UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY 

AND ETHICS IN WASHINGTON 

Plaintiff, 

v. Civil Action No. 13-1159 (GK) 

UNITED STATES DEPARTMENT 

OF JUSTICE 

Defendant. 

MEMORANDUM OPINION 

Plaintiff Citizens for Responsibility and Ethics in 

Washington ("Plaintiff" or "CREW") brings this action against the 

Federal Bureau of Investigation ("FBI"), a component of the United 

States Department of Justice ("Defendant" or "DOJ"), under the 

Freedom of Information Act ("FOIA"), 5 u.s.c. § 552. This matter 

is currently before the Court on the Parties' Cross-Motions for 

Summary Judgment. \ 

CREW seeks records concerning drone and Unmanned Aerial 

Vehicle ("UAV") use by the FBI from January 1, 2009, onward. The 

FBI conducted a search for records responsive to CREW' s FOIA 

request, produced documents to CREW, and provided a Vaughn index 

of FOIA's several exemptions. CREW challenges the FBI' s 

application of FOIA Exemptions 1, 3, 4, 5, and 7(E) to withhold 

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certain responsive information. CREW also alleges that the FBI 

failed to segregate and release all non-exempt information 

responsive to CREW's FOIA request. 

Upon consideration of Defendant's Motion for Summary Judgment 

("Def. 's Mot.") [Dkt. No. 17], Plaintiff's Cross-Motion for 

Summary Judgment ("Pl. ' s Mot." ) [Dkt. No. 19], Defendant's 

Opposition and Reply ("Def. 's Opp'n") [Dkt. No. 23]; Plaintiff's 

Reply ("Pl.' s Reply") [Dkt. No. 25] , supplemental memoranda, and 

the entire record herein, and for the reasons stated below, 

Plaintiffs' Motion for Summary Judgment shall be denied and 

Defendant's Motion for Summary Judgment shall be granted. 

I . BACKGROUND 

A. FOIA 

FOIA was enacted by Congress "to ensure an informed citizenry, 

vital to the functioning of a democratic society." Critical Mass 

Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 

(D.C. Cir. 1992) ("Critical Mass III"), cert. denied, 507 U.S. 984 

(1993) (citing FBI v. Abramson, 456 U.S. 615, 621 (1982)). "In 

enacting FOIA, Congress struck the balance it thought right- -

generally favoring disclosure, subject only to a handful of 

specified exemptions--and did so across the length and breadth of 

E~FeaeraI Government." Milner v. Dep' t of the Navy, 562 U.S. 

562, 571 n.5 (2011). FOIA's "basic purpose reflect[s] a general 

philosophy of full agency disclosure unless information is 

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exempted under clearly delineated statutory language." Dep' t of 

the Air Force v. Rose, 425 U.S. 352, 360-361 (1976) (internal 

citations and quotation marks omitted) . 

When an agency receives a request for records, the agency 

must conduct a sufficient search within the scope of the request. 

5 U.S.C. § 552(a) (3). The agency then must furnish the information 

in a timely manner, unless the information is precluded from 

disclosure by one of FOIA's nine exemptions. Id. § 552(b). FOIA's 

"goal is 'broad disclosure'" and thus "the exemptions must be 

'given a narrow compass."' Milner, 562 U.S. at 563 (citing U.S. 

Dep't of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989)). The 

Government always bears the burden of proving that exemptions apply 

to any responsive information that it withholds. 5 U.S.C. 

§ 552(a) (4) (B). 

B. Factual Background 

1. CREW'S FOIA Request 

On June 26, 2013, CREW submitted a FOIA request for documents 

("FOIA Request"), Def.'s Ex. A [Dkt. No. 17-2], to the FBI. CREW'S 

request sought four categories of documents: 

1. Records sufficient to show the source or sources of all 

drones used by the FBI from January 1, 2009, to the present; 

2. Records suf f-iClent to show the funding source for all 

drones used by the FBI from January 1, 2009, to the present, 

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• .. · 

including specific appropriations and non-appropriated 

sources of funds used for this purpose; 

3. Records sufficient to show who provided the FBI with any 

training to enable the FBI to use drones; and 

4. Records reflecting or discussing any policy concerning the 

FBI' s use of drones for any purpose, including but not 

limited to the legal justification for such use, and any 

memos of understanding between the FBI or DOJ and any other 

government agency or entity. 

FOIA Request at 1. 

CREW also requested that the FBI expedite the processing of 

CREW's request pursuant to 5 U.S.C. § 552(a) (6) (E) (i) and 28 C.F.R. 

§§ 16.5(d) (1) (ii), (iv). FOIA Request at 4-5. CREW explained that 

there was particular urgency to inform the public about the FBI's 

use of drones to conduct domestic surveillance and that it was a 

matter of widespread and exceptional media interest. Id. The FBI 

denied CREW's request for expedition by letter on July 3, 2013. 

See Def.'s Ex. D [Dkt. No. 17-2]. 

Plaintiff filed its Complaint ( "Compl.") in this matter on 

July 30, 2013 [Dkt. No. 1]. On February 4, 2014, the Court ordered 

that the FBI process at least 1,500 pages of responsive records 

per month [Dkt. No. 12]. Between November 27, 2013, and May 30, 

2014, the FBI made six interim releases and one supplemental 

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release of records. See Defendant's Statement of Material Facts 

("Def.'s Statement of Facts") , 4 [Dkt. No. 17]. 

On June 16, 2014, the parties filed a Joint Status Report in 

which the FBI informed the Court that it had finished processing 

CREW's FOIA request. See Joint Status Report, 2 [Dkt. No. 14]. In 

total, the FBI identified 6,720 non-duplicative pages of 

responsive documents, of which it released 1,970 in whole or in 

part. The rest were withheld in their entirety as exempt under 

several of FOIA's exemptions. Id.; see also 5 u.s.c. § 552(b). 

c. Procedural Background 

On October 15, 2014, DOJ filed its Motion for Summary Judgment 

("Def.'s Mot.") [Dkt. No. 17]. On January 5, 2015, CREW filed its 

Opposition and Cross-Motion for Summary Judgment ( "Pls.' Mot.") 

[Dkt. No. 19]. On February 13, 2015, DOJ filed its Opposition and 

Reply ("Def.'s Opp'n") [Dkt. No. 23] On March 23, 2015, CREW filed 

its Reply ("Pl.'s Reply") [Dkt. No. 25]. CREW filed a Supplemental 

Memorandum ("Supp. Mem.") [Dkt. No. 26] on March 31, 2015, and DOJ 

filed a Response on April 14, 2015 ("Supp. Response") [Dkt. No. 

27] . 

Defendant contends that the FBI released all responsive 

records to CREW's FOIA request and properly withheld information 

pursuant to FOIA exemptions 1, 3, 4, 5, 6, 7(C), and 7(E). CREW 

challenges the FBI's application of FOIA Exemptions 1, 3, 4, 5, 

and 7(E) only. It does not challenge withholdings under Exemptions 

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6 or 7(C). CREW also alleges that the FBI failed to segregate and 

release non-exempt information responsive to CREW'S FOIA request. 

II. STANDARD OF REVIEW 

A. Summary Judgment 

Summary judgment should be granted only if the moving party 

has shown that there is no genuine dispute of material fact and 

that the moving party is entitled to judgment as a matter of law. 

See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 

325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 

(D. C. Cir. 2002) . "A fact is material if it 'might affect the 

outcome of the suit under the governing law,' and a dispute about 

a material fact is genuine 'if the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.'" 

Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "FOIA 

cases typically and appropriately are decided on motions for 

summary judgment." Defs. of Wildlife v. U.S. Border Patrol, 623 F. 

Supp. 2d 83, 87 (D.D.C. 2009). 

"To prevail on summary judgment [against a FOIA challenge] , 

the defending 'agency must show beyond material doubt [] that it 

has conducted a search reasonably calculated to uncover all 

relevant documents.'" Morley v. CIA, 508 F. 3d 1108, 1114 (D. C. 

Cir. 2007) (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d 

1344, 1351 (D.C. Cir. 1983)). "Summary judgment may be based on 

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affidavit, if the declaration sets forth sufficiently detailed 

information 'for a court to determine if the search was adequate. '" 

Students Against Genocide v. Dep't of State, 257 F.3d 828, 838 

(D.C. Cir. 2001) (quoting Nation Magazine v. U.S. Customs Serv., 

71 F.3d 885, 890 (D.C. Cir. 1995)). 

If an agency denies disclosure of responsive records, either 

in whole or in part, based upon FOIA exemptions, it then "bears 

the burden of proving the applicability of claimed 

exemptions." Arn. Civil Liberties Union v. U.S. Dep't of Def., 628 

F.3d 612, 619 (D.C. Cir. 2011). "The government may satisfy its 

burden . by submitting appropriate declarations and, where 

necessary, an index of the information withheld [(known as a 

"Vaughn index")]." Arn. Immigration Lawyers Ass'n v. U.S. Dep't of 

Homeland Sec., 852 F. Supp. 2d 66, 72 (D.D.C. 2012) (citing Vaughn 

v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973)). 

There is no set formula for a Vaughn index or declarations, 

but they must "provide[] a relatively detailed justification [for 

any nondisclosure] , specifically identif [y] the reasons why a 

particular exemption is relevant and correlat[e] those claims with 

the particular part of a withheld document to which they apply." 

Judicial Watch, Inc. v. Food & Drug Adrnin., 449 F.3d 141, 146 (D.C. 

Cir. 2006) (quoting Mead Data Cent., Inc. v. Dep't of Air Force, 

566 F.2d 242, 251 (D.C. Cir. 1977)). But, "exemptions from 

disclosure must be narrowly construed and conclusory and 

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generalized allegations of exemptions are unacceptable." Morley, 

508 F.3d at 1114-15 (internal quotation marks and citations 

omitted). 

III. ANALYSIS 

A. Sufficiency of the Search for Responsive Records 

As mentioned above, to prevail in a summary judgment motion, 

an agency "must demonstrate that it has conducted a search 

reasonably calculated to uncover all relevant documents." See 

Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551 (D.C. 

Cir. 1994) (quoting Weisberg, 745 F.2d at 1485). 

DOJ has detailed the steps the FBI took in conducting the 

search, the databases searched, and additional measures taken. See 

Def.' s Mot. at 4-5. The Declaration of David M. Hardy ("Hardy 

Deel.") [Dkt. No. 17-1] provides additional details regarding the 

steps the FBI undertook in conducting its search for documents. 

CREW does not challenge the reasonableness of the FBI's search for 

responsive documents and the Court concludes that the FBI's search 

was reasonable and adequate. 

B. FOIA Exemptions 

CREW argues that DHS improperly withheld and redacted 

documents under various FOIA exemptions. The Court will consider 

each exemption in turn. For all of FOIA's exemptions, the burden 

of proof lies with DOJ to show proper application of the Exemption. 

5 U.S.C. § 552 (a) (4) (B). The Court makes a presumption of good 

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faith on behalf of agency affidavits purporting to meet DOJ' s 

burden. Negley v. FBI, 169 Fed. Appx. 591, 594 (D.C. Cir. 2006). 

"Ultimately, an agency's justification for invoking a FOIA 

exemption is sufficient if it appears 'logical' or 'plausible."' 

Am. Civil Liberties Union, 628 F.3d at 619 (quoting Larson v. Dep't 

of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). Thus, "summary 

judgment may be granted on the basis of agency affidavits if they 

contain reasonable specificity of detail rather than merely 

conclusory statements, and if they are not called into question by 

contradictory evidence in the record or by evidence of agency bad 

faith." Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980) 

1. FOIA Exemption 1 

FOIA Exemption 1 precludes disclosure of documents that are 

"(A) specifically authorized under criteria established by an 

Executive order to be kept secret in the interest of national 

defense or foreign policy and (B) are in fact properly classified 

pursuant to such Executive order." 5 u.s.c. § 552(b) (1). 

It is undisputed that the requirements for classifying 

information relevant to this request are contained in Executive 

Order 13,526 ("E.O. 13,526"). See Def.'s Mot. at 7-8 (citing Exec. 

Order No. 13,526, 75 FR 707 (Dec. 29, 2009) (codified at 32 C.F.R. 

Parts 2001 and 2003)); Pl.'s Mot. at 13. Executive Order 13,526 

provides that information may be classified if: 

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(1) an original classification authority is classifying 

the information; 

(2) the information is owned by, produced by or for, or 

is under the control of the United States Government; 

( 3) the information falls within one or more of the 

categories of information listed in section 1.4 of [E.O. 

13,526]; and 

(4) the original classification authority determines 

that the unauthorized disclosure of the information 

reasonably could be expected to result in damage to the 

national security, which includes defense against 

transnational terrorism, and the original classification 

authority is able to identify or describe the damage. 

E.O. 13,526 § 1.1. 

The FBI withheld two categories of classified information 

pursuant to FOIA Exemption 1: (1) intelligence activities, 

sources, and methods (E.O. 13, 526 § 1.4 (c)); and (2) foreign 

relations or foreign activities (E.O. 13,526 § 1.4(d)). See Hardy 

Deel. ~ 40. 

a. Intelligence Activities, Sources and Methods 

Information that "pertains" to "intelligence activities 

(including covert action) , intelligence sources or methods, or 

cryptology," which, if disclosed, could cause damage to the 

national security, is eligible for classification. E.O. 13,526 § 

1.4(c). Our Court of Appeals has noted that "'pertains' is 'not a 

very demanding verb.'" Judicial Watch, Inc. v. U. s. Dep' t of 

Defense, 715 F.3d 937, 941 (D.C. Cir. 2013) (quoting Judicial 

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Watch, Inc. v. U.S. Dep't of Defense, 857 F. Supp. 2d 44, 60 

(D.D.C. 2012)). 

"Intelligence" includes foreign intelligence and 

counterintelligence, as defined by Executive Order 12,333. E.O. 

13,526 § 6.l(x). "Foreign Intelligence" is defined as "information 

relating to the capabilities, intentions, or activities of foreign 

governments or elements thereof, foreign organizations, foreign 

persons, or international terrorists." Exec. Order No. 12,333, 46 

FR 59941 (December 4, 1981), § 3.5(e), as amended by Exec. Order 

Nos. 13,284 (January 23, 2003), 13,355 (August 27, 2004) and 13,470 

(July 30, 2008). "Counterintelligence" is defined as "information 

gathered and activities conducted to identify, deceive, exploit, 

disrupt, or protect against espionage, other intelligence 

activities, sabotage, or assassinations conducted for or on behalf 

of foreign powers, organizations, or persons, or their agents, or 

international terrorist organizations or activities." Id. at 

§ 3.5(a). By definition, 

component. 

"intelligence" requires a foreign 

DOJ argues that the information withheld under Exemption 1 

would "reveal the actual intelligence activities and methods used 

by the FBI against specific targets of foreign counterintelligence 

investigations or operations; would identify a target of a foreign 

counterintelligence investigation; and/or would disclose the 

intelligence gathering capabilities of the activities or methods 

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directed at specific targets." Def.' s Mot. at 10; Hardy Deel. ~ 42. 

DOJ further states that these activities and methods are still 

used by the FBI and the information is related to the development 

of sources and methods related to UAV technology. Def.' s Mot .. 

at 10. 

DOJ also contends that disclosure of this information could 

reasonably be expected to cause harm to national security for 

several reasons. Id. First, disclosure would reveal current 

intelligence-gathering methods being used by the FBI. Second, 

disclosure would reveal current specific targets of the FBI' s 

national security investigations. Third, disclosure would reveal 

criteria and priorities assigned by the FBI to conduct intelligence 

and counterintelligence investigations. Fourth, disclosure would 

reveal the capabilities and limitations of the UAVs used, which 

would diminish their usefulness as an intelligence asset. Fifth, 

disclosure would reveal operational partners of the FBI who are 

intelligence sources. Finally, disclosure would reveal information 

about FBI UAV intelligence-gathering methodology. Id.; Hardy Deel. 

~ 43. 

CREW counters that "the domestic use of drones by the FBI 

does not constitute an 'intelligence activity'- or 

'intelligence sources or methods' within the meaning of E.O. 

13,526." Pl. 's Mot. at 13 (emphasis in original). CREW's first 

objection is in response to DOJ's statement that the intelligence 

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activities and methods at issue here are "used by the FBI against 

specific targets o[f] foreign counterintelligence investigations 

or operations[.]" Pl.'s Mot. at 14 (quoting Hardy Deel. ~ 42). 

CREW emphasizes that its FOIA request does not concern FBI drone 

use abroad--only domestic use --and therefore does "not implicate, 

much less compromise, foreign intelligence activities and 

methods." Id. at 15. CREW also argues that former FBI Director 

Robert Mueller's statements to Congress are inconsistent with the 

FBI's statement in this case that some of the Exemption 1 documents 

withheld relate to foreign counterintelligence investigations. See 

Pl.'s Reply at 2; see also Pl.'s Mot. at 3-4 (describing Director 

Mueller's Congressional testimony and the FBI's follow-up 

responses) . 

First, despite CREW'S assertions, its FOIA Request relates to 

"all drones used by the FBI" (emphasis added) , without 

differentiating between foreign and domestic use. 1 FOIA Request at 

1. Second, Director Mueller's testimony is not inconsistent with 

the FBI' s statement that withheld documents relate to foreign 

counterintelligence investigations. In response to written follow1 Even if Plaintiffs were only seeking information limited to 

a-ome-st-rc--dron-e-u-s-e-,-crn-d-evE:m-i-f aome S c:Lc-use_d_i_d-mJt-imp-1-Tc-crte 

foreign intelligence, it is unlikely that information about 

domestic use can be separated from information about foreign use. 

The two overlap and revealing information about domestic sources 

and methods would necessarily reveal the sources and methods for 

foreign use, which is classified and exempt. 

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up questions after the Congressional hearing, the FBI reported 

that it had used "UA[V]S in eight criminal cases and two national 

security cases." Pl.'s Mot. at 4 (citing Ex. A, Responses of the 

Federal Bureau of Investigation to Questions for the Record Arising 

from the June 19, 2013, Hearing Before the Senate Committee on the 

Judiciary Regarding "Oversight of the FBI" ("Hearing Responses") 

[Dkt. No. 19-2]). "National security cases" is a broad category 

and by no means excludes foreign counterintelligence activities. 

In addition, the FBI's statutory duties include protecting 

the United States from terrorism and threats to national security, 

as well as furthering the foreign intelligence objectives of the 

United States. Def.'s Opp'n at 2 (citing Hardy Deel. ~ 66); see 

also FBI, Quick Facts, www.fbi.gov/about-us/quick-facts (last 

visited November 17, 2015). It logically follows that the FBI's 

use of drones relate to issues of national security and the 

intelligence activities of the United States. 

CREW next argues that the FBI's domestic drone program does 

not constitute an "intelligence activity, source, or method." 

Pl.'s Mot. at 15. CREW contends that "[u]sing drones to locate 

victims of kidnapping and search and rescue operations has nothing 

to do with 'securing ... data pertaining to foreign governments 

or the national defense and security of the United States." Id. 

(emphasis added in Pl.'s Mot.) (quoting CIA v. Sims, 471 U.S. 159, 

171 (1985)). 

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Sims does not support CREW's argument. First, the quote is 

not from the Supreme Court itself, but rather from a Senate 

hearing. See Sims, 471 U.S. at 171. When the quote above is read 

in context, it is clear that "data" is meant to be synonymous with 

"information," and is not meant to limit the type or form of 

information. See id. at 170-71. The omitted portion of the Sims 

quote refers to "all possible data," and the Supreme Court's 

holding takes an expansive view of what constitutes an 

"intelligence source." Id. at 170-171 (emphasis added) (CIA 

gathers "intelligence from almost an infinite variety of diverse 

sources") . Sims simply does not support a narrow reading of 

"intelligence activities." 

CREW thus fails to rebut Defendant's claims of exemption. 

Defendant has, as discussed above, explained how the withheld 

information relates to intelligence activities and sources that, 

if disclosed, could reasonably be expected to cause harm to the 

United States' national security interests. The Court holds that 

DOJ has carried its burden and that these documents were properly 

exempted from production. 

b. Foreign Relations or Foreign Activities 

Next, CREW argues that the documents were improperly withheld 

under Exemption 1 because they do not pertain to the foreign 

activities of the United States. Pl.'s Mot. at 13 (quoting Judicial 

Watch, 715 F.3d at 941). 

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As discussed above, although CREW characterizes its FOIA 

request as pertaining exclusively to the FBI' s domestic drone 

program, any such limitation is absent from the FOIA Request 

itself. See Id. ; FOIA Request. While the FBI' s public comments 

describe its drone use as supporting "missions related to 

kidnappings, search and rescue operations, drug interdictions, and 

fugitive investigations," the FBI also stated that drones have 

been used in "two national security cases." Hearing Responses at 7. 

In short, the FBI's comments do not rule out the possibility of 

drone use pertaining to foreign activities or foreign relations. 

DOJ claims that the information withheld "contains sensitive 

intelligence information gathered by the United States either 

about or from a foreign country." Def.'s Mot. at 11 (quoting Hardy 

Deel. ~ 4 6) . DOJ states that disclosure "could jeopardize the 

fragile relationships that exist between the United States and 

certain foreign governments." Def.'s Mot. at 11. DOJ lists several 

additional harms that can be expected from disclosure of 

information concerning foreign relations or foreign activities of 

the United States. See Def.'s Mot. at 11-12; Hardy Deel. ~~ 46-

47. 

CREW also fails to rebut DOJ's claims of exemption for foreign 

activities. DOJ has asserted that the documents implicate foreign 

relations and/or foreign activities, and have adequately described 

the potential harms that would result from disclosure. 

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been: 

2. FOIA Exemption 3 

FOIA Exemption 3 precludes release of information that has 

specifically exempted from disclosure by [another] 

statute [that] (i) requires that the matters be 

withheld from the public in such a manner as to leave no 

discretion on the issue; or (ii) establishes particular 

criteria for withholding or refers to particular types 

of matters to be withheld. 

5 U.S.C. § 552(b) (3). In determining whether Exemption 3 properly 

applies, the Court conducts a two-part test that considers: whether 

"[1] the statute in question [is] a statute of exemption as 

contemplated by exemption 3 . . [and whether] [2] the withheld 

material satisf [ies] the criteria of the exemption statute." 

Fitzgibbon v. CIA, 911 F.2d 755, 761 (D.C. Cir. 1990) (citing Sims, 

471 U.S. at 167). 

Defendant has withheld documents under Exemption 3 based on 

Section 102A(i) (1) of the National Security Act of 1947 ("NSA"), 

50 U.S.C. § 3024 (i) (1). The NSA states that "[t] he Director of 

National Intelligence shall protect intelligence sources and 

methods from unauthorized disclosure." Id. CREW does not contest 

that Section 102A ( i) ( 1) of the NSA is. an Exemption 3 statute for 

purposes of FOIA. It contends only that the withheld material does 

not contain intelligence sources and methods and therefore does 

not fall within Section 102A(:j_) (1). Pl. 's Mot. at 16. 

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CREW' s argument is similar to its objections under 

Exemption 1, namely that the protection afforded "intelligence 

sources and methods" by the NSA relates only to "information the 

Agency needs to perform its statutory duties with respect to 

foreign intelligence." Id. at 16-1 7 (emphasis added in Pl. 's Mot.) 

(quoting Sims, 471 U.S. at 170). CREW alleges that the documents 

it seeks relate only to domestic drone. use, and therefore are 

beyond the scope of the NSA's authority to withhold documents. Id. 

at 17. 

The mere fact that the FBI uses a drone domestically does not 

mean that the use does not involve foreign intelligence or counterintelligence. Mr. Hardy has affirmatively stated here that the 

information withheld would "reveal the actual intelligence 

activities and methods used by the FBI against specific targets of 

foreign counterintelligence investigations or operations." See 

Def.'s Mot. at 10 (emphasis added) (citing Hardy Deel. ~ 42). As 

discussed above in Section III.B.l.a, CREW has not successfully 

rebutted this. 

Thus, the Court concludes that DOJ has provided sufficient 

details justifying application of Exemption 3 and that the 

information was properly withheld under Section 102A(i) (1) of the 

NSA. 

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3. FOIA Exemption 4 

FOIA Exemption 4 permits an agency to withhold "trade secrets 

and commercial or financial information obtained from a person" 

that are "privileged or confidential." 5 U.S.C. § 552(b) (4). Such 

information is exempt only if it meets all three requirements: It 

must be (1) commercial, financial, or a trade secret; (2) obtained 

from a person; and (3) privileged or confidential. See Pub. Citizen 

Health Research Group v. Food & Drug Admin., 704 F.2d 1280, 1290 

(D.C. Cir. 1983); COMPTEL v. Fed. Commc'ns Comm'n, 910 F. Supp. 2d 

100, 114-115 (D.D.C. 2012). 

DOJ has withheld two subcategories of commercial information: 

(1) solicitation-related material and (2) operator manuals and a 

vendor training schedule. CREW contends that the Government 

improperly withheld information under Exemption 4 because the 

information is not confidential. 

Our Court of Appeals, sitting en bane, has distinguished 

between tests of confidentiality under Exemption 4 based on whether 

the information was submitted to the government voluntarily or 

involuntarily. See Critical Mass III, 975 F.2d at 879. In Critical 

Mass III, our Court of Appeals held that voluntarily submitted 

information subject to a FOIA request is confidential under 

Exemption 4 when the information "is of a kind that would 

customarily not be released to the public by the person from whom 

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it was obtained." Id. ; see also Baker & Hostetler LLP v. U. s. Dep' t 

of Commerce, 473 F.3d 312, 320 (D.C. Cir. 2006). 

On the other hand, where commercial or financial information 

is submitted to the government involuntarily or on a mandatory 

basis, it is considered confidential only if "disclosure would be 

likely either (1) to impair the Government's ability to obtain 

necessary information in the future; or (2) to cause substantial 

harm to the competitive position of the person from whom the 

information was obtained." Ctr. for Auto Safety v. Nat'l Highway 

Traffic Safety Admin., 244 F.3d 144, 147-48 (D.C. Cir. 2001) 

(quoting Critical Mass III, 975 F.2d at 878). Less protection is 

provided for involuntarily submitted information because 

disclosure does "not seriously threaten[]" the Government's future 

access to the information. Id. at 148. In addition, "[t]he court 

will generally defer to the agency's predictive judgments as to 

the repercussions of disclosure." Jurewicz v. U. s. Dep' t of Agric., 

741 F.3d 1326, 1331 (D.C. Cir. 2014) (citing United Techs. Corp. 

v. Dep't of Def., 601 F.3d 557, 563 (D.C. Cir. 2010)) (internal 

quotation marks omitted) . 

The parties agree that the information at issue under 

Exemption 4 was submitted involuntarily for purposes of the 

Critical Mass III framework. See Pl.'s Mot. at 19-20; Def.'s Opp'n 

at 8 n. 5. Applying the involuntarily submitted information 

standard, DOJ argues that the information, if released, would cause 

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substantial competitive harm to the vendors, as well as impair the 

government's ability to obtain necessary information in the 

future, and is therefore confidential. 

a. Contract Solicitation Materials 

The first category of information withheld under Exemption 4 

is comprised of a vendor's solicitation for a contract proposal. 

Def. 's Mot. at 15 (citing Hardy Deel. ~ 56) . The solicitation 

includes a Firm Fixed Pricing Summary Sheet, Conditions on 

Estimate, and a "Commercial U.S. Conditions 

Services" statement. Hardy Deel. ~ 56. 

UAS Products 7 

DOJ focuses on the fact that the vendor does not typically 

release this information to the public and that on each page, the 

vendor included a footer stating: "This proposal includes [vendor 

name] , proprietary or confidential data that shall not be disclosed 

outside the Government, nor shall it be duplicated or used by the 

recipient, in whole or in part, for any purpose other than to 

evaluate this proposal. Furthermore, this material is exempt from 

disclosure under FOIA because it contains trade secrets and/or 

commercial or financial information that is privileged or 

confidential. 11 Id. But the DOJ' s emphasis is misplaced, as it 

reflects the standard for voluntarily (not customarily released to 

the public), rather than involuntarily (substantial competitive 

harm), submitted information. See Critical Mass III, 975 F.2d at 

879. 

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:·. 

DOJ next argues that release of the information would impair 

the FBI' s ability to obtain similar information from vendors in 

the future. Def.'s Opp'n at 8 (citing Second Declaration of David 

Hardy ~ 8 ("Second Hardy Deel.") [Dkt. No. 23-2] ) . Mr. Hardy states 

that withholding the information under Exemption 4 "encourages all 

future submitters to furnish useful commercial or financial 

information to the government without hesitation, and it also 

provides the government with an assurance that the required 

submissions will be reliable." Second Hardy Deel. ~ 8 (c) . The Court 

finds this argument unpersuasive, as DOJ has not sufficiently 

explained how disclosure will make future contract solicitation 

submissions less reliable. 

DOJ's next argument is that this information, if released, 

would "cause substantial harm to the vendor's competitive 

position." Def.'s Opp'n at 7. DOJ explains that the information 

would provide potential competitors "with key inside information 

that would undercut the vendor's position in the market because 

this vendor sells this type of equipment and services only to law 

enforcement entities." Id. at 7-8 (emphasis added). DOJ fails to 

fully explain the relevance of the fact that the vendor exclusively 

sells this type of equipment to law enforcement entities. 

A declaration from the.vendor, submitted in camera, provides 

more detail regarding the potential competitive harm. See Second 

-22-
Vendor Declaration ~~ 7-13 ("Second Vendor Deel.") , 2 Ex. A to 

Second Hardy Deel. (in camera submission). The vendor argues that 

the pricing information, if disclosed, would enable commercial 

customers to determine the vendor's unit pricing and enable the 

customers to bargain down the prices more effectively. Second 

Vendor Deel. ~ 7. Prices given to the government are often lower 

than those offered to commercial customers, and if the pricing 

information were disclosed, commercial customers would seek price 

concessions similar to those given to the government. Id. ~~ 5-7. 

The pricing information would also help the vendor's 

competitors underbid it on future government solicitations. Id. 

~ 7. The vendor states that it competes with several other 

manufacturers to obtain contracts with the government and that the 

equipment unit price is a critical factor. If the unit price were 

revealed, competitors could underbid the vendor by simply lowering 

their unit price below the vendor's. Id. ~~ 9-10. 

The vendor makes similar arguments with regard to the training 

information and commercial terms and conditions included in the 

contract document. Id. ~~ 11-13. The vendor contends that release 

of this information would enable competitors to determine what 

2 Exhibit A to the Second Hardy Declaration contains two 

declarations by the vendor, which share the same title and are not 

distinguishable by pagination or paragraph numbers. The first 

vendor declaration will therefore be referred to as "First Vendor 

Deel.," and the second as "Second Vendor Deel."). 

-23-
.. 

training the vendor offers at what price, and what conditions the 

pricing is based on. This would enable competitors to undercut 

prices, as well as offer potentially more advantageous terms and 

conditions. Id. 

The Court agrees that public release of this information would 

cause serious competitive harm to the vendor. The vendor must 

diligently protect this information at every juncture. The vendor 

requires non-disclosure agreements from third-party commercial 

intermediaries, confidentiality agreements from employees, and 

does not share this information with competitors or the public. It 

would put the vendor at a distinct disadvantage in bid 

solicitations if its pricing information were made public. 

The Court concludes that disclosure of the contract 

solicitation documents would cause substantial harm to the 

competitive position of the vendor. Therefore, the documents are 

considered confidential for purposes of Exemption 4 and were 

properly withheld. 

b. Operator Manuals and Training Documents 

DOJ also withheld a second category of documents under 

Exemption 4, comprised of operator manuals a,nd vendor training 

documents. See Def .'s Mot. at 16. The manuals contain "a 

comprehensive overview of the design, operation, capabilities, and 

maintenance" of the UAVs, including characteristics that are 

unique to the vendor's UAVs. Id. (quoting Hardy Deel. ~ 58). The 

-24-
vendor asserts that disclosure would seriously and adversely 

affect its competitive position because a competitor could utilize 

the information to improve the designs of its products to better 

compete with the vendor on future products. Id. (citing Hardy Deel. 

~ 58). The vendor again asserts that the training manuals would 

also permit competitors to determine what training the vendor 

provides and at what price, which could be used to compete with 

the vendor in the future. See First Vendor Deel. ~~ 9-10. 

CREW's two objections are that the Hardy declaration "merely 

parroted the [vendor's] response" and that UAV operator manuals 

and training documents are already in the public domain. Pl.' s 

Mot. at 21. 

Regarding CREW's first objection, the fact that DOJ relies on 

.the statements of the vendor regarding anticipated competitive 

harm is no reason to disregard DOJ' s arguments. CREW does not 

challenge the substance--that competitive harm will result from 

disclosure--of the vendor and DOJ's assertions. 

With regard to its second objection, CREW does not assert 

that the withheld materials are the same as those in the public 

domain, see Pl.'s Mot. at 21-22, but do point to different UAV 

manuals and training documents which are in the public domain. 

However, the existence of those manuals and training documents do 

not indicate that the vendor's sensitive information is already 

public, nor does it necessarily diminish the vendor's concerns of 

-25-
competitive harm. Plaintiffs have not shown that the manuals are 

identical, or even comparable. Indeed, the manuals CREW cites are 

published by the United States Army and the Australian Government's 

Civil Aviation Safety Authority, not commercial entities. Id. Nor 

are they specific to any particular vendor or equipment. 

For these reasons, the public documents Plaintiff refers to 

in no way suggest that the withheld documents are already public, 

nor do they eliminate the vendor's competitive harm concerns. 

DOJ has sufficiently shown substantial competitive harm to 

the vendor if its manuals and training documents were to become 

public, and the Court concludes that the documents are therefore 

confidential. Thus, DOJ has met its burden of showing why Exemption 

4 applies to the UAV manuals and training documents. 

4. FOIA Exemption 5 

FOIA Exemption 5 protects from disclosure "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." 5 U.S.C. § 552(b) (5). Courts have construed this language 

to exempt those documents "normally privileged in the civil 

discovery context," including those protected by the attorney work 

product and attorney client privileges. NLRB v. Sears, Roebuck & 

Co., 421 U.S. 132, 149 (1975); see also Martin v. Dep't of Justice, 

488 F.3d 446, 455 (D.C. Cir. 2007). In addition, "[t]he privilege 

. extends to all situations in which an attorney's counsel is 

-26-
sought on a legal matter." Coastal States Gas Corp. v. Dep't of 

Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). Therefore, "it is clear 

that an agency can be a 'client' and agency lawyers can function 

as 'attorneys' within the relationship contemplated by the 

privilege." Id. at 863. 

The FBI withheld documents pursuant to the deliberative 

process privilege, which protects intra- and inter-agency 

documents that are both "predecisional and deliberative." Mapother 

v. Dep't. of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). A 

document is predecisional if "it was generated before the adoption 

of an agency policy" and it is deliberative if "it reflects the 

give-and-take of the consultative process." Judicial Watch v. Food 

& Drug Admin., 449 F.3d 141, 151 (D.C. Cir. 2006) (quoting Coastal 

States, 617 F.2d at 866). 

CREW first challenges the Exemption 5 withholdings on the 

ground that DOJ failed to give consideration to "whether any of 

the withheld documents contain information actually incorporated 

into a final agency decision," because to the extent the "documents 

reflect information in the final [agency documents] , the 

privilege would no longer apply." Pl.'s Mot. at 24. CREW fails to 

cite any case law in either its Motion or its Reply in support of 

this statement. See id. at 23-24; Pl.'s Reply at 8-9. Given the 

complete lack of support for the proposition that draft or 

predecisional documents that reflect information in the agency's 

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final decision are no longer privileged, 3 this argument must be 

·rejected. 

CREW next argues that, for the documents withheld on the 

grounds of deliberative process privilege, any segregable factual 

information is not protected by Exemption 5 and should have been 

released. See Pl.'s Mot. at 24. This argument claims that the FBI 

failed to properly segregate and release non-exempt portions of 

the documents, and will be addressed in Section III.B.6, along 

with Plaintiff's other segregability arguments. 

DOJ has sufficiently explained what documents it has withheld 

and why. DOJ described in detail that the documents ref le ct an 

ongoing dialogue within the agency during the development of 

various policy and program issues. The Court concludes that the 

documents clearly fall within the scope of the deliberative process 

privilege and were properly withheld under Exemption 5. 

5. FOIA Exemption 7(E) 

FOIA Exemption 7(E) precludes disclosure of responsive 

. documents, records or information that has been: 

compiled for law enforcement 

extent that the production 

records or information 

purposes, but only to the 

of such law enforcement 

(E) would disclose 

techniques and procedures for 

investigations or prosecutions, or 

law enforcement 

would disclose 

3 Plaintiff appears to argue the inverse in its Reply, stating that 

"where the drafts 'became final documents that reflect agency 

decisions, '" they "therefore fall within the exemption." Pl. 's 

Reply at 9 (quoting Def.'s Opp'n at 12). Plaintiff provides no 

support for this argument and its earlier contrary argument. 

-28-
guidelines for law enforcement investigations or 

prosecutions if such disclosure could reasonably be 

expected to risk circumvention of the law. 

5 u.s.c. § 552 (b) (7). 

Information withheld under Exemption 7 must "first meet a 

threshold requirement: that the records were compiled for law 

enforcement purposes." Elec. Privacy Info. Ctr. v. U.S. Dep't of 

Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015) (quoting Pub. 

Emps. for Envtl. Responsibility v. U.S. Section, Int'l Boundary & 

Water Comm'n, U.S.-Mexico, 740 F.3d 195, 202-03 (D.C. Cir. 2014)) 

("Public Emps."). It is undisputed that the information withheld 

by the FBI was compiled for law enforcement purposes and meets the 

threshold requirement. See Pl.'s Mot. at 25; Def.'s Opp'n at 13. 

There is some disagreement in the courts as to the proper 

reading of Exemption 7 (E). As discussed above, Exemption 7 (E) 

covers "techniques and procedures for law enforcement 

investigations or prosecutions" as well as "guidelines for law 

enforcement investigations or prosecutions." 5 u.s.c. 

§ 552(b} (7) (E) (emphases added). The final clause of the exemption 

requires that an agency demonstrate that the disclosure of the 

records at issue "could reasonably be expected to risk 

circumvention of the law." Id. The "risk circumvention of the law" 

requirement ·clearly applies to records containing "guidelines," 

because the requirement follows directly after the phrase "would 

disclose guidelines for law enforcement investigations or 

-29-
prosecutions." However, there is some disagreement over whether 

the requirement also applies to records containing "techniques and 

procedures." Id. 

The Second Circuit has held that the "risk circumvention of 

the law" requirement applies only to guidelines, and DOJ urges 

this Court to adopt a similar reading. See Allard K. Lowenstein 

Int'l Human Rights Project v. Dep't of Homeland Sec., 626 F.3d 

678, 681-82 (2d Cir. 2010); Def.'s Mot. at 25-26. By contrast, in 

Blackwell v. FBI, our Court of Appeals applied the "risk 

circumvention of the law" requirement to techniques and 

procedures, as well as guidelines. 646 F13d 37, 41-42 (D.C. Cir. 

2011) . Although the Blackwell Court did so without any discussion 

of the applicability of the requirement, the Court of Appeals 

acknowledged the Blackwell holding in Public Emps., and did not 

question it. 740 F.3d at 205 n.4. The Court did comment that it 

was not clear that, "given the low bar posed by the 'risk 

circumvention of the law' requirement, ... the difference matters 

much in practice." Id. 

Of course, this Court is bound to follow the precedent of our 

Court of Appeals, and therefore the Court must apply the "risk 

circumvention of the law" requirement to techniques and 

procedures, as well as guidelines. 4 

4 

a 

Although this Court is bound by precedent, the Court agrees that 

plain reading of the statute suggests that the "risk 

-30-
Exemption 7(E) 's requirement that disclosure risk 

circumvention of the law "sets a relatively low bar for the agency 

to justify withholding." Blackwell, 646 F.3d at 42. "To clear that 

relatively low bar, an agency must demonstrate only that release 

of a document might increase the risk 'that a law will be violated 

or that past violators will escape legal consequences.'" Public 

Emps., 740 F.3d at 205 (quoting Mayer Brown LLP v. IRS, 562 F.3d 

1190, 1193 (D.C. Cir. 2009)); see also Blackwell, 646 F.3d at 42 

(the Exemption looks for "the chance of a reasonably expected 

risk.") 

The FBI withheld several categories of documents under 

Exemption 7 (E), only some of which CREW challenges. The first 

category that CREW challenges is the withholding of information 

regarding UAV operational capabilities and equipment 

specifications. Pl.' s Mot. at 26-27. These documents contain 

"information specific to the development of UAV[s] as an effective 

investigative technical tool for national security and criminal 

investigations." Def.'s Mot. at 28. DOJ states that disclosure of 

these documents could reasonably be expected to increase the risk 

of circumvention of the law because the information would provide 

circumvention of the law" requirement applies only to guidelines. 

Because the Court finds the documents were properly withheld even 

under the "risk circumvention of the law" requirement, the parties' 

dispute over the proper reading of Exemption 7(E) does not affect 

the outcome. 

-31-
key details on various law enforcement techniques and procedures. 

Def.'s Mot. at 28-29. 

CREW does not dispute that disclosure of the non-public 

operational capabilities and equipment specifications would 

increase the risk of circumvention of the law. Rather, CREW argues 

that the FBI has failed to show that the operational capabilities 

and equipment specifications withheld are not already generally 

known to the public. See Pl.'s Mot. at 26. CREW provides examples 

of websites describing the capabilities of the Predator B drone 

used by the Air Force, as well as articles and surveys discussing 

drone operational capabilities, to support its argument that 

operational capabilities and limitations of drones are already 

widely known and therefore not subject to Exemption 7 (E) . Id. 

at 26-27. 

This argument assumes that all drones are alike. While drones 

may generally face similar challenges across the board (i.e. 

weather or flight control issues), it does not logically follow 

that all of their capabilities and limitations are similar, or 

that to know one is to know them all. DOJ explicitly states that 

the information withheld contains "non-public investigative 

techniques and procedures." Def .'s Opp'n at 15 (citing Hardy Deel. 

~~ 76-78) (emphasis in original). The public information cited by 

CREW does not raise doubts about the veracity of DOJ's claim. 

-32-
The next category CREW challenges is "information regarding 

the specific types of equipment, systems, software, hardware, 

control devices, and other details showing the capabilities, 

limitations, and technological advancements of certain UAVs, as 

well as the identity of UAV vendors and suppliers." Def.'s Mot. at 

28; see also Pl.'s Mot. at 28. 

CREW again argues that specifics about the drone equipment 

government agencies use, as well as their capabilities and 

limitations, are widely available and therefore not subject to 

Exemption 7(E). Pl.'s Mot. at 28. This argument is rejected for 

the same reasons discussed above. 

CREW also argues that vendor and supplier identities are not 

law enforcement techniques within the meaning of Exemption 7(E). 

Id. DOJ's argument is that disclosure of the vendor would, due to 

the vendor's niche market, reveal the equipment and services 

provided to the FBI. This would "effectively reveal knowledge about 

the FBI's surveillance capabilities . . and limitations." Def.'s 

Opp'n at 19 (citing Second Hardy Deel. ~ 8(c) & n.4). Consequently, 

DOJ argues, criminals and foreign entities would have key 

information that could be used in countermeasure efforts. Id. at 

18-19. "If the FBI were forced to use compromised equipment it 

would have an immeasurable, negative effect on current and/or 

future investigations and law enforcement response capability of 

the FBI." Id. at 18. The Court agrees. 

-33-
The third and fourth categories of documents that CREW 

challenges are comprised of information regarding UAV training, 

pilot qualifications, and funding details. See Pl.'s Mot. at 29. 

CREW argues that DOJ "merely parrot[s] the language of Exemption 

7(E)" and therefore DOJ fails to meet its burden of proving that 

the information is properly exempt. Id. CREW also argues that the 

FBI's justifications rely on "overblown claims of harm" that are 

not commensurate with the information CREW seeks. Pl.'s Reply at 

12. 

In its Opposition, DOJ explained that releasing information 

about training and the associated equipment procedures "is 

tantamount to releasing information about the actual employment of 

the procedures and techniques themselves." Def.'s Opp'n at 19. The 

Court agrees that the training and equipment information, if 

disclosed, would reveal law enforcement techniques and procedures, 

which, as discussed previously, could reasonably be expected to 

risk circumvention of the law. 

Similarly, DOJ argues that releasing funding information and 

details as to how and what the FBI is acquiring as part of its UAV 

program is tantamount to releasing information about UAV 

capabilities, program sophistication, vendor identity, and the 

scope and direction of the UAV program. Id. at 19-20; Hardy Deel. 

~ 82. The funding details include "funding account numbers, bank 

routing numbers, purchase order numbers, specific contractual 

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terms and conditions, product numbers or codes, product 

descriptions including parts, repair requests, and product 

pricing, purchase order approval procedures, and funding 

allocation and budgeting details." Hardy Deel. ~ 81. DOJ has 

properly withheld this information under Exemption 7(E). 

The final category of information CREW challenges is 

described as "non-public details regarding UAV use and 

tradecraft." Def.'s Mot. at 32; see also Pl.'s Mot. at 30. DOJ 

explains that the FBI' s tradecraft "constitutes the body of 

techniques and procedures it employs to administer and operate its 

UAV program for law enforcement and national security purposes." 

Def.'s Opp'n at 20. 

This is essentially an umbrella exemption that DOJ uses as a 

catch-all justification for withholding information. DOJ concedes 

that this rationale is not used to withhold any information that 

was not already withheld under Exemption 7(E) on another basis. 

Rather, all the information otherwise withheld pursuant to 

Exemption 7 (E) is also withheld on the basis of "UAV use and 

tradecraft." Id. at 20-21. The justification for this is that "each 

piece of non-public information detailing the FBI's UAV program 

has a functional nexus to the administration and operation of the 

UAV program." Id. at 20. DOJ argues that releasing any of the nonpublic details regarding the FBI's UAV use and tradecraft "could 

enable potential targets of the FBI to assemble information about 

-35-
the program to reverse engineer the FBI's use and capabilities, 

neutralizing or significantly degrading the FBI's ability to use 

the technique." Id. at 21. 

The Court finds this exemption too broad and in conflict with 

the Supreme Court's mandate that FOIA' s exemptions should be 

narrowly construed. See Milner v. Dep't of Navy, 562 U.S. 562, 563 

(2011) (FOIA's "goal is broad disclosure" and thus "the exemptions 

must be given a narrow compass") (internal quotation marks and 

citation omitted). DOJ's argument that every detail relating to 

FBI's tradecraft is exempt from disclosure because of the 

possibility that it could be compiled with other information is 

both vague and attenuated. This is not to say that tradecraft 

information can never be withheld, but Defendant has not met its 

burden here. 

Despite the Court's rejection of DOJ's tradecraft argument, 

it finds that DOJ sufficiently explained its reasons for 

withholding other categories of documents and has shown that · 

disclosure would increase the risk of circumvention of the law. 

The Court therefore concludes that the documents were properly 

withheld under Exemption 7(E). 

6. Segregability 

CREW argues that the FBI has failed to segregate and release 

all non-exempt information responsive to its FOIA Request. See 

Pl.'s Mot. at 30-32. FOIA requires that "[a]ny reasonably 

-36-
segregable portion of a record shall be provided to any person 

requesting such record after deletion of the portions which are 

exempt." 5 U.S.C. § 552(b). "[N]on-exempt portions of a document 

must be disclosed unless they are inextricably intertwined with 

exempt portions." Elliott v. U.S. Dep't of Agric., 596 F.3d 842, 

851 (D.C. Cir. 2010) (quoting Mead Data Cent., Inc. v. U.S. Dep't 

of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977)). To demonstrate 

that all reasonably segregable material has been released, the 

agency must provide a "detailed justification" for its nonsegregability. Mead Data, 566 F.2d at 261. "However, the agency is 

not required to provide so much detail that the exempt material 

would be effectively disclosed." Johnson v. Exec. Office for U.S. 

Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002). 

DOJ has explained that the FBI examined each responsive page 

individually to identify non-exempt information and "re-reviewed 

all pages to ensure that all segregable non-exempt information has 

been released." Def.'s Opp'n at 22 (quoting Hardy Deel. ~ 30). For 

pages that were withheld in full, DOJ asserts that any non-exempt 

information was so intertwined with exempt material such that it 

could not be reasonably segregated. Id. at 22-23. 

"Agencies are entitled to a presumption that they complied 

with the obligation to disclose reasonably segregable material." 

Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 

2007) (citing Boyd v. Criminal Div. of U.S. Dep't of Justice, 475 

-37-
F.3d 381, 391 (D.C. Cir. 2007)). "If the requester successfully 

rebuts this presumption, the burden lies with the government to 

demonstrate that no segregable, nonexempt portions were withheld." 

Id. (citing 5 U.S.C. § 552 (a) (4) (B)). 

CREW argues that the FBI's "blanket assertion" that it has 

re-reviewed all pages to ensure all the segregable non-exempt 

information was released is inadequate to meet its burden of proof. 

Pl.'s Mot. at 31. CREW cites Chesapeake Bay Found. v. U.S. Army 

Corps of Eng' rs, 671 F. Supp. 2d 101 (D.D.C. 2009), but the facts 

of that case are easily distinguishable. In Chesapeake Bay, the 

agency did not specifically address segregability and not a single 

document was released in part. See id. at 103, ·109, 109 n.1. That 

is not the case here. 

As discussed above, an agency is not required to provide so 

much detail that the exempt material is in effect disclosed. Our 

Court of Appeals held in Johnson that a comprehensive Vaughn index, 

along with an affidavit that a line-by-line segregability review 

of each document withheld in full, was sufficient to fulfill the 

agency's obligation to show that further segregability was not 

feasible. See Johnson, 310 F.3d at 776; Like the agency in Johnson, 

DOJ has provided a detailed Vaughn index and an affidavit asserting 

that each responsive document was re-reviewed for segregability. 

See Def.'s Mot. at 33 (citing Hardy Deel. ~ 30). 

-38-
CREW also argues that the documents withheld under 

Exemption 5 specifically contain segregable information that 

should be released. CREW contends that the documents contain 

factual information that is not privileged, and therefore outside 

the scope of the exemption. See Pl.'s Mot. at 24, 31. 

Absent a claim that disclosure would jeopardize state 

secrets, "memoranda consisting only of compiled factual material 

or purely factual material contained in deliberative memoranda and 

severable from its context" are generally discoverable in civil 

litigation, and by analogy, are also not protected by Exemption 5. 

Envtl. Prot. Agency v. Mink, 410 U.S. 73, 87-88 (1973) (emphasis 

added) (superseded by statute on other grounds, Freedom of 

Information Act, Pub. L. No. 93-502, 88 Stat. 1561, as recognized 

in CIA v. Sims, 471 U.S. 159, 189 n.5 (1985)). 

CREW does not allege that any of the withheld documents 

contain compiled factual material and identifies only one example 

of "purely factual" information it believes improperly withheld. 

Plaintiff alleges that Certificates of Waiver or Authorization 

("COAs") contain purely factual information. Pl.'s Mot. at 31-32. 

The Federal Aviation Administration (FAA) describes a COA as: 

an authorization issued by the Air Traffic Organization 

to a public operator for a specific UA[V] activity. After 

a complete application is submitted, FAA conducts a 

comprehensive operational and technical review. If 

necessary, provisions or limitations may be imposed as 

part of the approval to ensure the UA[V] can operate 

-39-
safely with other airspace users. In most cases, FAA 

will provide a formal response within 60 days from the 

time a completed application is submitted. 

Pl.'s Mot. at 6 (quoting Certificates of Waiver or Authorization 

(November 14, 2014), available at https://www.faa.gov/about/ 

office_org/headquarters_offices/ato/service_units/systemops/aaim 

/organizations/uas/coa/) . 

While COAs may contain some factual information, it is not 

clear that they contain "purely factual material." Mink, 410 U.S. 

at 88. CREW has not alleged what the purely factual material is 

likely to be, or why it thinks the COAs contain it. Pl.'s Mot. at 

31-32. Consequently, CREW has not shown that the COAs are the type 

of factual information that is outside the scope of Exemption 5 as 

described in Mink. Al though CREW asserts the existence of a "myriad 

[of] factual issues" that call into question the FBI's claim of 

proper segregation, it provides only the single example of COAs. 

Id. That one somewhat vague assertion is not sufficient to rebut 

the presumption that the FBI complied with its obligation to 

disclose reasonably segregable material. 

-40-
IV. CONCLUSION 

For the foregoing reasons, Plaintiffs' Motion for Summary 

Judgment shall be denied, and DOJ's Motion for Summary Judgment 

shall be granted. An Order shall accompany this Memorandum Opinion. 

February 9, 2016 Glady8Kes~ 

United States District Judge 

Copies to: attorneys on record via ECF 

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