Case 1:15-cv-01624-APM Document 18 Filed 05/13/16 Page 1 of 3

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Dave Levinthal, et al.,

Plaintiffs,

ECF

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v. | Civil Action No. 15-1624 (APM)
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Federal Election Commision, |

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Defendant.

PLAINTIFFS’ REPLY IN SUPPORT OF
THEIR MOTION FOR SUMMARY JUDGMENT

Plaintiffs, Dave Levinthal and the Center for Public Integrity, reply as follows:

I. Plaintiffs have adequately explained their factual and legal arguments.

Defendant has objected that Plaintiffs’ Opposition did not include a separate statement of
genuine issues in response to Defendant’s Statement of Material Facts as to Which There Is No
Genuine Dispute. Plaintiffs hope and believe that their position was adequately explained in their
Memorandum. Nevertheless, in response to Defendant’s objection, Plaintiffs are now filing a
Statement of Genuine Issues of Fact.

As the cases cited by Defendant indicate, it is within the Court’s discretion to determine
whether a party has adequately identified the material facts and genuine issues in dispute. See,
e.g., Quick v. U.S. Dept. of Commerce, Nat’l Inst. of Standards and Tech., 775 F. Supp. 2d 174, 178

(D.D.C. 2011).


Case 1:15-cv-01624-APM Document 18 Filed 05/13/16 Page 2 of 3

IL. The NIST Study is not a law enforcement record.

As Plaintiffs have previously argued, to withhold the NIST Study under Exemption 7(E),
the FEC must meet the so-called “threshold” requirement of demonstrating that it falls within the
category of “records or information compiled for law enforcement purposes ....” U.S.C. § 552(b)(7).
This requirement applies to all the categories of information covered by Exemption 7, not just to
Exemption 7(E).

Defendant has not addressed this argument at all in its Opposition and Reply. Its
arguments discuss the standard under Exemption 7(E), but not the standard applicable to the
threshold requirement of Exemption 7 generally.

The cases Defendant cites concerned actual law enforcement records. Skinner v. Dep’t of
Justice, 893 F. Supp. 2d 109, 112 (D.D.C. 2012) (concerning information from the “Treasury

Enforcement Communications System,” “a comprehensive computerized law enforcement and
communications information system”); Barouch v. Dep’t of Justice, 87 F. Supp. 3d 10, 22 (D.D.C.
2015) (also concerning the same TECS system of records).

Defendant has not established, and cannot establish, that the NIST Study was “compiled for
law enforcement purposes.” Rather, Defendant describes the NIST Study as “an information

technology vulnerability assessment.” (Palmer Decl., { 18.) Exemption 7(E) is, therefore,

inapplicable.

Ill. Defendant has not met its burden of showing that no segregable portion of the NIST
Study can be released.

Plaintiffs have conceded that substantial portions of the NIST Study may be withheld

under Exemption 5.


Case 1:15-cv-01624-APM Document 18 Filed 05/13/16 Page 3 of 3

Likewise, Defendant has conceded that the NIST Study contains “factual statements ...
which are central to its analyses.” Defendant’s Statement of Facts, § 10.

Defendant has asserted that none of this factual information is “reasonably segregable”
(Defendant’s Statement of Facts, § 47), but has provided no explanation that would allow
Plaintiffs or the Court to test its assertions. In a case brought under FOIA, “the burden is on the
agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); see also Electronic Privacy Information
Center v. Dep’t of Homeland Security, 384 F. Supp. 2d 100, 106 (D.D.C. 2005). Defendant has not

met this burden.

CONCLUSION
For the foregoing reasons, the Court should grant Plaintiffs’ Motion for Summary

Judgment and deny Defendant’s Motion for Summary Judgment.

Respectfully submitted,

/S/
Peter Newbatt Smith
D.C. Bar #458244
Center for Public Integrity
910 17" Street, N.W., 7” Floor
Washington, DC 20006-2606
202-481-1239
psmith@publicintegrity.org

Attorney for Plaintiffs

May 13, 2016