UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DAVE LEVINTHAL, et al.,

Plaintiffs,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

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Civil Action No. 15-1624 (APM)

DEFENDANT FEDERAL ELECTION COMMMISSION’S REPLY 

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO 

PLAINTIFFS’ CROSS-MOTION FOR SUMMARY JUDGMENT

Plaintiffs Dave Levinthal and the Center for Public Integrity (“CPI”) filed suit under the 

Freedom of Information Act (“FOIA”) to obtain documents that contain analyses of 

vulnerabilities within the Federal Election Commission’s (“Commission”) information 

technology systems and recommendations about addressing such vulnerabilities. The 

uncontested record in this case makes clear that these documents contain sensitive information 

that, if disclosed, could be used by outside persons or entities to wrongfully interfere with the 

Commission’s information technology systems or to access the Commission’s data systems to 

circumvent the law. The record also makes clear that these documents are manifestly 

deliberative and predecisional. The Commission properly withheld these documents from public 

disclosure because they are statutorily exempt under the plain language of FOIA.

“FOIA represents a carefully considered balance between the right of the public to know 

what their government is up to and the often compelling interest that the government has in 

keeping certain information private, whether to protect particular individuals or the national 

interest as a whole.” ACLU v. F.B.I., 429 F. Supp. 2d 179, 186-87 (D.D.C. 2006). Here, the 

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Commission has satisfied its burden by filing detailed declarations demonstrating that it properly 

withheld the requested documents pursuant to FOIA Exemptions 5 and 7(E), and plaintiffs have 

barely even attempted to refute the Commission’s demonstration that the requested documents 

are exempt from disclosure. 

Indeed, plaintiffs’ summary judgment brief essentially concedes that the withheld 

documents meet the elements of the deliberative process privilege, while simply ignoring the 

relevant cases interpreting and applying the law enforcement privilege. And plaintiffs’ filing 

fails to rebut the Commission’s demonstration that there are no segregable, non-exempt portions 

of the requested documents that are subject to disclosure under FOIA, relying merely on their 

subjective disagreement with the Commission’s determination. Plaintiffs also fail to provide any 

support for their argument that the public interest requires disclosure of the particular documents 

at issue here. The Court should grant summary judgment to the Commission and deny plaintiffs’ 

cross-motion.

I. PLAINTIFFS HAVE FAILED TO CONTROVERT THE COMMISSION’S 

UNDISPUTED MATERIAL FACTS AND THOSE FACTS SHOULD BE 

DEEMED ADMITTED

Plaintiffs have failed to identify any “specific facts showing that there is a genuine issue 

for trial.” Fed. R. Civ. P. 56(e). A genuine issue exists only when “sufficient evidence 

supporting the claimed factual dispute [is] shown to require a jury or judge to resolve the parties’ 

differing versions of the truth.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986)

(internal quotation marks omitted). Under Local Rule 7(h)(1), an opposition to a motion for 

summary judgment must include a statement of genuine issues “setting forth all material facts as 

to which it is contended there exists a genuine issue necessary to be litigated,” with references to 

“the parts of the record relied on to support the statement.” In particular, a party opposing 

summary judgment “must respond to each of the [movant’s] alleged facts with an indication of 

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whether the non-moving party admits or denies the fact.” Jackson v. District of Columbia, 83 F. 

Supp. 3d 158, 161 (D.D.C. 2015). 

In this Circuit, “[i]f the party opposing the motion fails to comply with this local rule, 

then ‘the district court is under no obligation to sift through the record’ and should ‘[i]nstead . . . 

deem as admitted the moving party’s facts that are uncontroverted by the nonmoving party’s 

Rule [7(h)] statement.’” SEC v. Banner Fund Int’l, 211 F.3d 602, 616 (D.C. Cir. 2000) (citation 

omitted); see Local Rule 7(h)(1) (“[T]he Court may assume that facts identified by the moving 

party in its statement of material facts are admitted, unless such a fact is controverted in the 

statement of genuine issues filed in opposition to the motion.”); Fed. R. Civ. P. 56(e) (where “a 

party fails to properly support an assertion of fact or fails to properly address another party’s 

assertion of fact,” the district court may “consider the fact undisputed for purposes of the 

motion”). 

Here, plaintiffs failed to oppose the Commission’s Statement of Material Facts (Docket 

No. 13-1). The Commission’s Statement of Material Facts should therefore be deemed 

admitted.1

 1 Plaintiffs’ own submission of four material facts “as to which there is no genuine issue”

(Plaintiffs’ Statement of Material Facts as to Which There is No Genuine Issue at 1 (Docket No. 

14-1)) does not remedy their failure to file a statement of genuine issues. See, e.g., Austin Inv.

Fund, LLC v. United States, No. 11-2300, 2015 WL 7303514, at *11-12 (D.D.C. Nov. 19, 2015)

(finding that plaintiff had violated local and federal rules and deeming facts in defendant’s 

statement of material facts to be “‘admitted’” (quoting LCvR 7(h)(1))); Quick v. U.S. Dept. of 

Commerce, Nat’l Inst. of Standards and Tech., 775 F. Supp. 2d 174, 178 (D.D.C. 2011) (“To the 

extent the Court is unable to discern the extent of [plaintiff’s] agreement or disagreement with 

[defendant’s] proffered facts from the contents of his statement, the Court shall, in an exercise of 

its discretion, assume the uncontroverted facts identified by [defendant] to be admitted for 

purposes of resolving the pending motions.”). 

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II. THE COMMISSION PROPERLY WITHHELD THE NIST STUDY UNDER FOIA 

EXEMPTION 7(E)

The Commission’s opening brief and supporting declarations demonstrated that the 

agency properly withheld the NIST Study under FOIA Exemption 7(E). (FEC Summ. J. Mem.

at 10-17 (Docket No. 13); Declaration of Alec Palmer ¶¶ 16-28 (Docket No. 13-2) (“Palmer 

Decl.”).) As previously explained (FEC Summ. J. Mem. at 13), this Court recently held that 

records about governmental databases used for law enforcement purposes are covered by 

Exemption 7(E). Long v. Immigration & Customs Enf’t, No. CV 14-00109 (APM), 2015 WL 

8751005, at *5 (D.D.C. Dec. 14, 2015). Such records “clearly have a rational ‘nexus’ to [the 

government] Defendants’ law enforcement duties,” the Court found, and there is a “clear 

connection between the records and possible security risks or violations of law.” Id. In a 

number of cases in this district, Exemption 7(E) has repeatedly been held to protect computer 

records and data that, if disclosed, could facilitate unauthorized access to federal government 

computer systems. (FEC Summ. J. Mem. at 14 (collecting cases).)

Plaintiffs have failed to refute the Commission’s arguments and evidence. Indeed, rather 

than provide any substantive response to the authority cited by the FEC, plaintiffs attempt (Pls.’ 

Cross-Mot. for Summ. J. and Opp’n to Def.’s Mot. for Summ. J. (Docket No. 14) at 4 (“Pls.’ 

Summ. J. Mem.”)) to categorically dismiss it. But plaintiffs’ unsupported generalization that 

“each of th[e] cases” cited by the Commission exclusively involve “data [that] were themselves 

law-enforcement records,” (id. at 4) is wrong. Again, as detailed in the FEC’s opening brief 

(FEC Summ. J. Mem. at 11, 13-14), cases in this district have explicitly and repeatedly held that 

computer data and codes that are not themselves law enforcement techniques or guidelines are 

nevertheless exempt from disclosure under Exemption 7(E). 

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In Skinner v. Department of Justice, for example, the district court held that Exemption 

7(E) applies to computer access codes that “are not themselves ‘guidelines for law enforcement 

investigations or prosecutions’ entitled to categorical protection under Exemption 7(E),” where 

the government has “adequately demonstrate[d] that release of the codes ‘would disclose 

guidelines for law enforcement investigations or prosecutions’” by enabling users to “exploit the 

information to circumvent the law or to corrupt the database itself.” 893 F. Supp. 2d 109, 114 

(D.D.C. 2012), aff’d sub nom. Skinner v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 

No. 12-5319, 2013 WL 3367431 (D.C. Cir. May 31, 2013); see also, e.g., Barouch v. Dep’t of 

Justice, 87 F. Supp. 3d 10, 30 (D.D.C. 2015) (finding that defendant properly invoked 

Exemption 7(E) to withhold information relating to computer file numbers and codes, “primarily 

used to store and retrieve law enforcement information” because disclosure of this information 

“could allow individuals outside the agency to circumvent agency functions and gain access to 

sensitive investigative information” and to “alter or create false records.” (internal quotation 

marks omitted)).

The Commission’s cited authorities thus directly undercut plaintiffs’ assertion (Pls.’ 

Summ. J. Mem. at 4) that the NIST Study is not connected to a specific law enforcement 

investigation. As described above and in the Commission’s opening brief (FEC Summ. J. Mem.

at 11, 13-14), Exemption 7(E) imposes no such requirement. On the contrary, the Court of 

Appeals has recognized that “Exemption 7(E) sets a relatively low bar for the agency to justify 

withholding,” and does not require “a highly specific burden of showing how the law will be 

circumvented,” but rather a demonstration of “logically how the release of the requested 

information might create a risk of circumvention of the law.” Blackwell v. FBI, 646 F.3d 37, 42 

(D.C. Cir. 2011) (internal quotation marks omitted); see Mayer Brown LLP v. IRS, 562 F.3d 

1190, 1193 (D.C. Cir. 2009) (explaining that Exemption 7(E) “looks not just for circumvention 

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of the law, but for a risk of circumvention; not just for an actual or certain risk of circumvention, 

but for an expected risk; not just for an undeniably or universally expected risk, but for a 

reasonably expected risk; and not just for certitude of a reasonably expected risk, but for the 

chance of a reasonably expected risk”). 

The cases cited by the Commission likewise undermine plaintiffs’ erroneous suggestion 

(Pls.’ Summ. J. Mem. at 4-5) that the Commission was required to “establish[] that the 

vulnerabilities described in the NIST Study still exist.” Indeed, plaintiffs’ failure to identify any 

authority suggesting such a specific requirement is unsurprising given that the demonstration 

plaintiffs would demand could itself implicate the very security concerns that exempt the 

Commission from disclosing the documents requested here. Further, the Commission has 

provided evidence — which plaintiffs have not contested — that disclosure of the NIST Study 

could pose a significant security threat: The information contained in the NIST Study can be 

used to, among other threats, gain unauthorized access to the Commission’s information 

technology systems, “obtain and manipulate sensitive and confidential data” about parties 

regulated by the Commission, and “seriously threaten the Commission’s ability to fulfill its civil 

enforcement and other statutory duties.” See Palmer Decl. ¶ 19; see also Willis v. Dep’t of 

Justice, 581 F. Supp. 2d 57, 66 (D.D.C. 2008) (“Courts must ‘accord substantial weight’ to an 

agency’s affidavits regarding FOIA exemptions.”).

The uncontested record demonstrates that the NIST Study advised the Commission on

how to ensure the security of the agency’s information technology infrastructure, which is 

necessarily related to the agency’s law enforcement functions, and that if disclosed, the NIST 

Study could be used by outside persons to wrongfully access or interfere with the Commission’s 

information technology systems to circumvent the law. The Commission has demonstrated, 

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without refutation, that the NIST Study is exempt from disclosure under FOIA Exemption 7(E), 

and for this reason alone, summary judgment should be granted in the Commission’s favor. 

III. THE COMMISSION PROPERLY WITHHELD THE NIST STUDY UNDER FOIA 

EXEMPTION 5

The Commission also explained in its opening brief (FEC Summ. J. Mem. at 17-21) that 

the NIST Study is comprised of deliberative, intra-agency documents that are exempt from 

disclosure under FOIA Exemption 5. Plaintiffs do not dispute the general applicability of 

Exemption 5 here, (Pls.’ Summ. J. Mem. at 5 (“Plaintiffs do not doubt that the NIST Study 

contains predecisional recommendations.”)), and the Court may thus deem the applicability of 

this exemption as conceded. See Hopkins v. Women’s Div., General Bd. of Global Ministries, 

284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this Circuit that when a plaintiff 

files an opposition to a dispositive motion and addresses only certain arguments raised by the 

defendant, a court may treat those arguments that the plaintiff failed to address as conceded.” 

(citing FDIC v. Bender, 127 F.3d 58, 67–68 (D.C. Cir. 1997)). Although plaintiffs do contest the 

Commission’s withholding of “factual sections of the report [that] are consistent with its 

recommendations,” (Pls.’ Summ. J. Mem. at 5), as explained below, they have failed to refute the 

Commission’s demonstration that the entire NIST Study is generally exempt and that the 

requested documents were thus properly withheld in their entirety.

IV. THE COMMISSION PROPERLY DETERMINED THAT THE NIST STUDY 

CONTAINS NO NON-EXEMPT, SEGREGABLE PORTIONS THAT MUST BE 

RELEASED 

As explained in detail in the FEC’s opening summary judgment brief and supporting 

declarations (FEC Summ. J. Mem. at 15-17, 20-21; Palmer Decl. ¶¶ 15, 23, 25-27), agency 

officials carefully examined the NIST Study and determined that no portion of it could be 

released without risk of circumvention of the law. The entire NIST Study is thus exempt from 

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disclosure under FOIA Exemption 7(E). In particular, the FEC’s Office of the Chief Information 

Officer conducted line-by-line examinations of the documents that comprise the NIST Study

and, based on its expertise in information technology and with the Commission’s information 

technology assets, determined that no portion of the NIST Study could be released without risk 

of circumvention of the law because each component of the NIST Study provides part of a 

blueprint to persons who may attempt to breach the Commission’s networks and thereby 

frustrate its law enforcement functions. (See Palmer Decl. ¶¶ 25-28.) 

The Commission is “‘entitled to a presumption’” that it has complied with its duty to 

disclose any “‘reasonably segregable material,’” Competitive Enter. Inst. v. EPA, 12 F. Supp. 3d 

100, 123 (D.D.C. 2014) (quoting Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013)), and 

plaintiffs have not even acknowledged, let alone responded to, the Commission’s demonstration 

that no portion of the NIST Study could be released without risk of circumvention of the law. 

The Court should thus conclude that the entire NIST Study is covered by Exemption 7(E), and 

no portion of the NIST Study must be disclosed. 

Plaintiffs have similarly failed to refute the Commission’s demonstration that the entire 

NIST Study is exempt from disclosure under FOIA Exemption 5. As the Commission 

previously explained, although purely factual information is generally not exempt from 

disclosure pursuant to the deliberative process privilege protected by Exemption 5, such material 

is protected by Exemption 5 if its disclosure would expose the deliberative process or is 

inextricably intertwined with deliberative material. (See FEC Summ. J. Mem. at 20 (citing 

cases)). The Commission has demonstrated that its FOIA staff conducted line-by-line 

examinations of the NIST Study in an effort to identify any reasonably segregable, 

nonprivileged, nonexempt portions of the NIST Study that could be released. (See Declaration 

of Robert M. Kahn ¶ 12 (Docket No. 13-3).) Because the factual descriptions in the NIST Study 

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are inextricably intertwined with deliberative material or are central to its analyses, (See FEC 

Summ. J. Mem. at 20-21), disclosure of these factual observations would release the substance of 

the vulnerability analysis submitted to the Commission for its consideration in determining 

whether to accept the NIST Study’s recommendations. The Commission therefore had no

obligation to segregate and disclose any factual material contained in the NIST Study. The 

Commission has demonstrated that it properly withheld the entire NIST Study under FOIA 

Exemption 5, and plaintiffs have provided nothing to suggest otherwise. 

Indeed, plaintiffs’ only response to the Commission’s demonstration regarding 

segregability is their facially erroneous assertion (Pls.’ Summ. J. Mem. at 5) that the Commission 

supposedly “admitted that there are segregable factual portions” of the NIST Study. But as 

described above, the opposite is true: through scrupulous examinations of the NIST Study, the 

Commission determined that it must withhold “all of the factual portions of the NIST Study.” 

(FEC Summ. J. Mem. at 20 (emphasis added); see also Kahn Decl. ¶ 12; Palmer Decl. ¶ 27.) 

Plaintiffs have thus failed to identify any legal or factual basis for rejecting the Commission’s 

demonstration that the NIST Study contains no non-exempt, segregable portions that were 

required to be released.

V. PLAINTIFFS’ PUBLIC INTEREST ARGUMENTS ARE LEGALLY AND 

FACTUALLY INCORRECT

A. In This FOIA Case, the Applicable FOIA Exemptions Supersede Any

Alleged Public Interest in Disclosure

Plaintiffs’ overbroad and unsupported reference to FOIA’s basic purpose of “ensur[ing] 

an informed citizenry” (Pls.’ Summ. J. Mem. at 3-4) simply ignores that FOIA’s public 

disclosure purpose is balanced by the equally important, countervailing need to protect the 

confidentiality of certain categories of information, including the records at issue here. ACLU, 

429 F. Supp. 2d at 186-87 (“FOIA represents a carefully considered balance between the right of 

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the public to know what their government is up to and the often compelling interest that the 

government has in keeping certain information private, whether to protect particular individuals 

or the national interest as a whole.”). Where, as here, documents were properly withheld under 

applicable FOIA exemptions, the public’s interest in disclosure of such documents is irrelevant. 

See In Re Sealed Case, 121 F.3d 729, 737 & n. 5 (D.C. Cir. 1997) (per curiam) (noting that the 

deliberative process privilege “can be overcome by a sufficient showing of need” in the civil 

discovery context, but “that the particular purpose for which a FOIA plaintiff seeks information 

is not relevant in determining whether FOIA requires disclosure”); Jewett v. U.S. Dept. of State, 

No. 11-cv-1852 (RLW), 2013 WL 550077, at *9 (D.D.C. Feb. 14, 2013) (“Because [] Exemption 

[7(E)] grants categorical protection to these materials, it requires no demonstration of harm or 

balancing of interests.” (citing Keys v. United States Dep’t of Homeland Security, 510 F. Supp. 

2d 121, 129 (D.D.C. 2007)); Sierra Club v. U.S. Dept. of Interior, 384 F. Supp. 2d 1, 29 (D.D.C. 

2004) (“Once a document is deemed exempt from disclosure pursuant to Exemption 5, there is 

no need for the court to consider the public interest in disclosure. . . . [I]t is clear that despite the 

‘public interest’ that may exist in the disclosure of withheld documents, this interest cannot 

overcome Exemption 5 in a FOIA case.”). The Commission properly withheld the NIST Study 

pursuant to Exemptions 5 and 7(E), and thus other interests need not be balanced here.

B. Even if Plaintiffs’ Public Interest Arguments Were Relevant, the Factual 

Record Suggests That Publicly Releasing the NIST Study Would Undermine, 

Rather than Serve, the Public Interest 

Next, plaintiffs’ public interest argument raised in their cross-motion is inapplicable to 

the facts here. But even if this Court were to consider public interest, plaintiffs fail to take into 

account the record evidence that disclosure of the NIST Study could cause serious harm to the 

Commission’s ability to fulfill its law enforcement functions and could enable circumvention of 

the law. Plaintiffs state in a conclusory manner that disclosure of the NIST Study would “serve 

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the important purpose of informing the public,” (See Pls.’ Summ. J. Mem. at 3), but they fail to 

specify how disclosure of the NIST Study would serve the public interest in any concrete and 

meaningful way. Plaintiffs also fail to address the record evidence that disclosure of the NIST 

Study could in fact undermine the public interest by potentially disrupting the Commission’s law 

enforcement functions through exposure of its systems to the very threats that the Commission

sought to address when it undertook the NIST Study in the first place. 

CONCLUSION

For all the foregoing reasons, as well as those set forth in the Commission’s 

Memorandum in Support of its Motion for Summary Judgment, the Court should grant the 

Commission’s motion for summary judgment, deny plaintiffs’ cross-motion for summary 

judgment, and award judgment in favor of the Commission.

April 28, 2016

Washington, DC

Respectfully submitted,

CHANNING D. PHILLIPS, D.C. Bar #415793

United States Attorney

DANIEL F. VAN HORN, D.C. Bar #924092

Chief, Civil Division

By: /s/

WYNNE P. KELLY

Assistant United States Attorney

555 4th Street, NW

Washington, DC 20530 

(202) 252-2545

wynne.kelly@usdoj.gov

Attorneys for the FEC

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OF COUNSEL:

Daniel A. Petalas (D.C. Bar No. 467908)

Acting General Counsel

dpetalas@fec.gov

Lisa J. Stevenson (D.C. Bar No. 457628)

Deputy General Counsel — Law

lstevenson@fec.gov

Kevin Deeley

Acting Associate General Counsel

kdeeley@fec.gov

Erin Chlopak (D.C. Bar No. 496370)

Acting Assistant General Counsel

echlopak@fec.gov

Tanya Senanayake (D.C. Bar No. 1006218)

Attorney

tsenanayake@fec.gov

FEDERAL ELECTION COMMISSION

999 E Street NW

Washington, DC 20463

(202) 694-1650

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