that “records or information compiled for law enforcement

25

26 5 The justification for the Privacy Act exemption in the Hardy Declaration is similarly vague and

27

inadequate: “the responsive records were compiled in the course of the FBI’s investigation into alleged criminal wrongdoing by third parties and national security investigations, including

28

assessments carried out to detect, obtain information about, or prevent or protect against federal crimes or national security threats.” (Dkt. No. 71 at ¶ 39.)

10

1 purposes” may be withheld if they “could reasonably be expected to interfere with enforcement

2 proceedings.” 5 U.S.C. § 552(b)(7). The FBI has asserted Exemption 7(A) to categorically shield

3 the names, identifying information of or activities of third party subjects, and the file numbers of

4 pending FBI investigations. (Dkt. No. 71 at ¶ 50.) Plaintiffs challenge the FBI’s assertion of 5 Exemption A with respect to the April 30 Memo.6 In particular, Plaintiffs contend that the FBI

6 has failed to show that release of this information (minus the file numbers) could shed light on an

7 ongoing investigation given that the Memo is nearly 12 years old.

8

The FBI contends that revealing information regarding the third party suspects “could

9 result in not only []the acknowledgment of the existence of the investigation but also in the

10 identification of suspects and thus jeopardize the investigation.” This does not explain “how

11 releasing each of the withheld documents would interfere with the government’s ongoing criminal

United States District Court Northern District of California

12 investigation.” Lion Raisins v. U.S. Dep’t of Agric., 354 F.3d 1072, 1084 (9th Cir. 2004)

13 (emphasis added). As in ACLU v. FBI, No. C 12-03728 SI, 2013 WL 3346845, at *7 (N.D. Cal.

14 July 1, 2013), the FBI’s conclusory statement that revealing the information could jeopardize an

15 investigation is insufficient to invoke Exemption A. Id. (concluding that the court “cannot make

16 an assessment of the FBI’s claim without any basis other than the FBI’s bald assertion.”). The

17 FBI’s assertions must be sufficiently specific to allow Plaintiffs and the Court to evaluate the

18 claimed exemption. See Wiener, 943 F.2d at 985-86.

19

The Court thus concludes that the FBI’s declaration is insufficient to allow withholding

20 under Exemption 7(A) as to information in the April 30 Memo regarding third party subjects.

21

b) Exemption 7(C)

22

Exemption 6 and Exemption 7(C) both exempt the release of records which would

23 constitute an “unwarranted invasion of personal privacy.” 5 U.S.C. §§ 552(b)(6), (b)(7)(C).

24 Exemption 6 covers “personnel and medical files and similar files,” and only allows withholding

25 files the disclosure of which “would constitute a clearly unwarranted invasion of personal

26 privacy.” Exemption 7(C) covers “records or information compiled for law enforcement

27

28 6 Plaintiffs do not seek the file numbers. 11

1 purposes,” and allows withholding files which “could reasonably be expected to constitute an

2 unwarranted invasion of personal privacy.” In this case, the FBI has asserted Exemption 6 every 3 time it has asserted Exemption 7(C).7 (Dkt. No 71 at 61-76 (Vaughn Index); Dkt. No. 86 at 7-108

4 (Supp. Vaughn Index).)

5

The FBI applied Exemption 7(C) and 6 to withhold names and identifying information

6 regarding (1) FBI agents and support personnel, (2) individuals who provided information to the

7 FBI, and (3) third parties mentioned in documents. (Dkt. No. 71 at ¶¶ 54-59.) Plaintiffs only

8 challenge the exemptions as to the second and third categories and only with respect to the April

9 30 Memo and the July 2004 Memo (the San Francisco field office’s response to the April 30

10 Memo which declines to open a preliminary investigation into Plaintiffs) contending that the FBI’s

11 conclusory assertion of privacy interests with respect to these documents is untethered to the facts

United States District Court Northern District of California

12 of this case.

13

In applying Exemption C courts must balance the public interest in disclosure against the

14 privacy interests of the third parties involved. See U.S. Dep’t of Justice v. Reporters Comm. For

15 Freedom of Press, 489 U.S. 749, 762 (1989). The district court addressed a similar declaration

16 submitted by David Hardy in Am. Civil Liberties Union v. Fed. Bureau of Investigation, No. 12-

17 03728 SI, 2013 WL 3346845, at *7-8 (N.D. Cal. July 1, 2013), and concluded that the FBI’s

18 general assertions regarding privacy interests of third parties were inadequate to allow the court to

19 balance the privacy interests against the public interest in disclosure. The Hardy declaration here

20 includes the same general statements that “the FBI has determined that the third party interviewees

21 maintain a substantial privacy interest in not having their identities disclosed” and that to alleviate

22 fear of “harass[ment], intimidate[ion] [and threats of] legal/economic reprisal or possible physical

23 harm” “persons interviewed by the FBI must be assured that [their information] will be held in the

24 strictest confidence.” Compare Dkt. No. 71 at ¶¶ 57-58 with ACLU, 2013 WL 3346845, at *8

25

26

7 The FBI’s briefs focus only on Exemption 7(C). In any event, “[t]he standard for Exemption 6 is higher in that it requires the disclosure of the files to constitute a “clearly unwarranted” invasion of

27

privacy, whereas Exemption 7(C) only requires that the disclosure “could reasonably be expected to constitute” such an invasion.” Am. Civil Liberties Union of N. California v. Fed. Bureau of

28

Investigation, No. 12-CV-03728-SI, 2015 WL 678231, at *5 (N.D. Cal. Feb. 17, 2015), appeal dismissed (Jan. 5, 2016).

12

1 (“‘the FBI has determined that these third parties have substantial privacy interests in not having

2 information found about them found in records of the FBI’ because in general disclosure carries a

3 ‘negative connotation’ and can lead to ‘possible harassment or criticism.’”). Further, in both

4 cases, Hardy attests without explanation that “[d]isclosure of the third parties’ names and 5 identifying information would not shed light on the operations and activities of the FBI.”8

6 (Compare Dkt. No. 71 at ¶ 58 with ACLU, 2013 WL 3346845, at *8 (“disclosure ‘would shed no

7 light on the operations and activities of the FBI,’ and therefore would constitute ‘a clearly

8 unwarranted and unwarranted invasion of their personal privacy.’”).

9

“The privacy interests of third persons whose names appear in FBI files, the public

10 interest in disclosure, and a proper balancing of the two, will vary depending upon the content of

11 the information and the nature of the attending circumstances.” Weiner v. FBI, 943 F.2d 972 (9th

United States District Court Northern District of California

12 Cir. 1991). Plaintiffs believe that the FBI investigated them due to their political viewpoints and

13 that information regarding the scope of this investigation will illuminate this issue. Thus, as in

14 Rosenfeld v. U.S. Dep’t of Justice, 57 F.3d 803 (9th Cir. 1995), “[t]he public interest in this case is

15 knowing whether and to what extent the FBI investigated individuals for participating in political

16 [activity], not federal criminal activity. Disclosing the names of the investigation subjects would

17 make it possible to compare the FBI’s investigations to a roster of the [organization’s] leadership.”

18 Id. at 812. The FBI, however, has failed to provide sufficient information to determine whether

19 the privacy interests outweigh the disclosure interests.

20

Moreover, to the extent that the FBI is asserting Exemption 7(C) over information

21 available in public sources as Plaintiffs contend, the privacy interest must necessarily be less. See

22 ACLU, 2013 WL 3346845, at *8 (“the identities of many [] protestors [] were covered extensively

23 by the news media. These persons’ privacy interests will be less than other individuals who have

24 not become public figures.”). For example, in the April 30 Memo the FBI claimed Exemption C

25

26 8 Hardy makes the same representations with respect to information regarding third parties merely

27

mentioned in the two documents at issue. (Dkt. No. 71 a ¶ 59 (“disclosure of their identities would subject these individuals to possible harassment or criticism and focus derogatory interests

28

and suspicion on them” and “would not shed any light on the operations and activities of the FBI.”).)

13

1 over the following: “indicated that _______________ wrote a page length article reporting on the

2 magnitude and value of American military and economic assistance to Israel. _______ reported in

3 detail on all types of assistance to Israel citing one of his sources of information as

4 www.antiwar.com.” (Dkt. No. 70-1 at 5.) It is unclear what privacy interest, if any, the

5 undisclosed individual could have in protecting his or her name given that the FBI is merely

6 noting that the individual wrote a presumably publicly available article.

7

c) Exemption 7(D)

8

Exemption 7(D) provides that “records or information compiled for law enforcement

9 purposes” may be withheld if they “could reasonably be expected to disclose the identity of a

10 confidential source.” 5 U.S.C. § 552(b)(7). Exemption 7(D) only applies if “the particular source

11 spoke with an understanding that the communication would remain confidential.” U.S. Dep’t of

United States District Court Northern District of California

12 Justice v. Landano, 508 U.S. 165, 172 (1993) (emphasis in original). It is the government’s

13 burden to “make an individualized showing of confidentiality with respect to each source”;

14 confidentiality cannot be presumed. Id. at 174, 178. The FBI has withdrawn its claim of

15 Exemption D with respect to all Category A documents, thus this exemption claim no longer 16 appears to be at issue.9 (Dkt. No. 85 at 29 n.9; Dkt. No. 86 at 102-108.)

17

d) Exemption 7(E)

18

Exemption 7(E) protects records compiled for law enforcement purposes from disclosure if

19 those records “would disclose techniques and procedures for law enforcement investigations or

20 prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if

21 such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. §

22 552(b)(7)(E). However, “Exemption 7(E) only exempts investigative techniques not generally

23 known to the public.” Rosenfeld, 57 F.3d at 815. The Ninth Circuit recently addressed this

24 exemption in Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759, 777 (9th Cir. 2015), and concluded

25 that the exemption was properly asserted because the withheld information related to the “specific

26

27 9 Except to the extent that the FBI claims Exemption 7(D) over materials in categories B-D which

28

are analyzed below with respect to the adequacy of the Vaughn index and the segregablilty of the records.

14

1 means of conducting surveillance and credit searches rather than an application” of “a known

2 technique.” Id. at 777-78.

3

The FBI has asserted Exemption 7(E) over six categories of information: (1) names,

4 numbers, and alpha designator FBI units, (2) FBI file/sub numbers, (3) database information and

5 printouts, (4) investigative documents of specific investigations, (5) dates and types of terrorism

6 investigations, (6) sensitive investigative techniques. (Dkt. No. 71 at ¶¶ 62-65, 78-79, 93-94, 99.)

7 Plaintiffs only challenge the exemption with respect to the April 30 Memo and the July 2004

8 Memo which therefore limits the FBI’s assertion of the exemption to the second and third

9 categories: FBI file/sub numbers and database information and printouts.

10

With respect to the file/sub numbers, the Hardy Declaration attests that

United States District Court Northern District of California

11

the release of file numbering convention identifies the investigative

interest, a specific law enforcement technique utilized in the

12

investigations at issue, or priority given to such matters. Apply a

mosaic analysis, suspects could use these numbers (indicative of

13

investigatory priority), in conjunction with other information known

about other individuals and/or techniques, to change their pattern of

14

activities to avoid detection, apprehension, or create alibis for

suspected activities.

15

(Id. at ¶ 78.) Absent is any statement that disclosure would reveal “techniques not generally

16

known to the public.” Rosenfeld, 57 F.3d at 815. Plaintiffs argue that “[p]ublic knowledge of the

17

FBI’s file numbering system includes the common understanding that the first three digits in a file

18

number are used to designate the category of the offense under investigation.” (Dkt. No. 88 at 19

19

n.12 (citing http://newstrench.com/secret-no-more/secret-no-more-fbi-central-records-systems-

20

classification/ (listing FBI file codes).) Further, Plaintiffs only seek the first three digits of the file

21

numbers—the category of the offense under investigation—which further weakens the FBI’s

22

argument that disclosure would tip off suspects as to the priority of investigative interest.

23

Likewise, with respect to the databases and printouts, the Hardy Declaration only states

24

that “[d]isclosure of the printouts or information compiled from these search results could enable

25

criminals to employ countermeasures to avoid detection, thus jeopardizing the FBI’s investigative

26

mission.” (Dkt. No. 71 at ¶ 79.) But as with the file numbers, Hardy does not declare that

27

information regarding these databases are not generally known to the public. This omission is

28

15

1 fatal to the FBI’s Exemption 7(E) claim as is the FBI’s failure to “provide non-conclusory reasons

2 why disclosure of each category of withheld documents would risk circumvention of the law.”

3 Feshbach v. S.E.C., 5 F. Supp. 2d 774, 787 (N.D. Cal. 1997).

4

Thus, the FBI’s declaration is insufficient to allow withholding under Exemption 7(E).

5

***

6

Accordingly, the Court DENIES without prejudice the parties’ cross-motions for summary

7 judgment on Plaintiffs’ FOIA and Privacy Act disclosure claims. The current record does not

8 provide the Court with an “adequate factual basis for [a] decision” regarding the government’s

9 invocation of Exemption 7. Lion Raisins, 354 F.3d at 1083; see also Maricopa Audubon Soc’y v.

10 United States Forest Serv., 108 F.3d 1089, 1092 (9th Cir. 1997) (requiring the government’s

11 affidavits to be “detailed enough for the district court to make a de novo assessment of the

United States District Court Northern District of California

12 government’s claim of exemption.”); Doyle v. F.B.I., 722 F.2d 554, 556 (9th Cir. 1983)(requiring

13 the government to “submit[] as detailed public affidavits and testimony as possible”). The parties

14 shall meet and confer to develop a case management plan regarding these claims. The Court sets a

15 Case Management Conference for June 9, 2016 at 10:00 a.m. to discuss the parties’ proposed

16 plan(s).

17

3. Adequacy of Vaughn Index and Reasonable Segregation of Records

18

The remaining issue with respect to Plaintiffs’ FOIA and Privacy Act disclosure claims is

19 the adequacy of the Vaughn index and the segregability of the records for the Category, B, C, and

20 D documents. The purpose of the Vaughn index is to “afford the FOIA requester a meaningful

21 opportunity to contest, and the district court an adequate foundation to review, the soundness of

22 the withholding.” Wiener, 943 F.2d at 977 (internal citation and quotations marks omitted). “[A]n

23 index must identify each withheld document, describe its contents to the extent possible, and give

24 a particularized explanation of why each document falls within the claimed exemption.” Yonemoto

25 v. Dep’t of Veterans Affairs, 686 F.3d 681, 695 (9th Cir. 2012) (internal citation and quotations

26 marks omitted). While the Vaughn index need not “disclose facts that would undermine the very

27 purpose of its withholding,” “it should reveal as much detail as possible as to the nature of the

28 document, without actually disclosing information that deserves protection.” Id. In addition,

16

1 under FOIA, any “reasonably segregable portion of a record shall be provided to any person

2 requesting such record after deletion of the portions which are exempt under this subsection.”

3 Hamdan, 797 F.3d at 778-79 (quoting 5 U.S.C. § 552(b)). “An agency must describe the

4 document or information being withheld in sufficient detail to allow the plaintiffs and the court to

5 determine whether the facts alleged establish the corresponding exemption.” Id. at 780. The

6 agency must identify the documents individually and provide an individualized explanation as to

7 withholding. Id. at 780-81.

8

Here, Plaintiffs object to the Vaughn Index with respect to the documents falling within

9 Categories B through D as described in the Hardy Declaration; that is, all documents except those

10 which directly mention the threat assessment and instead, reference either Plaintiff Raimondo,

11 Garris, or Antiwar.com. Plaintiffs contend that FBI has failed to provide specific information

United States District Court Northern District of California

12 sufficient to allow Plaintiffs to challenge the exemptions, and instead, only provide general

13 descriptions and conclusory explanations as to why groups of documents should be withheld.

14 According to Plaintiffs, this generality is particularly problematic because the FBI has withheld

15 many of the referenced documents in full or with significant redactions which renders it

16 impossible for Plaintiffs to assess the context of the withheld information. Plaintiffs also object

17 that the FBI has failed to provide reasonably segregated portions of responsive records. Plaintiffs

18 note that the FBI has withheld 117 pages in full as covered by one of more exemptions and 104

19 documents with such significant redactions that Plaintiffs cannot evaluate whether the material is

20 properly withheld.

21

In response, the FBI filed a supplemental Hardy Declaration and supplemental Vaughn

22 Index with its opposition/reply brief. The supplemental Vaughn Index is over eight times as long

23 as the prior Vaughn Index. (Dkt. No. 86.) Plaintiffs reasonably object to such a “last minute

24 paper dump” and argue that the supplemental Index is still deficient in at least three respects: (1) it

25 does not provide any additional information to support the FBI’s assertion of any exemption other

26 than Exemption 7(E); (2) it does not identify any specific federal law being enforced in connection

27 with the document for which a law enforcement exemption is claimed; and (3) the additional

28 information related to Exemption 7(E) is boilerplate, with a handful of different “explanations”

17

1 repeated throughout. However, it is apparent from Plaintiffs’ brief that they have not had an

2 adequate opportunity to review and comment on the adequacy of the supplemental declaration or

3 Vaughn Index. Further, in denying the FBI’s motion for summary judgment on the FOIA and

4 Privacy Act disclosure claims, the Court has given the FBI guidance as to the level of specificity

5 required. The proper remedy, then, is to have Defendant produce yet another amended Vaughn

6 Index and then have the parties address the adequacy of this new Index. The parties should meet

7 and confer regarding this and be prepared to discuss it at the June 9, 2016 Case Management

8 Conference.

9 II. Plaintiffs’ (e)(7) Privacy Act Claim

10

The Privacy Act of 1974 “safeguards the public from unwarranted collection, maintenance,

11 use and dissemination of personal information contained in agency records . . . by allowing an

United States District Court Northern District of California

12 individual to participate in ensuring that his records are accurate and properly used.” Henke v.

13 U.S. Dep’t of Commerce, 83 F.3d 1453, 1456 (D.C. Cir. 1996) (internal citation and quotation

14 marks omitted). “The Act gives agencies detailed instructions for managing their records and

15 provides for various sorts of civil relief to individuals aggrieved by failures on the Government’s

16 part to comply with the requirements.” Doe v. Chao, 540 U.S. 614, 618 (2004).

17

A. The Section (e)(7) Claim

18

Section 552a(e)(7) provides that a federal agency may not “maintain [any] record

19 describing how any individual exercises rights guaranteed by the First Amendment unless

20 expressly authorized by statute or by the individual about whom the record is maintained or unless

21 pertinent to and within the scope of an authorized law enforcement activity.” 5 U.S.C. §

22 552a(e)(7). “The purpose of the section (e)(7) First Amendment protection is to prevent collection

23 of protected information not immediately needed, about law-abiding Americans, on the off-chance

24 that Government or the particular agency might possibly have to deal with them in the future.”

25 MacPherson v. I.R.S., 803 F.2d 479, 483 (9th Cir. 1986) (quoting S. Rep. 1183, 93d Cong., 2d

26 Sess., reprinted in 1974 U.S. Code Cong. & Admin. News 6916, 6971).

27

There are two documents at issue on this claim: (1) the April 30 Memo and certain of the

28 11 attachments to the memo (Dkt. No. 70-1 at 2-11); and (2) the September 1972 Memo which

18

1 details an investigation into a third-party’s affiliation with a white hate group and which describes

2 Plaintiff Garris’s participation in a “War Crimes Trial.” (Dkt. No. 74-7). Plaintiffs seek

3 expungement of both records on the grounds that they describe Plaintiffs’ exercise of their First

4 Amendment rights.

5

1. The records describe Plaintiffs’ First Amendment activity

6

The FBI does not dispute that the records at issue describe Plaintiffs’ exercise of their First

7 Amendment activities—namely, political speech.10 Rather, the FBI contends it can maintain the

8 documents in its files because they are “pertinent to and within the scope of an authorized law

9 enforcement activity.”

10

2. Authorized law enforcement activity

11

In MacPherson, the Ninth Circuit recognized that “[t]here are strong policy considerations

United States District Court Northern District of California

12 on both sides of the issue” of whether to allow law enforcement to maintain records of an

13 individual’s First Amendment conduct. 803 F.2d at 483. On the one hand, “[t]he mere

14 compilation by the government of records describing the exercise of First Amendment freedoms

15 creates the possibility that those records will be used to the speaker’s detriment, and hence has a

16 chilling effect on such exercise.” Id. at 484 (internal quotation marks and citation omitted).

17 “Blanket allowance of [] incidental surveillance and recording under the guise of general

18 investigation could permit the exception to swallow the rule.” Id. (internal quotation marks

19 omitted). On the other hand, “the legitimate investigation and surveillance of suspected criminals

20 and civil offenders inevitably involves observation and recording of the actions of innocent

21 people, sometimes when those people are exercising their First Amendment rights.” Id. “To

22 forbid ‘incidental’ surveillance of innocent people or to require excision of references to such

23 people in surveillance records would be administratively cumbersome and damaging to the

24 completeness and accuracy of the agency records. Blanket prohibition of such surveillance and

25 recording unless the agency was investigating a specific offense or a specific person could thwart

26

27 10 The FBI disputes that some of the attachments to the April 30 Memo demonstrate Plaintiffs’

28

exercise of their First Amendment activities, but the Court declines to address this issue and instead focuses on the applicability of the law enforcement activity exception.

19

1 agency investigations and seriously undermine agency enforcement operations.” Id. Indeed, the

2 very presence of the law enforcement exception “recognizes that some recording of First

3 Amendment activities will take place.” Id. Thus, McPherson concluded, when determining

4 whether the section 552a(e)(7) law enforcement activity exception applies, a court must “consider

5 the factors for and against the maintenance of such records of First Amendment activities on an

6 individual, case-by-case basis.” Id.

7

a) The April 30 Memo

8

In March of 2004, while conducting research on the Internet an agent with the Newark FBI

9 office discovered a possible copy of the FBI’s post-9/11 watch list on the website Antiwar.com.

10 (Dkt. No. 70 at ¶ 9; Dkt. No. 70-1 at 3.) This prompted further review of the website and led to

11 discovery of a second 22-page spreadsheet dated May 22, 2002 with “FBI SUSPECT LIST” noted

United States District Court Northern District of California

12 in the header and “Law Enforcement Sensitive” noted in the footer of each page. (Dkt. No. 70 at ¶

13 9; Dkt. No. 70-1 at 3.) Both spreadsheets contained personally identifiable information of the

14 individuals listed. (Dkt. No. 70 at ¶ 9.) The Newark Office thus conducted a threat assessment of

15 Plaintiffs and Antiwar.com to determine whether they posed a threat to national security. The

16 threat assessment included a review of publicly available articles authored by or referencing 17 Plaintiffs and Antiwar.com.11 (Id. at ¶ 10.) This threat assessment is memorialized in the April 30

18 Memo. The threat assessment was forwarded to the San Francisco Field Office as it covers the

19 region where Plaintiffs and Antiwar.com are located, with a recommendation that an investigation

20 be opened into Antiwar.com. (Id.) The San Francisco Field Office ultimately declined to open a

21 preliminary investigation. (Dkt. No. 73-5 (the July 2004 Memo).)

22

Plaintiffs do not contend that the FBI was prohibited from reviewing the postings on their

23

24

11 Plaintiffs challenge the FBI’s assertion in the Campi Declaration of what appears to be a new justification for the threat assessment; namely, that discovery of the watch list raised “the prospect

25 of . . . criminal offenses.” (Dkt. No. 85 at 8:20 (citing Dkt. No. 70 at ¶ 9).) Plaintiffs are correct that the FBI previously represented that the sole basis for the threat assessment was “discovery of

26 one or more lists that contained information about individuals of investigative interest to the FBI

on the www.antiwar.com site.” (Dkt. No. 73-3 at 6 (FBI’s Interrogatory response); Dkt. No. 56 at 27 4:13-24 (Transcript 4/30/15 hearing).) The FBI is thus precluded from arguing that Plaintiffs were

28 in fact being investigated for alleged criminal offenses.

20

1 website and analyzing the watch list; rather, they take issue with the FBI’s documentation of the

2 exercise of their First Amendment activities. In Plaintiffs’ view “the FBI erred in taking the

3 further step – specifically prohibited by the Privacy Act – of memorializing and maintaining its

4 description of Plaintiffs’ First Amendment protected activity.” (Dkt. No. 88 at 9:19-21.)

5

The Court disagrees. The threat assessment was conducted pursuant to the October 31,

6 2003 Attorney General’s Guidelines for FBI National Security Investigations and Foreign

7 Intelligence Collection (“2003 AG Guidelines”). (Dkt. No. 70 at ¶¶ 5-8; Dkt. No. 70-2). The

8 2003 AG Guidelines authorized the FBI to investigate threats to national security and established a

9 threat assessment as the “lowest legal investigative activity.” (Dkt. No. 70 at ¶¶ 6-7; Dkt. No. 70-

10 2 at 16-17.) According to the Guidelines,

United States District Court Northern District of California

11

[t]he FBI may, without opening a preliminary or full investigation,

12

engage in [specified] activities to investigate or collect information

relating to threats to the national security, including information on

13

individuals, groups, and organizations of possible investigative

interest, and information concerning possible targets of international

14

terrorism, espionage, foreign computer intrusion, or other.

15 (Dkt. No. 70-2 at 17.) Thus, conducting the threat assessment upon discovery of the two

16 spreadsheets on Antiwar.com was consistent with the FBI’s mandate to investigate matters related

17 to national security.

18

In MacPherson, for example, the IRS had conducted surveillance of individuals and

19 organizations it believed were connected with the “tax protester” movement, and in doing so, “IRS

20 agents anonymously attended several conferences and conventions at which MacPherson was a

21 speaker” and took notes of his speeches and purchased tapes of his speeches. MacPherson, 803

22 F.2d at 480. The IRS maintained these notes and tapes in a “Tax Protest Project File” in the

23 Phoenix and Houston district offices. Id. The Ninth Circuit concluded that the FBI had recorded

24 MacPherson’s speeches pursuant to authorized law enforcement activity because the “speeches

25 were given in public and distributed to anyone willing to pay the price of the tape. He was aware

26 and even acknowledged in one of his speeches that he might be speaking to IRS agents in the

27 audience ... and the IRS records of [the speeches] were necessary to give the agency a complete

28 and representative picture of the events.” MacPherson, 803 F.2d at 484. 21

1

Similarly, here, the FBI reviewed Plaintiffs’ publicly available articles and postings, as

2 well as documents within the FBI’s and other databases, to compile its threat assessment. (Dkt.

3 No. 70-1.) With respect to Plaintiffs’ publicly available articles, as in MacPherson, Plaintiffs had

4 to have been aware of the possibility that their articles and postings could be reviewed by law

5 enforcement. The FBI’s review of these articles and attachment of many to the threat assessment

6 gave them “a complete picture of” Plaintiffs and thus potentially how and why the spreadsheets

7 were on Antiwar.com. MacPherson, 803 F.2d at 484. Plaintiffs’ argument to the contrary—that

8 there was no need for additional context here because unlike in MacPherson the threat assessment

9 was not conducted as part of a broader investigation—is unavailing. The broader investigation

10 here was into how and why the spreadsheets appeared on Antiwar.com. It is difficult to conceive

11 of how the FBI could have responsibly investigated publication of the spreadsheets without having

United States District Court Northern District of California

12 also reviewed the postings on Antiwar.com.

13

Plaintiffs’ concession that the FBI properly reviewed the postings on Antiwar.com and

14 analyzed the watch list, but insistence that the FBI erred in “memorializing and maintaining” the

15 document cannot be reconciled. Such a rule would place the FBI in an untenable position—agents

16 could investigate national security concerns, but they could not document their investigation if

17 doing so would in any way describe exercise of an individual’s First Amendment rights. The

18 Attorney General Guidelines statement that “[t]hese Guidelines do not authorize investigating or

19 maintaining information on United States persons solely for the purpose of monitoring activities

20 protected by the First Amendment or the lawful exercise of other rights secured by the

21 Constitution or laws of the United States,” does not mean that the FBI cannot initiate an

22 investigation wherever doing so would in some way touch upon an individual’s exercise of their

23 First Amendment rights. (Dkt. No. 70-2 at 12-13.) Indeed, MacPherson specifically holds that

24 the FBI can create and maintain documents that describe First Amendment activities. Id. at 484.

25

In sum, the question is whether there is a genuine dispute as to whether the written threat

26 assessment is pertinent to authorized law enforcement activity. There is not. The record

27 establishes that the FBI initiated the assessment based on discovery of the FBI watch list on

28 Antiwar.com rather than the content of Antiwar.com. Even if the Court rejects the Campi

22

1 Declaration, the April 30 Memo itself states that the threat assessment was conducted because of

2 discovery of the watch list. (Dkt. No. 70-1 at 3.) Indeed, the Memo notes that “[t]he rights of

3 individuals to post information and to express personal views on the Internet should be honored

4 and protected; however, some material that is circulated on the Internet can compromise current

5 active FBI investigations”; thus, while “distribution of the information on [the watch]list[] [is]

6 wide spread” and “[m]any agencies outside of law enforcement have been utilizing this

7 information to screen their employees,” “it is unclear whether www.antiwar.com may only be

8 posting research material compiled from multiple sources or if there is material posted that is

9 singular in nature and not suitable for public release.” (Dkt. No. 70-1 at 9.)

10

The April 30 Memo’s inclusion of articles authored by Plaintiffs and published in sources

11 other than Antiwar.com (such as the Boston Globe) does not create a genuine dispute as to

United States District Court Northern District of California

12 whether the Memo is pertinent to authorized law enforcement activity. The FBI was investigating

13 whether the publication of the watchlist on Antiwar.com posed a national security threat. It makes

14 sense that in conducting that investigation, agents would review public writings of the persons

15 associated with the website. Regardless of whether those articles ultimately shed any light on the

16 investigation, the threat assessment merely documented what was done in the investigation. If the

17 investigation itself is pertinent to an authorized law enforcement activity, the Privacy Act does not

18 regulate what can be done in the course of that investigation or how that authorized investigation

19 may be documented.

20

Finally, the San Francisco Field Office’s declination of the April 30 Memo’s

21 recommendation to open a preliminary investigation into Plaintiffs and Antiwar.com does not

22 mean that the initial threat assessment was not authorized law enforcement activity. (Dkt. No. 86

23 at 104.) Rather, it suggests that the process worked just as it should—the FBI conducted an

24 investigation and concluded that there was not a national security concern.

25

b) September 1972 Memo

26

The September 1972 Memo documents the FBI’s investigation into a third party suspect

27 based on that individual’s involvement with “State Craft” and “Youth Action” militant white

28 supremacy organizations which advocated violent revolution, allegedly threatened to assassinate

23

1 President Richard Nixon, and advocated other extremist and/or criminal activities. (Dkt. No. 71 ¶

2 122.) Plaintiff Garris is mentioned only once in the Memo as one of the judges at a “War Crimes

3 Trial” in which the third party suspect participated; Garris is identified as a member of the Peace

4 and Freedom party. (Id.; Dkt. No. 74-7 at 18). Plaintiffs do not dispute that at the time the Memo

5 was created it was “pertinent to and within the scope of an authorized law enforcement activity. “

6

***

7

The Court thus concludes that the April 30 Memo and September 1972 Memo were each

8 obtained pursuant to authorized law enforcement activity within the meaning of section

9 552a(e)(7).

10

3. Temporal Limitation on the Law Enforcement Activity

11

Plaintiffs next contend that even if the Memos were initially pertinent to authorized law

United States District Court Northern District of California

12 enforcement activity, they must now be expunged from the FBI’s files because they are not

13 pertinent to any ongoing law enforcement activity. The Court is unpersuaded that the law

14 enforcement activity exception is so limited.

15

The DC Circuit—the court that reviews the most FOIA and Privacy Act challenges—

16 considered this issue at length in J. Roderick MacArthur Found. v. F.B.I., 102 F.3d 600, 605 (D.C.

17 Cir. 1996). After analyzing the language of the statute itself, the legislative history, and the policy

18 rationales on both sides, the court concluded that

19

the Privacy Act does not prohibit an agency from maintaining

records about an individual’s first amendment activities if the

20

information was pertinent to an authorized law enforcement activity

when the agency collected the information. The Act does not

21

require an agency to expunge records when they are no longer

pertinent to a current law enforcement activity. 22

Id.; see also Afifi v. Lynch, 101 F. Supp. 3d 90, 107 (D.D.C. 2015) (“the fact that the investigation

23

into the plaintiff is now closed does not render the records invalid under Section (e)(7)”).

24

The court reasoned that the statute’s plain language does not support any temporal

25

limitation on the maintenance of the record. Section 552a(e)(7) states that an agency “shall . . .

26

maintain no record describing how any individual exercises rights guaranteed by the First

27

Amendment unless . . . pertinent to and within the scope of an authorized law enforcement

28

24

1 activity.” 5 U.S.C. § 552a(e)(7). “[T]he provision, as written, can[not] be read to require that the

2 maintenance of a record, as opposed to the record itself, must be pertinent to an authorized law

3 enforcement activity.” J. Roderick, 102 F.3d at 603. Congress could have said “maintain no

4 record relating to first amendment activities unless doing so would be pertinent to and within the

5 scope of an authorized law enforcement activity” but they did. Id. (emphasis in original).

6 “Information that was pertinent to an authorized law enforcement activity when collected does not

7 later lose its pertinence to that activity simply because the information is not of current interest (let

8 alone ‘necessity’) to the agency.” Id.

9

Further, a preliminary Senate report stated “that the Privacy Act is aimed at ‘preventing

10 collection of protected information not immediately needed, about law-abiding Americans, on the

11 off-chance that Government or the particular agency might possibly have to deal with them in the

United States District Court Northern District of California

12 future.’” Id. at 604 (quoting Senate Report No. 1183, 93d Cong., 2d Sess. 57 (Sept. 26, 1974).

13 The emphasis on collection does not support a secondary inquiry regarding maintenance. J.

14 Roderick, 102 F.3d at 608.

15

Finally, J. Roderick reasoned that imposing a temporal limitation would “place new and

16 daunting burdens, both substantive and administrative, upon the FBI and other government

17 agencies, with little or no gain to individual privacy.” Id. at 604. “If a law enforcement agency

18 were required to purge its files of information regarding an individual so requesting whenever it

19 had closed a particular investigation, then its ability to accomplish its mission would inevitably

20 suffer.” Id. The FBI would undoubtedly be “inundated with requests” to purge records which

21 would pose a significant administrative burden. Id. Moreover, purging such records is unlikely

22 “to contribute appreciably to individual privacy” because there are considerable procedural

23 limitations on the ability of law enforcement to share this information so that “[t]o say that an

24 agency may maintain such information [] is not to say that it may disseminate it.” Id. at 605 (“a

25 federal law enforcement agency (such as the FBI) may disclose information to another law

26 enforcement agency (such as a local police department) only if the head of the latter agency has

27 made a written request to the federal agency that maintains the record specifying the ‘particular

28 portion’ wanted and the authorized law enforcement activity for which it is wanted.”).

25

1

Indeed, the Ninth Circuit recognized this burden in MacPherson. The court stated that “[t]o

2 forbid ‘incidental’ surveillance of innocent people or to require excision of references to such

3 people in surveillance records would be administratively cumbersome and damaging to the

4 completeness and accuracy of the agency records.” MacPherson, 803 F.2d at 484. Similarly, to

5 require the FBI to comb its records to excise descriptions of First Amendment activities when no

6 longer pertinent to ongoing law enforcement activity “would be administratively cumbersome and

7 damaging to the completeness and accuracy of the agency records.” Id. The Court thus follows J.

8 Roderick.

9

Becker v. IRS, 34 F.3d 398, 408-09 (7th Cir. 1994), does not persuade the Court otherwise.

10 Moreover, the Seventh Circuit has distinguished Becker on the grounds that in Becker, although

11 the government agency at issue asserted that it “maintain[ed] the materials ‘for possible future

United States District Court Northern District of California

12 uses,’ it did not ‘elaborate on how this material would be helpful.’” Bassiouni, 436 F.3d at 725

13 (quoting Becker, 34 F.3d at 409). In Bassiouni, in contrast, the FBI had articulated a law

14 enforcement purpose for maintaining the at-issue materials. So too here. The FBI attests via the

15 Campi Declaration that maintenance of the April 30 Memo will serve to “inform others should

16 future investigative activity be considered related to those mentioned in the April 30, 2004 EC”;

17 “inform ongoing and future investigative activity”; as well as provide “necessary context in which

18 to evaluate new information” if Plaintiffs or Antiwar.com are again brought to the attention of the

19 FBI. (Dkt. No. 70 at ¶ 12.) “The Privacy Act does not give any indication that Congress intended

20 law enforcement agencies to begin from scratch with every investigation. Nor do we believe that

21 Congress meant to deprive such agencies of the benefit of historical analysis.” Bassiouni, 436

22 F.3d at 725. The Court thus declines to adopt Plaintiffs’ restrictive interpretation of the law

23 enforcement activity exception. Summary judgment is therefore entered in the government’s

24 favor on Plaintiffs (e)(7) Privacy Act Claim.

25 III. Plaintiffs’ (d)(2) Privacy Act Claim

26

Section 552a(d)(2) of the Privacy Act requires each agency that maintains a system of

27 records to allow individuals to request amendment of records pertaining to themselves if the

28 records are inaccurate, irrelevant, untimely, or incomplete. Further, under Section (e)(1) the

26

1 agency shall “maintain in its records only such information about an individual as is relevant and

2 necessary to accomplish a purpose of the agency required to be accomplished by statute or by

3 executive order of the President,” and under (e)(5) an agency shall maintain records “which are

4 used by the agency in making any determination about any individual with such accuracy,

5 relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the

6 individual in the determination.”

7

Pursuant to these sections, Plaintiff Garris seeks amendment and correction of a January

8 2002 Memo which indisputably inaccurately indicates that he threatened to hack the FBI website.

9 Garris also seeks redaction of the portion of the April 30 Memo referencing this false threat. In

10 response to Garris’s administrative request, the FBI conducted an investigation and issued an

11 Electronic Communication (“EC”) to correct the inaccuracies in the January 2002 Memo and the

United States District Court Northern District of California

12 April 30 Memo. (Dkt. No. 71 at ¶ 115.) The EC states that it is a “corrective notification to all

13 FBI personnel” regarding two documents

14

which inaccurately report that ERIC GARRIS [] made a threat to

hack the FBI’s website. As detailed herein, Garris did not threaten to

15

hack the FBI’s website on September 12, 2001. Instead, he

contacted the FBI San Francisco Field Office (SFFO) to report a

16

threat made against his own website, www.antiwar.com.

17 (Dkt. No. 71-4 at 24.) Garris is not satisfied with this correction and instead contends that the

18 proper remedy is expungement from the FBI files of the January 2002 Memo and excisement of

19 the reference to the false threat in the April 30 Memo.

20

The FBI contends that the records at issue are exempt from Sections (e)(1) and (e)(5) of the

21 Privacy Act because they are maintained in the FBI’s Central Records System (“CRS”) and the

22 FBI has exempted the CRS from various provisions of the Privacy Act pursuant to Section

23 552a(j)(2). It is unnecessary to determine whether the (j)(2) exemption applies because the FBI

24 has corrected the inaccuracies in the January 2002 Memo and the April 30 Memo. The corrective

25 EC explicitly amends the finding of the January 2002 Memo that Garris threatened to hack the

26 FBI. Plaintiff postulates that some future FBI personnel will discover the inaccurate documents,

27 but not the corrective EC, and therefore believe that Garris threatened to hack the FBI. However,

28 the FBI indexed the EC under Garris’ name, email address, and Antiwar.com. (Dkt. No. 71 at ¶

27

1 115.) Plaintiffs have not identified any authority which suggests that this response is not sufficient

2 “to assure fairness to” Garris. 5 U.S.C. § 552a(e)(5). Moreover, the EC is more accurate than

3 what Garris seeks because it describes the FBI’s error in the first instance—in other words, it

4 corrects history rather than erases it completely.

5

Summary judgment is therefore entered in the government’s favor on Plaintiffs’ (d)(2)

6 Privacy Act claim.

7

CONCLUSION

8

For the reasons stated above, government’s motion for summary judgment is GRANTED

9 as to Plaintiffs’ third and fourth claims for relief under Sections (e)(7) and (d)(2) of the Privacy

10 Act, respectively. (Dkt. No. 69.) Plaintiffs’ cross-motion for summary judgment on these same

11 claims is therefore DENIED. (Dkt. No. 82.) Both parties’ motions for summary judgment on

United States District Court Northern District of California

12 Plaintiffs’ first and second claims for relief regarding disclosure under FOIA and the Privacy Act

13 are DENIED WITHOUT PREJUDICE. The parties shall meet and confer to develop a case

14 management plan for how to proceed with respect to these claims. The parties shall appear for a

15 Case Management Conference on June 9, 2016 at 10:00 a.m., in Courtroom F, 450 Golden Gate

16 Ave., San Francisco, California to discuss their plan(s). An updated Joint Case Management

17 Conference statement is due June 2, 2016.

18

19

IT IS SO ORDERED.

20 Dated: May 10, 2016

21

22

23

JACQUELINE SCOTT CORLEY United States Magistrate Judge

24

25

26

27

28

28

 
 Case 3:13-cv-02295-JSC Document 101 Filed 01/23/17 Page 1 of 5

1 BRIAN J. STRETCH (CABN 163973) United States Attorney
2 SARA WINSLOW (DCBN 457643) Chief, Civil Division
3 REBECCA A. FALK (CSBN 226798) Assistant United States Attorney
4 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495
5 Telephone: (415) 436-7022 FAX: (415) 436-6748
6 rebecca.falk@usdoj.gov

7 Attorneys for Federal Defendant

8 PILLSBURY WINTHROP SHAW PITTMAN LLP THOMAS V. LORAN III #95255
9 thomas.loran@pillsburylaw.com ANDREW D. BLUTH #232387
10 abluth@pillsburylaw.com LAURA C. HURTADO #267044
11 laura.hurtado@pillsburylaw.com Four Embarcadero Center, 22nd Floor
12 San Francisco, CA 94111-5998 Telephone: (415) 983-1000
13 Facsimile: (415) 983-1200

14 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
15 JULIA HARUMI MASS #189649 jmass@aclunc.org
16 LINDA LYE #215584 llye@aclunc.org
17 39 Drumm Street San Francisco, California 94111
18 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
19 Attorneys for Plaintiffs
20 DENNIS JOSEPH RAIMONDO and ERIC ANTHONY GARRIS
21 UNITED STATES DISTRICT COURT
22 NORTHERN DISTRICT OF CALIFORNIA
23 SAN FRANCISCO DIVISION
24

25

26

27

28 STIPULATION RE SETTLEMENT AND DISMISSAL WITH PREJUDICE OF FOIA CLAIMS

WITH THE EXCEPTION OF ATTORNEY’S FEES; PROPOSED ORDER

CASE NO. 13-2295 JSC

1

4843-5144-8128.v1

Case 3:13-cv-02295-JSC Document 101 Filed 01/23/17 Page 2 of 5

1 DENNIS JOSEPH RAIMONDO (a.k.a. JUSTIN
RAIMONDO), an individual, AND ERIC 2 ANTHONY GARRIS, an individual,

3

PLAINTIFFS,

4 v.
5 FEDERAL BUREAU OF INVESTIGATION
6

7

DEFENDANT.

Case No. 13-2295 JSC
STIPULATION RE SETTLEMENT AND DISMISSAL WITH PREJUDICE OF FOIA CLAIMS WITH THE EXCEPTION OF ATTORNEY’S FEES; PROPOSED ORDER

8

9

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28 STIPULATION RE SETTLEMENT AND DISMISSAL WITH PREJUDICE OF FOIA CLAIMS

WITH THE EXCEPTION OF ATTORNEY’S FEES; PROPOSED ORDER

CASE NO. 13-2295 JSC

2

4843-5144-8128.v1

Case 3:13-cv-02295-JSC Document 101 Filed 01/23/17 Page 3 of 5

1

Subject to the approval of the Court, Plaintiffs Dennis Joseph Raimondo and Eric Anthony

2 Garris (“Plaintiffs”) and Defendant Federal Bureau of Investigation (“Defendant”), through their counsel

3 of record, hereby stipulate as follows:

4

1. After an extensive meet and confer, in settlement of all FOIA claims in this case, except

5 for the issue of attorney’s fees, upon execution of this Stipulation, Defendant will produce an agreed

6 upon set of information to Plaintiffs’ in accordance with the terms outlined in a letter from counsel for

7 Defendant to counsel for Plaintiffs dated December 20, 2016. The parties agree that Defendant’s

8 production of such information satisfies its disclosure obligations under the FOIA in response to the

9 FOIA requests at issue in this action.

10

2. The parties thus stipulate to dismiss all FOIA claims in this action, with the exception of

11 the issue of attorney’s fees. Defendant agrees that Plaintiffs are entitled to an award of reasonable

12 attorney’s fees and costs with respect to their FOIA claims. The parties are endeavoring to reach

13 agreement on the amount of such an award and propose that they be provided approximately 45 days to

14 continue to meet and confer regarding this matter, at which time they will either file a stipulation of

15 settlement and dismissal as to that issue or propose a briefing schedule with respect to Plaintiffs’ fee

16 petition to the Court. Defendant expressly reserves all arguments regarding the reasonableness of such

17 an award, including any arguments it may have regarding the amount of fees to which Plaintiffs claim

18 they are entitled.

19

3. Execution of this Stipulation shall constitute dismissal of the FOIA claims in this case

20 with prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii).

21

4. The parties hereby request that the Court vacate the parties’ motion for summary

22 judgment hearing schedule and hearing date of April 13, 2017. Dkt. No. 99.

23

5. During the meet and confer period regarding Plaintiffs’ FOIA claims, Defendant

24 produced to Plaintiffs additional documents, including less redacted versions of previously produced

25 documents, responsive to their FOIA requests. As this information was not available to Plaintiffs either

26 before or during the period during which the parties drafted their Cross Motions for Summary Judgment,

27 and because such documents raise new issues with respect to Plaintiffs’ Privacy Act claims, Plaintiffs

28 STIPULATION RE SETTLEMENT AND DISMISSAL WITH PREJUDICE OF FOIA CLAIMS

WITH THE EXCEPTION OF ATTORNEY’S FEES; PROPOSED ORDER

CASE NO. 13-2295 JSC

3

4843-5144-8128.v1

Case 3:13-cv-02295-JSC Document 101 Filed 01/23/17 Page 4 of 5

1 intend to seek leave to file a properly noticed motion for reconsideration of this Court’s May 10, 2016

2 Order Re: Cross-Motions For Summary Judgment (Dkt. No. 90) with respect to their Privacy Act claims

3 only and will do so on or before February 9, 2017. If Plaintiffs are permitted to file a motion for

4 reconsideration, Defendant will have 30 days to oppose such motion, and Plaintiffs will have 14 days to

5 reply.

6 SO STIPULATED AND AGREED.

7

JULIA HARUMI MASS

8

LINDA LYE

ACLU CIVIL LIBERTIES UNION FOUNDATION

9

OF NORTHERN CALIFORNIA

39 Drumm Street

10

San Francisco, California 94111

11

PILLSBURY WINTHROP SHAW PITTMAN LLP

12

THOMAS V. LORAN III

ANDREW BLUTH

13

LAURA C. HURTADO

Four Embarcadero Center, 22nd Floor

14

San Francisco, California 94111

15

By

/s/ Laura C. Hurtado

Laura C. Hurtado

16

Attorneys for Plaintiffs

17

BRIAN STRETCH #163973

Acting United States Attorney

18

ALEX G. TSE #1523548

Chief, Civil Division

19

REBECCA FALK #226798

Assistant United States Attorney

20

450 Golden Gate Avenue, Box 36055

San Francisco, California 94102-3495

21

Telephone: (415) 436-7022

Facsimile: (415) 436-6748

22

rebecca.falk@usdoj.gov

23

By

/s/ Rebecca Falk

24

Rebecca Falk1

Attorneys for Federal Defendant

25

26

27

1 I, Rebecca A. Falk, hereby attest, in accordance with the Civil L.R. 5(i)(3), the concurrence in

the filing of this document has been obtained from the other signatory listed here.

28 STIPULATION RE SETTLEMENT AND DISMISSAL WITH PREJUDICE OF FOIA CLAIMS

WITH THE EXCEPTION OF ATTORNEY’S FEES; PROPOSED ORDER

CASE NO. 13-2295 JSC

4

4843-5144-8128.v1

Case 3:13-cv-02295-JSC Document 101 Filed 01/23/17 Page 5 of 5

1

[PROPOSED] ORDER

2

Pursuant to the parties’ stipulation and good cause having been shown:

3 1. Plaintiffs’ FOIA claims are hereby dismissed with prejudice;
4 2. The summary judgment briefing schedule and associated hearing date regarding
5 Plaintiffs’ FOIA claims previously set by this Court are vacated (Dkt. No. 99),
6 3. The parties have represented to the Court they will meet and confer regarding Plaintiffs’
7 claim for attorney’s fees regarding their FOIA claims. On or before February 28, 2017, the parties will
8 either file a stipulation of settlement and dismissal as to that issue or propose a briefing schedule with
9 respect to Plaintiffs’ fee petition to the Court; and
10 4. Any request for leave to file a Motion for Reconsideration of this Court’s May 10, 2016
11 Order Re: Cross-Motions For Summary Judgment (Dkt. No. 90) regarding Plaintiffs’ Privacy Act claims
12 only, must be brought on or before February 9, 2017. If Plaintiffs are permitted to file a motion for
13 reconsideration, Defendant will have 30 days to oppose such motion, and Plaintiffs will have 14 days to
14 reply.
15

16

IT IS SO ORDERED.

17 Dated: January 23, 2017
18
19

_______________________________ JACQUELINE SCOTT CORLEY United States Magistrate Judge

20

21

22

23

24

25

26

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28 STIPULATION RE SETTLEMENT AND DISMISSAL WITH PREJUDICE OF FOIA CLAIMS

WITH THE EXCEPTION OF ATTORNEY’S FEES; PROPOSED ORDER

CASE NO. 13-2295 JSC

5

4843-5144-8128.v1

 
 Case 3:13-cv-02295-JSC Document 104 Filed 02/13/17 Page 1 of 5

1 BRIAN J. STRETCH (CABN 163973) United States Attorney
2 SARA WINSLOW (DCBN 457643) Chief, Civil Division
3 REBECCA A. FALK (CSBN 226798) Assistant United States Attorney
4 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495
5 Telephone: (415) 436-7022 FAX: (415) 436-6748
6 rebecca.falk@usdoj.gov

7 Attorneys for Federal Defendant

8 PILLSBURY WINTHROP SHAW PITTMAN LLP THOMAS V. LORAN III #95255
9 thomas.loran@pillsburylaw.com ANDREW D. BLUTH #232387
10 abluth@pillsburylaw.com LAURA C. HURTADO #267044
11 laura.hurtado@pillsburylaw.com Four Embarcadero Center, 22nd Floor
12 San Francisco, CA 94111-5998 Telephone: (415) 983-1000
13 Facsimile: (415) 983-1200

14 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
15 JULIA HARUMI MASS #189649 jmass@aclunc.org
16 LINDA LYE #215584 llye@aclunc.org
17 39 Drumm Street San Francisco, California 94111
18 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
19 Attorneys for Plaintiffs
20 DENNIS JOSEPH RAIMONDO and ERIC ANTHONY GARRIS
21 UNITED STATES DISTRICT COURT
22 NORTHERN DISTRICT OF CALIFORNIA
23 SAN FRANCISCO DIVISION
24

25

26

27

28 FURTHER STIPULATION RE SETTLEMENT AND DISMISSAL WITH PREJUDICE OF FOIA CLAIMS

WITH THE EXCEPTION OF ATTORNEY’S FEES; PROPOSED ORDER

CASE NO. 13-2295 JSC

1

4843-5144-8128.v1

Case 3:13-cv-02295-JSC Document 104 Filed 02/13/17 Page 2 of 5

1 DENNIS JOSEPH RAIMONDO (a.k.a. JUSTIN
RAIMONDO), an individual, AND ERIC 2 ANTHONY GARRIS, an individual,

3

PLAINTIFFS,

4 v.
5 FEDERAL BUREAU OF INVESTIGATION
6

7

DEFENDANT.

Case No. 13-2295 JSC
FURTHER STIPULATION RE SETTLEMENT AND DISMISSAL WITH PREJUDICE OF FOIA CLAIMS WITH THE EXCEPTION OF ATTORNEY’S FEES; PROPOSED ORDER

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28 FURTHER STIPULATION RE SETTLEMENT AND DISMISSAL WITH PREJUDICE OF FOIA CLAIMS

WITH THE EXCEPTION OF ATTORNEY’S FEES; PROPOSED ORDER

CASE NO. 13-2295 JSC

2

4843-5144-8128.v1

Case 3:13-cv-02295-JSC Document 104 Filed 02/13/17 Page 3 of 5

1

Subject to the approval of the Court, Plaintiffs Dennis Joseph Raimondo and Eric Anthony

2 Garris (“Plaintiffs”) and Defendant Federal Bureau of Investigation (“Defendant”), through their counsel

3 of record, hereby stipulate as follows:

4

1. On January 23, 2017, pursuant to the request and stipulation of the parties, this Court

5 dismissed Plaintiffs’ FOIA claims and ordered that the parties would meet and confer regarding

6 Plaintiffs’ claim for attorney’s fees pursuant to FOIA, and either file a stipulation of settlement and

7 dismissal as to that issue or propose to the Court a briefing schedule with respect to Plaintiffs’ fee

8 petition by February 28, 2017. Dkt. No. 101.

9

2. As previously stipulated, Defendant agrees that Plaintiffs are entitled to an award of

10 reasonable attorney’s fees and costs with respect to their FOIA claims. The parties are endeavoring to

11 reach agreement on the amount of such an award. In light of Plaintiffs’ counsel’s unanticipated absence

12 from the office in the prior weeks, the parties have not been able to engage in a meet and confer as

13 planned.

14

3. Accordingly, and in light of the parties’ expressed mutual interest in resolving this matter

15 between them, they respectfully request additional time to engage in such discussions. The parties

16 hereby propose that they will either file a stipulation of settlement and dismissal as to Plaintiffs’ claim

17 for attorney’s fees pursuant to FOIA or propose a briefing schedule with respect to Plaintiffs’ fee

18 petition to the Court by April 14, 2017. Defendant expressly reserves all arguments regarding the

19 reasonableness of such an award, including any arguments it may have regarding the amount of fees to

20 which Plaintiffs claim they are entitled.

21 SO STIPULATED AND AGREED.

22

23

24

25

26

27

28 FURTHER STIPULATION RE SETTLEMENT AND DISMISSAL WITH PREJUDICE OF FOIA CLAIMS

WITH THE EXCEPTION OF ATTORNEY’S FEES; PROPOSED ORDER

CASE NO. 13-2295 JSC

3

4843-5144-8128.v1

Case 3:13-cv-02295-JSC Document 104 Filed 02/13/17 Page 4 of 5

1

JULIA HARUMI MASS

2

LINDA LYE

ACLU CIVIL LIBERTIES UNION FOUNDATION

3

OF NORTHERN CALIFORNIA

39 Drumm Street

4

San Francisco, California 94111

5

PILLSBURY WINTHROP SHAW PITTMAN LLP

6

THOMAS V. LORAN III

ANDREW BLUTH

7

LAURA C. HURTADO

Four Embarcadero Center, 22nd Floor

8

San Francisco, California 94111

9

By

/s/ Laura C. Hurtado

Laura C. Hurtado

10

Attorneys for Plaintiffs

11

BRIAN STRETCH #163973

Acting United States Attorney

12

ALEX G. TSE #1523548

Chief, Civil Division

13

REBECCA FALK #226798

Assistant United States Attorney

14

450 Golden Gate Avenue, Box 36055

San Francisco, California 94102-3495

15

Telephone: (415) 436-7022

Facsimile: (415) 436-6748

16

rebecca.falk@usdoj.gov

17

By

/s/ Rebecca Falk

18

Rebecca Falk1

Attorneys for Federal Defendant

19

20

21

22

23

24

25

26

27

1 I, Rebecca A. Falk, hereby attest, in accordance with the Civil L.R. 5(i)(3), the concurrence in

the filing of this document has been obtained from the other signatory listed here.

28 FURTHER STIPULATION RE SETTLEMENT AND DISMISSAL WITH PREJUDICE OF FOIA CLAIMS

WITH THE EXCEPTION OF ATTORNEY’S FEES; PROPOSED ORDER

CASE NO. 13-2295 JSC

4

4843-5144-8128.v1

Case 3:13-cv-02295-JSC Document 104 Filed 02/13/17 Page 5 of 5

1

[PROPOSED] ORDER

2

Pursuant to the parties’ stipulation and good cause having been shown:

3 1. The parties have represented to the Court they will meet and confer regarding Plaintiffs’
4 claim for attorney’s fees regarding their FOIA claims. On or before April 14, 2017, the parties will
5 either file a stipulation of settlement and dismissal as to that issue or propose a briefing schedule with
6 respect to Plaintiffs’ fee petition to the Court.
7

8

IT IS SO ORDERED.

9 Dated: February 13, 2017
10
11

_______________________________ JACQUELINE SCOTT CORLEY United States Magistrate Judge

12

13

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28 FURTHER STIPULATION RE SETTLEMENT AND DISMISSAL WITH PREJUDICE OF FOIA CLAIMS

WITH THE EXCEPTION OF ATTORNEY’S FEES; PROPOSED ORDER

CASE NO. 13-2295 JSC

5

4843-5144-8128.v1

 
 Case 3:13-cv-02295-JSC Document 105 Filed 02/15/17 Page 1 of 1

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 DENNIS JOSEPH RAIMONDO, et al.,

8

Plaintiffs,

9

v.

10 FEDERAL BUREAU OF INVESTIGATION,

11

Defendant.

12

Case No.13-cv-02295-JSC
ORDER GRANTING PLAINTIFFS LEAVE TO FILE MOTION FOR RECONSIDERATION Re: Dkt. No. 102

13

Plaintiffs’ motion for leave to file a motion for reconsideration of the Court’s prior Order

14 regarding Plaintiffs’ Privacy Act claim is GRANTED. (Dkt. No. 102.) Defendant shall file a

15 response to the motion for reconsideration by March 9, 2017. Plaintiff may file a reply by March

16 23, 2017. Upon completion of the briefing, the Court will take the matter under submission and

17 advise the parties if oral argument is required.

18

19

IT IS SO ORDERED.

20 Dated: February 15, 2017

21

22

23

JACQUELINE SCOTT CORLEY United States Magistrate Judge

24

25

26

27

28

 
 Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 1 of 69
EXHIBIT 1

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 2 of 69

1 PILLSBURY WINTHROP SHAW PITTMAN LLP THOMAS V. LORAN III #95255
2 thomas.loran@pillsburylaw.com ANDREW BLUTH #232387
3 abluth@pillsburylaw.com MARLEY DEGNER #251923
4 marley.degner@pillsburylaw.com LAURA C. HURTADO #267044
5 laura.hurtado@pillsburylaw.com Four Embarcadero Center, 22nd Floor
6 San Francisco, Califomia 94111 Telephone: (415) 983~1000
7 Facsimile: (415) 983~1200

8 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
9 .JULIA HARUMI MASS #189649 jmass@aclunc.org
10 LINDALYE#215584 llye@aclunc.org
11 39 Drumm Street San Francisco, California 94111
12 Telephone: (415) 621 ~2493 Facsimile: (415) 255-8437
13 Attorneys for Plaintiffs
14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17

SAN FRANCISCO DIVISION

18

)

19 DENNIS JOSEPH RAIMONDO (a.k.a.

) No. C~13-02295 JSC

JUSTIN RAIMONDO), an individual, and )

20 ERIC ANTHONY GARRIS, an individual, ) FIRST AMENDED AND

) SUPPLEMENTAL COMPLAINT FOR

21

Plaintiffs,

) DECLARATORY AND INJUNCTIVE

) RELIEF FOR VIOLATION OF THE

22

vs.

) FREEDOM OF INFORMATION ACT,

) 5 U.S.C. § 552 et seq. AND THE

23 FEDERAL BUREAU OF INVESTIGATION) PRIVACY ACT, 5 U.S.C. § 552a et seq.

)

24

Defendant. )

25

~

26 ~---------------------------)

27

28

~ 1~

FIRST AMENDED AND SUPPLEMENTAL COMPLAJNT UNDER FOIA AND PRNACY ACT FOR
DECLARATORY AND JNJUNCTNERELIEF Case No. 13-02295-JSC

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1

INTRODUCTION

2

1. This case concerns protracted surveillance and maintenance ofrecotds by

3 the Federal Bureau of Investigation ("FBI" or "Agency") related to First Amendment

4 protected activity of Eric Anthony Garris and Dennis Joseph Raimondo (collectively

5 "Plaintiffs") in violation of the Privacy Act, the FBPs maintenance of inaccurate records

6 pertaining to Plaintiff Garris, and Plaintiffs' continued efforts to access records requested

7 by each of them pursuant to the Freedom of Information Act ("FOIA") and the Privacy Act.

8

2. This case arose following Plaintiffs' discovery that in or around April 2004

9 the FBI conducted a "threat assessment" of Antiwar.com-an anti-interventionist website

10 that publishes news and opinion articles about U.S. foreign and military policy. The FBPs

11 eventual yet still incomplete document production in response to Plaintiffs' FOIA and

12 Privacy Act requests confirmed that as part ofthe threat assessment an FBI analyst from

13 Newark FBI advised the FBI to open a preliminary investigation into each ofthe Plaintiffs

14 and to conduct surveillance on Antiwar.cqm.

15

3. Upon information and belief, reckless disregard for factual errors and

16 descriptions of First Amendment protected speech activity comprised the sole bases for the

17 .threat assessment memorialized in an FBI inemorandum dated April 30, 2004 (the "April

18 30 Memo") for the recommendation by Newark FBI contained therein to open a

19 preliminary investigation of Plaintiffs, and fot the FBI's unremitting surveillance of

20 Plaintiffs since at least 2004.

21

4. Plaintiffs seek disclosure of records maintained by the FBI that are related to

22 each of them as individuals and related to their online magazine Antiwar.com. Plaintiffs

23 seek expungement of all records compiled and maintained by the FBI that describe

24 Plaintiffs' exercise of rights guaranteed by the First Amendment. Further, Plaintiff Garris

25 seeks for the FBI to purge its system of grossly inaccurate records pertaining to him (which

26 the FBI now admits are false) .

. 27

28

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FIRST AMENDED AND SUPPLEMENTAL COMPLAINT UNDER FOIA AND PRNACY ACT FOR
DECLARATORY AND INJUNCTIVE RELIEF Case No. 13-02295-JSC

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JURISDICTION

2

5. This Court has jurisdiction over this action pursuant to 5 U.S.C.

3 § 552(a)(4)(B), 5 U.S.C. § 552(a)(6)(C)(i), 5 U.S.C. § 552a(d); 5 U.S.C. §§ 552a(e)(l), (5),

4 and (7), 5 U.S.C. §§ 552a(g)(l), and 28 U.S.C. § 1331.

5

VENUE

6

6. Venue is proper in the Northern District of California pursuant to 5 U.S.C.

7 § 552(a)(4)(B), 5 U.S.C. § 552a(g)(5), and 28 U.S.C. § 1391. Plaintiff Garris is a resident

8 of San Francisco, California, and Plaintiff Raimondo is a resident of Sebastopol, California,

9 both of which are within the Northern District of California.

10

INTRADISTRICT ASSIGNMENT

11

7. Assignment to the San Francisco Division of this Court is proper under Civil

12 Local Rule 3N2(c), (d) because a substantial part of the events or omissions giving rise to

13 Plaintiffs' claims occurred, and continues to occur, in the City and County of San

14 Francisco.

15

PARTIES

16

8. Plaintiff Eric Anthony Garris resides in the City and County of San

17 Francisco. He is a citizen of the United States of America, Plaintiff Garris is the founder,

18 managing editor, and webmaster of the online magazine Antiwar.com, whose principal

19 place of business is in San Francisco, California. Plaintiff Garris founded Antiwar.com in

20 1995 as a means to express opposition to U.S. intervention in the Balkans and has since

21 worked for Antiwar.corn. Plaintiff Garris is a member of the news media.

22

9. Plaintiff Dennis Joseph Raimondo resides in the City of Sebastopol, which is

23 within Sonoma County. He is a citizen of the United States of America. Plaintiff

24 Raimondo is the editorial director for the online magazine Antiwar.com and has worked for

25 Antiwar.com since 1995. Plaintiff Raimondo is a member of the news media.

26

10. Defendant FBI is an agency within the meaning of 5 U.S.C. § 552(:f) of the

27 FOIA and 5 U.S.C. § 552a(a)(l) of the Privacy Act, and is in possession and/or control of

28

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f'!RST AMENDED AND SUPPLEMENTAL COMPLAINT UNDER FOIA AND PRIVACY ACT FOR
DECLARATORY AND !N.JUNCT!VE RELIEF Case No. 13-07.295-.JSC

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1 records referring or relating to Plaintiffs and referring or relating to the online magazine

2 Antiwar.com.

3

LEGALFRAMEWORK

4

11. The FOIA requires that federal agencies make reasonable efforts to maintain

5 their records in forms or formats that are reproducible and provide copies of agency records

6 that are reasonably described in requests by members of the public, subject to certain

7 objections. 5 U.S.C. § 552(a).

8

12. Under the Privacy Act, federal agencies that maintain a "system of records"

9 concerning individuals must do so "with such accuracy, relevance, timeliness, and

10 completeness as is reasonably necessary to assure fairness to the individual." 5 U.S.C.

11 § 552a(e)(5). In addition, agencies are prohibited from maintaining any record "describing

12 how any individual exercises rights guaranteed by the First Amendment unless ... pertinent

13 to and within the scope of an authorized law enforcement activity." 5 U.S.C. § 552a(e)(7).

14 For enforcement of these record~keeping limitations, the Privacy Act provides individuals

15 with the right to access their records upon request and allows them to request amendment or

16 correction of their records. 5 U.S.C. §§ 552a(d)(1)~(3).

17

13. Following exhaustion of administrative remedies.with respect to disclosure

18 and correction ofrecords, the FOIA and Privacy Act authorize civil remedies in federal

19 district court. 5 U.S.C. § 552(a)(4)(B), 5 U.S. C. § 552a(g)(1). The Privacy Act also

20 provides civil remedies without administrative exhaustion for maintenance of records

21 describing First Amendment activities without a legitimate law enforcement purpose.

22 5 U.S.C. §§ 552a(e)(7) and 552a(g)(1)(D).

23

FACTS

24 Plaintiffs Discover They Are Subjects of FBI Surveillance; Impact on Freedom of

25 Speech and Press

26

14. Plaintiffs are long~time peace activists and proponents of non~

27 interventionism. Antiwar. com, the online magazine for which Plaintiffs work, is an anti~

28

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fiRST AMENDED AND SUPPLEMENTAL COMPLAINT UNDER FOIA AND PRIVACY ACT FOR
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1 interventionist, pro-peace website with a purely journalistic mission: revealing the tmth

2 about America's foreign policy.

3

15. Iti August 2011, Plaintiffs became aware that they and Antiwar.com had

4 become the subject of FBI surveillance when they discovered documents responsive to a

5 FOIA request filed by the author ofthe blog "Zionism Stinks" posted on the website

6 Scribd.com. The website post included ninety-four pages of redacted documents. Of the

7 ninety-four pages, twenty-three referred or related to Antiwar.com and its staff, including

8 Plaintiffs. The twenty-three pages of documents, which included a heavily redacted version

9 of the April30 Memo and two articles by Plaintiff Raimondo, evidence the FBI's

10 surveillance of Plaintiffs and the online magazine Antiwar.com. (The version of the April

11 30 Memo posted on Scribd.com is referred to herein as the "Original April30 Memo" in

12 order to distinguish it from the less redacted version of the April30 Memo produced in

13 · response to this litigation, which is referred to herein as the "Revised April30 Memo." The

14 memorandum dated April 30, 2004 is referred to generally as the "April30 Memo.")

15 Following publication of the Original April30 Memo by Antiwar.com and others,

16 Antiwar.com lost significant financial support and communications from confidential news

17 sources.

18 FBI's Surveillance Chilled Plaintiffs' Speech

19

16. After Plaintiffs' discovery ofthe FBI's surveillance of Antiwar.com and of

20 Plaintiff$ themselves, Antiwar.com ran editorials about the FBI's surveillance, shedding

21 light on the Agency's monitoring of Antiwar.com and its staff.

22

17. In October 2011, one of Antiwar.com's major donors withdrew his financial

23 support from Antiwar. com out of concern that the FBI would monitor him if he continued

24 to provide, as he wished to do, financial support to Antiwar.com. Since then, three

25 significant donors have also withdrawn financial support, citing their fear that FBI interest

26 in Antiwar.com would lead to surveillance of the donors as a reason for withdrawing

27 financial suppmi. As a result, Antiwar.com has lost approximately $75,000 per year since

28 2011 in otherwise expected contributions. -5-

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1

18. Plaintiffs have also noticed a decrease in communications from confidential

2 news sources since the FBI's monitoring of Antiwar.com and of Plaintiffs came to light.

3

19. In201 0, Plaintiffs discovered that Antiwar. com was listed in a section of a

4 State and Local Anti~Terrorism Training disk, entitled "Special Interest Terrorism,"

5 produced by the United States Department of Justice ("DOJ'') and provided to state and

6 local law enforcement representatives at a nation-wide anti-terrorism training conference in

7 New Orleans, Louisiana.

8

20. After Plaintiffs learned about the Original April 30 Memo, they considered

9 issuing editorials to publicize the federal govenm1ent's misleading and inappropriate

10 inclusion of Antiwar. com in its counterten·orism training materials. However, based on

11 their concern that more donors and supporters would withdraw their support from

12 Antiwar. com from fear that they would also be subject to scmtiny by federal intelligence

13 agencies, Plaintiffs decided not to do so. Instead, they sought records related to

14 Antiwar.com and themselves through the FOIA and the Privacy Act requests that are the

15 subject of this Complaint.

16 Plaintiffs File FOIA and Privacy Act Requests for Disclosure of Records and

17 Exhaust Administrative Appeals

18

21. Troubled by their discovery that they and Antiwar.com had become the

19 subject of FBI surveillance, each of Plaintiffs filed requests under the FOIA and the Privacy

20 Act seeking disclosure of records pertaining to themselves in October 2011.

21

22. On October 4, 2011, the American Civil Liberties Union ofNorthern

22 California ("ACLU~NC"), on behalf of Plaintiff Garris, submitted a FOIA and Privacy Act

23 request to the FBI at its Winchester, Virgnia and San Francisco, California offices, along

24 with Plaintiff Garris's Certification ofldentity and Authorization to Release Information to

25 his counsel. Plaintiff Garris identified himself therein as the founder, managing editor, and

26 webmaster of the online magazine Antiwar.com and provided a link to the Original April

27 30 Memo.

28

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1

23, On October 4, 2011, the ACLU~NC, on behalf of Plaintiff Raimondo,

2 · submitted a FOIA and Privacy Act request to the FBI at its Winchester, Virginia, San

3 Francisco, California, and Santa Rosa, California offices, along with Plaintiff Raimondo's

4 Certification of Identity and Authorization to Release Information to his counsel. Plaintiff

5 Raimondo identified himself therein as the editorial director of the online magazine

6 Antiwar.com and provided a link to the Original April30 Memo.

7

24. Also on October 4, 2011, the ACLU-NC, on behalf of five other persons

8 then employed by Antiwar.commade requests like those described in paragraphs 22 and

9 23. Those requests are not at issue in this lawsuit.

10

25. On November 2, 2011, in separate, but identical form letters, the FBI

11 notified Plaintiffs that the FBI had conducted a search of the Central Records System, and

12 based on that search was unable to identify main :file records responsive to Plaintiffs'

13 requests.

14

26. On December 22, 2011, through counsel, Plaintiff Garris and Plaintiff

15 Raimondo each mailed a certified letter to the DOJ's Office oflnformation Policy ("OIP")

16 appealing the FBI's denial of their respective FOIA and Privacy Act requests. Plaintiffs

17 asserted that the FBI's blanket and identical form "no records" response to each of

18 Plaintiffs seemingly overlooked responsive records that each of Plaintiffs knows exist, such

19 as the Original April30 Memo. Plaintiffs further stated that the FBI appeared to have

20 improperly invoked a national security exemption and that the FBI's search for records was

21 inadequate, as it seemingly failed to perform a "cross-reference" search for files that

22 mention each of Plaintiffs or Antiwar.com.

23

27. By letter dated January 4, 2012, OIP acknowledged receipt of Plaintiffs'

24 administrative appeals.

25

28. By letter dated March 29, 2012, OIP affirmed the FBI's action on Plaintiff

26 Raimondo's October 4 FOIA and Privacy Act request. The lettet indicated that in order for

27 the FBI to detennine whether any cross-references it locates are identifiable to the subject

28 ofPlaintiffRaimondo's request, Plaintiff Raimondo would need to submit additional

FIRST AMENDED AND SUPPLEMENTAL COMPLAINT UNDER FOIA AND PRIVACY ACT FOR
DECLARATORY AND INJUNCTIVE RELIEF Case No. 13-02295-JSC

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1 information to the FBI. The letter also stated that the FBI had not improperly invoked a

2 FOIA exclusion.

3

29. By letter dated September 17, 2012, OIP affirmed the FBI's action on

4 Plaintiff Garris's October 4 FOIA and Privacy Act request. The letter indicated that in

5 order for the FBI to determine whether any cross-references it locates are identifiable to the

6 subject ofPlaintiffGanis's request, Plaintiff Garris _would need to submit additional

7 information to the FBI. The letter also stated that the Fin had not improperly invoked a

8 FOIA exclusion.

9

30. On May 24, 2012, through counsel, and in a joint letter directed to the FBI's

10 Winchester field office and OIP, Plaintiffs provided additional personal and identifying

11 information to assist the FBI in locating responsive records ("May 24 FOI/P A Request").

12 Plaintiffs' May 24 FOI/PA Request referenced the Original April30 Memo and its naming

13 of Antiwar.com and Plaintiffs Garris and Raimondo and recounting of Plaintiffs' long

14 history of activism. A tme and conect copy of the May 24 FOI/PA Request is attached

15 hereto as Exhibit "A" and incorporated herein by this reference.

16

31. The May 24 FOI/PA Request, submitted by counsel on behalf of Plaintiffs

17 and the five other requesters, also asserted a clear request to the FBI under the FOIA for all

18 records referring or relating to Antiwar.com, whether or not filed, described, or otherwise

19 identified as pertaining to any of Plaintiffs, and without redaction of identifying information

20 that refers to any of the requesters.

21

32. The May 24 FOI/PA Request also reiterated Plaintiffs' requests under the

22 FOIA and the Privacy Act for records relating or refening to themselves.

23

33. By letters dated June 8, 2012, the FBI acknowledged receipt of Plaintiffs'

24 May 24 FOI/P A Request.

25

34. By separate but identical form letters dated August 31, 2012, the FBI

26 informed the five non-plaintiff requesters whose requests were also referenced in the

27 May 24 FOI/PA Request that based on its search of the indices to its Central Records

28

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FIRST AMENDED AND SUPPLEMENTAL COMPLAINT UNDER FOIA AND PRNACY ACT FOR
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1 System, the FBI was unable to identify file records responsive to their requests under the

2 FOIA. Plaintiffs did not receive any such letter.

3

35. On November 9, 2012, in separate but identical form letters, the FBI notified

4 Plaintiffs that their individual FOIA and Privacy Act requests dated October 4, 2011 were

5 being administratively closed and that the material responsive to those requests would be

6 processed in conjunction with Plaintiffs' combined May 24 FOI/PA Request for records.

7 True and correct copies of these letters are attached hereto as Exhibits "B" and "C" and

8 incorporated herein by this reference.

9

36. By the terms of5 U.S. C.§ 552(a)(6)(A)(i), Defendant FBI's responses to

10 Plaintiffs' May 24 FOI/PA Request for disclosure of records tU1der the FOIA were due

11 twenty (20) days after receipt of the request. Plaintiffs are deemed to have exhausted their

12 administrative remedies for their FOIA requests by reason of Defendant FBI's failure to

13 meet the statutory time limits. See 5 U.S.C. § 552(a)(6)(C)(i).

14

37. Plaintiffs have exhausted their administrative remedies as to Defendant FBI

15 with regard to their Privacy Act requests for access to records under the Privacy Act. See

16 5 U.S.C. § 552a(g)(l)(B).

17 Plaintiffs File Instant Lawsuit and Administrative Requests Under Privacy Act to

18 Expunge Records of Plaintiffs' First Amendment Activity

19

38. On May 21, 2013, having not received any disclosure in response to the

20 above-described FOIA and Privaoy Act requests. Plaintiffs filed the instant action, seeking

21 disclosure of records under the FOIA and the Privacy Act.

22

39. The same day Plaintiffs filed the original Complaint, Plaintiffs each

23 submitted letter requests pursuant to 5 U.S.C. §§ 552a(e)(7) and (d)(2) of the Privacy Act

24 seeking expungement of all records maintained by the FBI that describe each of Plaintiffs'

25 exercise of First Amendment rights. True and correct copies of these letters are attached

26 hereto as Exhibits "D" and "E" and incorporated herein by this reference.

27

40. By letter dated August 19, 2013, the FBI denied each of Plaintiffs' requests

28 for expungement and amendment, claiming maintenance of the records was proper under

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FIRST AMENDED AND SUPPLEMENTAL COMPLAINT UNDER FOIA AND PRNACY ACT FOR
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1 5 U.S.C. § 552aU)(2) of the Privacy Act. A true and correct copy of this letter is attached

2 hereto as Exhibit "F" incorporated herein by this reference.

3

41. On September 13, 2013, Plaintiffs submitted a letter to the Office of Privacy

4 and Civil Liberties ("OPCL") appealing the FBI's denial of each of their requests for

5 expungement and amendment pursuant to the Privacy Act. A true and correct copy of this

6 letter is attached hereto as Exhibit "G" incorporated herein by this reference. The FBI

7 acknowledged receipt of Plaintiffs' appeals by letter dated September 26, 2013.

8

42. Plaintiffs have made every effort to exhaust their administrative remedies

9 even though the Privacy Act does not require administrative exhaustion of a request to

10 expunge records collected and maintained in violation of 5 U.S.C. § 552a(e)(7). The FBI

11 has failed to respond timely to Plaintiffs' appeal.

12 FBI's Disclosure of Records in Response to Litigation Reveals Recldess Factual Error

13 and Additional First Amendment~Related Content of Threat Assessment

14 FBI Production in Response to Litigation

15

43. In response to this litigation, the FBI has produced 155 pages of responsive

16 documents in heavily redacted form and has withheld in their entireties 224 pages of

17 documents responsive to Plaintiffs' FOIA and Privacy Act requests. The FBI made its

18 productions on a rolling basis, with its first production on October 1, 2013 ("October 1

19 Production"), second on Noveniber 18, 2013 (November 18 Production"), and the third on

20 January 6, 2014. The FBI reproduced the Revised April30 Memo and the two news

21 articles authored by Plaintiff Raimondo on February 7, 2014.

22

44. The FBI's production confirms that the FBI has collected and maintained

23 records that describe Plaintiffs' exercise of rights under the First Amendment and that it has

24 also maintained inaccurate records pertaining to Plaintiff Garris in violation of the Privacy

25 Act.

26

45. Almost two years has passed since Plaintiffs submitted their May 24 FOI/PA

27 Request for access to records to which they at·e entitled under the FOIA and the Privacy

28 Act. The FBI continues to withhold records or portions of records responsive to Plaintiffs'

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FOIA and Privacy Act requests. The FBI has failed to respond to Plaintiffs' request that it

2 broaden its search for records responsive to their FOIA and Privacy Act l'equests to include

3 known FBI databases. There is a strong public interest in the disclosure of the records

4 sought. Defendant's failure to release all responsive documents that are believed to be

5 within their custody and control violates the FOIA and the Privacy Act.

6 The April30 Memo Revealed

7

46. The Original April 30 Memo that led Plaintiffs to submit FOIA and Privacy

8 Act requests includes no mention of criminal activity on the part of Plaintiffs in its

9 unredacted parts. It did, however, indicate that the FBI had conducted a threat assessment

10 of Antiwar.com.

11

47. The Original April 30 Memo states that eleven enclosures are attached to it,

12 including an untitled Excel spreadsheet dated October 3, 2001; a copy of a document

13 written in Italian with an FBI Suspect List dated May 22, 2002; a copy of aLexis Nexis

14 business summary on Antiwar.com; five news articles downloaded from Lexis Nexis; and

15 three Internet postings. Of the eleven enclosures only two are included in the document

16 containing the Original April30 Memo, both of which are news articles authored by

17 Plaintiff Raimondo and which were also produced in the FBI's October 1 Production. The

18 other nine enclosures do not appear to have been produced by the FBI to Plaintiffs in

19 response to this litigation.

20

48. The Original April 30 Memo includes descriptions and recordation of

21 Plaintiffs' exercise of their First Amendment rights, including, but not limited to:

22

a. Documentation of the fact that, according to the April30 Memo:

23

"There are numerous websites that comment on the postings found

24

on www.antiwar.com. Many individuals harshly criticize Eric Garris

25

and Justin Raimondo for their views. Three postings were selected to

26

be included in this assessment."

27

b. Identification by title of an article by Plaintiff Raimondo titled: ''Did

28

AI Qaeda shoot recently released footage of 9/11 WTC attack or was

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it someone else?" According to the April 30 Memo, this article was

2

posted on the 11Pravada website.'' This article concerns five Israeli

3

nationals who appear to be the subject of the FOIA request submitted

4

by the author of the blog "Zionism Stinks." The FBI produced this

5

article to Plaintiffs.

6

c. A description of the contents of an article by Plaintiff Raimondo

7

titled "Chronicles Intelligence Assessment-The Terror Enigma:

8

Israel and the September 11 Connection." This article also concerns

9

five Israeli nationals who appear to be the subject of the FOIA

10

request submitted by the author of the blog "Zionism Stinks." The

11

FBI produced this article to Plaintiffs.

12

49. The Original April 30 Memo also identifies certain individuals and groups

13 who have referred to Antiwar.com as part of their own expressive activities or have read

14 Antiwar.com, among other news sources. Specifically, the Original April 30 Memo

15 describes: (a) an article by an author, whose name has been redacted, on U.S. assistance to

16 Israel, which cited Antiwar.com as one of its sources; (b) an article passed out at a peaceful

17 protest in Fairford, Gloucestershire, England, on November 9, 2002, that referred to Israeli

18 spies being held by the United States and included Antiwar.com as a resource for additional

19 information; (c) a statement made at a Western Regional Conference of the National

20 Alliance Sacramento Unit ("NASU"), wherein a member ofNASU discussed the

21 Antiwar.com website; and (d) an FBI special agent's review of computer hard drives seized

22 during an investigation of an unidentified subject in2003 and statement that the hard drive

23 showed that between July 25, 2002 and June 15, 2003, the unidentified subject had visited

24 Antiwar. com, among many other websites.

25

50. The Original April 30 Memo also states that the FBI conducted a search of

26 the Universal Index, Electronic Case File, and Lexis Nexis for www.antiwar.com.

27

28'

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1

51. On October 1, 2013, after Plaintiffs filed the original Complaint, the FBI

2 produced to Plaintiffs a less redacted version of the Original April 30 (the "Revised

3 April 30 Memo").

4

52, The Revised April 30 Memo, which is a record maintained by the FBI,

5 revealed that the FBI conducted a threat assessment not only of Antiwar.com but also of

6 Plaintiffs,

7

53. In addition to the contents contained in the Original April 30 Memo (see

8 ~~ 46-50, supra), the Revised April 30 Memo shows that as part of the FBI's investigation

9 of Plaintiffs and Antiwar.com, the FBI conducted a search ofthe DMV, CCH, Dun and

10 Bradstreet, and Lexis-Nexis for each Plaintiff.

11

54. The Revised April 30 Memo also reveals documentation of an alleged threat

12 by Plaintiff Garris to hack the FBI website, The FBI has conceded in response to an

13 administrative request by Plaintiff Garris that Plaintiff Garris made no such threat. See

14 ~~ 67-68, infra. Other than this erroneous allegation, there is no information in the Revised

15 April 30 Memo that suggests that Plaintiffs or Antiwar.com have any nexus to criminal or

16 terrorist activity.

17

55. Further, the Revised April 30 Memo reveals additional information collected

18 and maintained by the FBI about how PlaintifTs exercise their rights guaranteed by the First

19 Amendment. The Revised April 30 Memo is replete with such descriptions and recordation

20 of Plaintiffs' exercise of their First Amendment rights, including, but not limited to the

21 following, each of which was redacted from the Original April 30 Memo:

22

a. A description of the contents of an article published by the Boston

23

Globe dated October 13,2002, describing an article that the Revised

24

April 30 Memo states "Raimondo published . , . in Pravada." The

25

Revised April 30 Memo contains direct quotations from this article

26

and a description of the contents of the article.

27

b. A description of the contents of an article in U.S. Newswire dated

28

November 4, 2002, identified by title as, "It's Definitely Not Your

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Father's Anti-War Movement: Antiwar.com Provides News and

2

Commentary from All Parts of the Political Spectrum.'' The Revised

3

April 30 Memo documents that this article focuses on the editorial

4

comments of Plaintiff Garris.

5

c. Recordation of a guest speaking appearance by Plaintiff Raimondo,

6

including a description of an MSNBC headline on January 3, 2003,

7

identified by title as "Buchanan and Press For January 3, 2003, listed

8

Justin Raimondo as one of the guest speakers."

9

d. A description ofthe content of Plaintiff Raimondo's speech as

10

captured in a news article in Argus identified by title as "Watchlist

11

resurrects ~50s fears; critics say FBI information in many ways is

12

worse than McCarthy's hunt for commu.nists,'' dated February 18,

13

2003. The Revised April 30 Memo includes a direct quote by

14

Plaintiff Raimondo, taken from the Argus article and also identifles

15

three other news outlets that republished the Argus article containing

16

the contents of Plaintiff Raimondo's speech.

17

e. Identification and description of an article published in San Francisco

18

Weekly, dated December 10, 2003 that describes the opinions of

19

Plaintiffs. The Revised April 30 Memo identifles the title of the

20

article as, "Intrepid Antiwarriors of the Libertarian Right Stake Their

21

Rightful Claim to Power: Looking into the endearing obsession

22

known as antiwar.com."

23

56. The section of the Revised April 30 Memo titled "Analyst Comments"

24 reports on the "threat assessment." The report reads as follows (with the bolded and

25 italicized text reflecting the text that was redacted from the Original April 30 Memo):

26

The rights of individuals to post information and to express personal views

on the Internet should be honored and protected; however, some material

27

that is circulated on the Internet can compromise current active FBI

28

investigations. The discovery of two detailed Excel spreadsheets posted

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on www.antiwar.com may not be significant by itself since distribution of

the information on such lists are wide spread .... Still, it is unclear

2

whether www.antiwar.com may only be posting research material

3

compiled from multiple sources or if there is material posted that is singular in nature and not suitable for public release. There are several

4

unanswered questions about www.antiwar.com. It describes itself as a

non~profit group that survives on generous contributions from its readers.

5

Who are these contributors and what are the funds utilized for? Due to the

lack ofbackground information available on Justin Raimondo, it is

6

possible that this name is only a pseudonym used on www.antiwar.com.

7

If this is so, then what is his true name? Two facts have been established by this assessment. Many individuals worldwide do view this website

8

including individuals who are currently under investigation and Eric

Garris has shown intent to disrupt J?BJ operations by hacking the FBI

9

website.

10

57. The FBI analyst concluded the threat assessment with two recommendations

11 as set forth below (the bold and italicized part of which appeared in the Revised April 30

12 Memo but not in the Original April 30 Memo):

13

It is recommended that ECAU further monitor the postings on website

14

www.antiwar.com .... It is recommended that a [preliminary investigation] be opened to determine if Eric Anthony Garris and/or

15

Justin Raimondo are engaging in, or have engaged in, activities which

constitute a threat to National Security on behalf of a foreign power.

16

17

58. The Revised April 30 Memo confirms that Plaintiffs and Antiwar.com were

18 the subject of a threat assessment conducted by the FBI and that the FBI had been

19 investigating and conducting surveillance on each ofthe Plaintiffs and Antiwar.com. It also

20 confirms that the analyst conducting the threat assessment recommended that the FBI open

21 a preliminary investigation of the Plaintiffs and continue monitoring Antiwar.com.

22

59. Since the April 2004 recommendation to open a preliminary investigation,

23 there have been eighteen FBI memoranda of which Plaintiffs are aware that relate or refer

24 to either of Plaintiffs or Antiwar.com. FBI offices in no fewer than sixteen cities have

25 authored and/or received these memoranda.

26 The Alleged Threat by Plaintiff Garris

27

60. The FBI memorandum dated January 7, 2002, produced in redacted form by

28 the FBI in response to this litigation, memorializes an FBI analyst's error in interpreting an

15 M

M

FIRST AMENDED AND SUPPLEMENTAL COMPLAINT UNDER FOIA AND PRIVACY ACT FOR
DECLARATORY AND INJUNCTIVE RELIEF
Case No. 13-02295-.TSC

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 17 of 69

1 e-mail forwarded by Plaintiff Garris to the FBI to report a threat he received as "A threat by

2 Garris to Hack FBI website."

3

61. Appended to the memorandum dated January 7, 2002, and also produced by

4 the FBI in response to this litigation, is a copy of the alleged threat, which plainly shows

5 that "egarris@antiwar.com," Plaintiff Garris's work email address, received a threat from a

6 sender whose name and/or e-mail address were redacted by the FBI. The FBI also redacted

7 the content of the e-mail. The subject line of the e-mail remains; it reads, "YOUR SITE IS

8 GOING DOWN." The email shows that Plaintiff Garris forwarded this threat to the FBI.

9

62. Upon receiving the above-described threat by e-mail Plaintiff Garris

10 contacted the FBI because the threat deeply concerned him. Upon learning of this threat,

11 the FBI requested that Plaintiff Garris forward an e-mail copy of the threat directed to him.

12 Plaintiff Garris did so.

13

63. The April 30 Memo, which contains the threat assessment of Plaintiffs and

14 Antiwar.com, relied on the obviously inaccurate assessment of Plaintiff Garris's report to

15 the FBI of a threat he received as a threat to the FBI to justify itself and its recommendation

16 that a preliminary investigation be opened on Plaintiffs and that Antiwar.com be surveilled

17 further. First, the April 30 Memo carefully recounts the mistaken analysis without

18 confirming its accuracy or noting the mistake that is apparent on its face, stating that "a

19 written contact was received from Eric Garris .. , on 09/12/2001 at 8:48AM. The event

20 was documented as a threat by Garris to hack the FBI website."

21

64, Using this alleged threat to justify the threat assessment and proposed

22 preliminary investigation, the "Analyst Comments" section of the April 30 Memo states

23 ~~Eric Garris has shown intent to disrupt FBI operations by hacking the FBI website." This

24 alleged threat is the only criminal predicate for the threat assessment. See~~ 46-55, supra.

25

65. Upon information and belief, the analyst who authored the April 30 Memo

26 recklessly disregarded the inaccuracies in the FBI's analysis of the hacking threat in using it

27 tojustify a threat assessment and proposed preliminary investigation that was motivated

28

• 16 •

FIRST AMENDED AND SUPPLEMENTAL COMPLAINT UNDER FOIA AND PRIVACY ACT FOR
DECLARATORY AND INJUNCTIVE RELIEF
Case No. 13-02295-JSC

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 18 of 69

1 primarily by concerns about Plaintiffs' viewpoints and First Amendment protected

2 expression.

3

66. Upon information and belief, the repeated circulation of the April 30 Memo

4 caused the FBI to renew its investigation of Plaintiffs, subjecting Plaintiffs to continued

5 unjustified monitoring and investigation by the FBI and chilling their speech. Specifically,

6 an FBI memorandum dated September 12, 2005 and an FBI memorandum dated April22,

7 2008, more than four years from the date of the April 30 Memo, referenced the April 30

8 Memo.

9 Administrative Request Regarding Correction of Inaccurate Records

10

67. By letter dated November 13,2013, PlaintifiGarris submitted to the FBI a

11 request pursuant to 5 U.S.C. § 552a(d)(2) of the Privacy Act seeking amendment of,

12 meaning expungement of or at a minimum correction of, any and all records that pertain to

13 him, including those not yet disclosed, that contain information that is inaccurate,

14 irrelevant, untimely, or incomplete. By letter dated November 26, 2013, the FBI

15 acknowledged receipt of Plaintiffs Garris's letter request. A true and correct copy of the

16 November 13 letter is attached hereto as Exhibit "H" incorporated herein by this reference.

17

68. By letter dated February 10, 2014, the FBI granted in part and denied in part

18 Plaintiff Garris's request to amend inaccurate records. The FBI acknowledged that the

19 statements in the April30 Memo and FBI memorandum dated January 7, 2002 that Plaintiff

20 Garris threatened to hack the FBI website on September 12, 2001 were incorrect. Further,

21 in the February 10 letter the FBI indicated that it had generated an electronic

22 communication C'EC") titled "Notification of Corrective Action," which states, "Garris in

23 no way threatened to hack the FBI's website on September 12, 2001; instead he reported a

24 threat made to his website, www.antiwar.com." According to the Notification of Corrective

25 Action, "the EC is being indexed in the CRS" and "will be searchable." A true and correct

26 copy of this letter and of the Notification of Conective Action are attached hereto as

27 Exhibits "I" and "J," respectively, incorporated herein by this reference.

28

• 17.

FIRST AMENDED AND SUPPLEMENTAL COMPLAINT UNDER FOIA AND PRIVACY ACT FOR
DECLARATORY AND INJUNCTIVE RELIEF
Case No. 13"02295-JSC

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 19 of 69

1

69. By letter dated February 27,2014, Plaintiff timely appealed the FBI's denial

2 in part of Plaintiff Garris's November 13 request on the grounds that the Agency failed to

3 provide any basis for failing to grant Plaintiff Garris's request pursuant to 5 U.S.C.

4 § 552a(d)(2) to expunge any and all inaccurate records maintained by the Agency that

5 pertain to Plaintiff Garris. Further Plaintiff Garris appealed on the grounds that the

6 Agency's "corrective action" is inadequate because the inaccurate records remain in the

7 Agency's system of records unchanged. A true and correct copy of this letter is attached

8 hereto as Exhibit "K" incorporated herein by this reference.

9

70. By letter dated March 5, 2014, OPCL advised Plaintiff Garris that it had

10 received his appeal. Plaintiff Garris has received no further response to this appeal.

11

71. Plaintiff Garris has exhausted his administrative remedies with regard to his

12 request to amend inaccurate records pursuant to 5 U.S.C. § 552a(d). See 5 U.S.C.

13 § 552a(g)(l)(A).

14

72. Upon information and belief, the FBI's maintenance of grossly inaccurate

15 records-borne of the FBI's reckless interpretation error-accusing Plaintiff Garris of

16 threatening to hack the FBI website contributed to Plaintiff Garris becoming the subject of

17 an unwarranted FBI investigation.

18 Additional Disclosures to Date

19

73. The October 1 Production included an FBI memorandum dated September

20 18, 1972, in redacted form, which describes Plaintiff Garris's participation in an anti~

21 Vietnam war protest--:-also First Amendment activity.

22

74. The October 1 Production also included a memorandum dated July 29, 2004;

23 the FBI produced a less redacted version of the July 29 memorandum in its November 18

24 Production ("Revised July 29 Memo"). The Revised July 29 Memo shows that San

25 Francisco FBI advised Newark FBI that it had declined Newark FBI's recommendation in

26 the April 30 Memo to open a preliminary investigation. The Revised July 29 Memo stated:

27 "Furthermore1 there does not appear to be any direct nexus to terrorism nor the threat of

28

~ 18 ~

FIRST AMENDED AND SUPPLEMENTAL COMPLAINT UNDER FO!A AND PRIVACY ACT FOR
DECLARATORY AND INJUNCTIVE RELIEF Case No. 13·02295-.JSC

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 20 of 69

compromising current FBI investigations. San Francisco opines that Eric Ganis and Justin

2 Raimondo are exercising their constitutional right to free speech."

3

FIRST CLAIM FOR RELIEF

4

Violation of the FOIA for Failure to Mal{e Promptly Available

5

the Records Sought by Plaintiffs' Requests (5 U.S.C. §§ 552(a)(3), (a)(6))

6

75. Plaintiffs Garris and Raimondo repeat and reallege the allegations contained

7 in paragraphs 1 through 74 above, inclusive.

8

76. Plaintiffs Garris and Raimondo have a legal right under the FOIA to obtain

9 the Agency records requested on and before May 24, 2012. Plaintiffs' requests clearly

10 described the records sought and were in accordance with the published rules. Thet·e exists

11 no legal basis for Defendant FBI's failure to make such records available.

12

77. Defendant FBI's failure to make promptly available the records sought by

13 Plaintiffs Garris and Raimondo's requests violates the FOIA, 5 U.S.C. §§ 552(a)(3) and

14 (a)(6).

15

78. Despite disclosure of some documents in response to this litigation,

16 Defendant FBI has continued to withhold and improperly redact records to which Plaintiffs

17 are entitled under the FOIA. See 5 U.S.C. §§ 552(a)(3) and (a)(6).

18

79. Plaintiffs are entitled to injunctive relief with respect to the release and

19 disclosure of the requested documents. See 5 U.S.C. § 552(a)(4)(B).

20

SECOND CLAIM FOR RELIEF

21 Violation of the Privacy Act for Failure to Allow Plaintiffs Garris and Raimondo

22

Access to Records (5 U.S.C. § 552a(d)(1); 5 U.S.C. § 552a(g)(l)(B);

23

5 U.S.C. § 552a(g)(3))

24

. 80. Plaintiffs Garris and Raimondo repeat and reallege the allegations contained

25 in paragraphs 1 through 79 above, inclusive.

26

81. Plaintiffs Garris and Raimondo have a legal right under the Privacy Act to

27 gain access to Agency records and any information pertaining to themselves maintained by

28 Defendant FBI.

" 19 ~

FIRST AMENDED AND SUPPLEMENTAL COMPLAINT UNDER FOIA AND PRIVACY ACT FOR
DECLARATORY AND INJUNCTIVE RELIEF Case No. 13-02295-JSC

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 21 of 69

82, Plaintiffs have each properly requested from Defendant FBI such

2 information and records.

3

83, Defendant FBPs failure to make available to Plaintiffs the requested records

4 ol'/and information violates the Privacy Act, 5 U.S.C. § 552a(d)(l).

5

84. Despite disclosure of some documents in response to this litigation,

6 Defendant FBI has continued to withhold and improperly redact records to which Plaintiffs

7 are entitled under the Privacy Act. See 5 U.S.C, § 552a(d)(l),

8

85. Plaintiffs are entitled to injunctive relief with respect to the Agency's.failure

9 to provide access to and disclose the requested documents. 5 U.S.C. § 552a(g)(3)(A).

10

THIRD CLAIM FOR RELIEF

11 Violation of the Privacy Act for Maintenance of Records Describing Plaintiffs' ·

12 Exercise of First Amendment Rights (5 U.S.C. § 552a{e)(7); 5 U.S.C. § 552a(d);

13

5 U.S.C. §§ 552a(g)(l){A), (D); 5 U.S.C. §§ 552a(g)(2)(A))

14

86, Plaintiffs Garris and Raimondo repeat and reallege the allegations contained

15 in paragraphs 1 through 85 above, inclusive.

16

87. Defendant FBI collected and maintained records describing how Plaintiffs

17 exercise their rights guaranteed by the First Amendment in violation of 5 U.S.C,

18 § 552a(e)(7).

19

88, The collection and maintenance of records describing how Plaintiffs

20 Raimondo and Garris exercise their rights guaranteed by the First Amendment is neither

21 pertinent to nor within the scope of any legitimate, authorized law enforcement activity.

22 The collection and maintenance of records describing how Plaintiffs Raimondo and Garris

23 exercise their rights guaranteed by the First Amendment is not expressly authorized by

24 statute. Neither Plaintiffs Raimondo nor Garris have authorized the collection or

25 maintenance of records by Defendant FBI describing how Plaintiffs exercise their rights

26 guaranteed by the First Amendment.

27

89. The collection and maintenance of these records has had an adverse effect on

28 Plaintiffs, including but not limited to continued law enforcement attention, loss of financial
- 20 - -------------~----
PIRST AMENDED AND SUPPLEMENTAL COMPLAINT UNDER FOJA AND PRIVACY ACT FOR
DECLARATORY AND rNJUNCTIVE RELIEF Case No. 13·02295·.TSC

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 22 of 69

support for their journalistic endeavors, and a chilling effect on Plaintiffs' news sources and

2 writing.

3

FOURTH CLAIM FOR RELIEF

4 Violation ofthe Privacy Act for Maintenance of Inaccurate, Irrelevant, Untimely,

5

and Incomplete Records (5 U.S.C. § 552a(d); 5 U.S.C. §§ 552a(e)(l) and (5),

6

5 U.S.C. §§ 552a{g)(l)(A), (D); 5 U.S~C. § 552a(g)(2)(A))

7

90. Plaintiff repeats and realleges the allegations contained in paragraphs 1

8 through 89 above, inclusive.

9

91. Defendant FBI maintains records that pertain to Plaintiff Garris that are

10 inaccurate,· irrelevant, untimely, and incomplete.

11

92. The FBI has refused Plaintiff Garris's request to expunge and correct records

12 it maintains that pertain to Plaintiff Garris that are inaccurate, irrelevant, untimely, and

13 incomplete.

14

93. Compliance with 5 U.S.C. § 552a(d)(2) with regard to the records Plaintiff

15 Garris seeks to amend would not interfere with or adversely affect the overall law

16 enforcement process of the FBI.

17

PRAYER FOR RELIEF

18

WHEREFORE, Plaintiffs request the Court award them the following relief:

19

a. Declare that Defendant FBI violated the FOIA and the Privacy Act;

20

b. Order Defendant FBI immediately to disclose the requested records in their

21

entireties and make copies available to Plaintiffs Garris and Raimondo;

22

c. Order Defendant FBI immediately to grant Plaintiffs Ganis and Raimondo

23

access to any records or information pertaining to themselves maintained by

24

Defendant FBI;

25

d. Order Defendant FBI immedi.ately to destroy or return any records

26

maintained by the FBI that describe Plaintiff Garris or Raimondo's exercise

27

of their rights guaranteed by the First Amendment, and any information or

28

-----------------w

21

~

FIRST AMENDED AND SUPPLEMENTAL

COMPLAINT UNDER FOIA AND PRIVACY ACT FOR

DECLARATORY AND INJUNCTIVE RELIEF

Case No. 13·02295-JSC

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 23 of 69

1

records derived from or generated because of such unlawfully maintained

2

records;

3

e. .Order Defendant FBI immediately to destroy or return any records

4

maintained by the FBI that pertain to Plaintiff Ganis that are inaccurate,

5

irrelevant, untimely, or incomplete and any information or records derived

6

from or generated because of such inaccurate, irrelevant, untimely, or

7

incomplete records;

8

f. Award Plaintiffs their reasonable costs and attorneys' fees pursuant to

9

5 U.S.C. § 552(a)(4)(E), 5 U.S.C. § 552a(g)(2)(B), 5 U.S.C. § 552a(g)(3)(B),

10

and al1y other applicable statutory provisions;

11

g. Expedite this action in every way pursuant to 28 U.S.C. § 1657(a); and

12

h. Grant such other relief as the Court may deem just and proper.

13 Dated: May 1, 2014. 14 15 16 17 18 19 20 21 22 23

JULIA HARUMI MASS LINDA LYE ACLU CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, Califor!1ia 94111
PILLSBURY WINTHROP SHAW PITTMAN LLP THOMAS V. LORAN III ANDREW BLUTH MARLEY DEGNER LAURA C. HURTADO Four Embarcadero Center, 22nd Floor San Francisco, California 94111
By: ~ tk±r~-
Laura C. Hurtado Attorneys for Plaintiffs

24

25

26

27

28

~ 22 ~

FIRST AMENDED AND SUPPLEMENTAL COMPLAINT UNDER FOIA AND PRIVACY ACT FOR
DECLARATORY AND INJUNCTIVE RELIEF
Case No. 13-02295-.JSC

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 24 of 69
EXHIBIT A

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 25 of 69
ACLU
AMERICAN CIVIl l-IBERTIES UNION of
May 24,2012
Via Facsimile
Federal 'Bureau of Investigation Attn: FOI/PA Request, David M. Hardy Record/Information Dissemination section 170 Marcel Drive Winchester, VA 22602-4843 Fax Number: (540) 868-4391
Office of Information Policy (OIP) U.S. Department of Justice Attn: Anne D. Work 1425 New York Ave., NW, Suite 11050 Washington, D.C. 20530-0001 Fax Number: (202) 514-1009
Re: Additional information and clarification regarding: FOIPA Request No. 1175603, AP-2012-00971, Subject: FOIPA Request No. 1175592, AP-2012-00972, Subject: FOIPA Request No. 1175594, AP-2012-00978, Subject: FOIPA Request No. 1175598, AP-2012-00979, Subject: FOIPA Request No. 1175595, AP-2012-00977, Subject: FOIPA Request No. 1175601, AP-2012-00980, Subject: FOIPA Request No. 1175604, AP-2012-00970, Subject:
Dear Mr. Hardy and Ms. Work:
We write to provide additional information and to clarify the scope of the abovereferenced requests and appeals. Thus far, the seven individuals who have sought information related to themselves and the online magazine Antiwar.com have received no records. However, we already know that the FBI has maintained records related to Antiwar.com that name at least two of the requestors. We referenced these records in our original request. They are available online beginning at page 62 of this link: http:/[Www.emptywheel.net/wpcontent/uploads/2011/08/110821-Antiwar-documents.pdf. One of the documents, an FBI memo dated April 30, 2004 ("2004 Memo"), references searches, documents, and continued ·
MICHELLE A. WELSH, GHAIRPER50N I DENNIS MCNALLY, AJAY KRISHNAN, FARAH BRELVI, AllEN ASCH, VICE CHAIRPERSONS I KENNETH SUGARMAN, SECRETARY/TREASURER ADDI SOLTANI, EXECUTIVE DIRECtoR I KELLI EVANS, ASSOCIATE DIIIECroR I CHEHI BRYANT, DF.YELOPMENT fJIRECTOR I SHAYNA OELENDER, OIIQANIZIN~ & COMMUNITY eNGAGEMENrtJIIIECTOII LAURA SAPONAIIA, COMMUNICATIONS DIRECTOR I ALAN SCHLOSSER, LliOAL DIRECTOR I MARGARET C. CROSBY, ELIZABETH GILL, LINDA LYE, JULIA lfARUMI MASS, MICHAEL RISHER, JORY STEELE, STAFFArTDRNEYS
PHVLLIDA BURLINGAME, ALLEN HOPPER, NATASHA MINSKER, NICOLE A, OlER, DIANA TATE VERM~IRE, PDUCYOIRECTORS I STEPHEN V. BOMSE, GENERAL COUNSEL
AMERICAN CIVIL LIBERTIES UNION FOUNDATION Of NORTHERN CALIFORNIA 39 DRUMM STREET, SAN FRANCISCO, CA 94111 I T/415.621.2493 I F/415.255.14'18 I TTY/41 5.B63, 7BJ2 I WWW.ACLUNC.ORO

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 26 of 69

Federal Bureau ofInvestigation, Attn: FOIIPA Reqeust Director, Office oflf!formation Policy, Department ofJustice, Attn: Anne D. Work May24, 2012
Pa~e2
recommended surveillance that suggest additional records related to Antiwar.com and/or some of the requestors exists, For these reasons, we believe the FBI has misunderstood the requests, failed to read them thoroughly, or has purposefully withheld documents that should be produced in accordance with the FBI's obligations under FOIA and the Privacy Act. We have also identified additional information that may be useful to the FBI's search of its records. In order to facilitate the agency's full and prompt compliance with its FOIPA requirements, and to attempt to dispel any remaining confusion about what the requestors seek, we detail the following additional information about the requests.

1. Records related to Antiwar.com.

Each of the original requests sought files about each requestor and specified the

requestor's connection to the online magazine Antiwar.com. In the appeals from the initial ''no

records" responses, we clarified that the agency needed to search for records related to

Antiwar.com in order to determine whether there were responsive records for the requestors.

Because no records have been produced, each of the requestors referenced hereby asserts a clear

request for all records referring or relating to Antiwar. com, whether or not filed, described, ot·

otherwise identified as pertaining to any of the individual requestors as individuals. Redaction of

identifying information that refers to any of the requestors is unnecessary because the requests

are being made under both FOIA and the Privacy Act and the requestors are specifically seeking

documents that may name them.1

.

Based on the 2004 Memo, we expect there should be many records related to Antiwar.com. The requestors seek not only records that name them individually, but all records related or referring to Antiwar.com, without redactions for requestors names or other identifying information, Thus, at the very least, the 2004 Memo should be produced, with any identifying information regarding any of the requestors unredacted. In addition, the 2004 Memo ends with a recommendation that a preliminary investigation be opened. If that preliminary investigation was to be directed at Antiwar. com or any persons affiliated with Antiwar.com, the requestors seek records related to that recommendation, including records related to any preliminary investigation that was opened or records indicating that the recommendation was not followed.

2. Additional information about Justin Raimondo.

We have received a letter dated March 29,2012, from the Office oflnfonnation Policy afflrming the FBI's original "no records" response. Given the existence of the 2004 Memo and other documents that were previously produced- ·-as well as the content of that memo that

1 Requestors do not seek seven duplicate copies of the same documents. One set of all responsive documents without redactions of names and other identifying information for the requestors is sufficient for the requestors' purposes. We understand that agency rules may require you to produce differently redacted versions of each document to each requestor and would be happy to complete additional Privacy Act waivers as necessary to avoid duplication, particularly if production of differently redacted but
otherwise duplicate copies is burdensome to the agency.

AMERICAN CIVI~ ~IDERTIES UNION FOUNUATION OF IIIli\ rtllil!ll <:Al.lf·ll\1111A-

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 27 of 69

Federal Bureau ofInvestigation, Attn; FOJIPA Reqeust Director, Office ofInformation Policy, Department ofJustice, Attn: Anne D, Work May24, 2012 Page 3
suggests additional agency knowledge about Justin Raimondo, we find this response inadequate. Nonetheless, we provide this additional information with the hope that it will aid your search:

• Mr. Raimondo's legal name is Dennis Joseph Raimondo.

• Mr. Raimondo never legally changed his first name to Justin, but has been known

as "Justin Raimondo" since he was fourteen years old, and he is referenced in the

2004 Memo as "Justin Raimondo." In his original request, we identified him as

"Justin Raimondo (aka Dennis Raimondo)."

• Mr. Raimondo's address has

since we filed his FOIPA request on

October 4, 2011, It is now

Sebastapol, CA - ·

• Mr. Raimondo and co-requestor Eric Garris ran a bookstore in San Francisco

called Libertarian Books and Periodicals. That bookstore was raided in 1981 by

the San Francisco Police Department. Mssrs. Raimondo and Garris were arrested

in the raid and eventually prevailed in a civil lawsuit challenging the legality of

the raid.

• Mr. Raimondo worked for an organization called Students for a Libertarian

Society in San Franicsco, California from 1978 to 1980.

• Mr. Raimondo has run for office as a Libertarian candidate several times.

• As noted in the 2004 EC memo, Mr. Raimondo is the subject of a Wikipedia page

which can be found here: http://en.wikipedia.org/wiki/Justin Raimondo.

Information contained in this page may also help the FBI identify responsive

records.

3. Additional information about Eric Garris.

We have not yet received a response to our appeal of the FBI's "no records, response to Mr. Garris's request and we take. this opportunity to share additional information to facilitate the agency's search for records we believe are maintained by the FBL
• Mr. Garris's middle name is "Anthony., His full name is "Eric Anthony Garris.,
• There may be records related to Mr. Garris with a last name spelled "Garriss." • Mr..Garris was ru:rested in 1981 during a San Francisco Police Department raid of
the bpokstore that he ran with co"requestor Justin Raimondo, Libertarian Books and Periodicals. Mr. Garris later participated in a successful lawsuit against the San Francisco Police Department, challenging the raid and arrest.
• Mr. Garris is a well known political activist and thinker. There is a Wikipedia page about him, http://en.wikipedia.org/wik:i/Eric Garris.
• Mr. Garris worked fbr an organization called Students for a Libertarian Society in San Francisco, California from 1978 to 1980,
• Mr. Garris has run for office several times, as a member of the Peace and Freedom Party, the Libertarian Party, and the Republican Party.
• Mr. Garris participated in an interview with the Secret Service in 1992 regarding a threat to a presidential candidate that Mr. Gariss had reported.

AM~RICAN CIVIl liBERTIES UNION FOUNDATION OF NOIIIIII'nll r.AI.If·llllrllt\

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 28 of 69
------·--- -----· ·-·
Federal Bureau ofInvestigation, Attn: FOIIPA Reqeust Director, Office oflnfo.rmatlon Policy, Department of.!ustlce, Attn: Anne D. Work May24, 2012 Page 4
• Mr. Garris was questioned at length by the Department of Homeland Security in 2005 when he entered the United States after travel to Malaysia for a peace conference.
4. Clarification regarding The original FOINPrivacy Act rPm'"'"t
typographical en-or, identifying him as · submitted with that request properly identified as correspondence repeated the initial en-or, and refer to the requestor as are sorry for any inconvenience caused by this error and uest that you FOIPA request was properly processed for
Thank you for your attention to this additional information and please do not hesitate to contact us if you have any questions. We look forward to your prompt response.
Sincerely,
~miM~as~sYVtwva Staff Attorney
cc: Eric Garris Justin Raimondo
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF llllliYIIH!II 1:/d II'Oilllill

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 29 of 69
EXHIBIT B

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 30 of 69
U.S. Department of Justice

Ms. Julia Harumi Mass ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111

Federal Bureau of Investigation Washington, D.C. 20535 November 9, 2012
FOIPA Request No.: 1175595-001 Subject: Garris, Eric

Dear Ms. Mass:
This is in response to your Freedom of Information-Privacy Acts (FOIPA) request.
Please be advised tl1at your FOIPA request number 1175595-001 for the above listed subject is being closed administratively. The material responsive to tHis request will be processed in conjunction with your reques,1 for records in FOIA number 1192179-000, subject Antiwar.com, as they sl1are the same information.
Wilen making inqui~·ies or mailing any correspondence concerning tl1is request please 'reference FOiPA . number 1192179-000.

Sincerely,
~
David M. Hardy Section Chief Record/Information
Dissemination Section Records Management Division

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 31 of 69
EXHIBIT C

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 32 of 69 u.s. Department of Justice

Ms. Julia Harumi Mass ACLU Foundation of Northern CallforniFl 39 Drumm Street San Francisco, CA 94111

Federal Bureau of Investigation Washington, D. C. 20535 November 9, 2012
FOIPA Request No.: 1175592-001· Subject: Raimondo, Justin

Dear Ms. Mass:
This is in response to your Freedom of Information-Privacy Acts (FOIPA) request.
Please be advised that your FOIPA request number 1175592-001 for the above listed subject is being closed administratively. The. material responsive to tHis request will be processed in conjunction with your.reques.Hor records in FOIA number 1192179-000, subject Antiwar.com, as they share the same information.
When making inquiries or mailing any correspondence concerning this request please reference FOIPA number 1192179-000.

Sincerely,.
~
David M. Hardy Section Chief Record/Information
Dissemination Section Records Management Division

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EXHIBITD

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May 21,2013
Via Certified Mail, Return Receipt Requested
Federal Bureau oflnvestigation Attn: Privacy Act Request Record/Information Dissemination Section 170 Marcel Drive Winchester, VA 22601~4843
Federal Bureau ofinvestigation Attn: Privacy Act Request Record/Information Dissemination Section 450 Golden Gate Avenue, 13th Floor San Francisco, CA 941 02-9523
Re: Privacy Act Request to Correct Violation of 5 U.S.C. § 552a(e)(7); Eric Garris
Dear Sir/Madam:
This letter constitutes a request for expungement of records made pursuant to the Privacy Act, 5 U.S.C. § 552a et.seq. on behalf of Eric Anthony Garris, Mr. Garris is being represented in this matter by attorneys at the American Civil Liberties Union of Northern California ("ACLU· NC") and Pillsbury Winthrop Shaw Pittman LLP. Please find his Cettification ofldentity and Authorization to Release Information to Julia Harumi Mass, Esq., ofthe ACLU-NC enclosed herewith. 1
On behalf of Mr. Garris, we request, pursuant to 5 U.S.C. §§ 552a(e)(7) and (d)(2) of the Privacy Act, the expungement of any and all records maintained by the Federal Bureau of Investigation (the "Agency'') that desc1·ibe Mr. Garris's exercise of rights guaranteed by the First Amendment. To be clear, this includes, but is not limited to: (i) any such records maintained by the Agency, whether or notthey are in the Agency's system of records, as the term is defined in 5 U.S. C. § 552a(a)(5), and whether or not they are traceable by Mr. Garris's name or some other identifying characteristic and (ii) any such records maintained by the Agency from which records describing how Mr. Garris exercises rights guaranteed by the First Amendment are retrievable through a "cross reference" search for files that mention Mr. Garris or the online magazine Antiwar.com. See JvfacPherson v. IRS, 803 F.2d 479,481 (9th Cir. 1986) ("Section (e)(?)
1 Mr. Garris also has pendingFOIA and Privacy Actrequests for records, under FOIA Request No. 1192179-000.
MICHElL~ A. WELSH, CNAIRPERSON I DENNIS MCNALLY, AJAY KRISHNAN, FARAH BllELVI,ALLEN ASCH, VICE CHAiftPEI?SONS I KENNETH J, SUGARMAN, SECRHAtlY/TIIEASURER ABDI SOlTANI, EXECUTIVE DIRECTOR I CHERI BRYANT, Df.Vlii.OPMENT DIRECTOR I SHAYNA GELENOEil, OFWANIZINO & COMMUNITY ENGAGEMENT 01/?ECTI!/l I REBECCA FARMER, COMMUNIC!lTIONS DIRECTOR
ALAN SCHWSSER,LEOAL DIRECTOR I MAilOARET C, CROSBY, ELIZABETH GILL, LINDA LYI!, JULIA HARUMI MASS, LINNEA NllLSON, loliCHAEL RISHER, JORV STEELE, STAFF ATTORNEYS PHYLLIOA I'JURLINGAt4E, AlLEN HOPPER, NATASH A NINSKER, NICOLE A. OZEII, POUOY /JIRECTOrtS I STEPHEN V. UOMSE, GI'NEIIAI. COUNSEL
704235949V4
AMERICAN CIVIL LIBI!RTIES UNION FOUNDATION Oi' NOHl'fiERN CAl.IFOHNIA
39 DRUMM STREET, SAN FRANCISCO, CA 94111 I T/415.621.2493 I F/415.255.14'/B I TTY/415.863.'1832 I WWW.ACLUNC.ORG

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Federal Bure(lu ofInvestigation Attn: Privacy Act Request May 21, 2013 Page 2

requires only that the .record be maintained by an agency that keeps a system of records, not that the record be a part of that system") (emphasis in original).

Mr. Garris was bom on

i n - . His social security number

i s - · His cmrent address is

San Francisco, California- Mr.

Garris is the founder, managing editor, and webmaster of the online magazine Antiwar.com,

which is devoted to the cause of non-interventionism. Mr. Garris founded Antiwar.com inl995.

Both Mr. Ga1Tis and Antiwar.com were the subject of an apparent FBI threat assessment dated

April 30, 2004 (the "April 30 Memo"), a copy of which is accessible on the website Scl'ibd.com

at http://www.scribd.com/doc/62394765/Related-article-at-http-tinyurl-com-FBI-Dancing-

Israelis-Dancing-Tsraelis-FBI-document-Section-6-113 8796-00 l-303A-NK-1 05 53 6-Section-6.

For ease of reference, please find a print copy of the April 30 Memo enclosed.

The full posting on Scribd.com contains ninety-four pages, twenty-three of which refer or relate to Mr. Ganis and/or Antiwar.com. Included in the twenty-three pages are the April30 Memo and two news articles by Justin Raimondo, editorial director of Antiwar.com. The April 30 Memo indicates that it has eleven enclosures, including :five news articles, but only two ofthe news articles are included in the above-described document on Scribd.com. The April 30 Memo mentions Mr. Garris by name and describes information obtained from the FBI's investigation and surveillance of Antiwar.com and Mr. Garris. The FBI analyst who authored the Apri130 Memo concluded it with a recommendation for the Agency to continue to monitor Antiwar.com and to open a private investigation of an entity or person whose names me redacted.

Based on this record, we know the Agency maintains at least one record describing Mr. Garris's First Amendment activities, namely the April30 Memo, possibly including information contained within the redacted portions of the April 30 Memo. We also suspect that the Agency maintains other r~cords describing Mr. Garris's First Amendment activities, such as additional records related to Antiwar.com and describing his political activities generally. We request that all such records be expunged pmsuant to sections 552a(e)(7) and (d)(2) of the Pl'ivacy Act.

To further facilitate Mr. Garris' request for expuhgement, we provide you with the following additional information to assist in your search:

• Mr. Garris ran a bookstore in San Francisco called Libertarian Bookstore and Periodicals, with Justin Raimondo. That bookstore was raided in 1981 by the San Francisco Police Department. Mssrs. Garris and Raimondo were arrested in the raid and eventually prevailed in a civil lawsuit challenging the legality of the raid.
• There may be records related to Mr. Ganis with a last name spelled "Ga1Tiss." • Mr. Garris is a well-known political activist and thinker. There is a Wikipedia page
about him: http://en.wikipedia.org/wiki/Eric_Garris. • Mr. Ganis worked for an organization called Students for Libertarian Society in San
Fmncisco, California from 1978 to 1980.

2
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF IFHITIIO'fi Ctd.lfi:<!ldlll

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Federal Bureau ofInvestigation Attn: Privacy Act Request May 21,2013 Page 3
• Mr. Garris has run for office several times, as a member of the Peace and Freedom Party. • Mr. Garris participated in an interview with the Secret Service in 1992 regarding a threat
to a presidential candidate that Mr. Garris had reported. • Mr. Garris was questioned at length by the Department of Homeland Security in 2005
when he entered the United States after travel to Malaysia for a peace conference.
If this request is denied in whole or in part, we request that you justify the Agency's denial by reference to specific sections under the Privacy Act. We reserve the right to appeal a decision to deny Mr. Garris's request.
Please direct all correspondence regarding this request to:
Julia Harumi Mass Linda Lye ACLU ofNorthern California 39 Drumm Street San Francisco, CA 94111
If you have any questions, we can be reached by phone at (415) 621-2493.
Sincerely,

· Harumi Mass, Esq. Linda Lye, Esq. ACLU ofNorthem California 39 Drumm Street San Francisco., CA 94111

Marl y De er, Es Laura Hurtado, Esq. Pillsbury Winthrop Shaw Pittman LLP Four Embarcadero Center, 22nd Floor San Francisco, CA 94111

Enclosures

3
Af~ERICAN CIVIL LIUERTIUS UNION FOUNDATION OF dilll'l HUH ctdJfQRNL'.

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EXHIBITE

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May 21,2013

Via Certified Mail, Return Receipt Requested
Federal Bureau of Investigation Attn: Privacy Act Request Record/Infonnation Dissemination Section 170 Marcel Drive Winchester, VA 22601 ~4843
Federal Bureau oflnvestigation Attn: Privacy Act Request Record/Information Dissemination Section 450 Golden Gate Avenue, 13th Floor San Francisco, CA 94102~9523

Re: Privacy Act Request to Correct Violation of 5 U.S.C. 552a(e)(7); Justin Raimondo
Dear Sir/Madam:
This letter constitutes a request for expungement of records made pursuant to the Privacy Act, 5 U.S.C. § 552a et seq. on behalf of Justin Raimondo (legal name: Dennis Justin Raimondo). Mr. Raimondo is being represented in this matter by attorneys at the American Civil Liberties Union of Northern California ("ACLU~NC") and Pillsbury Winthrop Shaw Pittman LLP. Please find his Certification ofIdentity and Authorization to Release Information to Julia Harumi Mass, Esq., of the ACLU-NC enclosed herewith.1
On behalfofMr. Raimondo, we request, pursuant to 5 U.S.C. §§ 552a(e)(7) and (d)(2) of the Privacy Act, the expungement of any and all records maintained by the Federal Bureau of Investigation (the "Agency") that describe Mr. Raimondo's exercise ofrights guaranteed by the First Amendment. To be clear, this includes but is not limited to: (i) any such records maintained by the Agency, whether or not they are in the Agency's system of records, as the term is defined in 5 U.S.C. § 552a(a)(5), and whether or not they are traceable by Mr. Raimondo's name or some other identifying characteristic and (ii) any such records maintained by the Agency from Which records describing how Mr. Raimondo exercises rights guaranteed by the First Amendment are retrievable through a "cross reference" search for files that mention Mr. Raimondo or the online magazine Antiwar.com. See MacPherson v. IRS, 803 F.2d 479, 481 (9th

1 Mr. Raimondo also has pending FOIA and Privacy Act Requests for records under FOJA Request No. 1192179-

000.

.

MICH~LLU A. WEI.Sfl, CNAIRPtRSON I DENNIS MCNALLY, AJAY KRISIINAN, FARAH BRELVI, ALLEN ASCH, VIGli CIIAIRI'lillSONS I KENNETH J, SUGARMAN, StCRliTAR\'ITREASUI1t:fl ABDI SOLTANI, EXl'CUTIVE DIRECTOR I CHERI BRYANT, DEVELOPMENT DIRECTOR I SHAYNA OELENOER, OfiOANIZING .~ COMMUN/1Y ENGAGEMENT DIRECTOR I REBECCA FARMER, COMMUNICATIONS DIRECTOil
ALAN SCHlOSSER, LEGAL DII?ECTOR I MARGARET C. CROSBY, ELilABEHJ GILL, LINDA LYE, JULIA llARUMI MASS, LINNEA NELSON, MICHAE.L RISHER, JORY STEELE, STAFFATTORN£Y5 PHYLLIIJA BURLINGAME, ALLEN HOPPEfl, NATASIIA MINSKER, NICOI.E A. OZER, POUCYDiilECTORS I STEPHEN V. UOMSE, GENERAL COUNSEL
AMERICAN CIVIL LIBERTIES UNION I'OUNDATION OF N01lHltRN CAUFOIH41A 39 DRUMM STREET, SAN FRANCISCO, CA 94111 I T/415.621.2493 I 1'/415.255.1478 I TTY/1,15.863,7832 I WWW.ACLUNC.ORG

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Federal Bureau ofInwstigation Attn: Privacy Act Request May 21,2013 Page 2

Cir. 1986) ("Section (e)(7) requires only that the record be maintained by an agency that keeps a system ofrecords, not that the record be a part of that system") (emphasis in original).

Mr. Raimondo was born on

. ·His social

security number i s - · His current address is

Sebastopol,

California-. Mr. Raimondo is the editorial director of the online magazine Antiwar.com,

which is devoted to the cause of non-interventionism. Both Mr. Raimondo and Antiwar.com

were the subject of an apparent FBI tlu·eat assessment dated April30, 2004 (the "April 30

Memo"), a copy of which is accessible on the website Scribd.com at

http://www.scribd.com/doc/62394765/Related-article~at-http-tinyurl~com-FBI-Dancing-lsraelis­

Dancing-lsraelis-FBI-document-Section-6-1138796-001-303A-NK-1 05536-Section-6. For ease

of reference, please find a print copy of the April30 Memo enclosed.

The full posting on Scribd.com contains ninety~four pages, twenty-tlu·ee of which refer or relate to Mr. Raimondo and/or Antiwar.com. Included in the twenty-three pages are the April30 Memo and two news articles by Mr. Raimondo. The April30 Memo indicates that it has eleven enclosures, including five news articles, but only two of the news atticles are included in the above-described document on Scribd.com. The April 30 Memo mentions Mr. Raimondo by name and describes information obtained from the FBI's investigation and surveillance of Antiwat.com andMr. Raimondo. The FBI analyst who authored the April 30 Memo concluded it with a recommendation for the Agency to continue to monitor Antiwar.com and to open a private investigation of an entity or person whose names are redacted.

Based on this record, we know the Agency maintains records describing Mr. Raimondo's First Amendment activities, namely the April 30 Memo and two of its attachments, which are both news mticles authored by Mr. Raimondo. These documents should all be expunged pursuant to the Privacy Act. We also have good reasons to believe that the Agency maintains other records describing Mr. Raimondo's First Amendment activities, such as the other attachments to the Apri130 Memo and records descl'ibing his political activities and writing. In addition, because Mr. Raimondo has had an active public life and has been shown to be the subject of FBI surveillance, we suspect the FBI maintains other records that describe his First Antendment protected activities. We request that all such records be expunged pursuant to sections 552a(e)(7) and (d)(2) ofthe Privacy Act.

To further facilitate Mt. Raimondo's request fo1· expungement, we provide you with the following additional information to assist in your search for records that describe his First Amendment protected activities:

• Mr. Raimondo's legal name is Dennis Joseph Raimondo. • Mr. Raimondo never legally changed his first name to Justin, but has been known as
"Justin Raimondo'' since he was fourteen years old, and he is referenced in the April 30 Memo as "Justin Raimondo."

2
AMERICAN CIVIL LIUERiiES UNION FOUNDATION OF IWR'rtiH!H '.:lll.IFOIHJI,\

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Federal Bureau ofh1vestigation Attn: Privacy Act Request May21, 2013 Page 3
• Mr. Raimondo ran a bookstore in San Francisco called Libertarian Bookstore and Periodicals with Edc Garris. That bookstore was raided in 1981 by the San Francisco Police Department. Mssrs. Raimondo and Gatris were arrested in the raid and eventually prevailed in a civil lawsuit challenging the legality of the raid.
• Mr. Raimondo worked for an organization called Students for a Libertarian Society in San Francisco, California from 1978 to 1980.
• Mr. Raimondo has run for office as a Libertarian candidate several times. • Mr. Raimondo is the subject of a Wikipedia page which can be found at:
http://en.wikipedia.org/wiki!Justin_Raimondo.
If this request is denied in whole or in part, we request that you justify the Agency's denial by reference to specific sections under the Privacy Act. We l'eserve the tight to appeal a decision to deny Mr. Raimondo's request.
Please direct all correspondence regarding this request to:
Julia Harumi Mass Linda Lye Staff Attorney ACLU ofNorthern California 39 Drumm Street San Francisco, CA 94111.
If you have any questions, we can be reached by phone at (415) 621~2493.
Sincerely,

Harum1 Mass, Esq. Linda Lye, Esq. ACLU ofNorthern California 39 Drumm Street San Francisco, CA 94111

Mar y De r, Esq Laur Hutiado, Esq. Pillsbury Winthrop Shaw Pittman LLP Four Embarcadero Center, 22nd Floor San Francisco, CA 94111

Enclosures

3
AMERICAN CIVILLIUERTI!!S UNION FOUNDATION o~· NOHHIFI{Ii C!•.LifrtHNb\

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U.S. Department of Justice

Federal Bureau of Investigation Washington, D.C. 20535
August 19,2013

Julia Harumi Mass, Esquire American Civil Liberties Union Foundation of Northern California 39 Drum Street San Francisco, CA 94111

FOIPA Request No.: 1192179-000 (Consolidated) Subject(s): Antiwar.com, Justin Raimondo
and Eric Garris

Dear Ms. Mass:
This is in response to your letters da1ed May 21, 2013, pertaining to your clients, Justin Raimondo and Eric Garris' requests for amendment/expunction of records concerning themselves.
As requested, certain information currently being processed in response to their Freedom of Information and Privacy Acts requests has been reviewed for amendment purposes. It has been determined that the maintenance of these records satisfy the Privacy Act's requirement pursuant to 5 U.S.C. § 552a 0)(2); therefore, they are not subject to the amendment provisions.
You may file an appeal by writing to the Office of Privacy and Civil Liberties (OPCL), U.S. Department of Justice, 1331 Pennsylvania Avenue, t-f'N Suite 1000, Washington, D.C. 20530. Your appeal must be received by OPCL within sixty (60) days from the date of this letter in order to be considered timely. The envelope and the letter should be clearly marked "Freedom of Information Appeal." Please cite the FOIPA Request Number assigned to your request so that It may be identified easily.
Very truly yours,

David M. Hardy Section Chief Record/Information
Dissemination Section Records Management Division

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EXHIBIT G

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~1llsDur~
Pillsbury Winthrop Shaw Pittman LLP
Four Embarcadero Center, 22nd Floor I San Francisco, CA 94111-5998 I tel415.983.1 000 I fax 415.983.1200
MAILING ADDRESS: P. 0. Box 2824 j San Francisco, CA 94126-2824

Marley Degner te1415.983.1186 marley.degner@pillsburylaw.com
September 13, 2013
Via Certified Mail, Return Receipt Requested
Office of Privacy and Civil Liberties (OPCL) U.S. Department of Justice 1331 Pennsylvania Avenue, NW Suite 1000 Washington, DC 20530
Re: Freedom of Information Appeal; FOIPA Request No.: 1192179-000 (consolidated); Justin Raimondo and Eric Garris
Dear Sir/Madam:
We write to appeal the denial by the Federal Bureau of Investigation (the "Agency") of Messrs. Raimondo's and Garris's requests for expungement, pursuant to the Privacy Act, 5 U.S.C. §§ 552a(e)(7) and (d)(2), dated May 21, 2013 (the "Privacy Act Requests" or "Requests") of any and all records maintained by the Agency that describe Messrs. Raimondo's and Garris~s exercise of their respective rights guaranteed by the First Amendment.
According to the letter dated August 19, 2013 denying Messrs. Raimondo's and Garris's requests for expungement (the "Denial Letter"), any appeal ofthe Agency's denial of the Privacy Act Requests "must be received by OPCL within sixty (60) days from the date of[the Denial Letter] in order to be considered timely." We submit this appeal within the sixty-day time period.
However, to be clear, it is our clients' position that a request for expungement made pursuant to the Privacy Act, 5 U.S.C. § 552a(e)(7), does not need to be administratively exhausted in order for a United States federal district court to have jurisdiction over such a claim brought by a plaintiff in federal district court. Indeed, the Privacy Act contains no administrative exhaustion requirement for a claim brought under 5 U.S.C. § 552a(e)(7). Nonetheless, we submit this appeal to make every effort to afford OPCL an opportunity to review the Agency's denial of our

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clients' Privacy Act Requests. In so doing, we do not concede that such an appeal is required.
The Agency's reliance on 5 U.S.C. § 552aG)(2) as the basis for its denial of our clients' Requests to expunge pursuant to 5 U.S.C. § 552a(e)(7) is missplaced. In relevant part, 5 U.S.C. § 552a(j) (emphasis added) states:
General exemptions.-The head of any agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553(b)(l), (2), and (3), (c), and (e) ofthis title, to exempt any system of records within the agency from any part of this section except subsections (b), (c)(l) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i) ifthe system of records is. , ..
Although 5 U.S.C. § 552a(j) provides that "any agency may promulgate rules ... to exempt any system of records within the agency from any part of this section," it also requires that the would"be exempt system of records falls within the narrow criteria set forth in 5 U.S. C. §§ 552a(j)(l)-(2). But by the explicit terms of 5 U.S.C. § 552a(j), an agency may promulgate rules to exempt any system ofrecords within the agency from any part of 5 U.S.C. § 552a, except subsection (e)(7), among other subsections expressly set fmih in the text of 5 U.S.C. § 552a(j). Thus, 5 U.S.C. § 552a(j)(2) does not properly support a denial of the Requests for expungement pursuant to 5 U.S.C. § 552a(e)(7).
To the extent that the Agency believes that the Requests depend on the viability of a claim for expungement under 5 U.S.C. § 552a(d)(2)- it is our clients' position that they do not because 5 U.S.C. § 552a(e)(7) is independently enforceable-the Agency has failed to point to any rules promulgated by the Agency to exempt any system of records that is applicable to the Requests.
Thus, 5 U.S.C. § 552a(j)(2) is not a permissible basis for denying Messrs. Raimondo's and Garris's Requests to expunge made pursuant to 5 U.S.C. § 552a(e)(7) of the Privacy Act. Based on what we assume to be the Agency's careful review of the Privacy Act Requests, the Agency, having claimed no other basis for denying the Requests to expunge any and all records maintained by the Agency that describe Messrs. Raimondo's or GatTis's exercise of rights guaranteed by the First Amendment, is relying exclusively on an erroneous reading of the Privacy Act.
As stated in the Requests, pursuant to 5 U.S.C. § 552a(e)(7), our clients seek expungement of any and all records maintained by the Agency that describe Messrs. Raimondo's or Garris's exercise of rights guaranteed by the First Amendment. We

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are aware of two news articles authored by Mr. Raimondo that were appended to an FBI memorandum dated April30, 2004 ("the April30 Memo"), a copy of which is accessible on the website Scribd.com at http://www.scribd.com/doc/62394765/Related-article"at"http"tinyurl-com"FBIDancing-Israelis··Dancing-Israelis-FBI-document-Section-6-113 8796-00 1-303A-NK105536-Section-6, which are subject to expungement pursuant to 5 U.S.C. §§ 552a(e)(7) and (d)(2). For ease of reference, please find a copy of the April30 Memo enclosed.
In addition, the April 30 Memo, itself, is subject to expungement pursuant to 5 U.S.C. §§ 552a(e)(7) and (d)(2), as it describes Messrs. Raimondo's and Garris's First Amendment activities. At a bare minimum, the April 30 Memo and two news articles appended thereto must be expunged. We expect there are other documents maintained by the Agency subject to expungement.
Thank you for your attention to this appeal. Please direct all correspondence regarding this request to:
Julia Harumi Mass, Esq. ACLU of Northern California 39 Drumm Street San Francisco, CA 94111
Ifyou have any questions, Ms. Mass can be reached by phone at (415) 621-2493. We look forward to your prompt response.
Sincerely,
Ma ey Deg r, E Pillsbury mthrop Shaw Pittman LLP Four Embarcadero Center, 22nd Floor San Francisco, CA 94111
and
Julia Hammi Mass, Esq. ACLU ofNorthern California 39 Drumm Street San Francisco, CA 94111

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cc: Jennifer S. Wang, Esq. Thomas V. Loran III, Esq. Andrew D. Bluth, Esq. Laura C. Hurtado, Esq.

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Pillsbury Winthrop Shaw Pittman LLP

.

Four Embarcadero Center, 22nd Floor 1 San Francisco, CA 9411 H998 I tel 415.983.1000 I fax 415.983:1200

MAILING ADDRESS: P. 0. Box 2824 I San Francisco, CA 94126-2824

Laura C. Hurtado tel415.983.1082 laura.hurtado@pi llsbmy law. com
November 13, 2013
Via Certified Mail, Return Receipt Requested
Federal Bureau of Investigation Attn: Privacy Act Request Record/Dissemination Section 170 Marcel Drive Winchester, VA 22601 ~4843
Federal Bureau of Investigation Attn: Privacy Act Request Record/Dissemination Section 450 Golden Gate Avenue, 13th Floor San Francisco, CA 941 02~8523
Re: Privacy Act Request to Amend Records-Eric Garris
Dear Sir/Madam:
This letter constitutes a request to the Federal Bureau of Investigation (the "Agency" or the "FBI") to amend records maintained by the Agency that pertain to Mr. Eric Anthony Garris. Mr. Garris is being represented in this matter by attorneys at the American Civil Liberties Union of Northern California ("ACLU~NC") and Pillsbury Wii1throp Shaw Pittman LLP. Please find his Certification of Identity and Authorization to Release Information to Julia Hanuni Mass, Esq. ofthe ACLU-NC enclosed herewith. 1 ·

1 Mr. Garris also has a pending FOIA and Privacy Act request for disclosure of records (FOIA Request No. 1192179~000) and a pending Privacy Act request for expungement of records describing Mr. Garris's First Amendment activity (No. 13-791).

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On behalf of Mr. Garris, we request, pursuant to 5 U.S.C. § 552a(d)(2) of the Privacy Act, that the Agency amend any and all records maintained by it, whether produced to date or not yet produced, that pertain to Mr. Garris and that are inaccurate, irrelevant, untimely, or incomplete. This includes, but is not limited to (i) any such records maintained by the Agency, whether or not they are in the Agency's system of records, as the term. is defined in 5 U.S.C. § 552a(a)(5), and whether or not they are traceable by Mr. Garris's name or some other identifying characteristic and (ii) any such records maintained by the Agency that are retrievable through a ''cross-refei·ence" search for files that mention Mr. Garris or the online magazine Antiwar.com. See MacPherson v. IRS, 803 F.2d 479, 481 (9th Cir. 1986), citing Clarkson v. IRS, 678 F.2d 13 68 (11th Cir. 1982) (stating "paragraph (d)(2) refers only to 'a record"' and does not limit its applicability to ''records contained within a system of records").

His social security

number is

is

San Francisco,

California- Mr. Garris is the founder, managing editor, and webmaster of the

online magazine Antiwar.com, which is devoted to the cause of lion-interventionism.

Mr. Garris founded Antiwar.com in 1995. Both Mr. Garris and Antiwar.com were the

subject of an apparent FBI threat assessment dated April 30, 2004 (the "April 30

Memo"),

On May 21,2013, having waited nearly a year to receive an Agency response to Mr. Garris's FOIA and Privacy Act request for disclosure of records pertaining to himself or Antiwar.com, Mr. Garris filed suit against the Agency in federal district court in the Northern District of California. That lawsuit is cmrently pending. See Raimondo v. FBI, C-13-02295 JSC (N.D. Cal). On October 1, 2013, the Agency produced 47 pages of documents responsive to Mr. Garris's FOIA and Privacy Act request for disclosure of documents pertaining to Mr. Garris or the online web magazine Antiwar.com. The Agency improperly withheld and redacted numerous documents responsive to Mr. Garris's FOIA and Privacy Act request.

Nevertheless, based on the 47 pages ofrecords produced by the Agency on October 1, 2013, Mr. Garris discovered that the Agency maintains at least two records that pertain to him and are inaccurate. Each of these records contains the same inaccuracy: that Mr. Garris made a tlU'eat on September 12, 2001 to hack the FBI website. This is incorrect. Mr. Garris did not make a threat to hack the FBI website on September 12, 2001 or any other date. As the Agency's own records show, Mr. Garris was the recipient of a threat to hack his website. M1·. Garris received this threat by email on September12, 2001 from a person whose name has been redacted from the relevant FBI record. Scared by receiving this threat, Mr. Garris immediately. contactyd the Agency for assistance. The Agency requested that Mr. Garris forward to it an electronic copy of the threat. Mr. Garris did so. Upon reviewing Mr. Ganis's

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Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 51 of 69 Federal Bureau ofInvestigation Attn: Privacy Act Request November 13, 2013 Page 3

email forwarding the threat he received, an Agency analyst carelessly interpreted the email to Mr. Garris to hack his website as an email from Mr. Garris to hack the FBI website. Mr. Garris believes the Agencis stated allegation that he threatened to hack the FBI website-based on an apparent misunderstanding of facts contained within FBI records-contributed to the Agencis monitoring of Mr. Garris and maintenance of records describing Mr. Garris's First Amendment activities in violation of 5 U.S.C. § 552a(e)(7) of the Privacy Act.
Mr. Garris is aware of the following records maintained by the Agency that are inaccurate, containing the erroneous allegation that Mr. Garris threatened to hack the FBI website:
(i) April30 Memo (See Antiwar~59, 65 from the FBI's October 1, 2013 production) states "that a written contact was received from Eric Garris [and] was documented as a tlu·eat by Garris to Hack the FBI website," and "Eric Garris has shown intent to disrupt FBI operations by hacking the FBI website," and
(ii) FBI memorandum dated January 7, 2002 {See Antiwar 169~70) characterizes an email forwarded by Mr. Garris to the FBI to report a threat he received as "A threat by Garris to hack FBI website." The page bates numbered Antiwar-170 contains an FBI intemal email, which includes as part of its email chain the email threat to Mr. Garris by the individual whose name is redacted, which is the eh1ail Mr. Garris forwarded to the Agency.
We request amendment of, meaning expungement of or at a minimum correction of, any and all records maintained by the Agency, whether produced to date or not yet pl'Oduced, that pertain to Mr. Garris that are inaccurate, irrelevant, untimely, or incomplete. This request includes a request to amend, meaning expunge or at a m.inimum correct, the records described and identified herein that contain any statement, reference to, or suggestion that Mr. Garris threatened to hack the FBI website in September 2001. Mr. Garris has already submitted a request under the Privacy Act to expunge the April 30 Memo on the basis that it is maintained by the Agency in violation of5 U.S.C. § 552a(e)(7).
According to 5 U.S. C.§§ 552a(d)(2)(A), (B) "not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date ofreceipt" of a request made pursuant to 5 U.S. C. § 552a(d)(2), the Agency must "acknowledge in writing such receipt; and ... promptly, either (i) make any correction of any portion thereof which the individual believes is not accurate, relevant, timely, or complete; or (ii) inform the individual of its refusal to amend the record ... " among other statutory

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Federal Bureau ofInvestigation Attn: Privacy Act Request November 13, 2013 Page 4'

requirements. The Office of Management and Budget ("OMB'') Guidelines advise
that agencies should wherever practicable, complete the review and advise the individual of the results within 10 days of the receipt of the request. Prompt action is necessary both to assure that records are as accurate as possible and to reduce the administrative effort which would otherwise be involved in issuing a separate acknowledgement of the receipt of the request and subsequently
informing the individual of the action taken.

OMB Guidelines, OMB Circular Awl08, 40 Fed. Reg. 28958 (July 9, 1975). Ifthe

nature of the request precludes review in 10 days, the OMB Guidelines advise that

"review should be completed as soon as reasonably possible, normally within 30 days

from the receipt of the request (excluding Saturdays, Sundays, and legal public

holidays." Ibid.

·

We request that the Agency adhere to the OMB guidance in promptly responding to Mr. Garris's request for amendment. Should the Agency deny Mr, Garris's request, he will file an administrative appeal. If Mr. Garris is not able to obtain administrative relief, he will then move to amend the complaint in Raimondo v. FBI, 13-02295, and
add a Privacy Act claim for amendment of records,

· Please direct all correspondence regarding this request to:

Julia Harumi Mass ACLU of Northern California 39 Drumm Street San Francisco, CA 94111

Since ·ely yours,
~ 7Mfvv____ i~~
Laura Hurtado, Esq. Pillsbury Winthrop Shaw Pittman LLP Four Embarcadero Center, 22nd Floor San Francisco, CA 94111 ·
and

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Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 53 of 69
Federal Bureau ofInvestigation Attn: Privacy Act Request November 13,2013 Page 5
Julia Harnmi Mass, Esq. ACLU ofNorthern California 39 Drnmm Street San Francisco, CA 94111 Enclosures
cc: Jennifer S. Wang, Esq. Thomas V. Loran III, Esq. Andrew D. Bluth, Esq.

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EXHIBIT I

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 55 of 69
U.S. Department of Justice

Federal Bureau of Investigation Washington, D.C. 20535

February 10, 2014

I

I

I

JULIA HARUMI MASS, ESQUIRE

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I

AMERICAN CIVIL LIBERTIES UNION

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FOUNDATION OF NORTHERN CALIFORNIA 39 DRUMM STREET

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i ~

SAN FRANCISCO, CA 94111

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FOIPA Request No.: 1238633~000

i

Subject: GARRIS, ERIC ANTHONY AMENDMENTIEXPUNGEMENTREQUEST

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Dear Ms. Mass:

I I

In response to your client's request dated November 13, 2013, the requests for amendment of records under the Privacy Act, 5 U.S.C. § 552a(d) and/or 5 U.S.C. § 552a(e)(7) are denied in part, and granted in part, as provided pelow.

!
I i

Request to amend any and all agency records pertaining to Mr. Garris. Citing, 5 U.S.C. § 552a(d),

i

you request that the FBI engage in a broad search of unspecified records systems to locate unspecified .

I

records "traceable by Mr. Garris' name" to determine whether any such record is "inaccurate, irrelevant, untimely, or incomplete." This request is denied in part, as a deficient request for amendment under the

I

Privacy Act. First, the request is overbroad and identifies no specific record within a system of records that

!

is alleged to be inaccurate. As prescribed by 5 U.S.C. § 552a(d)(2), an individual may request

"amendment of a record;" there is no provision to request a FOIA~Iike search for all records pertaining to an

individual on the premise that inaccurate material may exist. Second, this vague request cites no specific

material that Mr. Garris' "believes is not accurate, relevant, timely, or complete;" therefore there is no

alleged record inaccuracy to address. 5 U.S. C. § 552a(d)(2)(B)(i). Finally, as we've previously advised in

Dennis Joseph Raimondo, aka Justin Raimondo and Eric Anthony Garris v. Federal Bureau of

Investigation, there are no main records in the FBI's vast, Central Records System (CRS) where Mr. Garris

is indexed by name or other personal identifier; thus, there is no underlying Privacy Act right of access

under 5 U.S. C. § 552a(d).

Request to amend FBI Memorandum dated April 30, 2004 and FBI Memorandum dated January 7, 2002. Citing 5 U.S.C. § 552a(e)(7), you request to "expunge" this record in which Mr. Garris is not the subject, but is referenced within, alleging two inaccuracie!l. Your request to take corrective action has been granted, as it relates to the following inaccuracies identified in your request:

(i)

April 30 memo (See Antiwar-59, 65 from the FBI's October 1, 2013 production) states "that

a written contact was received from Eric Garris [and) was documented as a threat by Garris

to Hack the FBI website," and "Eric Garris has shown intent to disrupt FBI operations by

.hacl<lng the.FBI website," and

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 56 of 69

(ii)

FBI memorandum dated Janu·ary 7, 2002 (See Antiwar 169-70) characterizes an email

forwarded by Mr. Garris to the FBI to report a threat he received as "A threat by Garris to

hack FBI website." The page bates numbered Antiwar-170 contains an FBI internal email,

which includes as part of its email chain the email threat to Mr. Garris by the individual

whose name is redacted, which is the email Mr. Garris forwarded to the Agency.

The FBI has generated an EC dated February 4, 2014 to correct the inaccurate information reported in the two aforementioned FBI Memorandums, to reflect that "Garris in no way threatened to hack the FBI's website on September 12, 2001; instead he reported a threat made to his website, wwW".antiwar.corn ..
A courtesy copy of the processed and redacted EC dated February 4, 2'014 is attached hereto for your records.
You may file an appeal by writing to the Office of Privacy and Civil Liberties (OPCL), U.S. Department of Justice, 1331 Pennsylvania Avenue, NW Suite 1000, Washington, D.C. 20530. Your appeal must be received by OPCL within sixty (60) days from the date of this letter in order to be considered timely. The envelope and the letter should be clearly marked "Freedom of Information Appeal." Please cite the FOIPA Request Number in any correspondence to us for proper identification of your request.

Enclosure(s)

Sincerely,
~
David M. Hardy Section Chief Record/Information
Dissemination Section Records Management Division

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 57 of 69

EXPLANATION OF EXEMPTIONS

SUBSECTIONS OF TITLE 5, UNITED STATES CODE, SECTION 552

(b)(1) (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified to such Executive order;

(b)(2) related solely to the internal personnel rules and practices of an agency;

(b)(3)

specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public In such a manner as to leave no discretion on issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be· withheld;

(b)(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(b)(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in

!

litigation with the agency;

i

i

(b)(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

II
I

(b)(7)

records or Information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, ( C ) could reasonably be expected to constitute an unwarranted invasion of
personal privacy, (D) could reasonably be expected to disclose the identity of confidential source, including a State, local, or

i ~
!

foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of

"!i

record or Information compiled by a criminal law enforcement authority In the course of a criminal investigation, or by an agency

II
i

conducting a lawful national security intelligence investigation, information furnished by a confidential source, ( E ) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law

I

enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (

I

F ) could reasonably be expected to endanger the life or physical safety of any individual;

!i

I.

(b)(8) contained in or related to· examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency

!

responsible for the regulation or supervision of financial institutions; or

(b)(9) geological and geophysical information and data, including maps, concerning wells.

SUBSECTIONS OF TITLE 5, UNITED STATES CODE, SECTION 552a

(d)(5) information compiled in reasonable anticipation of a civil action proceeding;

0)(2) material reporting investigative efforts pertaining to the enforcement of criminal law including efforts to prevent, control, or reduce crime or apprehend criminals;

(k)(1) information which Is currently and properly classified pursuant to an Executive order in the interest of the national defense or foreign policy, for example, information involving intelligence sources or methods;

(k)(2)

investigatory material compiled for law enforcement purposes, other than criminal, which did not result In loss of a right, benefit or privilege under Federal programs, or which would identify a source who furnished information pursuant to a promise that his/her
identity would be held in confidence;

(k)(3) material maintained in connection with providing protective services to the President of the United States or any other individual pursuant to the authority ofTitle 18, United States Code, Section 3056;

(k)(4) required by statute to be maintained and used solely as statistical records;

(k)(5)

investigatory material compiled solely for. the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment or for access to classified information, the disclosure of which would reveal the identity of the person who furnished
information pursuant to a promise that his/her identity would be held In confidence;

(k)(6) testing or examination material used to determine Individual qualifications for appointment or promotion in Federal Government service he release of which would compromise the testing or examination process;

(k)(7) material used to determine potential for promotion In the armed services, the disclosure of which would reveal the identity of the person who furnished the material pursuant to a promise that his/her identity would:be held in confidence.

FBI/DOJ

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 58 of 69
EXHIBIT J

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 59 of 69

FD·l057 (Rev. 5-8·10)

UNCLASSIFIED

FEDERAL BUREAU OF INVESTIGATION

Title: (U) Notification of Corrective Action
cc: 1~..-_____...
DK-E'Ol:L DK-FOI2 DK-FOI3 DK- E'OI 4 DK·--FOI6

Data: 02/04/2014
b6 b7C

From: ~3AN f'RA.I\,TC.:.:ISCO

SF-A2

Contact: ~....-_ _ _ _ _ _ _ _ _...1. 415 -55 3-7 62 9

b6

b7C

Appx:ovad By: SAC cJOHNSON DAVID ,J

By:l Drafted

L.._ _ _ _ _ _ _ _ _ _.....

Case ID #: 333-SE'-.A2819912-FOIPA (U) Freedom of Information/Privacy Act

Synopsis: (U) This electronic communication (E;C) ~;erves as corrective

notification to all E'BI personnel concerning

b7A

~....-~___,land 315N-NK-C98832, Ser·ial 486 which inaL..c-:c-~u-r:_·_a-:-t-e"":'l_y_r:--e-f-.1u-~r-·-:-t~t-:-h-a-:t-·-:E=-:B=-_=r-::c-'

GARRIS (hereinafter n::ferred to as "Garr·is") made a threat to hack the FBI's website. As detailed herein, Garris did not threaten to hack the E'BI' s website on September 12, 2001, Instead, he contacted the FBI San Francisco Field Office (SFFO) to report a threat made against his own website, www.antiwar.com.

b7A

UNCLASSIFIED

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 60 of 69
UNCLASSIFIED Title: (U) Notification of Corrective .Action Re: 333-SF-A2819912-FOIPA, 02/04/2014
Details:

(U) On October 1, 2013 the FBI released to Ga:n::is 1 and Dennis ,Joseph Raimondo, aka Justin Raimondo, t:h:rough coun~::el, material responsive

to each of their individual Freedom of Info.nnat:ion 1-l"ct: (FOIA) /Privacy Act: (PA) requests concerning themselves and their online rr~gazine, www. antiwar. com. The~::e requests are also the subject of litigation in

the U.S. District Court: for the Northern District of California; Civil

Action No. 3: 13-cv-022 95, Dennis Joseph Raimondo, aka Justin Raimondo

.~~D_9____1jj_E~-9.---!::!.!_Y~.9.!.!}l._.9.§_!.E!:__~---~:~_:____!._f:.'!!:~-~f3_;!;____!.!_13.!."::.~'!-z:!____C?._L__!;.!.!Y_r:!__C?._~_?.-__g_?!__~-~--C?._!!_ • within the

released records were redacted versions of many serials, including,

315N-NK-C98832, Serial 486; and

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~--------------------------------~

288-SF-Cll5338-Email, Serial 1512.

(U) On November 20, 2013 the FBI Records Hanaqement Division (PMD) received a PA amendment request dated November: 13, 2013 from Ga:cris' counsel. The request, citing 5 U.S.C. § 552a(d) (2), sought amendment of any and all records maintained by it, whether produced to date or not yet produced in the FOIA litigation, that pertain to Garris and that are inaccurate, irrelevant, untimely, or incomplete. Further, the amendment request letter indicated that the Aqency maintains at lea.st two inaccurate records pertaining to Garris. Each of the records contain the same inaccuracy: that Garris made a threat on September 12, 2001 to hack the FBI website. The letter describes the two documents as follows:

(i) (U) April 30 memo (See Antiwar-59, 65 from the FBI's October 1, 2013 production) states that written contact was received from E:r:ic Garris [and] \vas documented as a threat by Garri,s to Hack ·the FBI \o7ebsi te." And "Eric Garris has shown intent to dis:r:·upt FBI operations by hacking the FBI vJebsite," and
UNCLASSIFIED
2

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 61 of 69
UNCLASSIFIED Title: (D) Notification of Corrective .Action
Re: 333-SF-A2819912-~JIPA, 02/04/2014

(ii) (U) FBI mernor:andum dated Januar·y 7, 2002 (See Antiwar 169-170) characterizes an email forwarded by Mr. Garri.s to the FBI to report a thr·eat he received as "A threat by Garris to hack FBI website." The page bates numbered Antiwar-1'70 contains an FBI internal email, which includes as part of its email chain the email threat to Mr. Garris by the individual vvhose name is redacted, which is the email Hr. Garris forwarded to the Agency.

(U) Upon receipt of Garris' amendment request, a review of the records described as inaccurate by Garris was conducted, along with a review of the FBI' s record containing a copy of the actual email thi.'eat to antiwar.com received by Garris. As a result of this review, it is evident that the information contained in the originating threatening email to Gar:ri,s, which he for·warded to the FBI, SFFO in the aftermath of 9/11, vms inadvertently recorded by SFFO Command Post personnel as a threat by Garris to hack the FBI's website. Specifically, the two (2) records inaccurately report that Garris made a threat to hack the FBI's website, to wit:

(U)

s an EC dated

b7A

b7E

01/07/2002 contained within a third-~artv investiaative file concerninq

the subject.:
"----~~ The content of the serial r·elates to San Francisco ICF#~--:--_.

which indicates that a written contact was receivBd from Eric Garris

(EGI-I.RRI,S@ANTI\AJAR.COM) on 09/12/2001 at 8:48 a.m. The FBI Event is

documented as "A THREAT BY GARRIS TO HACK FBI WEBSITE."[2]

(U) 315N-NK-C98832, Se:r:ial 486 - Serial 4£i6 L:: an EC dated F.pril 30, 2004 contained within a third-party investigative file concerning the subject: ~IT-Pakistan and IT UBL/AL Qaeda." The content of the serial relates to a Threat Assessrr~nt conducted of Justin Raimondo, DOB: 11/lfJ/1951, SSAl\f: Unknown and Eric Anthony Garris, DOB: 12/24/1953,
Wl,/w.antiwar.c:om. On pages 3 and 8 of this EC it states as follows:

(U) " F i l e L - - - - - - - - - - - - - - - - - - - - 1 dated 01/07/2002, San

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UNCJ.ASSIFIED 3

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 62 of 69
UNCI...ASS IFIED
Title: (U) Notification of Corrective Action Re: 333-··SE'···A2819912···F()1PA, 02/04/2014

#I Franci,sco ICF

Iindicated that a written contact was received

b7E

:trom Eric Ga:cris (EGARRIS@l\.}JTIV\JAR.COH) on 09/12/2001 at 8:48 A.H. The

event was documented as a threat by Garris to hack the FBI website."

(U) "Two facts have been established by this assessment. Many individuals worldwide do view this website including individuals who a.re currently under investie-~ation and E:ric Ga.rris ha.~:: sl"lO\Aln intent to disrupt FBI operations by hacking the FBI website."

(U) These inaccurate serials are found when conducting text searches usin9 the Electronic Case File (ECF) application for the ter.'ms, "Eric Garris" and "Garris near Eric. 11 These serials are not indexed under the terms "Eric Anthony Garris," "Eric Garris," "egarris@antiwar.com," "antiwar.com" or wv.1w.antiwar.com.

(U) Corrective Action:

(U) Garris in no way threatened to ha.ck the FBI's website on September

12, 2001; instead, he reported a threat made to his website,

www.antiwar.com. As detailed herein, the FBI records containin9

inaccurate information are

and 315N-NK-·C

b7A

98832, Serial 486. To ensure the inaccurate infonnation in these

records are not used by or incorporated into future FBI reports, this

E:c is beine-~ indexed in the CH.S under the te.rms "Eric Garris," "}~;ric

Anthony Garris," "ee-~arris@antiwar.crnn," "antiwar.com" and

"www.antiwar.com." Since the text of this EC will be searchable, this

EC will also be located utilizing ECF text search feature on any of the

narr~s found herein.

[l] (U) The Eric Garris referred to in both of these serials is Eric .Anthony Garris, DOB: 12/24/195:
[2] (U) The information in this serial, with the exception of the event description, was acquired from F'BI File 288 ..·SF'....C115338-.. E:n:lail,
UNCLASSIFIED 4

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 63 of 69
UNCLASSIFIED Title: (U) Notification of Corrective Action Re: 333-··SF···A28l9912···F.'CHP}i, 02/04/2014

Serial 1512. The contents of this serial reflects that FBI

<san.francisco@fbi.gov> forwarded to nccs-sf@fbi.gov a copy of a

threatening email E:r:ic Garris had recei·ved and reported to their

office. Within this serial is a copy of the threatening email To:

egarris@antiwar.com,

bearing Date:

b6

b7C

Wed, 12 Sep 2001 14:54:14 +000, Subject: YOUR SITE IS GOING DOWN.

UNCLASSIFIED
5

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 64 of 69
EXHIBITK

Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 65 of 69
~1llsDur~
Pillsbury Winthrop Shaw Pittman LLP Four Embarcadero Center, 22nd Floor 1 San Francisco, CA 94111-5998 1 tel 415.983.1000 I fax 415.983.1200
MAl L1 NG ADDRESS: P. 0. Box 2824 I San Francisco, CA 94126-2824
Laura Hurtado tel415.983.1082 laura.hurtado@pilisbury law. com
February 27, 2014
Via Federal Express
Office of Privacy and Civil Liberties (OPCL) U.S. Depatiment of Justice 1331 Pennsylvania Avenue, NW Suite 1000 Washington, DC 20530
Re: Freedom of Information Appeal; FOIPA Request No.: 1238633~000 Eric Anthony Garris
Dear Sir/Madam:
We write to appeal the partial denial by the Federal Bureau of Investigation (the "FBI or the "Agency") of Mr. Garris's request dated November 13, 2013, for amendment of any and all records maintained by the Agency that pertain to Mr. Garris that are inaccurate, irrelevant, untimely, or incomplete, pursuant to the Privacy Act, 5 U.S. C. § 552a(d)(2), (the "Amendment Request" or "Request").
According to the letter from the Agency dated February 10, 2014, denying in pati Mr. Garris's request for amendment (the "Response Letter"), any appeal of the Agency's denial of the Amendment Request "must be received by OPCL within sixty (60) days from the date of [the Response Letter] in order to be considered timely." We submit this appeal within the sixty"day time period.
In response to the Request, which sought amendment of, meaning expungement of or at a minimum correction of, any and all records maintained by the Agency, whether produced to date or not yet produced, that pertain to Mr. Garris that are inaccurate, irrelevant, untimely, or incomplete, the Agency "took corrective action" on two records identified in the Request as grossly inaccurate. Both records-, as set fotih in the Request ai1d immediately below, contain the erroneous allegation that Mr. Garris threatened to hack the FBI website:

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(i) Apri130 Memo (See Antiwarw59, 65 from the FBI's October 1, 2013 production) states "that a written contact was received from Eric Garris [and] was documented as a threat by Garris to Hack the FBI website," and "Eric Garris has shown intent to disrupt FBI operations by hacking the FBI website," and
(ii) FBI memorandum dated January 7, 2002 (See Antiwar-169-70) characterizes an email forwarded by Mr. Garris to the FBI to report a threat he received as "A threat by Garris to hack FBI website." The page bates numbered Antiwar-170 contains an FBI internal email, which includes as part of its email chain the email threat to Mr. Garris by the individual whose name is redacted, which is the email Mr. Garris forwarded to the Agency.
The Agenci s so-called "corrective action" is inadequate. It appears that the only
action the Agency has taken with regard to the Amendment Request is to generate a document titled Notifi.cation of Corrective Action (the "Notifi.cation"), which states that "Garris in no way threatened to hack the FBI's website on September 12, 2001; instead he reported a threat made to his website, www.antiwar.com." According to the Notifi.cation, the Notifi.cation itself has been made text searchable and has been indexed in the Central Record System ("CRS") under the terms "Eric Anthony Garris," "Eric Garris," "eganis@antiwar.com," "antiwar.com," and "www.antiwar.com." The inaccurate records remain in the Agency's CRS unchanged.
While Mr. Garris is pleased that the Agency has acknowledged the grave inaccuracies contained in the above-two identifi.ed records, Mr. Garris appeals the Agency's denial of his Amendment Request to the extent that the Agency has failed to take any action that actually corrects the inaccurate records themselves and to the extent that the Agency has failed to expunge any and all records maintained by the Agency, whether produced to date or not yet produced, that pertain to Mr. Garris that are inaccurate, irrelevant, untimely, or incomplete, including the two records containing the erroneous allegation that Mr. Garris threatened to hack the FBI website and any subsequent records that relied on the original inaccuracies.
The Agency's "corrective action," falls far short of conecting the erroneous allegations about Mr. Garris that still remain in the Agency's system ofrecords. The Agency notes that "[t]o ensure the inaccurate information in these records are not used by or incorporated into future FBI reports," the Notifi.cation is itself text searchable and has been indexed in the CRS under Mr. GatTis's name at1d the name of the website for Antiwar.com. But the Agency does not explain how the generation of the Notification-a new record that has not itself been made a part of the inaccurate records but is apparently recallable along with certain searches that recall the

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Case 3:13-cv-02295-JSC Document 28-1 Filed 05/01/14 Page 67 of 69
Office of Privacy and Civil Liberties Attn: Freedom of Information Appeal February 27, 2014 Page 3

inaccurate records-ensures that the information contained in the inaccurate records will not be used by or incorporated into future FBI reports. Certainly it is possible for an Agency employee to conduct a search for records and not actually review every record recalled based on their search. Given that it does not appear that the Agency has modified the inaccurate records in any way, a person reading only the inaccurate records on a computer screen or paper print out would have no way of knowing that the records contained inaccurate information.
Moreover, the nature of the inaccurate information contained in the two records for which the Agency has taken "corrective action," is not trivial. Both records assert that Mr. Garris threatened to engage in cybercrime against a federal Agency-no doubt a serious criminal allegation. Mr. Garris should not be made to bear the burden of enduring the consequences that result from the mistaken use of and/or reliance on . the erroneous information contained in the two above-identified inaccurate records. SeeR.R. v. Dep'tofArmy,482F. Supp. 770,773 &nn.l3-14(D.D.C.1980) (ordering deletions and revisions of inaccurate records and stating "Accuracy of government~recorded personnel information is particularly important in our complex and bureaucratically-interrelated society, where an individual's rights and benefits may well be influenced or determined by what some govermnent agency has to say about him. The prejudice resulting from inaccuracy may affect determinations reached by third parties, public or private, as well as those made by the recordkeeping agency.") The Agency is now fully aware of the grave inaccuracies. It should expunge these inaccurate records from its system of records.
There is no longer any dispute that the allegations contained in the two inaccurate records for which the Agency took "corrective action" are false: Mr. Garris in no way threatened to hack the FBI's website on September 12, 2001. The Agency has admitted this much. Unfortunately, the enoneous allegations contained in these two inaccurate records have already seeped into other Agency records and have been relied on as the basis for the Agency's continued interest in Mr. Garris. Indeed, the FBI analyst who drafted the memorandum dated April 30, 2004 ("April 30 Memo") relied on the erroneous allegation that Mr. Garris threatened to hack the FBI's website on September 12, 2001 as the basis for the threat assessment contained in the April30 Memo. The April30 Memo should not have been written-the factual basis for the threat assessment contained in it was erroneous. 1 Since the April 30 Memo, the FBI

1 Mr. Garris also has a pending FOIA and Privacy Act request for expungement ofre~ords describing Mr. Garris's First Amendment activity (13-791), which seeks expungement of the April30 Memo, among other records that are maintained by the Agency and that describe Mr. Garris's' exercise of
( .. , continued)

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has generated at least three other memoranda that reference or rely on the April 30 Memo and the factual inaccuracies contained therein: Memorandum dated July 29, 2004 (ReVised Antiwar-143); Memorandum dated September 12, 2005 (Antiwar149), and Memorandum dated April22, 2008 (Antiwar-153). Pmsuant to our Amendment Request, these records and any and all other records maintained by the Agency, whether produced to date or not yet produced, that pertain to Mr. Garris that are inaccurate or are based upon previous inaccuracies should be amended, meaning expunged or at a minimum actually corrected.
For the reasons stated herein and set forth in the Amendment Request, the Agency should be ordered to expunge any and all inaccurate records that pertain to Mr. Garris, including but not limited to the two inaccurate records identified herein. As explained above, since Mr. Garris's alleged threat and First Amendment-protected activity are the suppmting basis for the April30 Memo, that Memo and any other records that reference the April30 Memo should be destroyed, expunged, or altered to indicate that the original basis for the April30 recommendation was based on Agency error. However, the Agency offered no basis in its Response Letter for failing to grant Mr. Garris's request pursuant to 5 U.S.C. § 552a(d)(2) to expunge the inaccurate records.
Mr. Garris maintains a claim for relief against the Federal Bureau of Investigation for violation of the Freedom oflnformation ACt and Privacy Act's access provisions. See Raimondo v. FBI, 13-02295 (N.D. Cal. 2013) (alleging claims under 5 U.S.C. § 552a(d)(l) and 5 U.S.C. §§ 552(a)(3), (a)(6)). Thus, due to the Agency's improper withholding of records in whole or in part, Mr. Garris is not yet fully aware of any further inaccuracies contained in the Agency's records that pertain to Mr. Garris; the Agency, alone; is the holder of that information. In addition to seeking a full remedy of the inaccurate characterization of Mr. Garris's repqrt as a threat and the creation of records based on that inaccurate characterization, to the extent records requested by Mr. Garris but not yet disclosed to him contain inaccuracies, Mr. Ga11·is appeals the Agency's denial of his request to amend, meaning expunge or at a minimum actually correct, said records. This includes, but is not limited to (i) any such records maintained by the Agency, whether or not they are in the Agency's system of records, as the term is defined in 5 U.S.C. § 552a(a)(5), and whether or not they are traceable
(... continued)
his First Amendment rights in violation of 5 U.S. C. § 552a(e)(7). In its Response Letter, the Agency states that Mr. Garris's Amendment Request sought expungement under 5 U.S.C. § 552a(e)(7). To clarify, Mr. Garris made the Amendment Request pursuant to 5 U.S.C. § 552a(d)(2).

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by Mr. Garris's name or some other identifying characteristic and (ii) any such records maintained by the Agency that are retrievable through a "cross-reference" search for files that mention Mr. Garris or the online magazine Antiwar.com. See MacPherson v. IRS, 803 F.2d 479,481 (9th Cir. 1986), citing Clarkson v. IRS, 678 F.2d 1368 (11th Cir. 1982) (stating "paragraph (d)(2) refers only to 'a record"' and does not limit its applicability to "records contained with~n a system of records").

Thank you for your attention to this appeal. Please direct all conespondence regarding this request to:

Julia Harumi Mass, Esq. ACLU ofNorthem California 39 Drumm Street San Francisco, CA 94111

Laura C. Hurtado, Esq. Pillsbury Winthrop Shaw Pittman LLP Four Embarcadero Center, 22nd Floor San Francisco, CA 94111

If you have any questions, Ms. Mass can be reached by phone at (415) 621-2493. We look forward to your prompt response.
Sincerely,
.t1A~~
Laura C. Hurtado, Esq. PiUs bury Winthrop Shaw Pittman LLP Four Embarcadero Center, 22nd Floor San Francisco, CA 94111

and

Julia Harumi Mass, Esq. ACLU ofNorthern California 39 Drumm Street San Francisco, CA 94111

cc: Jennifer S. Wang, Esq. Thomas V. Loran III, Esq. Andrew D. Bluth, Esq. Marley Degner, Esq.

www.pillsburylaw.com

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United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
DENNIS JOSEPH RAIMONDO, ET AL., 7
Plaintiffs, 8
v. 9
FEDERAL BUREAU OF 10 INVESTIGATION,

11

Defendant.

Case No. 13-cv-02295-JSC JUDGMENT

12

13

On May 10, 2016, the Court granted Defendant’s motion for summary judgment on

14 Plaintiffs’ Privacy Act claims and denied the parties’ cross-motions for summary judgment on the
15 Freedom of Information Act (“FOIA”) claims. (Dkt. No. 90.) The parties subsequently settled the 16 FOIA claims and stipulated to their dismissal. (Dkt. No. 101.) The Court then granted in part and 17 denied in part Plaintiffs’ motion for reconsideration regarding their Privacy Act claims and 18 allowed Plaintiff to bring claims under the Privacy Act based on newly produced documents. 19 (Dkt. No. 111.) The Court having granted Defendant’s motion for summary judgment on these 20 remaining Privacy Act claims on January 12, 2018, enters judgment in favor of Defendant and 21 against Plaintiffs.

22

23

IT IS SO ORDERED.

24 Dated: January 12, 2018

25

26

______________________________________
JACQUELINE SCOTT CORLEY United States Magistrate Judge

27

28

 
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United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 DENNIS JOSEPH RAIMONDO, ET AL.,

8

Plaintiffs,

9

v.

10 FEDERAL BUREAU OF INVESTIGATION,

11

Defendant.

12

Case No.13-cv-02295-JSC
ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT Re: Dkt. Nos. 114, 117

13

Plaintiffs Dennis Raimondo and Eric Garris filed this Freedom of Information Act

14 (“FOIA”) and Privacy Act action against Defendant the Federal Bureau of Investigation (“FBI”) in

15 2013. Plaintiffs sought records regarding a 2004 threat assessment the FBI conducted of a

16 website, Antiwar.com, with which the Plaintiffs are affiliated, and related investigations that the

17 FBI conducted of Plaintiffs. Plaintiffs also sought expungement of certain records related to the

18 exercise of their First Amendment rights, and Plaintiff Garris sought expungement of a record that

19 contains inaccurate information.

20

In May 2016, the Court granted the FBI’s motion for summary judgment as to the Privacy

21 Act claims and denied both parties’ motions for summary judgment as to the FOIA claims. (Dkt.

22 No. 90.) The FBI then produced a second Vaughn index as well as certain documents which had

23 either been produced in more redacted form previously or not produced at all. Shortly thereafter,

24 the parties stipulated to dismissal of the FOIA claims. (Dkt. No. 101.) Plaintiffs also filed a

25 motion for reconsideration of the Court’s summary judgment order as to their Privacy Act claims

26 based on recently produced documents. The Court granted the motion in part and denied it in part,

27 allowing Plaintiffs to raise Privacy Act claims with respect to two documents produced in less

28 redacted form following the Court’s summary judgment order. (Dkt. No. 111.) The parties’

Case 3:13-cv-02295-JSC Document 122 Filed 01/12/18 Page 2 of 12

United States District Court Northern District of California

1 cross-motions for summary judgment regarding these documents are now pending before the

2 Court. (Dkt. Nos. 114 & 117.) Having considered the parties’ briefs and having had the benefit of

3 oral argument on January 11, 2018, the Court GRANTS the FBI’s motion for summary judgment

4 and DENIES Plaintiffs’ cross-motion.

5

BACKGROUND

6

The Court’s prior summary judgment order summarized the factual record in detail. (Dkt.

7 No. 90.) Because the factual record is largely unchanged, the Court incorporates the recitation of

8 the facts and procedural background from that order by reference and only addresses the

9 developments following the order.

10

As part of the meet and confer process following the first round of summary judgment

11 briefing, Plaintiffs identified 34 documents as having been improperly withheld in whole or in part

12 pursuant to certain FOIA exemptions. (Dkt. No. 95.) Thereafter, the FBI produced a second

13 supplemental Vaughn index and reproduced documents with fewer redactions than previously

14 provided, including documents that had previously been withheld in full. (Dkt. No. 102-1.) As

15 relevant here, among these documents were (1) a November 28, 2006 FBI memorandum

16 (“November 2006 Memo”) which includes a reference to an article published on Antiwar.com;

17 and (2) an April 5, 2006 FBI memorandum (“April 2006 Memo”) which lists Antiwar.com as a

18 website that publicly posted details regarding an upcoming Halliburton shareholder meeting. (Dkt.

19 No. 102-1 at 52-57.) The FBI had previously produced a more heavily redacted version of the

20 April 2006 Memo on November 18, 2013 and had listed the November 2006 Memo on its

21 November 12, 2015 Vaughn index as withheld in full pursuant to certain FOIA exemptions. (Dkt. 22 No. 114-3 at ¶ 2; Dkt. No. 71 at 70.1)

23

Upon receipt of these documents, Plaintiffs filed a motion for reconsideration arguing that

24 (1) recently produced documents undermined the FBI’s explanation for the threat assessment

25 memorialized in the April 30, 2004 memorandum which had formed the crux of Plaintiff’s Privacy

26 Act claims, and (2) that the November 2006 Memo and the April 2006 Memo gave rise to

27

28

1 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents.

2

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1 additional Privacy Act claims. (Dkt. No. 102.) The Court rejected the first basis for

2 reconsideration, but concluded that Plaintiffs’ Privacy Act claims were pled sufficiently broad to

3 encompass these two additional documents. (Dkt. No. 111.) The parties were directed to meet

4 and confer regarding a briefing schedule as to these additional documents, which they did, and

5 now those motions are fully briefed. Plaintiffs have withdrawn any claim with respect to the

6 November 2006 Memo; thus only the April 2006 memo is at issue. (Dkt. No. 117 at 7 n.1.)

7

THE APRIL 2006 MEMO

8

The April 2006 Memo provides “[i]nformation regarding annual Halliburton Shareholders’

9 Meeting at Duncan, Oklahoma, May 15-17, 2006.” (Dkt. No. 114-1 at 6.) The memo states that

10 the annual shareholder meeting has been “targeted by multiple organized protest groups.” (Id.) It

11 includes a summary of Halliburton’s business and notes that “Dick Cheney served as Halliburton’s

12 Chief Executive Officer prior to becoming Vice President of the United States.” (Id. at 7.) The

13 memo also details the logistics for the meeting including that it will begin with four jets with VIPs

14 arriving at the Duncan Municipal Airport at 4:00 p.m. on Monday, May 15, 2006, and that these

15 individuals will be escorted to the Chisholm Suite Hotel in a Duncan Police Department

16 motorcade. (Id.) It then goes on to review other logistics for the meeting and associated events

17 including locations and number of guests. (Id.) The only reference to Antiwar.com is contained at

18 the end of the memorandum. As reflected in the below excerpt, Antiwar.com is one of 11

19 websites listed which was identified by a third-party as having posted information regarding the

20 shareholders’ meeting:

21

22

23

24

25

26

27 (Id.)
28
3

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United States District Court Northern District of California

1

DISCUSSION

2

The question before the Court is narrow: whether the FBI has violated Section (e)(7) of the

3 Privacy Act through its maintenance of the April 2006 Memo. The Privacy Act of 1974

4 “safeguards the public from unwarranted collection, maintenance, use and dissemination of

5 personal information contained in agency records . . . by allowing an individual to participate in

6 ensuring that his records are accurate and properly used.” Henke v. U.S. Dep’t of Commerce, 83

7 F.3d 1453, 1456 (D.C. Cir. 1996) (internal citation and quotation marks omitted). “The Act gives

8 agencies detailed instructions for managing their records and provides for various sorts of civil

9 relief to individuals aggrieved by failures on the Government’s part to comply with the

10 requirements.” Doe v. Chao, 540 U.S. 614, 618 (2004).

11

Section 552a(e)(7) of the Act provides that a federal agency may not “maintain [any]

12 record describing how any individual exercises rights guaranteed by the First Amendment unless

13 expressly authorized by statute or by the individual about whom the record is maintained or unless

14 pertinent to and within the scope of an authorized law enforcement activity.” 5 U.S.C. §

15 552a(e)(7). “The purpose of the section (e)(7) First Amendment protection is to prevent collection

16 of protected information not immediately needed, about law-abiding Americans, on the off-chance

17 that Government or the particular agency might possibly have to deal with them in the future.”

18 MacPherson v. I.R.S., 803 F.2d 479, 483 (9th Cir. 1986) (quoting S. Rep. 1183, 93d Cong., 2d

19 Sess., reprinted in 1974 U.S. Code Cong. & Admin. News 6916, 6971). The government bears the

20 initial burden of demonstrating that the law enforcement activity exception to the Privacy Act

21 applies. See Afifi v. Lynch, 101 F. Supp. 3d 90, 107 (D.D.C. 2015) (requiring defendants to

22 demonstrate that the records of the plaintiff’s First Amendment activities complied with Section

23 (e)(7) of the Privacy Act); see also Chambers v. U.S. Dep’t of Interior, 568 F.3d 998, 1003 (D.C.

24 Cir. 2009)(noting that the burden is on the government in both FOIA and Privacy Act cases to

25 demonstrate that it acted in accordance with the applicable statute).

26

In MacPherson, the Ninth Circuit recognized that “[t]here are strong policy considerations

27 on both sides of the issue” of whether to allow law enforcement to maintain records of an

28 individual’s First Amendment conduct. 803 F.2d at 483. On the one hand, “[t]he mere 4

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United States District Court Northern District of California

1 compilation by the government of records describing the exercise of First Amendment freedoms

2 creates the possibility that those records will be used to the speaker’s detriment, and hence has a

3 chilling effect on such exercise.” Id. at 484 (internal quotation marks and citation omitted).

4 “Blanket allowance of [] incidental surveillance and recording under the guise of general

5 investigation could permit the exception to swallow the rule.” Id. (internal quotation marks

6 omitted). On the other hand, “the legitimate investigation and surveillance of suspected criminals

7 and civil offenders inevitably involves observation and recording of the actions of innocent

8 people, sometimes when those people are exercising their First Amendment rights.” Id. “To

9 forbid ‘incidental’ surveillance of innocent people or to require excision of references to such

10 people in surveillance records would be administratively cumbersome and damaging to the

11 completeness and accuracy of the agency records.” Id. Indeed, the very presence of the law

12 enforcement exception “recognizes that some recording of First Amendment activities will take

13 place.” Id. Thus, McPherson concluded, when determining whether the section 552a(e)(7) law

14 enforcement activity exception applies, a court must “consider the factors for and against the

15 maintenance of such records of First Amendment activities on an individual, case-by-case basis.”

16 Id.

17

Plaintiffs contend that the FBI’s maintenance of the April 2006 Memo, and in particular

18 the reference to Antiwar.com, violates Section (e)(7) of the Privacy Act. The FBI moves for

19 summary judgment on the grounds that no reasonable trier of fact could find that the memo’s

20 reference to Antiwar.com was not within the scope of authorized law enforcement activity. Or, to

21 put it another way, that every reasonable trier of fact would have to find that that the reference was

22 within the scope of authorized law enforcement activity and therefore the FBI’s maintenance of

23 the memo does not violate the Privacy Act. See Animal Legal Def. Fund v. U.S. Food & Drug

24 Admin., 836 F.3d 987, 989 (9th Cir. 2016) (the usual summary judgment standard applies to FOIA

25 cases).

26

According to the declaration of Agent Bujanda, the Assistant Special Agent in Charge

27 (“ASAC”) for National Security, a field office, such as the Oklahoma Field Office which prepared

28 the April 2006 Memo, is responsible for “maintaining ‘domain awareness’ in its area-of 5

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United States District Court Northern District of California

1 responsibility” which includes “‘strategic understanding of national security and criminal threats

2 and vulnerabilities that exist in the domain.’” (Dkt. No. 114-1 at ¶ 4 (quoting from the FBI

3 Domestic Investigations and Operations Guide, Section 15 (attached at Dkt. No. 114-1 at 12).)

4 “[T]o prepare for events that present potential security concerns in the field office’s geographical

5 [area of responsibility], the FBI and local law enforcement coordinate and advise one another of

6 their advance preparations.” (Id. at ¶ 4.) “The April 2006 EC documents information the FBI

7 received regarding a potential security and public safety concern surrounding an upcoming event

8 in the OC Field Office’s geographic [area of concern] – the annual Haliburton shareholder’s

9 meeting to be held in Duncan, Oklahoma in May 2006—and the steps taken by the FBI and local

10 law enforcement to prepare for that event.” (Id. ¶ 5.) “[P]rior to 2006, FBI agents and local law

11 enforcement had observed public safety concerns at Halliburton annual shareholders’ meetings,

12 and that activity at the protests resulted in multiple arrests.” (Id. at ¶ 6.) The April 2006 Memo

13 thus represents the FBI’s collaboration with local law enforcement to prepare for public safety

14 concerns arising out of the annual Halliburton shareholder’s meeting. (Id. at ¶ 7.) Agent Bujanda

15 explains that identifying the websites that had information regarding the proposed protests

16 “conveys the level of public awareness of the event.” (Id. at ¶ 8.)

17

The “ensuring public safety” nature of the memo is further evidenced by the memorandum

18 itself. First, the “synopsis” of the memo is identified as “Information regarding annual

19 Halliburton Shareholders’ Meeting at Duncan, Oklahoma, May 15-17, 2006,” supporting an

20 inference that the memo was prepared regarding the meeting rather than to document First

21 Amendment activities of persons or organizations reporting on the meeting or the planned

22 protests. Second, the “Details” section of the memorandum provides specific details about the

23 meeting itself and related events, including details as to the location, timing and number of

24 expected guests—information relevant to ensuring public safety and not relevant to simply

25 recording or monitoring the First Amendment activities of Antiwar.com. Third, the memo recites

26 only that certain websites provided information regarding the shareholders’ meeting and nothing

27 more; it does not discuss the content of the information or any other information that suggests the

28 memo was not created for a law enforcement purpose. 6

Case 3:13-cv-02295-JSC Document 122 Filed 01/12/18 Page 7 of 12

United States District Court Northern District of California

1

Plaintiffs first respond that the Court cannot consider Agent Bujanda’s declaration

2 because (1) he lacks personal knowledge regarding the April 2006 Memo since he was not

3 stationed in Oklahoma City at the time the Memo was prepared, and (2) the statements in the

4 memo are hearsay.

5

The FBI counters that personal knowledge can come from review of the contents of agency

6 files and records and that as the Assistant Special Agent In Charge of the Oklahoma City Field

7 Office Bujanda has knowledge to testify regarding: (1) the Field Office’s responsibilities as they

8 relate to domain awareness, (2) the Field Office’s geographical area of responsibility, (3) threats

9 and vulnerabilities that exist in the Field Office’s area of responsibility, (4) events that raise public

10 safety concerns within the Field Office’s area of responsibility, (5) the Field Office’s efforts to

11 ensure that appropriate preparations are in place for such events including the process for

12 memorializing those efforts, and (6) the relevance of the information documented in the April

13 2006 Memo to ongoing and future FBI activity. The FBI emphasizes that in FOIA cases “[a]n

14 affidavit from an agency employee responsible for supervising a FOIA search is all that is needed

15 to satisfy the personal knowledge requirement of Federal Rule of Civil Procedure 56(e).” Lahr v.

16 National Transp. Safety Bd., 569 F.3d 964, 989 (9th Cir. 2009). Thus, courts routinely deny

17 hearsay and lack of personal knowledge objections in FOIA cases based on agency affidavits

18 similar to those submitted here. See, e.g., Our Children’s Earth Found. v. Nat’l Marine Fisheries

19 Serv., No. 14-1130 SC, 2015 WL 6331268, at *2 (N.D. Cal. Oct. 21, 2015) (overruling hearsay

20 and personal knowledge objections with respect to a declaration submitted by the agency’s San

21 Francisco Branch Chief); Hersh & Hersh v. U.S. Dep’t of Health & Human Servs., No. C 06-

22 4234, 2008 WL 901539, at *4 (N.D. Cal. Mar. 31, 2008) (same with respect to a declaration

23 submitted by the Health and Human Services FOIA officer). Indeed, this Court overruled similar

24 objections from Plaintiffs with regards to the prior motions for summary judgment on the FOIA

25 and Privacy Act claims.

26

While there is some similarity between FOIA and Privacy Act claims, the purpose of the

27 declaration in a Privacy Act action is different. In a Privacy Act action such as this the declaration

28 is relied upon to establish the purpose for the historical document and not just the methodology of 7

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United States District Court Northern District of California

1 a recent search for documents. Under these circumstances, Plaintiffs’ lack of personal knowledge

2 and hearsay objections to the declaration cannot simply be denied out of hand.

3

Federal Rule of Civil Procedure 56(e) requires that affidavits “shall be made on personal

4 knowledge, shall set forth such facts as would be admissible in evidence, and shall show

5 affirmatively that the affiant is competent to testify to the matters stated therein.” Fed. R. Civ. P.

6 56(e). Here, Agent Bujanda attests that his knowledge is based on his “experience, review of

7 information provided to me in the course of my official duties, including the April 2006 EC, and

8 my personal knowledge.” (Dkt. No. 114-1 at ¶ 3.) Plaintiffs insist that this is insufficient to

9 establish personal knowledge regarding why the April 2006 Memo was created or the underlying

10 activities relying on Block v. City of Los Angeles, 253 F.3d 410, 419 (9th Cir. 2001), a Fair Labor

11 Standards Act case, which rejected a declaration regarding disciplinary suspensions when the

12 supervisor affiant lacked an personal involvement in the suspensions.

13

The Court disagrees. Unlike in Block, Agent Bujada’s position as the ASAC of the

14 Oklahoma City Field Office provides him with institutional knowledge regarding the

15 responsibilities and investigatory activities of the field office. In particular, he has personal

16 knowledge to testify regarding the fact that “to prepare for events that present potential security

17 concerns in the field office’s [geographic area of responsibility], the FBI and local law

18 enforcement coordinate and advise one another of their advance preparations.” (Dkt. No. 1114-1

19 at ¶ 4.) Rule 602 states that “[a] witness may testify to a matter only if evidence is introduced

20 sufficient to support a finding that the witness has personal knowledge of the matter.” Fed. R.

21 Evid. 602; see also Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999, 1018 (9th Cir. 1990)

22 (concluding that the affiants’ “personal knowledge and competence to testify are reasonably

23 inferred from their positions and the nature of their participation in the matters to which they 24 swore”).2 Given his position at the Oklahoma City Field Office, Agent Bujanda has adequate

25

26

2 Plaintiffs’ reliance on Londrigan v. Fed. Bureau of Investigation, 670 F.2d 1164, 1174 (D.C. Cir. 1981), is equally unavailing. The court there noted that the agent would have been competent to

27

testify, as relevant here, about “the agency’s procedures with respect to investigations during his own tenure therewith and earlier practices of which he possesses personal knowledge; and his

28

personal experiences as an agent to the extent that they bore relevance to the case.” Id. at 1174. So too here—Agent Bujanda has personal knowledge to talk about the Oklahoma City Field

8

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United States District Court Northern District of California

1 personal knowledge to testify regarding why a memo such as the April 2006 Memo would have

2 been prepared.

3

However, to the extent that the declaration references statements made by FBI agents

4 regarding prior protests and arrests made at prior protests, these statements are hearsay. See Fed.

5 R. Evd. 801(c). Hearsay is inadmissible unless a federal statute, the Rules of Civil Procedure, or

6 other rules prescribed by the Supreme Court provide otherwise. See Fed. R. Evd. 802. However,

7 “at summary judgment a district court may consider hearsay evidence submitted in an

8 inadmissible form, so long as the underlying evidence could be provided in an admissible form at

9 trial, such as by live testimony.” JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098,

10 1110 (9th Cir. 2016). Thus, even if the statement in the declaration that Agent Bujanda was

11 “informed” about public safety concerns at prior Halliburton shareholder meetings and that arrests

12 were made at protests surrounding the meetings is hearsay, the FBI could offer the facts

13 underlying the declaration in an admissible form at trial, for instance, through direct testimony of

14 one of the FBI agents involved in the prior protests. At oral argument, the FBI affirmed that they

15 would be able to offer such testimony at trial. Accordingly, the Court overrules Plaintiffs’ hearsay

16 objection to the Bujanda declaration as well.

17

Next, Plaintiffs concede that the April 2006 Memo reflects law enforcement activity, but

18 nonetheless insist that the FBI was not authorized to identify and record the websites that 19 referenced the Halliburton meeting.3 Plaintiffs argue that to find otherwise would suggest that the

20 FBI has a “blank check to take any measures to prepare for events where protest activity it

21

22 Office’s practices and procedures. Likewise, the affiant in Bright v. Ashcroft, 259 F. Supp. 2d

23

494, 497 (E.D. La. 2003), was an attorney from the Freedom of Information–Privacy Acts Section, Records Management Division at FBI Headquarters who lacked personal knowledge to properly

24

invoke certain FOIA exemptions because he had no involvement in the underlying FBI murder investigation or knowledge of any arrangements made with a confidential source.

25 3 At oral argument, Plaintiffs insisted that even though the memo reflects law enforcement

26

activity, the FBI was nonetheless required to state in the memo what the law enforcement purpose was, i.e., ensuring public safety around the Halliburton shareholder meeting. Plaintiffs could point

27

to no authority for this remarkable proposition because there is none to be found. The Privacy Act describes what the government can document with respect to an individual’s exercise of his or her

28

First Amendment rights, but it does not proscribe that the government must identify in writing the law enforcement purpose behind every document it prepares.

9

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1 anticipated and to ensure the safety of the public at those events.” (Dkt. No. 119 at 11:15-17

2 (emphasis in original).) Not so. While there are certainly circumstances under which the FBI

3 might overreach the necessary scope of its responsibility to ensure public safety, Plaintiffs have

4 not shown that the bare recording of the name of websites which have included information

5 regarding the Halliburton shareholder meeting was not a lawful law enforcement activity.

6 Notably, Plaintiffs have not argued that the FBI conducted any surveillance of Antiwar.com or any

7 of the other websites listed or any individuals associated with those websites. At oral argument,

8 Plaintiffs suggested that the Privacy Act claim would not have arisen had the FBI done just that

9 and documented what Antiwar.com and the other websites said; that is, that the FBI could have

10 avoided running afoul of the Privacy Act if it had described what Antiwar.com said about the

11 shareholder meeting rather than merely listing Antiwar.com as a website that said something about

12 the shareholder meeting. The Court is not persuaded.

13

Here, the FBI, as part of its collaboration with local law enforcement, assessed any public

14 safety issues associated with the Halliburton’s annual shareholder meeting in light of activity that

15 had occurred at prior meetings and in that process talked to a third-party who identified

16 Antiwar.com as one of many websites that included information regarding the meeting.

17 Information as to how broadly information regarding the meeting was shared, and how it was

18 shared, is relevant to determining what law enforcement might expect to occur at the meeting and

19 how it should prepare in advance. Indeed, it defies logic to expect law enforcement to prepare to

20 protect public safety without obtaining information that allows them to anticipate what might

21 happen. But there is no evidence that the FBI surveilled Antiwar.com or anyone else in connection

22 with the preparation of the memo. The FBI’s investigation as documented in the April 2006

23 Memo falls squarely within the authorized law enforcement activity exception to (e)(7). No other

24 inference is reasonable from the record.

25

Plaintiffs’ insistence that the law enforcement activity documented in the April 2006

26 Memo was not “authorized” is likewise unavailing. Plaintiffs rely on language from the FBI’s

27 Domestic Investigation and Operations Guide which notes that all investigative activity must be

28 for an authorized national security, criminal or foreign intelligence collection purpose, and may 10

Case 3:13-cv-02295-JSC Document 122 Filed 01/12/18 Page 11 of 12

United States District Court Northern District of California

1 not be based solely on the exercise of First Amendment activities. (Dkt. No. 117-3 at 11, 18.) But

2 the manual also states that the law does not preclude the FBI from observing and collecting any

3 forms of protected speech and considering its content so long as those activities are for valid law

4 enforcement or national security purposes “such as providing assistance to other agencies.” (Id. at

5 18.) The memo here was prepared as part of the FBI’s collaboration with local law enforcement.

6 The Court is not in a position to parse the way in which the FBI collaborated with local law

7 enforcement and conducted its assessment of the public safety risks involved. Just as the Court

8 noted in its prior order rejecting Plaintiff’s Privacy Act claims, “if the investigation itself is

9 pertinent to an authorized law enforcement activity, the Privacy Act does not regulate what can be

10 done in the course of that investigation or how that authorized investigation may be documented.”

11 (Dkt. No. 90 at 23:16-19.)

12

Indeed, “the legitimate investigation and surveillance of suspected criminals and civil

13 offenders inevitably involves observation and recording of the actions of innocent people,

14 sometimes when those people are exercising their First Amendment rights.” MacPherson, 803

15 F.2d at 484 (internal citation and quotation marks omitted). “Blanket prohibition of such

16 surveillance and recording unless the agency was investigating a specific offense or a specific

17 person could thwart agency investigations and seriously undermine agency enforcement

18 operations.” Id. Plaintiffs have not identified any evidence that supports a reasonable inference

19 that the April 2006 Memo represents anything more than the type of “incidental surveillance”

20 which the Ninth Circuit has held is authorized because to hold otherwise “could thwart agency

21 investigations and seriously undermine agency enforcement operations.” Id.

22

On the record before the Court every reasonable trier of fact would have to find that the

23 April 2006 Memo, including its mention of Antiwar.com, was prepared for a law enforcement

24 purpose. Plaintiffs’ motion for summary judgment on their remaining 552(7) claim is DENIED

25 and Defendant’s cross-motion is GRANTED.

26

CONCLUSION

27

For the reasons discussed above, the FBI’s motion for summary judgment is GRANTED

28 and Plaintiffs’ cross-motion is DENIED. 11

Case 3:13-cv-02295-JSC Document 122 Filed 01/12/18 Page 12 of 12

United States District Court Northern District of California

1

This Order disposes of Docket No. 114.

2

IT IS SO ORDERED.

3 Dated: January 12, 2018

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28 12

JACQUELINE SCOTT CORLEY United States Magistrate Judge

 
 U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:13-cv-02295-JSC

Raimondo et al v. Federal Bureau of Investigation Assigned to: Magistrate Judge Jacqueline Scott Corley Case in other court: USCA, 18-15416 Cause: 05:552 Freedom of Information Act

Date Filed: 05/21/2013 Date Terminated: 01/12/2018 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

Plaintiff
Dennis Joseph Raimondo also known as Justin Raimondo

represented by Julia Harumi Mass American Civil Liberties Union of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415-621-2493 Fax: 415-255-8437 Email: jmass@aclunc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura Christine Hurtado Pillsbury Winthrop Shaw Pittman LLP Four Embarcadero Center 22nd Floor San Francisco, CA 94111 415-983-1000 Fax: 415-983-1200 Email: laura.hurtado@pillsburylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda Lye ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 (415) 621-2493 Fax: (415) 255-8437

Plaintiff Eric Anthony Garris

Email: lye.linda@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marley Freeman Degner Pillsbury Winthrop Shaw Pittman LLP Four Embarcadero Center 22nd Floor San Francisco, CA 94111 415-983-1000 Email: marley.degner@pillsburylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas V. Loran III Pillsbury Winthrop Shaw Pittman LLP Four Embarcadero Center, 22nd Floor San Francisco, CA 94111 (415) 983-1865 Fax: (415) 983-1200 Email: thomas.loran@pillsburylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vasudha Talla ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 (415) 621-2493 Fax: (415) 255-8437 Email: vtalla@aclunc.org ATTORNEY TO BE NOTICED
represented by Julia Harumi Mass (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura Christine Hurtado

V. Defendant Federal Bureau of Investigation

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Lye (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marley Freeman Degner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas V. Loran III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vasudha Talla (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer S Wang United States Attorney's Office 450 Golden Gate Avenue, 9th Floor San Francisco, CA 94102-3495 415-436-6967 Fax: 415-436-6748 Email: jengnaw@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Ann Falk U.S. Attorney's Office 450 Golden Gate Avenue 11th Floor San Francisco, CA 94102 415-436-7022 Fax: 415-436-6748 Email: rebecca.falk@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 05/21/2013
05/21/2013 05/21/2013 05/21/2013
05/24/2013 05/29/2013 06/10/2013 06/13/2013

# Docket Text

COMPLAINT against Federal Bureau of Investigation ( Filing fee

1

$ 400, receipt number 34611086218.). Filed byDennis Joseph

Raimondo, Eric Anthony Garris. (Attachments: # 1

Complaint)(gaS, COURT STAFF) (Filed on 5/21/2013) (Additional attachment(s) added on 1/14/2019: # 2 Receipt) (slhS, COURT STAFF). (Entered: 05/22/2013)

2 Summons Issued as to Federal Bureau of Investigation, U.S. Attorney and U.S. Attorney General (gaS, COURT STAFF) (Filed on 5/21/2013) (Entered: 05/22/2013)

3 Certificate of Interested Entities by Eric Anthony Garris, Dennis

Joseph Raimondo re 1 Complaint (gaS, COURT STAFF) (Filed on 5/21/2013) (Entered: 05/22/2013)

4 ADR SCHEDULING ORDER: Case Management Statement due by 8/15/2013. Case Management Conference set for 8/22/2013 01:30 PM in Courtroom F, 15th Floor, San Francisco.. Signed by Judge Jacqueline Scott Corley on 5/21/13. (Attachments: # 1 Standing Order)(gaS, COURT STAFF) (Filed on 5/21/2013) (Entered: 05/22/2013)

5 SUMMONS Returned Executed by Dennis Joseph Raimondo, Eric Anthony Garris. Federal Bureau of Investigation served on 5/21/2013, answer due 7/22/2013. (gaS, COURT STAFF) (Filed on 5/24/2013) (Entered: 05/28/2013)

6 SUMMONS Returned Executed by Dennis Joseph Raimondo, Eric Anthony Garris. Federal Bureau of Investigation served on 5/23/2013, answer due 7/22/2013. (Hurtado, Laura) (Filed on 5/29/2013) (Entered: 05/29/2013)

7 CLERK'S NOTICE Re: Consent or Declination: Plaintiffs shall file a consent or declination to proceed before a magistrate judge within 14 days of this notice. (ahm, COURT STAFF) (Filed on 6/10/2013) (Entered: 06/10/2013)

8 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Eric Anthony Garris, Dennis Joseph Raimondo.. (Attachments: # 1 Certificate/Proof of Service)(Hurtado, Laura) (Filed on 6/13/2013) (Entered: 06/13/2013)

06/20/2013 07/02/2013 07/15/2013 07/30/2013 07/31/2013 07/31/2013
08/01/2013 08/23/2013 08/30/2013

9 Federal Defendant's ANSWER to Complaint byFederal Bureau of Investigation. (Wang, Jennifer) (Filed on 6/20/2013) (Entered: 06/20/2013)

10 CLERK'S NOTICE Re: Consent or Declination: Defendants shall file a consent or declination to proceed before a magistrate judge within 14 days of this notice. (ahm, COURT STAFF) (Filed on 7/2/2013) (Entered: 07/02/2013)

CONSENT/DECLINATION to Proceed Before a US Magistrate

11

Judge by Federal Bureau of Investigation.. (Wang, Jennifer) (Filed

on 7/15/2013) (Entered: 07/15/2013)

12 STIPULATION WITH PROPOSED ORDER Stipulation To Continue Initial Case Management Conference filed by Federal Bureau of Investigation. (Wang, Jennifer) (Filed on 7/30/2013) (Entered: 07/30/2013)

13 ORDER by Magistrate Judge Jacqueline Scott Corley granting 12 Stipulation To Continue Initial Case Management Conference (ahm, COURT STAFF) (Filed on 7/31/2013) (Entered: 07/31/2013)

Set Deadlines/Hearings: Joint Case Management Statement due by 8/22/2013. Initial Case Management Conference reset for 8/29/2013 01:30 PM in Courtroom F, 15th Floor, San Francisco. (ahm, COURT STAFF) (Filed on 7/31/2013) (Entered: 07/31/2013)

14 ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Hurtado, Laura) (Filed on 8/1/2013) (Entered: 08/01/2013)

15 CASE MANAGEMENT STATEMENT filed by Eric Anthony Garris, Dennis Joseph Raimondo. (Degner, Marley) (Filed on 8/23/2013) (Entered: 08/23/2013)

16 Minute Entry: Initial Case Management Conference held on 8/29/2013 before Magistrate Judge Jacqueline Scott Corley (Date Filed: 8/30/2013). Joint Case Management Statement due by 11/7/2013. Further Case Management Conference set for 11/14/2013 01:30 PM in Courtroom F, 15th Floor, San Francisco. (FTR Recording 1:32-1:38) (ahm, COURT STAFF) (Date Filed: 8/30/2013) (Entered: 08/30/2013)

08/30/2013 10/08/2013 10/11/2013
10/18/2013
11/07/2013 11/14/2013 01/13/2014 01/13/2014 01/13/2014

17 SCHEDULING ORDER. Signed by Magistrate Judge Jacqueline Scott Corley on 8/30/2013. (ahm, COURT STAFF) (Filed on 8/30/2013) (Entered: 08/30/2013)
18 MOTION to Stay filed by Federal Bureau of Investigation. Responses due by 10/15/2013. (Attachments: # 1 Affidavit, # 2 Proposed Order)(Wang, Jennifer) (Filed on 10/8/2013) (Entered: 10/08/2013)
19 RESPONSE (re 18 MOTION to Stay ) Plaintiffs' Statement of Partial Non-Opposition to Defendant's Administrative Motion For Stay filed byEric Anthony Garris, Dennis Joseph Raimondo. (Attachments: # 1 Declaration of Laura C. Hurtado in Support of Plaintiffs' Statement of Partial Non-Opposition, # 2 Exhibit A, # 3 Exhibit B, # 4 Proposed Order)(Hurtado, Laura) (Filed on 10/11/2013) (Entered: 10/11/2013)
20 ORDER by Magistrate Judge Jacqueline Scott Corley denying as moot 18 Motion to Stay
(This is a text only docket entry, there is no document associated with this notice.)
(ahm, COURT STAFF) (Filed on 10/18/2013) (Entered: 10/18/2013)
21 CASE MANAGEMENT STATEMENT filed by Eric Anthony Garris, Dennis Joseph Raimondo. (Hurtado, Laura) (Filed on 11/7/2013) (Entered: 11/07/2013)
22 Minute Entry: Further Case Management Conference held on 11/14/2013 before Magistrate Judge Jacqueline Scott Corley (Date Filed: 11/14/2013). (FTR Recording 1:30-1:32) (ahm, COURT STAFF) (Date Filed: 11/14/2013) (Entered: 11/14/2013)
23 STIPULATION WITH PROPOSED ORDER Vacating Summary Judgment Schedule and Setting Status Conference filed by Federal Bureau of Investigation. (Wang, Jennifer) (Filed on 1/13/2014) (Entered: 01/13/2014)
24 ORDER by Magistrate Judge Jacqueline Scott Corley granting 23 Stipulation Vacating Summary Judgment Schedule and Setting Status Conference (ahm, COURT STAFF) (Filed on 1/13/2014) (Entered: 01/13/2014)
Set Deadlines/Hearings: Joint Case Management Statement due by 2/6/2014. Further Case Management Conference set for 2/13/2014

02/06/2014 02/13/2014
04/01/2014 05/01/2014 05/02/2014 06/23/2014 07/31/2014 08/08/2014
09/16/2014

01:30 PM in Courtroom F, 15th Floor, San Francisco. (ahm, COURT STAFF) (Filed on 1/13/2014) (Entered: 01/13/2014)
25 JOINT CASE MANAGEMENT STATEMENT filed by Eric Anthony Garris, Dennis Joseph Raimondo. (Hurtado, Laura) (Filed on 2/6/2014) (Entered: 02/06/2014)
26 Minute Entry: Further Case Management Conference held on 2/13/2014 before Magistrate Judge Jacqueline Scott Corley (Date Filed: 2/13/2014). Joint Case Management Statement due by 7/31/2014. Further Case Management Conference set for 8/7/2014 01:30 PM in Courtroom F, 15th Floor, San Francisco. (FTR Recording 1:46-2:05) (ahm, COURT STAFF) (Date Filed: 2/13/2014) (Entered: 02/13/2014)
27 NOTICE by Federal Bureau of Investigation Defendant's Notice of Unavailability (Wang, Jennifer) (Filed on 4/1/2014) (Entered: 04/01/2014)
28 STIPULATION WITH PROPOSED ORDER RE LEAVE TO FILE FIRST AMENDED COMPLAINT filed by Eric Anthony Garris, Dennis Joseph Raimondo. (Attachments: # 1 Exhibit 1)(Hurtado, Laura) (Filed on 5/1/2014) (Entered: 05/01/2014)
29 ORDER by Magistrate Judge Jacqueline Scott Corley granting 28 Stipulation FOR LEAVE TO FILE FIRST AMENDED COMPLAINT (ahm, COURT STAFF) (Filed on 5/2/2014) (Entered: 05/02/2014)
30 Federal Defendant's ANSWER to Complaint First Amended Complaint byFederal Bureau of Investigation. (Wang, Jennifer) (Filed on 6/23/2014) (Entered: 06/23/2014)
31 JOINT CASE MANAGEMENT STATEMENT filed by Eric Anthony Garris, Dennis Joseph Raimondo. (Hurtado, Laura) (Filed on 7/31/2014) (Entered: 07/31/2014)
32 Minute Entry: Further Case Management Conference held on 8/7/2014 before Jacqueline Scott Corley (Date Filed: 8/8/2014). Case Management Statement due by 9/18/2014. Further Case Management Conference set for 9/25/2014 01:30 PM in Courtroom F, 15th Floor, San Francisco. (Recording #2:01 - 2:34.) (tlS, COURT STAFF) (Date Filed: 8/8/2014) (Entered: 08/08/2014)
33 STIPULATION WITH PROPOSED ORDER Order Continuing September 25, 2014 Case Management Conference filed by

09/16/2014 09/16/2014
10/30/2014 11/07/2014 11/07/2014
11/20/2014 11/21/2014 12/11/2014 12/15/2014

Federal Bureau of Investigation. (Wang, Jennifer) (Filed on 9/16/2014) (Entered: 09/16/2014)

34 ORDER by Magistrate Judge Jacqueline Scott Corley granting 33 Stipulation Continuing September 25, 2014 Case Management Conference (ahm, COURT STAFF) (Filed on 9/16/2014) (Entered: 09/16/2014)

Set Deadlines/Hearings: Joint Case Management Statement due by 10/30/2014. Further Case Management Conference reset for 11/6/2014 01:30 PM in Courtroom F, 15th Floor, San Francisco. (ahm, COURT STAFF) (Filed on 9/16/2014) (Entered: 09/16/2014)

35 JOINT CASE MANAGEMENT STATEMENT filed by Eric Anthony Garris, Dennis Joseph Raimondo. (Hurtado, Laura) (Filed on 10/30/2014) (Entered: 10/30/2014)

36 Minute Entry: Further Case Management Conference held on 11/6/2014 before Magistrate Judge Jacqueline Soctt Corley (Date Filed: 11/7/2014). (Court Reporter: Not Reported) (ahm, COURT STAFF) (Date Filed: 11/7/2014) (Entered: 11/07/2014)

ORDER SETTING BRIEFING SCHEDULES FOR

37

DISCOVERY DISPUTES AND SUMMARY JUDGMENT

MOTIONS. Signed by Magistrate Judge Jacqueline Scott

Corley on 11/7/2014. (ahm, COURT STAFF) (Filed on

11/7/2014) (Entered: 11/07/2014)

38 STIPULATION WITH PROPOSED ORDER Stipulated Protective Order filed by Federal Bureau of Investigation. (Wang, Jennifer) (Filed on 11/20/2014) (Entered: 11/20/2014)

39 ORDER by Judge Jacqueline Scott Corley granting 38 Stipulated Protective Order (ahm, COURT STAFF) (Filed on 11/21/2014) (Entered: 11/21/2014)

40 MOTION Extend Deadlines to Complete Discovery Meet and Confer and to File Discovery Motions filed by Federal Bureau of Investigation. Responses due by 12/15/2014. (Wang, Jennifer) (Filed on 12/11/2014) (Entered: 12/11/2014)

41 RESPONSE (re 40 MOTION Extend Deadlines to Complete Discovery Meet and Confer and to File Discovery Motions ) filed byEric Anthony Garris, Dennis Joseph Raimondo. (Attachments: # 1 Proposed Order)(Hurtado, Laura) (Filed on 12/15/2014) (Entered: 12/15/2014)

12/18/2014 01/22/2015
03/09/2015 03/10/2015 03/10/2015 03/26/2015 03/26/2015 03/27/2015 03/27/2015

42 ORDER by Magistrate Judge Jacqueline Scott Corley granting in part and denying in part 40 Motion EXTENDING DISCOVERY DEADLINES (ahm, COURT STAFF) (Filed on 12/18/2014) (Entered: 12/18/2014)
43 MOTION to Compel filed by Eric Anthony Garris, Dennis Joseph Raimondo. Motion Hearing set for 4/2/2015 09:00 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. Responses due by 3/12/2015. Replies due by 3/19/2015. (Attachments: # 1 Declaration of Laura C. Hurtado, # 2 Exhibit to Hurtado Declaration, # 3 Proposed Order)(Hurtado, Laura) (Filed on 1/22/2015) (Entered: 01/22/2015)
44 STIPULATION WITH PROPOSED ORDER to Extend Deadlines Related to Plaintiffs' Motion to Compel filed by Federal Bureau of Investigation. (Wang, Jennifer) (Filed on 3/9/2015) (Entered: 03/09/2015)
45 ORDER by Magistrate Judge Jacqueline Scott Corley granting 44 Stipulation to Extend Deadlines Related to Plaintiffs' Motion to Compel (ahm, COURT STAFF) (Filed on 3/10/2015) (Entered: 03/10/2015)
Set/Reset Deadlines as to 43 MOTION to Compel . Responses due by 3/26/2015. Replies due by 4/9/2015. Motion Hearing reset for 4/23/2015 09:00 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 3/10/2015) (Entered: 03/10/2015)
46 RESPONSE (re 43 MOTION to Compel ) Defendant's Opposition to Plaintiffs' Motion to Compel filed byFederal Bureau of Investigation. (Wang, Jennifer) (Filed on 3/26/2015) (Entered: 03/26/2015)
47 AFFIDAVIT re 46 Opposition/Response to Motion Declaration of Michael Steinbach by Federal Bureau of Investigation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Wang, Jennifer) (Filed on 3/26/2015) (Entered: 03/26/2015)
48 AFFIDAVIT re 46 Opposition/Response to Motion Declaration of Jennifer S Wang by Federal Bureau of Investigation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Wang, Jennifer) (Filed on 3/27/2015) (Entered: 03/27/2015)
49 Administrative Motion to File Under Seal Defendant's Administrative Motion for Defendant to Submit Memorandum and

03/31/2015
04/09/2015 04/23/2015 04/23/2015 06/04/2015
06/09/2015 06/09/2015 06/27/2015

Declaration in Camera and Under Seal filed by Federal Bureau of Investigation. (Attachments: # 1 Affidavit)(Wang, Jennifer) (Filed on 3/27/2015) (Entered: 03/27/2015)

50 RESPONSE (re 49 Administrative Motion to File Under Seal Defendant's Administrative Motion for Defendant to Submit Memorandum and Declaration in Camera and Under Seal ) filed byEric Anthony Garris, Dennis Joseph Raimondo. (Attachments: # 1 Proposed Order)(Hurtado, Laura) (Filed on 3/31/2015) (Entered: 03/31/2015)

51 REPLY (re 43 MOTION to Compel ) filed byEric Anthony Garris, Dennis Joseph Raimondo. (Hurtado, Laura) (Filed on 4/9/2015) (Entered: 04/09/2015)

52 Minute Entry for proceedings held before Magistrate Judge Jacqueline Scott Corley: Motion Hearing held on 4/23/2015 re 43 MOTION to Compel filed by Eric Anthony Garris, Dennis Joseph Raimondo. (ahm, COURT STAFF) (Date Filed: 4/23/2015) (Entered: 04/24/2015)

ORDER by Magistrate Judge Jacqueline Scott Corley

53

granting in part 43 Motion to Compel (ahm, COURT STAFF)

(Filed on 4/23/2015) (Entered: 04/24/2015)

54 Status Report re 53 Order on Motion to Compel filed by Eric
Anthony Garris, Dennis Joseph Raimondo. (Related

document(s) 53 ) (Hurtado, Laura) (Filed on 6/4/2015) Modified on 6/5/2015 (slhS, COURT STAFF). (Entered: 06/04/2015)

Set/Reset Hearing: Status Conference set for 7/9/2015 09:00 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 6/9/2015) (Entered: 06/09/2015)

55 TRANSCRIPT ORDER by Eric Anthony Garris, Dennis Joseph Raimondo for Court Reporter FTR - San Francisco. (Hurtado, Laura) (Filed on 6/9/2015) (Entered: 06/09/2015)

56 Transcript of Proceedings held on 04/23/2015, before Magistrate Judge Jacqueline Scott Corley. Court Reporter/Transcriber Leo T. Mankiewicz, CSR, RMR, CRR, Telephone number (415) 7227045; email: leomank@gmail.com. FTR 9:00 a.m. - 9:37 a.m. = 37 minutes. Per General Order No. 59 and Judicial Conference policy,

07/02/2015 07/08/2015 07/09/2015
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this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 55 Transcript Order ) Redaction Request due 7/20/2015. Redacted Transcript Deadline set for 7/28/2015. Release of Transcript Restriction set for 9/25/2015. (Related documents(s) 55 ) (Mankiewicz, Leo) (Filed on 6/27/2015) (Entered: 06/27/2015)
57 JOINT CASE MANAGEMENT STATEMENT filed by Eric Anthony Garris, Dennis Joseph Raimondo. (Hurtado, Laura) (Filed on 7/2/2015) (Entered: 07/02/2015)
58 TRANSCRIPT ORDER by Federal Bureau of Investigation for Court Reporter Leo Mankiewicz. (Wang, Jennifer) (Filed on 7/8/2015) (Entered: 07/08/2015)

59 Minute Entry for proceedings held before Magistrate Judge Jacqueline Scott Corley: Status Conference held on 7/9/2015. The parties shall meet and confer and submit a proposed scheduling order re: motion to quash and motion for summary judgment by July 16, 2015. (FTR Time 9:04-9:17)

Plaintiff Attorney: Laura Hurtado; Julia Mass. Defendant Attorney: Jennifer Wang.

This is a text only Minute Entry (ahm, COURT STAFF) (Date Filed: 7/9/2015) (Entered: 07/09/2015)
60 Statement re 59 Status Conference, Joint Proposed Scheduling Order by Eric Anthony Garris, Dennis Joseph Raimondo. (Hurtado, Laura) (Filed on 7/16/2015) (Entered: 07/16/2015)

ORDER granting 60 Proposed Schedule filed by Eric Anthony

61

Garris, Dennis Joseph Raimondo. Signed by Magistrate Judge

Jacqueline Scott Corley on 7/17/2015. (ahm, COURT STAFF)

(Filed on 7/17/2015) (Entered: 07/17/2015)

Amended ORDER granting 60 Proposed Schedule filed by Eric

62

Anthony Garris, Dennis Joseph Raimondo. Signed by

Magistrate Judge Jacqueline Scott Corley on 7/17/2015. (ahm,

COURT STAFF) (Filed on 7/17/2015) (Entered: 07/17/2015)

07/23/2015 07/23/2015 08/13/2015 08/27/2015 09/10/2015
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63 MOTION for Protective Order filed by Federal Bureau of Investigation. Motion Hearing set for 9/10/2015 09:00 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. Responses due by 8/13/2015. Replies due by 8/27/2015. (Attachments: # 1 Proposed Order)(Wang, Jennifer) (Filed on 7/23/2015) (Entered: 07/23/2015)
64 Declaration of Jennifer S Wang in Support of 63 MOTION for Protective Order filed byFederal Bureau of Investigation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Related document(s) 63 ) (Wang, Jennifer) (Filed on 7/23/2015) (Entered: 07/23/2015)

65 RESPONSE (re 63 MOTION for Protective Order ) filed byEric Anthony Garris, Dennis Joseph Raimondo. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Proposed Order)(Hurtado, Laura) (Filed on 8/13/2015) (Entered: 08/13/2015)
66 REPLY (re 63 MOTION for Protective Order ) filed byFederal Bureau of Investigation. (Attachments: # 1 Affidavit, # 2 Exhibit G)(Wang, Jennifer) (Filed on 8/27/2015) (Entered: 08/27/2015)
67 Minute Entry for proceedings held before Magistrate Judge Jacqueline Scott Corley: Motion Hearing held on 9/10/2015 re 63 MOTION for Protective Order filed by Federal Bureau of Investigation. Court to issue order. (Court Reporter:Rhonda Aquilina)

Plaintiff Attorneys: Lara Hurtado; Julia Mass. Defendant Attorney: Jennifer Wang.

This is a text only Minute Entry (ahm, COURT STAFF) (Date Filed: 9/10/2015) (Entered: 09/10/2015)

ORDER by Magistrate Judge Jacqueline Scott Corley

68

granting 63 Motion for Protective Order (ahm, COURT

STAFF) (Filed on 9/11/2015) (Entered: 09/11/2015)

69 MOTION for Summary Judgment filed by Federal Bureau of Investigation. Motion Hearing set for 3/3/2016 09:00 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. Responses due by 12/17/2015. Replies due by 1/28/2016. (Attachments: # 1 Proposed Order)(Wang, Jennifer) (Filed on 11/12/2015) (Entered: 11/12/2015)

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70 AFFIDAVIT in Support re 69 MOTION for Summary Judgment Declarationof Andrew Campi In Support of Defendant's Motion for Summary Judgment filed byFederal Bureau of Investigation. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 69 ) (Wang, Jennifer) (Filed on 11/12/2015) (Entered: 11/12/2015)
71 Declaration of David M. Hardy in Support of 69 MOTION for Summary Judgment filed byFederal Bureau of Investigation. (Attachments: # 1 Exhibit A-L, # 2 Exhibit M, # 3 Exhibit NV,*** EXHIBIT FILED IN ERROR WITH CONFIDENTIAL INFORMATION. DOCUMENT LOCKED. DOCUMENT TO BE REFILED LATER. *** # 4 Exhibit W-AA)(Related document(s) 69 ) (Wang, Jennifer) (Filed on 11/12/2015) Modified on 11/13/2015 (fff, COURT STAFF). (Entered: 11/12/2015)
72 NOTICE by Federal Bureau of Investigation re 69 MOTION for Summary Judgment Notice of Ex Parte, In Camera Filing (Wang, Jennifer) (Filed on 11/12/2015) (Entered: 11/13/2015)
73 Declaration of Jennifer S Wang in Support of 69 MOTION for Summary Judgment filed byFederal Bureau of Investigation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Related document(s) 69 ) (Wang, Jennifer) (Filed on 11/13/2015) (Entered: 11/13/2015)
74 Administrative Motion to File Under Seal & [PROPOSED] ORDER; filed by Federal Bureau of Investigation. (Attachments: # 1 Declaration, # 2 Exhibit Redacted Ex. D, Wang Decl., # 3 Exhibit Part 1 - Unredacted Ex. D, Wang Decl., # 4 Exhibit Part 2, Unredacted Ex. D, Wang Decl., # 5 Exhibit Part 3 Unredacted Ex. D, Wang Decl., # 6 Exhibit Part 4, Unredacted Ex. D, Wang Decl., # 7 Exhibit Unredacted Ex. AA, Hardy Decl.)(Wang, Jennifer) (Filed on 11/13/2015) Modified on 11/13/2015 (aaaS, COURT STAFF). (Entered: 11/13/2015)
75 STIPULATION WITH PROPOSED ORDER re 69 MOTION for Summary Judgment Stipulation and [Proposed] Order Enlarging Page-Limit for Defendant's Motion for Summary Judgment filed by Federal Bureau of Investigation. (Wang, Jennifer) (Filed on 11/13/2015) (Entered: 11/13/2015)
76 ORDER by Judge Jacqueline Scott Corley granting 75 Stipulation to Enlarge Page-Limit for Defendant's

11/13/2015 11/13/2015 11/16/2015 12/16/2015 12/17/2015 12/17/2015
01/19/2016

Motion for Summary Judgment (ahm, COURT STAFF) (Filed on 11/13/2015) (Entered: 11/13/2015)
77 MOTION to Remove Incorrectly Filed Document ; [Proposed] Order filed by Federal Bureau of Investigation. (Attachments: # 1 Declaration of Jennifer S Wang)(Wang, Jennifer) (Filed on 11/13/2015) (Entered: 11/13/2015)
78 EXHIBITS re 71 Declaration in Support, CORRECTION OF DOCKET # [71-3], filed byFederal Bureau of Investigation. (Related document(s) 71 ) (Wang, Jennifer) (Filed on 11/13/2015) (Entered: 11/13/2015)
79 Order by Magistrate Judge Jacqueline Scott Corley granting 77 Motion to Remove Incorrectly Filed Document.
(This is a text only docket entry; there is no document associated with this notice.)(jsclc2, COURT STAFF) (Filed on 11/16/2015) (Entered: 11/16/2015)
80 STIPULATION WITH PROPOSED ORDER re 17 Scheduling Order Enlarging Page Limit for Plaintiffs' Opposition and CrossMotion for Summary Judgment filed by Eric Anthony Garris, Dennis Joseph Raimondo. (Hurtado, Laura) (Filed on 12/16/2015) (Entered: 12/16/2015)
81 ORDER by Magistrate Judge Jacqueline Scott Corley granting in part 80 Stipulation Enlarging Page Limit for Plaintiffs' Opposition and Cross-Motion for Summary Judgment (ahm, COURT STAFF) (Filed on 12/17/2015) (Entered: 12/17/2015)
82 Cross MOTION for Summary Judgment filed by Eric Anthony Garris, Dennis Joseph Raimondo. Motion Hearing set for 3/3/2016 09:00 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. Responses due by 1/28/2015. Replies due by 2/11/2016. (Attachments: # 1 Declaration Hurtado Declaration and Exhibits, # 2 Proposed Order)(Hurtado, Laura) (Filed on 12/17/2015) (Entered: 12/17/2015)
83 STIPULATION WITH PROPOSED ORDER Stipulation and [Proposed] Order to Extend Deadlines Related to the Parties' Cross Motions for Summary Judgment filed by Federal Bureau of Investigation. (Wang, Jennifer) (Filed on 1/19/2016) (Entered: 01/19/2016)

01/20/2016 01/20/2016 02/11/2016 02/11/2016 02/12/2016
03/03/2016 03/24/2016

84 ORDER by Magistrate Judge Jacqueline Scott Corley granting 83 Stipulation to Extend Deadlines Related to the Parties' Cross Motions for Summary Judgment (ahm, COURT STAFF) (Filed on 1/20/2016) (Entered: 01/20/2016)
Set/Reset Deadlines as to 82 Cross MOTION for Summary Judgment , 69 MOTION for Summary Judgment . Responses due by 2/11/2016. Replies due by 3/3/2016. Motion Hearing reset for 3/24/2016 02:00 PM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 1/20/2016) (Entered: 01/20/2016)
85 RESPONSE (re 82 Cross MOTION for Summary Judgment , 69 MOTION for Summary Judgment ) Defendant's Reply In Support of Defendant's Motion for Summary Judgment and Opposition to Plaintiffs' Cross-Motion for Summary Judgment filed byFederal Bureau of Investigation. (Wang, Jennifer) (Filed on 2/11/2016) (Entered: 02/11/2016)
86 Declaration of David M. Hardy in Support of 85 Opposition/Response to Motion, Supplemental Declaration of David M. Hardy filed byFederal Bureau of Investigation. (Related document(s) 85 ) (Wang, Jennifer) (Filed on 2/11/2016) (Entered: 02/11/2016)
87 Declaration in Support of 85 Opposition/Response to Motion, Supplemental Declaration of Jennifer S Wang In Support of Defendant's Reply In Support of Defendant's Motion for Summary Judgment and Opposition to Plaintiffs' Cross-Motion for Summary Judgment filed byFederal Bureau of Investigation. (Attachments: # 1 Exhibit J-K)(Related document(s) 85 ) (Wang, Jennifer) (Filed on 2/12/2016) (Entered: 02/12/2016)
88 REPLY (re 82 Cross MOTION for Summary Judgment , 69 MOTION for Summary Judgment ) filed byEric Anthony Garris, Dennis Joseph Raimondo. (Attachments: # 1 Declaration)(Hurtado, Laura) (Filed on 3/3/2016) (Entered: 03/03/2016)
89 Minute Entry for proceedings held before Magistrate Judge Jacqueline Scott Corley: Motion Hearing held on 3/24/2016 re 69 MOTION for Summary Judgment filed by Federal Bureau of Investigation and 82 Cross MOTION for Summary Judgment filed by Eric Anthony Garris, Dennis Joseph Raimondo. (FTR Time 2:27-4:13.)

05/10/2016 05/10/2016 05/10/2016 05/13/2016 05/16/2016 05/16/2016 05/17/2016

Plaintiff Attorneys: Laura Hurtado; Julia Mass; Andrew Bluth. Defendant Attorney: Jennifer Wang.

This is a text only Minute Entry (ahm, COURT STAFF) (Date Filed: 3/24/2016) Transcribed by Joan Columbini. Modified on 3/2/2018 (notewarelS, COURT STAFF). (Entered: 03/25/2016)

ORDER RE: CROSS-MOTIONS FOR SUMMARY

90

JUDGMENT. Signed by Judge Jacqueline Scott Corley on

5/10/2016. (ahm, COURT STAFF) (Filed on 5/10/2016)

(Entered: 05/10/2016)

Set Deadlines/Hearings: Joint Case Management Statement due by 6/2/2016. Further Case Management Conference set for 6/9/2016 at 01:30 PM in Courtroom F, 15th Floor, San Francisco. (ahm, COURT STAFF) (Filed on 5/10/2016) (Entered: 05/10/2016)

91 ORDER by Magistrate Judge Jacqueline Scott Corley granting in part and denying in part 74 Administrative Motion to File Under Seal. (ahm, COURT STAFF) (Filed on 5/10/2016) (Entered: 05/10/2016)

92 STIPULATION WITH PROPOSED ORDER to Continue Case Management Conference filed by Federal Bureau of Investigation. (Wang, Jennifer) (Filed on 5/13/2016) (Entered: 05/13/2016)
93 ORDER by Magistrate Judge Jacqueline Scott Corley granting 92 Stipulation to Continue Case Management Conference. (ahm, COURT STAFF) (Filed on 5/16/2016) (Entered: 05/16/2016)
Set Deadlines/Hearings: Joint Case Management Statement due by 6/23/2016. Further Case Management Conference reset for 6/30/2016 at 01:30 PM in Courtroom F, 15th Floor, San Francisco. (ahm, COURT STAFF) (Filed on 5/16/2016) (Entered: 05/16/2016)
94 EXHIBITS re 73 Declaration in Support, 91 Order on Administrative Motion to File Under Seal filed byFederal Bureau of Investigation. (Attachments: # 1 Exhibit D, Part 1, # 2 Exhibit D, Part 2)(Related document(s) 73 , 91 ) (Wang, Jennifer) (Filed on 5/17/2016) (Entered: 05/17/2016)

06/23/2016 06/29/2016 08/30/2016 09/09/2016 09/09/2016 01/23/2017 01/23/2017 02/09/2017
02/10/2017

95 JOINT CASE MANAGEMENT STATEMENT filed by Eric Anthony Garris, Dennis Joseph Raimondo. (Hurtado, Laura) (Filed on 6/23/2016) (Entered: 06/23/2016)

ORDER RE: FURTHER CASE MANAGEMENT

96

SCHEDULE. Signed by Magistrate Judge Jacqueline Scott

Corley on 6/29/2016. (ahm, COURT STAFF) (Filed on

6/29/2016) (Entered: 06/29/2016)

97 NOTICE of Appearance by Rebecca Ann Falk (Falk, Rebecca) (Filed on 8/30/2016) (Entered: 08/30/2016)

98 STIPULATION WITH PROPOSED ORDER re 96

Order Regarding Summary Judgment Briefing Schedule filed by Eric Anthony Garris, Dennis Joseph Raimondo. (Hurtado, Laura) (Filed on 9/9/2016) (Entered: 09/09/2016)

99 ORDER by Magistrate Judge Jacqueline Scott Corley granting 98 Stipulation Regarding Summary Judgment Briefing Schedule. (ahm, COURT STAFF) (Filed on 9/9/2016) (Entered: 09/09/2016)

100 STIPULATION WITH PROPOSED ORDER STIPULATION RE SETTLEMENT AND DISMISSAL WITH PREJUDICE OF FOIA CLAIMS WITH THE EXCEPTION OF ATTORNEYS FEES; PROPOSED ORDER filed by Federal Bureau of Investigation. (Falk, Rebecca) (Filed on 1/23/2017) (Entered: 01/23/2017)

101 ORDER by Magistrate Judge Jacqueline Scott Corley granting 100 Stipulation RE SETTLEMENT AND DISMISSAL WITH PREJUDICE OF FOIA CLAIMS WITH THE EXCEPTION OF ATTORNEYS FEES. (ahm, COURT STAFF) (Filed on 1/23/2017) (Entered: 01/23/2017)

102 MOTION for Leave To File a Motion for Reconsideration Under

Civil Local Rule 7-9 re 90 Order on Motion for Summary Judgment, filed by Eric Anthony Garris, Dennis Joseph Raimondo. (Attachments: # 1 Motion for Reconsideration, # 2 Proposed Order)(Hurtado, Laura) (Filed on 2/9/2017) Modified on 2/21/2017 (ahm, COURT STAFF). Modified on 2/21/2017 (ahm, COURT STAFF). (Entered: 02/09/2017)

103 STIPULATION WITH PROPOSED ORDER re 101 Order on Stipulation FURTHER STIPULATION RE SETTLEMENT AND DISMISSAL WITH PREJUDICE OF FOIA CLAIMS WITH THE

02/13/2017 02/15/2017
02/21/2017 02/21/2017 02/21/2017 03/17/2017
03/31/2017

EXCEPTION OF ATTORNEY'S FEES; PROPOSED ORDER filed by Federal Bureau of Investigation. (Falk, Rebecca) (Filed on 2/10/2017) (Entered: 02/10/2017)
104 ORDER by Magistrate Judge Jacqueline Scott Corley granting 103 Further Stipulation Re: Settlement and Dismissal with Prejudice of FOIA Claims with the Exception of Attorney's Fees. (mklS, COURT STAFF) (Filed on 2/13/2017) (Entered: 02/13/2017)
105 Order by Magistrate Judge Jacqueline Scott Corley granting Motion for Leave To File A Motion For Reconsideration Under Civil Local Rule 7-9. Defendant shall file a response to the motion for reconsideration by 3/9/2017. Plaintiff may file a reply by 3/23/2017. Court will take the matter under submission and advise the parties if oral argument is required. (afmS, COURT STAFF) (Filed on 2/15/2017) Modified on 2/21/2017 (ahm, COURT STAFF). (Entered: 02/15/2017)
106 STIPULATION WITH PROPOSED ORDER RE RESPONSE DATES REGARDING PLAINTIFFS' MOTION FOR RECONSIDERATION filed by Federal Bureau of Investigation. (Falk, Rebecca) (Filed on 2/21/2017) Modified on 2/22/2017 (slhS, COURT STAFF). (Entered: 02/21/2017)
107 ORDER by Magistrate Judge Jacqueline Scott Corley granting 106 Stipulation RE RESPONSE DATES REGARDING PLAINTIFFS' MOTION FOR RECONSIDERATION. (ahm, COURT STAFF) (Filed on 2/21/2017) (Entered: 02/21/2017)
Set/Reset Deadlines as to 102 MOTION for Reconsideration. Responses due by 3/17/2017. Replies due by 3/31/2017. (ahm, COURT STAFF) (Filed on 2/21/2017) (Entered: 02/21/2017)
108 OPPOSITION/RESPONSE (re 102 MOTION for Reconsideration
re 90 Order on Motion for Summary Judgment) filed by Federal Bureau of Investigation. (Attachments: # 1 Declaration Rebecca A. Falk in Support of Defendant's Opposition to Plaintiffs' Motion for Reconsideration)(Falk, Rebecca) (Filed on 3/17/2017) Modified on 3/21/2017 (slhS, COURT STAFF). (Entered: 03/17/2017)
109 REPLY (re 102 MOTION for Reconsideration re 90 Order on Motion for Summary Judgment, ) In Support of Plaintiffs' Motion

04/14/2017 07/18/2017 08/14/2017 08/15/2017
10/05/2017
10/05/2017

for Reconsideration filed byEric Anthony Garris, Dennis Joseph Raimondo. (Attachments: # 1 Affidavit Supplemental Declaration of Laura Hurtado in support of Motion for Reconsideration)(Mass, Julia) (Filed on 3/31/2017) (Entered: 03/31/2017)
110 STIPULATION Re Settlement of FOIA Attorneys' Fees filed by Federal Bureau of Investigation. (Falk, Rebecca) (Filed on 4/14/2017) (Entered: 04/14/2017)
111 ORDER by Magistrate Judge Jacqueline Scott Corley granting in part and denying in part 102 Motion for Reconsideration. (ahm, COURT STAFF) (Filed on 7/18/2017) (Entered: 07/18/2017)
112 STIPULATION WITH PROPOSED ORDER Joint Statement and [Proposed] Order Regarding Briefing Schedule filed by Federal Bureau of Investigation. (Wang, Jennifer) (Filed on 8/14/2017) (Entered: 08/14/2017)
113 STIPULATION AND ORDER REGARDING BRIEFING SCHEDULE by Magistrate Judge Jacqueline Scott Corley: Granting 112 Stipulation. October 5, 2017 - Defendant files motion for summary judgment; October 26, 2017 - Plaintiffs file opposition to defendants motion for summary judgment and plaintiffs cross-motion for summary judgment; November 16, 2017 - Defendant files opposition to plaintiffs cross-motion for summary judgment and reply in support of defendants motion for summary judgment; December 7, 2017 - Plaintiffs file reply in support of plaintiffs cross-motion for summary judgment; December 21, 2017 - Hearing on cross-motions for summary judgment.(lsS, COURT STAFF) (Filed on 8/15/2017) (Entered: 08/15/2017)
114 Second MOTION for Summary Judgment filed by Federal Bureau of Investigation. Motion Hearing set for 12/21/2017 09:00 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. Responses due by 10/26/2017. Replies due by 11/16/2017. (Attachments: # 1 Declaration Raul Bujanda, # 2 Declaration B. Grant Mendenhall, # 3 Declaration Jennifer Wang, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Proposed Order)(Wang, Jennifer) (Filed on 10/5/2017) (Entered: 10/05/2017)
115 NOTICE of Ex Parte, In Camera Filing by Federal Bureau of Investigation re 114 Second MOTION for Summary Judgment (Wang, Jennifer) (Filed on 10/5/2017) Modified on 10/6/2017 (slhS, COURT STAFF). (Entered: 10/05/2017)

10/24/2017 10/26/2017
11/16/2017 12/07/2017 12/12/2017

116 NOTICE of Appearance by Vasudha Talla (Talla, Vasudha) (Filed on 10/24/2017) (Entered: 10/24/2017)
117 OPPOSITION/RESPONSE (re 114 Second MOTION for Summary Judgment ) PLAINTIFFS OPPOSITION TO DEFENDANTS SECOND MOTION FOR SUMMARY JUDGMENT AND SECOND CROSS-MOTION FOR SUMMARY JUDGMENT filed byEric Anthony Garris, Dennis Joseph Raimondo. (Attachments: # 1 Proposed Order [PROPOSED] ORDER GRANTING PLAINTIFFS SECOND CROSS-MOTION FOR SUMMARY JUDGMENT, # 2 Declaration DECLARATION OF VASUDHA TALLA IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS SECOND MOTION FOR SUMMARY JUDGMENT AND SECOND CROSS-MOTION FOR SUMMARY JUDGMENT, # 3 Exhibit Exhibit A to Declaration of Vasudha Talla, # 4 Declaration DECLARATION OF ERIC ANTHONY GARRIS IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT)(Talla, Vasudha) (Filed on 10/26/2017) (Entered: 10/26/2017)
118 OPPOSITION/RESPONSE (re 114 Second MOTION for Summary Judgment ) Defendant's Opposition to Plaintiffs' Second Cross-Motion for Summary Judgment and Reply in Support of Defendant's Second Motion for Summary Judgment filed byFederal Bureau of Investigation. (Wang, Jennifer) (Filed on 11/16/2017) (Entered: 11/16/2017)
119 REPLY in Support (re 114 Second MOTION for Summary Judgment) filed by Eric Anthony Garris, Dennis Joseph Raimondo. (Talla, Vasudha) (Filed on 12/7/2017) Modified on 12/8/2017 (slhS, COURT STAFF). (Entered: 12/07/2017)
120 CLERK'S NOTICE CONTINUING MOTION HEARING. To all parties and counsel of record: Please take notice that the hearing on Defendant's Motion for Summary Judgment (Dkt. No. 114 ) currently scheduled for December 21, 2017 is continued to January 11, 2018 at 9:00 a.m., before Magistrate Judge Jacqueline Scott Corley, in Courtroom F, 15th Floor, Federal Building, 450 Golden Gate Avenue in San Francisco.
(This is a text only docket entry, there is no document associated with this notice.)
(ahm, COURT STAFF) (Filed on 12/12/2017) (Entered: 12/12/2017)

12/12/2017 01/11/2018

Set/Reset Deadlines as to 114 Second MOTION for Summary Judgment . Motion Hearing reset for 1/11/2018 at 09:00 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 12/12/2017) (Entered: 12/12/2017)
121 Minute Entry for proceedings held before Magistrate Judge Jacqueline Scott Corley: Motion Hearing held on 1/11/2018 re 114 Second MOTION for Summary Judgment filed by Federal Bureau of Investigation and 117 SECOND CrossMotion for Summary filed by Eric Anthony Garris, Dennis Joseph Raimondo. The motions were argued, submitted, and taken under submission. (FTR Time: 9:01-9:23.)

Attorneys for Plaintiffs: Vasudha Talla; Julie Mass; Laura Hurtado. Attorney for Defendant: Jennifer Wang.

(This is a text-only entry generated by the court. There is no document associated with this entry.)

(ahm, COURT STAFF) (Date Filed: 1/11/2018) Matter transcribed by Joan Columbini. Modified on 1/31/2018 (notewarelS, COURT STAFF). (Entered: 01/11/2018)

01/12/2018 122

ORDER by Magistrate Judge Jacqueline Scott Corley granting 114 Defendant's Second Motion for Summary Judgment and denying 117 Plaintiffs' Second Cross-motion for Summary Judgment. (ahm, COURT STAFF) (Filed on 1/12/2018) (Entered: 01/12/2018)

01/12/2018

123 JUDGMENT. Signed by Magistrate Judge Jacqueline Scott Corley on 1/12/2018. (ahm, COURT STAFF) (Filed on 1/12/2018) (Entered: 01/12/2018)

01/19/2018

124 Statement to Clarify the Record by Federal Bureau of Investigation. (Attachments: # 1 Exhibit A)(Wang, Jennifer) (Filed on 1/19/2018) (Entered: 01/19/2018)

01/26/2018

125 BILL OF COSTS by Federal Bureau of Investigation. Objections due by 2/9/2018. (Wang, Jennifer) (Filed on 1/26/2018) (Entered: 01/26/2018)

01/30/2018

126 TRANSCRIPT ORDER for proceedings held on 1/11/2018 before Magistrate Judge Jacqueline Scott Corley by Eric Anthony Garris, Dennis Joseph Raimondo, for Court Reporter FTR - San

02/12/2018
02/28/2018 03/01/2018 03/13/2018 03/15/2018

Francisco. (Talla, Vasudha) (Filed on 1/30/2018) (Entered: 01/30/2018)
127 Transcript of Proceedings held on January 11, 2018, before Judge Jacqueline Scott Corley. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, telephone number (510) 367-3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 126 Transcript Order ) Redaction Request due 3/5/2018. Redacted Transcript Deadline set for 3/15/2018. Release of Transcript Restriction set for 5/14/2018. (Related documents(s) 126 ) (Columbini, Joan) (Filed on 2/12/2018) (Entered: 02/12/2018)
128 TRANSCRIPT ORDER for proceedings held on 3/24/2016 before Magistrate Judge Jacqueline Scott Corley by Eric Anthony Garris, Dennis Joseph Raimondo, for Court Reporter FTR - San Francisco. (Mass, Julia) (Filed on 2/28/2018) (Entered: 02/28/2018)
129 Costs Taxed in amount of $4,655.40 Re: 125 Bill of Costs against Plaintiffs Dennis Raimondo and Eric Garris. (mklS, COURT STAFF) (Filed on 3/1/2018) (Entered: 03/01/2018)
130 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Eric Anthony Garris, Dennis Joseph Raimondo. Appeal of Judgment 123 (Pay.gov Agency Tracking ID 268D0E43.) (Mass, Julia) (Filed on 3/13/2018) (USCA Case No. 18-15416) (Entered: 03/13/2018)
131 Transcript of Proceedings held on March 24, 2016, before Judge Jacqueline Scott Corley. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, telephone number (510) 367-3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 128 Transcript Order ) Redaction Request due 4/5/2018.

Redacted Transcript Deadline set for 4/16/2018. Release of Transcript Restriction set for 6/13/2018. (Related documents(s) 128 ) (Columbini, Joan) (Filed on 3/15/2018) (Entered: 03/15/2018)

03/20/2018

132 USCA Case Number 18-15416 for 130 Notice of Appeal filed by Eric Anthony Garris, Dennis Joseph Raimondo. (slhS, COURT STAFF) (Filed on 3/20/2018) (Entered: 03/20/2018)

04/11/2018

133 TRANSCRIPT ORDER for proceedings held on 09/10/2015 before Magistrate Judge Jacqueline Scott Corley by Eric Anthony Garris, Dennis Joseph Raimondo, for Court Reporter Rhonda Aquilina. (Mass, Julia) (Filed on 4/11/2018) (Entered: 04/11/2018)

04/11/2018

134 Transcript Designation Form for proceedings held on 4/23/2015; 9/10/2015; 3/24/2016; 1/11/2018 before Judge JSC, re 130 Notice of Appeal Transcript due by 5/14/2018. (Mass, Julia) (Filed on 4/11/2018) (Entered: 04/11/2018)

05/14/2018

135 Transcript of Proceedings held on 9/10/2015, before Judge Jacqueline Scott Corley. Court Reporter/Transcriber Rhonda Aquilina, rhondaaquilina@aol.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 133 Transcript Order ) Redaction Request due 6/4/2018. (Related documents(s) 133 ) (Aquilina, Rhonda) (Filed on 5/14/2018) (Entered: 05/14/2018)

09/12/2019 136

ORDER of USCA dismissing appeal as to as to Appellant Dennis Joseph Raimondo re 130 Notice of Appeal. (slhS, COURT STAFF) (Filed on 9/12/2019) (Entered: 09/12/2019)

09/12/2019 137

USCA Opinion as to 130 Notice of Appeal filed by Eric Anthony Garris, Dennis Joseph Raimondo; The judgment of the district court is AFFIRMED in part, REVERSED in part, and the case is REMANDED to the district court with instructions to direct the FBI to expunge the 2004 Memo. (slhS, COURT STAFF) (Filed on 9/12/2019) (Entered: 09/12/2019)

11/04/2019 138

MANDATE of USCA as to 130 Notice of Appeal filed by Eric Anthony Garris, Dennis Joseph Raimondo. (tnS, COURT STAFF) (Filed on 11/4/2019) (Entered: 11/04/2019)

11/06/2019 139

ORDER REQUESTING PARTIES TO FILE PROPOSED AMENDED JUDGMENT. Signed by Magistrate Judge Jacqueline Scott Corley on 11/6/2019. (ahm, COURT STAFF) (Filed on 11/6/2019) (Entered: 11/06/2019)

11/19/2019

140 Proposed Order Joint Proposed Amended Final Judgment by Eric Anthony Garris. (Talla, Vasudha) (Filed on 11/19/2019) (Entered: 11/19/2019)

11/20/2019 141

Amended Final Judgment. Signed by Magistrate Judge Jacqueline Scott Corley on 11/20/2019. (ahm, COURT STAFF) (Filed on 11/20/2019) (Entered: 11/20/2019)

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1.30

 
 Case 3:13-cv-02295-JSC Document 137 Filed 09/12/19 Page 1 of 32

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ERIC ANTHONY GARRIS, Plaintiff-Appellant,
v.

No. 18-15416
D.C. No. CV 13-02295 JSC

FEDERAL BUREAU OF INVESTIGATION,
Defendant-Appellee.

OPINION

Appeal from the United States District Court for the Northern District of California
Jacqueline Scott Corley, Magistrate Judge, Presiding
Argued and Submitted June 12, 2019 Anchorage, Alaska
Filed September 11, 2019
Before: A. Wallace Tashima, William A. Fletcher, and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Tashima

Case 3:13-cv-02295-JSC Document 137 Filed 09/12/19 Page 2 of 32

2

GARRIS V. FBI

SUMMARY*

Privacy Act
The panel affirmed in part and reversed in part the district court’s summary judgment in an action under the Privacy Act seeking expungement of two separate threat assessment memos created by the Federal Bureau of Investigation (“FBI”).
The 2004 Memo detailed plaintiff Eric Garris’s posting of an FBI “watch list” to Antiwar.com as well as other First Amendment activity. The Halliburton Memo detailed an upcoming Halliburton shareholder’s meeting and listed Antiwar.com as part of a catalogue of sources on the meeting.
The panel first addressed discovery and evidentiary challenges. First, the panel held that the district court did not abuse its discretion in granting a protective order to the FBI precluding Garris from deposing certain retired FBI agents. Second, the panel agreed in part with Garris’ contention that the district court abused its discretion by relying on a declaration from FBI Special Agent Campi. The panel held that the district court applied the wrong legal standard – by employing a Freedom of Information Act (“FOIA”) standard – when it accepted the Campi Declaration in toto, but the error was harmless as to certain parts of the declaration, which were sufficiently based on Campi’s personal knowledge. The panel held that those of Campi’s statements that went beyond matters of personal knowledge were purely
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

Case 3:13-cv-02295-JSC Document 137 Filed 09/12/19 Page 3 of 32

GARRIS V. FBI

3

speculative and should not have been admitted. Third, the panel held that the district court did not abuse its discretion in admitting the Declaration of FBI Special Agent Bujanda. Unlike with the Campi Declaration, the district court correctly recognized that the FOIA-specific knowledge standard did not apply here, and properly applied the traditional personal knowledge standard.

The panel held that unless a record is pertinent to an ongoing authorized law enforcement activity, an agency may not maintain it under section (e)(7) of the Privacy Act, 5 U.S.C. § 552(e)(7). The panel held that because the FBI had not met its burden of demonstrating that the 2004 Memo was pertinent to an ongoing law enforcement activity, it must be expunged. The panel further held that the Halliburton Memo, however, need not be expunged because it was pertinent to an ongoing law enforcement activity.

COUNSEL
Vasudha Talla (argued), American Civil Liberties Union Foundation of Northern California Inc., San Francisco, California, for Plaintiff-Appellant.
Lewis S. Yelin (argued) and Michael S. Raab, Appellate Staff; Alex G. Tse, United States Attorney; United States Department of Justice, Civil Division, Washington, D.C.; for Defendant-Appellee.
Adam Gershenson, Cooley LLP, Boston, Massachusetts; David Houska and Maxwell Alderman, Cooley LLP, San Francisco, California; for Amicus Curiae First Amendment Coalition.

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Aiden Synnott, Luke X. Flynn-Fitzsimmons, William E. Freeland, and Melina M. Memeguin Layerenza, Paul Weiss Rifkind Wharton & Garrison LLP, New York, New York, for Amici Curiae Knight First Amendment Institute at Columbia University, Center for Constitutional Rights, Color of Change.

Aaron Mackey, Camille Fischer, and Adam Schwartz, Electronic Frontier Foundation, San Francisco, California, for Amicus Curiae Electronic Frontier Foundation.

OPINION
TASHIMA, Circuit Judge:
Plaintiff-Appellant Eric Anthony Garris appeals the district court’s grant of summary judgment in favor of the Federal Bureau of Investigation (“FBI”) in an action under the Privacy Act, 5 U.S.C. § 552a. Garris discovered that he and the website Antiwar.com had been the subject of two separate “threat assessment” memos (collectively, the “Memos”) created by the FBI. The first, the “2004 Memo,” detailed Garris’ posting of an FBI “watch list” to Antiwar.com as well as other First Amendment activity. The second, the “Halliburton Memo,”detailed an upcoming Halliburton shareholder’s meeting and listed Antiwar.com as part of a catalogue of sources on the meeting.
Garris seeks expungement of the Memos under the Privacy Act, which provides that federal agencies shall “maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless . . . pertinent to and within the scope of an authorized law

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enforcement activity.” 5 U.S.C. § 552a(e)(7). The FBI argues that, although both Memos describe protected First Amendment activity, the records fall under the law enforcement activity exception. Garris, however, contends that the law enforcement activity exception does not apply because the investigations detailed in both Memos have ended and the Memos are not pertinent to an ongoing authorized law enforcement activity. The question of whether, even if a record’s creation was permissible under the law enforcement activity exception, the record may not be maintained under § (e)(7) unless its maintenance is pertinent to an ongoing law enforcement activity, is one of first impression in our Circuit. We hold that unless a record is pertinent to an ongoing authorized law enforcement activity, an agency may not maintain it under § (e)(7) of the Privacy Act. Because the FBI has not met its burden of demonstrating that the 2004 Memo is pertinent to an ongoing law enforcement activity, it must be expunged. The Halliburton Memo, however, need not be, because it is pertinent to an ongoing law enforcement activity.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

Garris is the founder, managing editor, and webmaster of Antiwar.com.1 Antiwar.com is “an anti-interventionalist, propeace,” non-profit news website, the mission of which is to publish news, information and analysis on the issues of war

1 Joseph “Justin” Raimondo, the editorial director of Antiwar.com, was also a plaintiff-appellant in this action but died during the pendency of this appeal. His appeal has been dismissed. Accordingly, Garris is the only remaining plaintiff-appellant.

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and peace, diplomacy, foreign policy, and national security, as an alternative to mainstream media sources.

A. The FBI’s 2004 Threat Assessment Memo

In March 2004, the FBI’s Counterterrorism Division’s Terrorism Watch and Warning Unit advised all field offices that a post-9/11 “watch list,” that is, an FBI suspect list, called “Project Lookout” had been posted on the Internet and “may contain the names of individuals of active investigative interest.” An FBI agent subsequently discovered a twentytwo-page untitled Excel spreadsheet, dated 10/03/2001, on Antiwar.com. The spreadsheet contained names and identifying information, and appeared to be a possible FBI watch list.

This discovery prompted the Newark, New Jersey, FBI office to look further at Antiwar.com. The Newark office subsequently identified on Antiwar.com another document, written in Italian, which was accompanied by a second twenty-two-page spreadsheet, dated 05/22/2002, that also appeared to be an FBI suspect list. The second spreadsheet was marked “FBI SUSPECT LIST” at the top of each page and “Law Enforcement Sensitive” at the bottom.

The FBI memorialized this information in the 2004 Memo with the subject “threat assessment: . . . Eric Anthony Garris [and] www.antiwar.com.” In addition to detailing the investigation and watch lists described above, the ten-page 2004 Memo described Antiwar.com’s mission and listed Garris as the managing editor. The Memo also detailed the results of law enforcement database searches for Garris and references to Garris and Antiwar.com found in FBI records. The Memo further stated that a Lexis Nexis search was run

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for Garris and Antiwar.com, and described six of the articles found by the search, all of which describe articles, opinions, statements, or speeches given by Garris or Raimondo. The majority of these focus on Garris’ political views. Additionally, the Memo noted that persons of interest to the FBI had accessed or discussed Antiwar.com.

In a section for “analyst comments,” the Memo stated that “[t]he discovery of two detailed Excel spreadsheets posted on www.antiwar.com may not be significant by itself since distribution of the information on such lists are wide spread,” but “it is unclear whether www.antiwar.com may only be posting research material compiled from multiple sources or if there is material posted that is singular in nature and not suitable for public release. There are several unanswered questions regarding www.antiwar.com.”2 The 2004 Memo concluded by recommending to the FBI San Francisco Field Office that it further monitor Antiwar.com’s postings and open a preliminary investigation to determine if Garris “[was] engaging in, or ha[d] engaged, in activities which constitute a threat to National Security on behalf of a foreign power.”

The FBI’s San Francisco Field Office declined the recommendation, however, explaining that “it appears the information contained [on Antiwar.com] is public source information and not a clear threat to National Security,” and “there does not appear to be any direct nexus to terrorism nor

2 The analyst comments also stated that “Eric Garris has shown intent to disrupt FBI operations by hacking the FBI website.” FBI disclosures show that the allegation that Garris threatened to hack the FBI was erroneous and the result of a mistake made by an FBI agent; the charge arose from Garris’ having forwarded to the FBI a hacking threat that Antiwar.com had received.

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the threat of compromising current FBI investigations,” and noting that Garris “[was] exercising [his] constitutional right to free speech.”

Garris learned of the 2004 Memo in August 2011, after a partially redacted version was released on a website. He contends that his and the public’s awareness of the 2004 Memo caused him significant injury, including chilling of speech, damaged reputation, and loss of funding and other resources.

B. The FBI’s 2006 Halliburton Memo

In 2006, the FBI’s Oklahoma City Field Office created the Halliburton Memo, a memorandum describing information regarding an upcoming annual Halliburton shareholders’ meeting in Duncan, Oklahoma. The Halliburton Memo briefly described the Halliburton company, its contracts with the Department of Defense and prior affiliation with former Vice President Dick Cheney, and the schedule and logistics for the shareholders’ meeting, noting that the meeting had been “targeted by multiple organized protest groups.” The Halliburton Memo also included a list of websites that had posted information regarding the shareholders’ meeting, of which Antiwar.com was one. Garris learned of the Memo during this litigation.

II. Procedural Background

In October 2011, following his discovery of the redacted 2004 Memo, Garris filed Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and Privacy Act requests seeking disclosure of FBI records about him. After exhausting his administrative remedies, on May 21, 2013, Garris filed this

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action seeking disclosure of documents under FOIA and the Privacy Act. Separately, he filed requests with the FBI pursuant to 5 U.S.C. §§ 552a(e)(7) and (d)(2) of the Privacy Act, seeking expungement of all records maintained by the FBI describing his exercise of his First Amendment rights. The FBI ultimately denied Garris’ administrative requests for expungement of records.

Garris subsequently filed his First Amended Complaint, adding, as relevant here, a claim alleging that the FBI’s creation and maintenance of the 2004 Memo violates § 552a(e)(7) of the Privacy Act, which provides that an agency shall not maintain any “record describing how any individual exercises rights guaranteed by the First Amendment unless . . . pertinent to and within the scope of an authorized law enforcement activity.” 5 U.S.C. § 552a(e)(7).

In July of 2015, Garris issued deposition subpoenas for the two retired FBI agents who had written the 2004 Memo. The FBI moved for a protective order to preclude the depositions, arguing that depositions are not necessary to decide summary judgment in Privacy Act § (e)(7) cases; that the evidence would be duplicative of the FBI’s interrogatory responses and the previously provided redacted files; that it would burden the non-party officers; and that the evidence would be irrelevant.

The district court granted the FBI’s motion “without prejudice to Plaintiffs’ renewal of their request for additional targeted discovery following receipt of Defendant’s Motion for Summary Judgment.” At the hearing on the topic, the court reasoned that it would be premature to depose the former agents before learning what evidence the government

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would rely on, particularly given that it would be burdensome to the retired agents. Garris did not renew his request.

The parties then filed cross motions for summary judgment on Garris’ FOIA disclosure claims and claims under the Privacy Act, covering, as relevant to this appeal, expungement of the 2004 Memo and its attachments. In support of its motion for summary judgment, the FBI submitted the declaration of Andrew Campi, an “Assistant Special Agent in Charge” of the FBI, who was currently assigned to the Newark office (“the Campi Declaration”) and stated that the 2004 Memo was created to protect national security. Garris responded in his cross-motion for summary judgment that the FBI should be precluded from relying on the Campi Declaration because Campi was not at the Newark field office at the time the Memo was compiled and therefore lacked personal knowledge of the reason it was compiled.

The district court denied both parties’ motions with respect to Garris’ disclosure claims under FOIA and the Privacy Act, but granted summary judgment to the FBI on Garris’ Privacy Act § (e)(7) claim for expungement of the 2004 Memo. The court also overruled Garris’ objections to the Campi Declaration.

Because of Garris’ surviving disclosure claims, the FBI released further documents. Based on these documents, Garris moved for reconsideration of the district court’s order granting summary judgment to the FBI on his § (e)(7) claim, arguing that new documents produced by the FBI impacted the pertinence of the 2004 Memo to an authorized law enforcement activity. He also argued that two recently produced documents gave rise to claims under § (e)(7), including, as relevant here, the Halliburton Memo, reasoning

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that the Halliburton Memo’s inclusion of Antiwar.com in its list of publicizing sources violated the Privacy Act and requesting expungement. The district court denied his motion for reconsideration regarding the 2004 Memo in part, and ordered further briefing on Garris’ arguments regarding the Halliburton Memo.

Both parties then filed motions for summary judgment regarding the Halliburton Memo. The FBI submitted a declaration from Agent Bujanda, the Assistant Special Agent in Charge for National Security, in which Bujanda stated that the Halliburton Memo documented the FBI’s collaboration with local law enforcement to prepare for public safety concerns. Garris objected to the declaration on personal knowledge and hearsay grounds. Over these objections, the district court granted summary judgment to the FBI, concluding that the Halliburton Memo’s purpose was to protect public safety and that it therefore fell under the law enforcement activities exception.

The parties settled the remaining disclosure issues, and the district court entered judgment on January 12, 2019. Garris timely appealed his Privacy Act claims.

STANDARD OF REVIEW

This court reviews a grant of summary judgment de novo. MacPherson v. IRS, 803 F.2d 479, 480 (9th Cir. 1986). “Summary judgment is appropriate when, viewing the evidence in the light most favorable to the non-movant, there is no genuine issue of material fact,” Frudden v. Pilling, 877 F.3d 821, 828 (9th Cir. 2017), the substantive law was correctly applied, MacPherson, 803 F.2d at 480, and the movant is entitled to judgment as a matter of law.

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We review evidentiary decisions for abuse of discretion, Block v. City of Los Angeles, 253 F.3d 410, 416 (9th Cir. 2001), including a lower court’s decision to grant a protective order, In re Roman Catholic Archbishop of Portland in Or., 661 F.3d 417, 423 (9th Cir. 2011). “A court abuses its discretion when it fails to identify and apply the correct legal rule to the relief requested, or if its application of the correct legal standard was (1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record.” Id. (citations and quotation marks omitted).

DISCUSSION

I. Discovery and Evidentiary Challenges

A. Protective Order

The district court did not abuse its discretion in granting a protective order to the FBI precluding Garris from deposing certain retired FBI agents. The district court granted the FBI’s motion for a protective order without prejudice, reasoning that it would be premature to depose the former agents before learning what evidence the government would rely on, given that it would be burdensome to the retired agents. The court specifically explained that Garris could renew his request for discovery once the government filed a motion for summary judgment. But Garris did not renew deposition requests in his first summary judgment motion, in his motion for reconsideration, or in his second motion for summary judgment. Because the district court “only delayed [Garris’] discovery until after the government filed its summary judgment motion, and [Garris] never requested additional discovery to respond to that motion under Fed. R.

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Civ. P. 56(f),” the district court did not abuse its discretion. Lane v. Dep’t of Interior, 523 F.3d 1128, 1135 (9th Cir. 2008). And, because Garris “failed to follow the proper procedures, it was within the district court’s discretion to rule” on the claim at summary judgment. Id.

We note that the district court granted the protective order without determining if there was “good cause,” as is usually required, Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975), on the basis that in FOIA and Privacy Act disclosure cases, it is generally accepted that discovery is limited and that courts may defer discovery until after summary judgment without abusing their discretion and without demonstrating specific “good cause.” See Lane, 523 F.3d at 1134 (“[I]n FOIA and Privacy Act [disclosure] cases discovery is limited because the underlying case revolves around the propriety of revealing certain documents. Accordingly, in these cases courts may allow the government to move for summary judgment before the plaintiff conducts discovery.” (citation omitted)).

Although the district court did not abuse its discretion in this case, going forward there is good reason to believe that the special consideration afforded to FOIA and Privacy Act disclosure cases—which involve a plaintiff’s request for documents to be released—should not apply to substantive Privacy Act cases—which involve the propriety of the creation of such documents by the agency in the first place, as well as their continued maintenance. See Lane, 523 F.3d at 1134–35 (explaining that discovery may have been warranted for Lane’s substantive Privacy Act claim because, “[u]nlike the FOIA claim or the access to records Privacy Act claim, the improper access Privacy Act claim did not revolve around the propriety of disclosing certain documents”).

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B. Declarations

Garris also argues that the district court abused its discretion by relying on the Campi and Bujanda Declarations. We address each in turn.

1. Campi Declaration

First, Garris contends that the court abused its discretion by relying on the Campi Declaration. We agree in part. For an affidavit to be admissible to support summary judgment, the affidavit must “be made on personal knowledge.” Fed. R. Civ. P. 56(e); Block, 253 F.3d at 419.

We agree with Garris that the district court applied the wrong legal standard when it accepted the Campi Declaration in toto. Campi was employed by the FBI at the time the 2004 Memo was written, but he did not work at the Newark office at the time or have any personal involvement with the threat assessment. Despite this, the district court accepted that Campi had adequate personal knowledge for all the statements in his declaration because “[c]ourts routinely deny hearsay and lack of personal knowledge objections in FOIA cases based on agency affidavits similar to those submitted here. . . . The same rationale applies equally here notwithstanding Plaintiffs’ assertion of Privacy Act claims in addition to the FOIA claims.” In doing so, the district court relied on Lahr v. Nat’l Transp. Safety Bd., which explained that “‘[a]n affidavit from an agency employee responsible for supervising a FOIA search is all that is needed to satisfy’ the personal knowledge requirement of Federal Rule of Civil Procedure 56(e).” 569 F.3d 964, 990 (9th Cir. 2009) (quoting Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 814 (2d Cir.1994)).

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This was error. The rule cited to by the district court is specific to FOIA disclosure cases and exempts agents’ affidavits from the personal knowledge requirement. See, e.g., id. (allowing agent’s affidavit without personal knowledge because claim was a FOIA records request). But the rationale behind exempting agency affidavits from the personal knowledge requirement in FOIA disclosure cases does not translate to substantive Privacy Act cases. The purpose of agency affidavits in FOIA cases is to show “whether the agency’s search was ‘reasonably calculated to discover the requested documents,’” Maynard v. CIA, 986 F.2d 547, 559 (1st Cir. 1993) (quoting Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir.1991)), that is, the methodology of the search. It makes sense that a supervisor who did not personally perform the search would be able to testify to that, as the supervisor would be familiar with the method of storing, searching, and locating the agency’s records. In a § (e)(7) Privacy Act claim, however, Garris seeks to understand the FBI’s purpose in creating and maintaining the specific document. An agent without personal knowledge of these purposes can only speculate about it or rely on hearsay statements of other agents.

The district court’s error was harmless, however, as to certain parts of Campi’s declaration, which were sufficiently based on personal knowledge. Campi had experience working as a special agent for the FBI and had reviewed the relevant documents, including the 2004 Memo and attachments. Consequently, the portions of his declaration discussing general FBI guidelines and procedures, summarizing information clear from the face of the 2004 Memo, and analyzing the current relevance of the 2004 Memos were within his personal knowledge as a seasoned

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FBI agent. See Block, 253 F.3d at 419 (noting that personal knowledge could be based on review of documents).

Those of Campi’s statements that go beyond those matters, however, are purely speculative and should not have been admitted. For example, Campi speculates after the fact that the Memo included various articles to “provide context,” and that Antiwar.com’s decision to post the watch list could have “led to the compromise of then ongoing investigations or alternatively lead to the harming or harassment of innocent people.” These statements were offered to explain why the 2004 Memo was created, a fact of which Campi has no personal knowledge. Therefore, it was error for the district court to consider these statements.

2. Bujanda Declaration

As for the Bujanda Declaration, the district court did not abuse its discretion. First, unlike with the Campi Declaration, the district court correctly recognized that the FOIA-specific personal knowledge standard does not apply here—where a declaration is relied upon to establish the purpose of a historical document—and applied the traditional personal knowledge standard. Bujanda had been an FBI Special Agent since 2002, although he did not work in the Oklahoma Office until 2016, ten years after the Halliburton Memo was created. Therefore, like Campi, Bujanda had sufficient personal knowledge to opine on FBI policies, field office responsibilities, and information clear on the face of the Halliburton Memo. The declaration contains only one statement clearly beyond Bujanda’s personal knowledge: Bujanda relays hearsay regarding the Halliburton shareholders meeting and concludes that local law enforcement sought to ensure safety and preparedness for the

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event as a result. The district court did not abuse its discretion in overruling Garris’ hearsay objections as to this statement, however, because the FBI certified at the hearing that it would be able to submit the hearsay evidence in an admissible form at trial. See JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016) (“at summary judgment a district court may consider hearsay evidence submitted in an inadmissible form, so long as the underlying evidence could be provided in an admissible form at trial”).

II. Privacy Act § (e)(7) Claims

Garris contends that the existence of the 2004 and Halliburton Memos violates the Privacy Act. The Privacy Act provides that federal agencies shall “maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless . . . pertinent to and within the scope of an authorized law enforcement activity.” 5 U.S.C. § 552a(e)(7). This is commonly referred to as the “law enforcement activity” exception to § (e)(7). The question on appeal is whether the Memos fall within that exception.

Garris argues that the FBI’s initial collection of the Memos was not pertinent to an authorized law enforcement activity and therefore violates the Act. Alternatively, he argues that, regardless of whether the creation of the Memos was justified under § (e)(7), because the investigations underlying the Memos have concluded, the FBI’s maintenance of the Memos is not pertinent to an authorized ongoing law enforcement activity and therefore violates the Act.

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The question of whether the Privacy Act requires records to be pertinent to an ongoing law enforcement activity to be maintained is one of first impression in this Circuit. For the reasons described below, we hold that Privacy Act § (e)(7) prohibits the FBI from maintaining records describing First Amendment activity unless the maintenance of the record is pertinent to and within the scope of a currently ongoing authorized law enforcement activity. We further hold that the FBI has not carried its burden of demonstrating that the maintenance of the 2004 Memo is pertinent to an authorized law enforcement activity; therefore, it must be expunged. Because we so hold, we need not and do not address the question of whether the creation of the 2004 Memo also violated the Privacy Act. Finally, we hold that the FBI’s maintenance of the Halliburton Memo does not violate the Act.

A. Ongoing Authorized Law Enforcement Activity Requirement

Accordingly, we turn to the question of whether, assuming the creation of a record did not violate the Privacy Act, the Privacy Act prohibits the FBI from maintaining a record describing First Amendment activity if the record is not pertinent to ongoing authorized law enforcement activity.

We begin by looking to the text of the Privacy Act. Section (e)(7) states that agencies shall “maintain no record describing how any individual exercises rights guaranteed by the First Amendment . . . unless pertinent to and within the scope of an authorized law enforcement activity.” 5 U.S.C. § 552a(e)(7). The statute defines “maintain” as “maintain, collect, use, or disseminate.” 5 U.S.C. § 552a(a)(3). The plain meaning of the word “maintain”is “[t]o keep up,

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preserve.” Maintain, Oxford English Dictionary (3d ed. 2000). And the plain meaning of the word “collect” is “to gather, get together.” Collect, Oxford English Dictionary (3d ed. 2000).

We presume that, because Congress defined maintain to include “maintain” and “collect,” Congress intended the provision to apply to distinct activities. See Bailey v. United States, 516 U.S. 137, 146 (1995) (“We assume that Congress used two terms because it intended each term to have a particular, nonsuperfluous meaning.”). Therefore, we believe the plain meaning of the text is clear. The word maintain, as used in the Act, can be read as it is, or replaced with “collect” (or “use,” or “disseminate”). Therefore, an agency may not “maintain” a record describing how any individual’s protected First Amendment activity “unless pertinent to and within the scope of an authorized law enforcement activity.” 5 U.S.C. § 552a(e)(7). And an agency may not “collect” a record describing any individual’s protected First Amendment activity “unless pertinent to and within the scope of an authorized law enforcement activity.” Id. Each act of an agency must be justified to fall under the § (e)(7) exception. Therefore, “to give each of these verbs its meaning,” the most reasonable reading of the statute as a whole is that the record must be pertinent to an authorized law enforcement activity both “at the time of gathering, i.e., collecting, [and] at the time of keeping, i.e., maintaining.” J. Roderick MacArthur Found. v. FBI, 102 F.3d 600, 607 (D.C. Cir. 1996) (Tatel, J., concurring in part and dissenting in part). That is, if the agency does not have a sufficient current “law enforcement activity” to which the record is pertinent, the agency is in violation of the Privacy Act if it keeps the record in its files.

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The FBI contends that the plain meaning of the statute is that the law enforcement exception allows agencies to “collect” and to “maintain” records so long as they were pertinent to an authorized law enforcement activity at the time of collection, and that to hold otherwise would be to read a temporal limitation into the statute. But to accept the FBI’s preferred reading would be to read the word “maintain” out of the statute. If the FBI were right, Congress could have stated that “an agency shall ‘collect no record describing how any individual exercises rights guaranteed by the First Amendment . . . unless pertinent to and within the scope of an authorized law enforcement activity,’” or, “compiled for, and within the scope of, an authorized law enforcement activity.” Id. at 607 (alteration in original).

Applying the same analysis to one of the other statutory definitions of maintain, “disseminate,” demonstrates why a reading that divorces the authorized law enforcement activity clause from the verb is untenable. The FBI’s proffered reading would have it such that an agency may “[disseminate] no record describing how any individual exercises rights guaranteed by the First Amendment unless . . . [the record] is pertinent to and within the scope of an authorized law enforcement activity.” 5 U.S.C. § 552a(e)(7). This would mean that, presuming the initial collection of the record was relevant to an authorized law enforcement activity, the agency could share the record, regardless of whether the sharing of the record was relevant to a law enforcement purpose. But a reading of § (e)(7) that would give blanket approval to an agency to disseminate a record strains credulity. And it would be even more odd for Congress to have included one definition that was superfluous (“maintain”) and one that was not (“disseminate”). The same is true for the verb “use,” 5 U.S.C. § 552a(a)(3), which is

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clearly meant to regulate when an agency may use a record it has already collected.

Moreover, this conclusion furthers the purpose of the Act. The passage of the Privacy Act was spurred by congressional concern in response to the explosion of computer technology, which allowed for compilation and storage of data in quantities not seen before, coupled with rightful and broad condemnation of government surveillance programs including Watergate and the FBI’s COINTELPRO. See Steven W. Becker, Maintaining Secret Government Dossiers on the First Amendment Activities of American Citizens: The Law Enforcement Activity Exception to the Privacy Act, 50 DePaul L. Rev. 675, 679 (2000). In fact, the Act was “designed to set in motion a long-overdue evaluation of the needs of the Federal government to acquire and retain personal information on Americans, by requiring stricter review within agencies of criteria for collection and retention” of such information. S. Rep. No. 93-1183, at 2 (1974) (Conf. Rep.), as reprinted in 1974 U.S.C.C.A.N. 6916, 6917 (emphasis added). Thus, Congress was clearly interested in preventing both collection and retention of records, with a strong eye to preventing the government from maintaining “information not immediately needed, about lawabiding Americans, on the off-chance that Government or the particular agency might possibly have to deal with them in the future.” MacPherson, 803 F.2d at 483 (quoting No. 931183, at 57 (1974) (Conf. Rep.), as reprinted in 1974 U.S.C.C.A.N. 6916, 6971).

Our holding also is consistent with MacPherson, our only opinion interpreting the § (e)(7) law enforcement exception. There, IRS agents had compiled notes on and transcriptions of MacPherson’s public speeches on tax protesting (refusing

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to pay taxes) in a “Tax Protest Project File.” Id. at 480. MacPherson argued that the IRS’ maintenance of the file after the agency realized that MacPherson had not participated in or advocated illegal activity violated § (e)(7) of the Privacy Act. Id. at 481–82. In holding that the IRS’ retention of the file did not violate the Privacy Act, we did not ask whether the creation of the record violated the Act, but looked only to its maintenance. Id. at 484. And, in concluding that we must “consider the factors for and against the maintenance of such records of First Amendment activities on an individual, caseby-case basis,” we explained, “[s]ection (e)(7) of the Privacy Act, . . . is intended to restrict the information about individuals’ First Amendment activities that the government may collect and maintain at all,” and therefore a narrow reading of the § (e)(7) exception “better serves the goal of privacy.” MacPherson, 803 F.2d at 482, 484 (emphasis added).

Our decision also aligns with that of the Seventh Circuit. In Becker v. IRS, 34 F.3d 398 (7th Cir. 1994), the Seventh Circuit held that the IRS had “not sufficiently justified the maintenance of the documents in the Beckers’ files” because the IRS’ proffered justification, that “it may maintain these articles for possible future uses,” was untenable, given that “any potential advantage to having these documents in the Beckers’ files, at some uncertain date, is minuscule (and the IRS does not elaborate on how this material would be helpful).” Id. at 409. And later, the Seventh Circuit in Bassiouni v. FBI, 436 F.3d 712 (7th Cir. 2006), concluded that the FBI’s continued maintenance of records describing Bassiouni’s First Amendment activities did not violate § (e)(7) of the Privacy Act, not because the act has no separate and distinct maintenance requirement, but rather because the FBI had demonstrated that the records were of

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continuing relevance to an authorized law enforcement activity. See id. at 724–25 (“Furthermore, although the Privacy Act certainly does not authorize collection and maintenance of information of private citizens on the ‘offhand’ chance that such information may someday be useful, it does not require law enforcement agencies to purge, on a continuous basis, properly collected information with respect to individuals that the agency has good reason to believe may be relevant on a continuing basis in the fulfillment of the agency’s statutory responsibilities.”) (emphasis added).

We recognize that the D.C. Circuit, in a split decision, came to the conclusion urged by the FBI in J. Roderick MacArthur Found., 102 F.3d 600. The panel majority reasoned that “[t]he noun ‘record’ in § (e)(7) is modified in only two ways: the record must be [1] pertinent to and [2] within the scope of an authorized law enforcement activity,” and that substituting the word “maintain” for “collect” or “disseminate” “in § (e)(7) does nothing to change what the adjective “pertinent” modifies. 102 F.3d at 603 (internal quotation marks omitted). The panel majority also explained that “the provision, as written, can[not] be read to require that the maintenance of a record, as opposed to the record itself, must be pertinent to an authorized law enforcement activity.” Id. “One might argue that the Congress meant to say that an agency may ‘maintain no record relating to First Amendment activities unless doing so would be pertinent to and within the scope of an authorized law enforcement activity.’ But the Congress did not say that . . . .” Id.

We are not persuaded by this reasoning. First, the “pertinent to . . . an authorized law enforcement activity” clause does not modify only the noun “record,” because the

Case 3:13-cv-02295-JSC Document 137 Filed 09/12/19 Page 24 of 32

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GARRIS V. FBI

noun “record” cannot be divorced from the verb “maintain.” This connection makes sense when one considers the point of the text: § (e)(7) is about what an agency is permitted, or not permitted, to do. The verb is key. If we divorce the “pertinent to” clause from the verb, the proscription becomes nonsensical.

This observation is confirmed by reading s§ 552a(e)(7) as a whole. In full, the section directs agencies to: “maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.” 5 U.S.C. § 552a(e)(7). Thus, there are two exceptions contained in § (e)(7)—an exception for authorization by statute or by an affected individual, and a law enforcement activity exception. The two exceptions are parallel grammatically. And the first exception necessarily modifies the verb “maintain,” not just “record,” as it is quite evidently the maintenance that must be authorized, not the record. The clause “by the individual about whom the record is maintained” (emphasis added) makes that much plain.

Second, the D.C. Circuit majority’s reading also requires reading into the text words not written by Congress. The D.C. Circuit majority would have us read the text as “maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless [the record is]. . . pertinent to and within the scope of an authorized law enforcement activity.” 5 U.S.C. § 552a(e)(7). Our reading is that the text requires that an agency “maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless [the maintenance of the record

Case 3:13-cv-02295-JSC Document 137 Filed 09/12/19 Page 25 of 32

GARRIS V. FBI

25

is]. . . pertinent to and within the scope of an authorized law enforcement activity.” Id. Both are clarified by adding implicit text; ours has the added benefit of not also reading all but one of the statutory definitions of the word “maintain” out of the statute.

Third, as Judge Tatel explained in his partial dissent, Congress has demonstrated that when it means only to circumscribe the act of collection, it knows how to do so. See J. Roderick MacArthur Found., 102 F.3d at 607–08; see also 5 U.S.C. § 552a(e)(2) (requiring that each agency shall “collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual’s rights, benefits, and privileges under Federal programs”); § 552a(k)(2) (regulating agency rulemaking for records made up of “investigatory material compiled for law enforcement purposes”); § 552a(k)(5) (regulating agency rulemaking for records made up of “investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service”).

B. Application to the 2004 Memo

That ours is the correct reading is illustrated by the application in this case. Turning first to the 2004 Memo, we ask whether, assuming the creation of the memo was acceptable, the maintenance of the Memo is pertinent to an authorized law enforcement activity. The 2004 Memo specifically details Garris’ protected First Amendment activities, including his political views and articles he wrote, allegedly to conduct a threat assessment prompted by the posting of the FBI watch list. Notably, as the FBI concedes,

Case 3:13-cv-02295-JSC Document 137 Filed 09/12/19 Page 26 of 32

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GARRIS V. FBI

the posting of the list was protected First Amendment activity. The Newark Office then forwarded the 2004 Memo to the San Francisco Office with a recommendation to open a preliminary investigation. The San Francisco Field Office declined to do so, explaining:

After reviewing the website, it appears the information contained therein is public source information and not a clear threat to National Security. Furthermore, there does not appear to be any direct nexus to terrorism nor the threat of compromising current FBI investigations. San Francisco opines that Eric Garris and Justin Raimondo are exercising their constitutional right to free speech.

The threat assessment and related investigation has therefore definitively ended.

Our analysis does not end there, however. Even if an investigation has ended, the retention of the record could still be pertinent to an authorized law enforcement activity. The government contends that such is the case here, because the maintenance of the 2004 Memo would “serve to inform ongoing and future investigative activity.”

“[C]onsider[ing] the factors for and against the maintenance of such records of First Amendment activities,” MacPherson, 803 F.2d at 484, the FBI’s maintenance of the 2004 Memo does not fall within the law enforcement activities exception. The investigation did not merely conclude—it concluded because the threat assessment did not reveal a “threat to National Security,” “any direct nexus to terrorism,” or a “threat of compromising current FBI

Case 3:13-cv-02295-JSC Document 137 Filed 09/12/19 Page 27 of 32

GARRIS V. FBI

27

investigations”; rather, the San Francisco Office concluded that Garris and Raimondo were simply “exercising their constitutional right to free speech.” Effectively, the threat assessment turned up nothing more than protected First Amendment activity. At that point, the record was no longer—assuming it ever was—pertinent to an authorized law enforcement activity.

Nor is this a case where the threat assessment was relevant to a broader authorized law enforcement activity that might require its maintenance. In MacPherson, for example, we held that the IRS’ inclusion of MacPherson’s speeches in the “Tax Protest Project File” did not violate the Privacy Act. MacPherson, 803 F.2d at 480. There, although the file included descriptions of MacPherson’s protected First Amendment activity—namely, MacPherson’s speeches on tax protesting—and although the IRS had concluded that MacPherson did not engage in or advocate illegal activity—the record was relevant to the larger ongoing undertaking by the IRS of trying to prevent illegal tax protesting, and the record was in a general tax protestor file, not under MacPherson’s name. Id. at 480, 485, 485 n.9. The IRS’ maintenance of the record fell within the law enforcement activities exception because it was relevant to a continuing IRS law enforcement effort. As to that effort, MacPherson’s speeches both provided context and were “incidental” surveillance. Id. at 484.

Similarly, in Bassiouni, the Seventh Circuit concluded that the FBI’s maintenance of the record on Bassiouni that included excerpts from a speech Bassiouni had given to the Mid-America Arab Chamber of Commerce did not violate the Privacy Act, even though the FBI conceded that Bassiouni was not suspected of being a member of terrorist

Case 3:13-cv-02295-JSC Document 137 Filed 09/12/19 Page 28 of 32

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GARRIS V. FBI

organization. 436 F.3d at 719, 724. The Seventh Circuit explained that the maintenance of the file was pertinent to an authorized law enforcement activity because the FBI had “ongoing investigations into the threats posed by terrorist groups, specifically those originating in the Middle East” and “[b]ecause of the nature of these investigative activities, and because of the breadth of Mr. Bassiouni’s contacts with the Middle East, the FBI anticipates that it will continue to receive information about Mr. Bassiouni.” Id. at 724 (citations omitted). Bassiouni concluded that “[t]he Bureau’s file on Mr. Bassiouni will provide context for evaluating that new information,” and “perhaps more importantly, the public Krupkowski Declaration states that the records are important for evaluating the continued reliability of its intelligence sources.” Id.

Unlike the files at issue in MacPherson, the 2004 Memo is on Garris specifically and is filed under Garris’ name, not as part of a larger, valid investigation on another topic. See MacPherson, 803 F.2d at 485 n.9 (noting that the outcome in MacPherson may have been different if “the records were filed under his name rather than in a general ‘tax protestor’ file”). Here, the threat assessment was prompted by the posting of the watch list, which was itself protected First Amendment activity. The assessment revealed political views and articles by Garris—also protected First Amendment activity. The contents of the Memo, Garris’ political views, are apropos of nothing except Garris’ political views, and the FBI has failed to offer any connection between Garris’ protected First Amendment activity as described in the Memo and any specific investigation under the FBI’s purview. Cf. MacPherson, 803 F.2d at 484; Bassiouni, 436 F.3d at 724.

Case 3:13-cv-02295-JSC Document 137 Filed 09/12/19 Page 29 of 32

GARRIS V. FBI

29

It cannot be that maintaining a record of purely protected First Amendment activity is relevant to an authorized law enforcement activity simply on the representation that maintaining the record would “serve to inform ongoing and future investigative activity.” Maintenance of a record to “inform ongoing and future investigative activity” is acceptable when the record implicates a specific broader law enforcement activity such as preventing terrorism, see Bassiouni, 436 F.3d at 724, or preventing tax protests, MacPherson, 803 F.2d at 484. But where, as here, the relevance of a record filed under Garris’ name details purely protected activity and has at best only speculative relevance to an unstated law enforcement purpose, the agency does not have “good reason to believe [that the record] may be relevant on a continuing basis in the fulfillment of the agency’s statutory responsibilities.” Bassiouni, 436 F.3d at 724–25. Even if “[t]here is a remote possibility that a part of the [2004 Memo] would be helpful in investigation of persons in general,” it remains that “any potential advantage to having [the 2004 Memo] . . . at some uncertain date, is minuscule.” Becker, 34 F.3d at 409. Accordingly, the FBI has not carried its burden to establish that the 2004 Memo is exempt from Privacy Act requirements, and it must be expunged. See id.3

3 To the extent the 2004 Memo could be pertinent to national security, it would be only because it reveals that there is no threat to national security here. But that rationale could justify maintaining literally any record. Such a fishing expedition into First Amendment protected activity is precisely what the Act was meant to prevent. See Clarkson v. IRS, 678 F.2d 1368, 1378 (11th Cir. 1982) (Tjoflat, J., concurring) (“[S]ubsection (e)(7)’s prohibition against collecting records that describe how an individual exercises his first amendment rights should not be circumvented by fishing expeditions disguised as ‘law enforcement activity.’”). Such a holding would allow the “exception to swallow the rule.” MacPherson, 803 F.2d at 484.

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GARRIS V. FBI

C. Application to the Halliburton Memo

As for the Halliburton Memo, our analysis of that memo illustrates the flipside of our holding regarding the 2004 Memo. MacPherson again is instructive. Like in MacPherson, the Halliburton Memo is not filed under Garris’ name or even under Antiwar.com; rather, “Antiwar.com” is listed in the Memo merely to provide context as to where coverage of the shareholders’ meeting can be found. See MacPherson, 803 F.2d at 485 n.9; id. at 484 (recognizing that incidental surveillance of innocent First Amendment activity may be necessary to ensure “completeness and accuracy of the agency records”). And “[t]here is no allegation and no indication that the records were used or intended to be used for any other purpose than to give a complete picture,” id. at 484–85, of the necessary protections for the shareholders meeting. Further, the Memo is of ongoing relevance to coordination with “local law enforcement to prepare for an annual meeting at which arrests had been made in the past.” The Memo, which primarily describes security preparations for an oft-protested meeting, only incidentally includes protected First Amendment activity, and is relevant to preparations for future iterations of the annual shareholders’ meeting. “Under these circumstances,” we hold that the FBI’s “maintenance of records of [Antiwar.com’s] activities fall within the ‘law enforcement activities’ exception to the proscription of § (e)(7) of the Privacy Act.” Id. at 485.

CONCLUSION

Thus, we hold that to maintain a record, the government must demonstrate that the maintenance of the record is pertinent to a specific authorized law enforcement activity. We want to be exceedingly clear. We are not holding that

Case 3:13-cv-02295-JSC Document 137 Filed 09/12/19 Page 31 of 32

GARRIS V. FBI

31

whenever an agency closes an investigation, the agency must expunge the file because the law enforcement activity for which the record was created (or received) has ended. What we are holding is that, if the investigation is closed (or even if it is not), and if the government cannot articulate a sufficient law enforcement activity to which the maintenance of the record is pertinent, the maintenance of the record violates the Privacy Act. The reason for maintenance, so long as it is valid and not pretextual, need not be the same reason the record was created. Thus, in plenty of cases, the end of an investigation will not require a record to be expunged because the maintenance of the record will have some pertinence to an articulable, authorized law enforcement activity. See, e.g., MacPherson, 803 F.2d at 485. But such is not the case here, where the 2004 investigation was ended because it detailed only First Amendment activity and did not implicate national security. Thus, maintenance of a record that describes only First Amendment activity and does not implicate national security is not pertinent to the FBI’s authorized activities. Maintenance for maintenance’s sake, without pertinence to national security or other authorized law enforcement activity, is precisely what the Act was intended to prevent.

We recognize that the statute as we understand it may impose a non-negligible burden on the FBI. But this is a feature, not a bug. Section (e)(7) is meant to limit what government agencies may collect, maintain, and disseminate; this is, by definition, a burden. The FBI can limit the extent of this burden by being more discerning in deciding what records to create.

Thus, we conclude that for the FBI to maintain a record under § (e)(7) of the Privacy Act, the record’s maintenance must be pertinent to and within the scope of an ongoing

Case 3:13-cv-02295-JSC Document 137 Filed 09/12/19 Page 32 of 32

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GARRIS V. FBI

authorized law enforcement activity. Because we conclude that the FBI has not carried its burden in establishing that the 2004 Memo is exempt from Privacy Act requirements, the Memo must be expunged. The Halliburton Memo, however, falls within the § (e)(7) exception and therefore may be retained.

• ! •

The judgment of the district court is AFFIRMED in part, REVERSED in part, and the case is REMANDED to the district court with instructions to direct the FBI to expunge the 2004 Memo. No costs.

 
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