                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA

GEORGE CANNING,
                                                Civil Action No. 11-1295{GK)
                      Plaintiff,

               v.

U.S. DEPARTMENT OF JUSTICE,

                      Defendant.



                                 MEMORANDUM OPINION

      Pro Se Plaintiff George Canning                 ("Plaintiff"),   brings this

action against Defendant,           Federal Bureau of Investigation ("FBI"

or "Defendant"), under the Freedom of Information Act ("FOIA"), 5

U.S.C.   §    552. This matter is now before the Court on Defendant's

Motion for Summary Judgment              ("Def.'s Mot.")     [Dkt. No.   30-1]   and

Plaintiff's         Cross-Motion   for    Partial     Summary   Judgment    ("Pl.' s

Mot. " ) [Dkt. No. 4 6] .

      Upon consideration of the Motions, Oppositions, Replies, the

entire       record    herein,    and    for    the   reasons   discussed   below,

Defendant's Motion for Summary Judgment is granted in part and

denied in part and Plaintiff's Cross-Motion for Partial Summary

Judgment is granted in part and denied in part.




                                          -1-
      I .      BACKGROUND

      A. September 29,          2007 FOIA Requests

      On September 29,            2007,   Plaintiff submitted a FOIA request to

the FBI Washington Field Office ("WFO"). He sought twelve serial

numbers            and   "any    other    serials   containing      references   to   or

information about Paul Goldstein, Lyndon H. LaRouche Jr., and/or

Jeffrey Steinberg" for items on a copy of a r~dacted FBI airtel

that Plaintiff enclosed with his request. 1 Am. Compl., Ex. D. Mr.

Canning attached privacy waivers from Mr. Goldstein, Mr. LaRouche,

and Mr. Steinberg to his request.

      The same day, Mr. Canning submitted a separate FOIA request to

FBI         headquarters        ( "FBI HQ" )   seeking:   ( 1)   the same material he

requested from the WFO,                (2) two documents declassified by the FBI

prior         to    an   Interagency Security Classification Appeals              Panel

    ( "ISCAP") review, and (3) any information regarding Mr." Goldstein,

Mr. LaRouche, and Mr. Steinberg in airtel WMFO 196B-1918-364. Id.,

Ex. A. Defendant claims it has no record of receiving the FBI HQ

request. Second Hardy Deel.                ~   9 [Dkt. No. 30-3].

      B. July 18,        2 009 FOIA Request

      On July 18, 2009, Mr. Canning submitted a FOIA request to the

FBI HQ seeking documents declassified by ISCAP for three specific


1
  In 2011, Defendant located an unredacted copy of the FBI airtel
referenced in Plaintiff's request and used this version to locate
responsive material. Second Hardy Deel. ~ 27.
                                  -2-
ISCAP appeals involving Plaintiff and Mr. Steinberg. Am. Compl.,

Ex. K. On December 22,             2009,   Mr. Canning amended his request to

seek an additional document related to a declassification review

appeal filed by Mr. Steinberg. Id., Ex. P. Although the Government

claims it had no prior record of Plaintiff's July 18, .2009 request,

upon receiving Plaintiff's amendment,                    it opened a FOIA case and

released responsive material. Third Hardy Deel.                       ~   10.

     C. December 31, 2009 FOIA Request

     On December 31,       2009,    Mr. Canning submitted a FOIA request to

FBI HQ seeking information about suspected government surveillance

of Mr. LaRouche's presidential campaign. Am. Compl., Ex. R. Again,

the Government claims it had no official record of Plaintiff's

request. See Third Hardy Deel.             ~    5. Nonetheless, it referenced the

FOIA request appended to Plaintiff's Amended Complaint to search

for and process responsive records related to the request. Id. ~

6.

     D. Procedural History

     Plaintiff    instituted        this       action    on    July       19,    2011.     The

Government       filed     its   pending       Motion    for   Summary          Judgment    on

December 21,       2012.    On May 9,          2013,    Plaintiff filed his Cross-

Motion for Partial Summary Judgment.                    During the course of this

action,   the Court denied multiple Motions by Plaintiff to obtain



                                           -3-
discovery. The Parties' Cross-Motions for Summary Judgment are now

fully briefed and ripe for review.

  II.     STANDARD OF REVIEW

      FOIA cases are typically and appropriately decided on motions

for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of

Governors of Fed. Reserve Sys.,       762 F. Supp. 2d 123, 130 (D.D.C.

2011); Defenders of Wildlife v. U.S. Border Patrol,             623 F. Supp.

2d 83, 87 (D.D.C. 2009). "The standard governing a grant of summary

judgment in favor of an agency's claim that it has fully discharged

its   disclosure     obligations   under   FOIA   is   well-established ....

[T]he agency bears the burden of showing that there is no genuine

issue of material fact, even when the underlying facts are viewed

in the light most favorable to the requester." Weisberg v. U.S.

Dep't of Justice,      705 F.2d 1344, 1350    (D.C. Cir. 1983); see also

Fed. R. Civ. P. 56(c).

      The court may award summary judgment solely on the basis of

"[a] reasonably detailed affidavit, setting forth the search terms

and the    type of    search performed,    and averring that all        files.

likely to contain responsive materials            (if such records exist)

were searched." Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 68

(D.C. Cir. 1990).

      If the agency withholds any material on the basis of statutory

exemptions,   the agency's affidavits must also           (1)   "describe the

                                    -4-
documents and the justifications for nondisclosure with reasonably

specific          detail;"          and       (2)        "demonstrate        that    the     information

withheld logically falls within the claimed exemption;" and must

not be (3) "controverted by either contrary evidence in the record

nor by evidence of agency bad faith." Military Audit Project v.

Casey,    656 F.2d 724,                   738       (D.C.      Cir.   1981).       Such affidavits or

declarations         are accorded                   "a presumption of good faith,                   which

cannot       be    rebutted              by     'purely          speculative        claims    about     the

existence          and        discoverability               of    other   documents.'"          SafeCard

Servs.,      Inc.        v.    S.E.C.,          926       F.2d 1197,      1200       (D.C.   Cir.     1991)

(quoting Ground Saucer Watch,                             Inc. v. C.I.A.,           692 F.2d 770,       771

(D.C. Cir. 1981)).

  III. ANALYSIS

  In     response             to        Plaintiff's            four   FOIA     requests,       Defendant

withheld material under FOIA Exemptions 1,                                    3,    7(C),    7(D), and 7

(E). Plaintiff objects to the sufficiency of Defendant's search,

contests a number of the asserted FOIA Exemptions, and argues that

certain information should be disclosed because it exists in the

public domain. The Court will address each issue in turn.

          A. Sufficiency of the Search Conducted by the FBI

       The    purpose              of    FOIA       is    to     "facilitate        public    access     to

Government documents" and "to pierce the veil of secrecy and to

open agency action to the light of public scrutiny." Mccutchen v.

                                                          -5-
U.S. Dep't of Health & Human Servs., 30 F.3d 183, 184 (D.C. Cir.

1994)       (internal   quotations    omitted).        In    responding      to   a    FOIA

request, an agency is under an obligation to conduct a reasonable

search for responsive records.             Oglesby,         920 F.2d at 68.       To win

summary judgment on the adequacy of a                    search,     the agency must

demonstrate beyond material doubt that its search was "reasonably

calculated to uncover all relevant documents." Weisberg, 705 F.2d

at 1351. An agency may demonstrate the reasonableness of its search

by submitting "[a]        reasonably detailed affidavit." Oglesby,                       920

F.2d at 68.

        The Court "applies a        'reasonableness' test to determine the

'adequacy' of a search methodology, consistent with congressional

intent tilting the scale in favor of disclosure." Morley v. C.I.A.,

508 F.3d 1108, 1114 (D.C. Cir. 2007)                 (internal quotation marks and

citation omitted) .       To prevail in a            summary judgment motion,             an

agency is not required to search every system possible, but must

show that it made a good faith effort that would be reasonably

expected to produce all the requested information. See Steinberg

v.   U.S.    Dep't of Justice,       23   F.3d 548,          551   (D.C.   Cir.       1994).

Summary      judgment    for   an   agency      is    inappropriate        only   if     the

agency's responses "raise serious doubts as to the completeness of

the search or are for some other reason unsatisfactory .... " Perry

v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982).

                                          -6-
         In   this     case,     the     Court   concludes        that,       as     to       each      of

    Plaintiff's      FOIA      requests,     the     FBI's       search       was        reasonably

calculated to uncover the relevant documents. Three declarations

submitted         by    David      M.     Hardy,     the        Section        Chief          of       the

Record/Information               Dissemination        Section           ("RIDS")     I        Records

Management Division of the FBI,                    describe,       in extensive detail,

Defendant's          search      for     documents       responsive           to     Plaintiff's

requests. See Second Hardy Deel.; Third Hardy Deel.; Fourth Hardy

Deel.     [Dkt. No. 64-1].

        With    regard      to    the     September      29,      2007        request         to       the

Washington Field Office,                 the Government          initially located and

processed the files visible on the partially redacted airtel that

Plaintiff attached to his request. Second Hardy Deel.                                     ~   43. The

Government supplemented its processing efforts with search terms

targeted to retrieve responsive information.                            Id.    Concerning the

redacted       serial       numbers       that     Plaintiff       requested,             Defendant

searched for and found an unredacted version of the airtel,                                            re-

processed the clean version for release,                          and then located the

specific files that Plaintiff requested. Id.                        ~   44. The Government

also     deployed targeted              search   terms     to    search        its       electronic

surveillance ("ELSUR") indices for responsive material. 2 Id.                                      ~   47.


2
  Defendant's ELSUR search terms included: "Executive Intelligence
Review," "EIR," "Foreign Police Cooperation," "Goldstein, Paul Neil,"
"LaRouche, Lyndon Hermyle," "Steinberg, Jeffrey," and the date of
                                  -7-
          The    Government      adopted a    similar approach with regard            to

Plaintiff's July 18, 2009 and December 31, 2009 requests. Although

Mr. Canning had originally requested a blacked-out file in the FBI

search slip that he attached to his December 31, 2009 request, the

Government located an unredacted version in its files and processed

the corresponding serial numbers for release. Third Hardy Deel. ~

28. Defendant also conducted ELSUR searches using targeted search

parameters.         By    coordinating       with    its    RIDS   Department     Review

Committee liaison,              the Government was able to locate all of the

material requested by Plaintiff in his July 18, 2009 request. Id.

~   30.

          The Court finds         that the Government's efforts as to these

FOIA requests were reasonably calculated to uncover all relevant

documents and· therefore adequate.                  See Chambers v. U.S. Dep't of

Interior,         568    F.3d    998,   1005-06     (D.C.   Cir.   2009).   The    Hardy

declarations identify, with reasonable specificity, the "system of

records         searched and the . geographic          location of     those    files."

Perry, 684 F.2d at 127. See Weisberg v. U.S. Dep't of Justice, 627

F.2d 365, 370 (D.C. Cir. 1980)               (agency affidavit must denote which

files were searched and reflect a systematic approach to document




birth and social security number for the targeted individuals. Second
Hardy Deel. ~ 47.
                                  -8-
location      in    order       to   enable    the    appellant       to   challenge    the

procedures utilized) .

         Mr. Canning does not appear to dispute that the above measures

were adequate to locate records responsive to his September 29,

2007     request    to        the Washington Field Office and his               two    2009

requests. Instead, Plaintiff principally challenges the fact that

Defendant did not conduct an independent search of the FBI HQ's

files in response to his September 29, 2007 request to the FBI HQ.

Pl. 's    Mot.     at    6.    According      to    Plaintiff,     Defendant    blatantly

ignored      this       request,     disregarding          Plaintiff's     concern     that

documents located in the FBI HQ might materially differ from the

records stored in the Field Office.                     Id.   at 8.    In response,     the

Government asserts that since Field Office files are copied to the

FBI HQ, an independent search of the FBI HQ for the same materials

would have been needlessly redundant. Def.'s Reply at 4 [Dkt. No.

64] .

         The Court agrees with the Government. It provided a reasonably

detailed affidavit              clarifying     why    it    only   searched    its     Field

Office,     and why a          search of the FBI Headquarters for the same

documents        would be       redundant     and not       likely to      result    in the

location of additional responsive records.                       In the affidavit,       the

Government clearly explained the process in which each Field Off ice

copied the contents of its files to the corresponding HQ division.

                                              -9-
Second Hardy Deel.          ~   46. Unsatisfied, Mr. Canning claims that some

of the HQ documents may not be "in fact identical" because they

might "include[] handwritten notations and ink-stamps" that could

reveal     additional       information.         Pl.' s   Reply   at        2     (emphasis    in

original).         Plaintiff's       purely      speculative       claims             about   the

existence and discoverability of other documents do not overcome

the    ~resumption         of      good    faith      afforded     to           the     agency's

declarations. See Leopold v. Nat'l Sec. Agency,                         118 F. Supp. 3d

302,   308    (D.D.C.      2015)    (deferring to agency's declaration that

explained why a search of an additional government office would be

redundant) .

       Nonetheless, Mr. Canning correctly points out that his FBI HQ

request is not identical to the Field Office request. The FBI HQ

request contains two elements absent from the Field Office request:

(1) specific documents declassified by the FBI prior to the ISCAP

review,      and    ( 2)   any    information      regarding      Mr.       Goldstein,        Mr.

LaRouche, and Mr. Steinberg in airtel WMFO 196B-1918-364. See Am.

Compl, Exs. A, D.

       Despite      initially having no record of                 Plaintiff's            FBI HQ

request,     Defendant          searched   for    the     requested         information and

released responsive material               in response        to Plaintiff's Cross-

Motion for Summary Judgment. Fourth Hardy Deel.                         ~       12.    Defendant

not only released an unredacted copy of airtel WMFO 196B-1918-364

                                           -10-
but also searched for the specific documents declassified by the

FBI prior to the ISCAP review, as requested by Mr. Canning. Second

Hardy Deel.    ~   16 n.7; Fourth Hardy Deel.           ~   12.       Defendant initiated

a manual search of available files, searched FOIA files indexed to

Plaintiff, and ran targeted key word searches across its internal

database using the applicable ISCAP serial number.                            Fourth Hardy

Deel. ~ 12. Plaintiff, however, argues that Defendant should have

used additional search terms,            including the FBI reference number

and the DOJ Office of Information and Privacy's reference number.

Pl.'s Reply at 3 [Dkt. No. 65].

      Plaintiff's argument is not convincing.                         "A FOIA petitioner

cannot dictate       the    search terms       for his or her FOIA request.                 /1




Bigwood v. U.S. Dep't of Def.,               132 F.    Supp.      3d 124,       140   (D.D.C.

2015). Where,      as here,       the agency's search terms are reasonable,

"the Court will not second guess the agency regarding whether other

search terms might have been superior.                 /1
                                                            Liberation Newspaper v.

U.S. Dep't of State, 80 F. Supp. 3d 137, 146 (D.D.C. 2015).

      Significantly,        Mr.    Canning does not explain why the search

terms he proposes are more likely to uncover responsive information

than the search terms             the Government used.            Plaintiff requested

documents     related      to   an   ISCAP    review        and   a    search    using    the

corresponding ISCAP serial number, which the Government used,                              is

a   logical    way    to    target     that     information.            The   Court     finds

                                         -11-
Defendant's search methods to be reasonable and, absent a showing

of bad faith,      the Court will not second guess Defendant's search

process.

       Because     the   Court    finds     that    Defendant      has    adequately

explained its search protocols in multiple declarations that are

entitled to a presumption of good faith,                   and that the protocols

used were reasonable, Defendant's motion for summary judgment on

this issue is granted.

          B. Claimed Exemptions

       Plaintiff    objects      to     Defendant's       withholding    of   certain

information based on various statutory exemptions. FOIA "requires

agencies to comply with requests to make their records available

to the public,      unless the requested records fall within one or

more of nine categories of exempt material." Oglesby v. U.S. Dep't

of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996)                  (citing 5 U.S.C.

§   552(a),   (b)). An agency that withholds information pursuant to

a   FOIA exemption bears         the burden of        justifying its decision,

Petroleum Info. Corp. v. U.S. Dep't of the Interior, 976 F.2d 1429,

1433   (D.C. Cir. 1992)       (citing 5 U.S.C.        §   552 (a) (4) (B)), and must

submit an index of all materials withheld. Vaughn v. Rosen,                        484

F.2d 820,     827-28     (D.C.   Cir.    1973),    cert.    denied,     415 U.S.   977

(1974).    In determining whether an agency has properly withheld

requested documents under a              FOIA exemption,       the district court

                                          -12-
conducts a de novo review of the agency's decision.                             5 U.S. C.   §


552(a) (4) (B).

        As with claims of inadequacy of the search,                           the court may

award summary judgment as to withheld records solely on the basis

of information provided in affidavits or declarations when they

( 1)    "describe      the     documents           and     the       justifications     for

nondisclosure with reasonably specific detail;"                         (2)    "demonstrate

that the information withheld logically falls within the claimed

exemption;"    and     (3)     "are   not    controverted by            either     contrary

evidence    in the     record nor by evidence of                     agency bad faith. "

Military Audit Project,           656   F.2d at           738.   As noted above,       such

affidavits or declarations are accorded "a presumption of good

faith, which cannot be rebutted by 'purely speculative claims about

the existence and discoverability of other documents.'" SafeCard

Servs., 926 F.2d at 1200 (quoting Ground Saucer Watch, 692 F.2d at

771).

                  1.         Exemption 1

        FOIA Exemption 1 precludes disclosure of documents that are

"(A)    specifically authorized under                    criteria     established by an

Exe cu ti ve 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).



                                            -13-
      As with all of FOIA's exemptions,             the burden of proof lies

with the Government to show proper application of Exemption 1. 5

U.S.C.   §   552(a) (4) (B). It is undisputed that the requirements for

classifying information relevant to Mr.                 Canning's requests are

contained in Executive Order 13526 which went into full effect in

June 2010. Executive Order 13526 provides that information may be

classified if:

      (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
      this order; 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.

      Exec. Order No. 13526, 75 FR 707, 707 (Dec. 29, 2009).

      In this case,         the Government has asserted Exemption 1 over

certain classified material,            including the identities of covert

CIA employees and the location of covert CIA field installations.

See   Def. 's   Mot.   at    7,   32.   Mr.   Canning   rests   his   Exemption 1

challenge on a claim that Defendant             continu~s   to assert Exemption

1 over material that has been previously declassified by ISCAP.

                                         -14-
Pl.'s Mot. at 12. He identifies a specific document, a memorandum

authored by Allen Mccreight,       to demonstrate that Defendant made

Exemption 1 withholdings over portions of the document despite

ISCAP's declassification. Id. at 23.

       Al though Mr. Canning may be correct that the Government cannot

withhold dee lass if ied information under Exemption 1,          the Court

need not examine this issue further because in its Reply Motion,

it agreed to release the portions of the Mccreight memorandum that

were declassified by ISCAP.       See Def.' s    Reply at 23.    With this

disclosure, the Government further declared that it reviewed the

material and released all of the declassified information unless

another    exemption   applies,   see   Fourth   Hardy   Deel.   ~   25,   an

assertion that is entitled to a presumption of good faith. Negley

v. F.B.I., 169 Fed. Appx. 591, 594 (D.C. Cir. 2006). In the absence

of a   showing of bad faith,      the Court will defer to Defendant's

declaration. See Ctr. for Auto Safety v. E.P.A.,          731 F.2d 16, 23

(D.C. Cir. 1984)   ("This Circuit has repeatedly held that 'when the

agency meets its burden [under the FOIA] by means of affidavits,

in camera review is neither necessary nor appropriate").

       Plaintiff also objects to the adequacy of the FBI's and

CIA's declassification reviews. Pl.'s Mot. at 24. He points to

Defendant's supporting affidavits, noting that they do not

specifically state:    (1) that Defendant weighed the public

                                   -15-
interest in disclosure against the national security interest;

or (2) that Defendant submitted the classified intelligence

source or method information to the Director of National

Intelligence for declassification review. Id. at 25-26.

Plaintiff therefore "infers [these steps] were not performed."

Id.

        Plaintiff's argument is unpersuasive for two reasons. First,

Executive Order 13526 expressly indicates that the determination

of whether the "exceptional case" exists in which "the need to

protect    [classified]   information may be outweighed by the public

interest in disclosure"       is a matter of agency discretion. Exec.

Order 13526 §3.l(d).

        Second, Executive Order 13526 does not require Defendant to

submit    intelligence    information        to   the    Director   of   National

Intelligence for declassification review as a matter of course.

Instead, the Order merely states that the Director may declassify

information upon consultation with the relevant department.                     See

Exec.    Order No.   13526   §3 .1 (c) .   Indeed,      Mr.   Canning appears    to

concede this point. See Pl.'s Mot. at 31 ("[F]rom ... the word 'may'

in the EO 13526 text, the DNI has discretion not to exercise his

§3.l(C) authority - i.e. it is not a reviewable decision"). Finding

that the withheld information was classified in accordance with

the applicable procedural and administrative requirements of Exec.

                                      -16-
Order 13526, the Court concludes that Defendant properly withheld

the challenged classified material under Exemption 1.

      While processing Plaintiff's FOIA requests,                              the Government

identified       documents            that    originated         with   other         government

agencies     and,          pursuant     to    28   C.F.R.    §    16.4,        referred       those

documents to the appropriate agency for consultation. Def.'s Mot.

at 16.    The CIA and U.S.              Army Intelligence and Security Command

("USAINSCOM")         have also withheld classified material containing

the identities of covert CIA employees, the location of covert CIA

field installations, and other intelligence activities,                                    sources,

and methods under Exemption 1.                      Id.   at 16-17,       22.    The CIA and

USAINCOM declare, with reasonable specificity, that the disclosure

of   such classified information would damage national                                 security.

Dorris Deel.      ~~       6-8 (Dkt. No. 30-13); Lutz Deel.               ~~    7-18 (Dkt. No.

30-14).    Mr.      Canning         does     not   refute   the     CIA's       or    USAINCOM's

statements       or        identify    contradictory        evidence        in       the    record.

Accordingly, the Court will defer to the detailed affidavits which

indicate     that           the    withheld        information      comports           with     the

substantive and procedural requirements of Exec. Order 13526. Id.

                      2.          Exemption 3

      The Government contends that the CIA and the State Department

properly withheld information pursuant to Exemption 3. Def.'s Mot.

at 17-19. FOIA Exemption 3 covers records which are "specifically

                                               -17-
exempted from disclosure by statute . . . provided that such statute

[requires withholding] in such a manner as to leave no discretion

on the issue, or ... establishes              ~articular        criteria for withholding

or refers to particular types of matters to be withheld." 5 U.S.C.

§    552 (b) (3);    see also Senate of               Puerto Rico v.       U.S.       Dep't of

Justice,     823 F. 2d 574,       582       (D. C.    Cir.     1987) . To satisfy FOIA' s

requirements, Defendant "need only show that the statute claimed

is one of exemption as contemplated by Exemption 3 and that the

withheld material falls within the statute." Fitzgibbon v. C.I.A.,

911 F.2d 755, 761-62 (D.C. Cir. 1990).

        The CIA relies on two statutes - Section 102(A) (i) (1) of the

National     Security Act         of    1947        ("NSA"),     50   U.S.C.    §    403-1,     as

amended, and Section 6 of the Central Intelligence Agency Act of

1949 ("CIA Act"), 50 U.S.C.             §   403(g), as amended - to justify non-

disclosure of the withheld material.                         According to the CIA,             the

release of the withheld material would reveal the identities of

covert CIA employees and the existence and location of covert CIA

field installations. Lutz Deel.                 ~    20. The State Department points

to Section 222(f) of the Immigration and Nationality Act                                   ("INA")

to   withhold       an   agency   telegram dated               September   5,       1985    which

pertains to the issuance of visas for three Soviet diplomats on a

temporary duty assignment at the Soviet Embassy in Washington,

D.C. Walter Deel.         ~~   5-6 [Dkt. No. 30-11]

                                              -18-
             As a threshold matter,                     Plaintiff does not dispute that the

     NSA, CIA Act and INA qualify as exemption statutes. Nor could he,

     considering the well-settled case law to the contrary. See, e.g.,

     Fitzgibbon, 911 F.2d at 761 ("There is thus no doubt that section

     403 (d) (3)        [now NSA section 403-1 (i) (1)]                      is   a   proper exemption

     statute under exemption 3.                11
                                                    )   ;   Nat' l   Sec. Archive Fund,             Inc.   v.

     C.I.A., 402 F. Supp. 2d 211, 220                             (D.D.C. 2005)       (recognizing that

     section 6 of the CIA Act exempts certain material from disclosure);

     Medina-Hincapie v. U.S. Dep't of State,                             700 F.2d 737,             741   (D.C.

     Cir.    1983)        (concluding that INA section 222 (f)                         qualifies as an
·I
 I
 '
     exemption statute) .

             The CIA and State Department have adequately demonstrated

     that the withheld material falls within the exemption statutes.

     Section          102 (A) (i) (1)    of   the           NSA    permits    the     CIA     to    withhold

     information           relating      to   "intelligent             sources        and methods,"         50

     U.S.C.       §   403-l(i) (1), and Section 6 of the CIA Act protects against

     the disclosure of the identities of CIA employees.                                     503 U.S.C.       §


     403(g).          The CIA,    in its declaration,                 explains that the withheld

     material contains the identities of covert CIA employees and the

     existence and location of covert CIA field installations.                                           Lutz

     Deel.    ~       20. Similarly, Section 222(f) of the INA protects agency

     records "pertaining to the issuance or refusal of visas," 8 U.S.C.

     §   1202 (f),        and    the    material            withheld by       the     State    Department

                                                            -19-
concerns visa issuances for three foreign nationals. Walter Deel.

~   8.    Plaintiff       does   not       challenge       the    agencies'    analysis   or

conclusion. Accordingly, the Court concludes that the CIA and State

Department properly withheld this material under Exemption 3.

                    3.        Exemption 7{C)

         FOIA Exemption 7 (C)             protects       information compiled for         law

enforcement      purposes            to    the     extent        that    disclosure   "could

reasonably be expected to constitute an unwarranted invasion of

personal privacy." 5 U.S.C.                §   552(b) (7) (C). In determining whether

Exemption 7(C) applies, the Court must balance the public interest

in disclosure with the privacy interests implicated by the release

of the material. Computer Prof'ls for Soc. Responsibility v. U.S.

Secret     Serv.,        72   F.3d    897,       904     (D.C.    Cir.    1996).   Suspects,

witnesses,     investigators, and third parties all have substantial

privacy interests that are implicated by the public release of law

enforcement investigative materials.                      Id.; Davis v. U.S. Dep't of

Justice,     968 F.2d 1276,           1281       (D.C.   Cir.    1992). Courts recognize

that the disclosure of such material may lead to embarrassment and

physical or reputational harm to these individuals. See SafeCard,

926 F.2d at 1205.

         It "is well established that the only public interest relevant

for purposes of Exemption 7(C) is one that focuses on the citizens'

right to be informed about what their government is up to." Davis,

                                                 -20-
968 F.2d at 1282 (internal quotations omitted). Whether disclosure

of private information is warranted under Exemption 7(C) turns on

whether the information "sheds light on an agency's performance of

its statutory duties."                 u. s.    Dep' t   of Justice v.         Reporters Comm.

for Freedom of the Press, 489 U.S. 749, 773 (1989).

        Thus,    the     requested             information     must     shed    light        on   the

agency's own conduct and not merely on the subject matter of the

underlying law enforcement investigation. Id. Our Court of Appeals

has   held      "categorically that,                unless     access    to     the   names       and

addresses of private individuals appearing in files within the

ambit of Exemption 7(C) is necessary in order to confirm or refute

compelling evidence that the agency is engaged.in illegal activity,

such information is exempt from disclosure." SafeCard, 926 F.2d at

1206.

        In this case, the Government has relied on Exemption 7(C) to

protect    the    names         and/or     identifying         information of:          1)    third

parties who were            interviewed by               the   FBI   during     the   course of

investigations;          ( 2)    third parties mentioned in the documents in

the released files;              (3)    FBI Special Agents and support personnel

who     were     responsible             for      conducting,         supervising,           and/or

maintaining        the          investigative            activities      reported        in       the

documents; and (4) third parties who are of investigative interest
        '
to the FBI and/or other law enforcement agencies. Def.'s Mot. at

                                                  -21-
10-11,   29.    According   to    the   Government,     the   release    of    this

information could subject the relevant individuals to harassment,

embarrassment, intimidation, or legal, economic or physical harm.

Id. at 11.

     The Parties do not dispute that the records at issue were

compiled     for   law enforcement      purposes.     Instead,   Plaintiff      and

Defendant principally disagree on whether the public interest in

disclosure      outweighs   the   privacy      interests    implicated    by    the

release of      the material.     According to Mr.         Canning,   the public

interest in the withheld material is high, "certainly ris[ing] to

the same level as Watergate" because the withheld material,                      he

suspects,      may show attempts made by the           federal government        to

penetrate the presidential campaign of Lyndon LaRouche. Pl.'s Mot.

at 27-33. The Government argues that no public interest would be

furthered by the disclosure of the withheld information. Def.'s

Mot. at 12.

     The Government's withholding of the names of FBI personnel

and third parties that are interviewed by the FBI,                    who are of

interest to the Bureau, or mentioned in internal documents, clearly

protects legitimate privacy interests.              These individuals have a

strong privacy interest because of the potential for harassment.

Martin v. U.S. Dep't of Justice, 488 F.3d 446, 457 (D.C. Cir. 2007)

("[T]hird parties who may be mentioned in investigatory files and

                                        -22-
witnesses and informants who provide information during the course

of   an    investigation           have   an    obvious    and      substantial    privacy

interest         in   their        information.")       (internal      quotation     marks

omitted); Dunkelberger v. U.S. Dep't of Justice, 906 F.2d 779, 781

(D.C.     Cir.    1990)    ("Exemption 7(C)           takes particular note of the

'strong      interest'        of     individuals,      whether       they   be   suspects,

witnesses, or investigators, in not being associated unwarrantedly

with      alleged     criminal        activity.")       (internal      quotation     marks

omitted); Fitzgibbon, 911 F.2d at 768.

        Mr. Canning contends that there is a strong public interest

in the release of the names of these individuals because disclosure

"may indicate whether the surveillance was of high-level officials

(which may indicate attempts to suppress a campaign issue),                             or

rank-and-file workers               in La Rouche' s       presidential       campaign [.]"

Pl.'s Mot. at 33. As the FOIA requester, Plaintiff bears the burden

of asserting a countervailing public interest in disclosure. Boyd

v.   Exec.   Office       for U.S.        Attorneys,      87   F.   Supp.   3d 58,   72-73

(D.D.C. 20l5). Here, Mr. Canning offers nothing more than his own

speculation to support his claim that government surveillance of

Mr. LaRouche's presidential campaign took place. Such speculation

does not constitute "evidence that would warrant a belief by a

reasonable person that the alleged Government impropriety might



                                               -23-
have occurred." Id. at 82               (upholding Exemption 7(C) claims where

plaintiff offered only speculation as to government misconduct) .

        Mr. Canning further argues that disclosure of the information

withheld under Exemption 7(C) is warranted because the Government

did     not   indicate       if    it   attempted     to   determine    whether     the

individuals whose identifying information is being withheld are

living or deceased. Pl.'s Mot. at 33-35. Plaintiff's argument has

no     validity.    In   a       declaration      supporting    its    Opposition    to

Plaintiff's        Motion        for    Partial    Summary     Judgment,   Defendant

explains that the FBI uses a "100-year rule" to discern the dates

of birth or deaths of individuals involved in an investigation.

Fourth Hardy Deel.           ~    16. Under this rule,       the FBI presumes dead

    (and releases the names of)           individuals born more than 100 years

ago. 3 Id. The Court of Appeals has considered the FBI's use of this

method to determine the life and death of individual_s mentioned in

its withholdings and found it to be reasonable. See Schrecker v.

U.S. Dep't of Justice, 349 F.3d 657, 665 (D.C. Cir. 2003) . 4




3
  If the FBI is unable to determine the life or death status of an
individual using this method, the agency presumes the individual to be
alive and withholds any names and/or identifying information. Fourth
Hardy Deel. ~ 16.
4
  Plaintiff notes that Defendant redacted the name of Mitchell Werbel,
a deceased individual. Pl.'s Mot. at 34. In response to Plaintiff's
concern, Defendant released each instance where Mr. Werbel's name was
mentioned in responsive records. Def.'s Reply at 17. Plaintiff has not
indicated that Defendant's actions inadequately addressed his concern.
                                           -24-
        The Government also contends that U.S.                        Customs and Border

Protection ("CBP") properly withheld the signature of a government

employee from disclosure pursuant to Exemption 7(C). Def.'s Mot.

at 19. The Court agrees. As explained above, the employee retains

a privacy interest in his or her identity and Plaintiff has not

offered        any    argument       that     a    countervailing          public     interest

warrants disclosure.

         For    these      reasons,     the       Court    finds    that     the    Government

properly withheld the challenged material under Exemption 7(C) . 5

                      4.      Exemption 7(D}

        FOIA Exemption (7) (D) allows an agency to exempt records or

information          compiled    for    law       enforcement      purposes        where    such

information "could reasonably be expected to disclose the identity

of a    confidential         source               which furnished          information on a

confidential         basis."     5    U.S.C.       §    552 (b) (7) (D).    To     invoke   this

exemption, an agency must show either that the source spoke only

under     express          assurances       of         confidentiality       or      that    the

circumstances support an inference of confidentiality. U.S. Dep't

of Justice v. Landano, 508 U.S. 165, 174 (1993).




5
  Defendant also generally asserts Exemption 6 in conjunction with its
Exemption 7(C) claims. Because the. Court has already concluded that
Defendant has properly withheld the same information under Exemption
7(C), it need not examine Exemption 6. See Roth v. U.S. Dep't of
Justice, 642 F.3d 1161, 1173 (D.C. Cir. 2011).
                                              -25-
        The    Government           has   asserted       Exemption         7(D)   over:     (1)

confidential         informant        file     numbers;        (2)   confidential        source

symbol numbers and FBI code names; (3) certain information provided

by confidential         source        symbol numbered informants who reported

information to the FBI on a regular basis under express assurances

of confidentiality;            (4) identities of and information provided by

foreign law enforcement agencies under an implied assurance of

confidentiality;         (5)        identities of and information provided by

foreign law enforcement agencies under an express assurance of

confidentiality;             ( 6)     names,      identifying             information,      and

information provided by third parties to the FBI under an implied

assurance      of    confidentiality;           and     (7)    the   name    or   identifying

information of a third party who assisted the FBI under an express

assurance of confidentiality. Def.'s Mot. at 14, 30.

        Mr.   Canning initially moved for summary judgment regarding

only the information for which the Government asserts an implied

confidentiality exemption where                   the    sources are not affiliated

with law enforcement agencies. See Pl.'s Mot. at 36. However, after

the Government more fully explained the basis for its Exemption

7 (D)   assertions      in     its    Reply Motion,           Mr.    Canning withdrew his

challenge      over    the      documents       being     withheld        under   an   implied

promise       of    confidentiality.           Pl.'s      Reply      at     6-7   ("Plaintiff



                                               -26-
concedes defendant has now made the requisite factual showing, and

this element of plaintiff's motion is no longer appropriate.").

      The Court agrees with the Government that disclosure of the

withheld material could potentially lead to the identification of

confidential sources, endanger informants, affect the cooperation

of future FBI informants, and diminish cooperation between the FBI

and   other      law enforcement    authorities.   Accordingly,   the   Court

finds that the Government properly withheld this material under

Exemption .7 (D) .

                   5.       Exemption 7{E)

      FOIA Exemption (7) (E) provides for the withholding of records

or information compiled for law enforcement purposes to the extent

that disclosure of such information could reasonably be expected

to

      disclose    techniques  and   procedures    for  law
      enforcement investigations or prosecutions or would
      disclose     guidelines   for     law    enforcement
      investigations or prosecutions if such disclosure
      could reasonably be expected to risk circumvention
      of the law.


5 U.S.. C.   §   552 (b) (7) (E). This exemption protects from disclosure

only those law enforcement techniques and procedures that are not

well known to the public. National Sec. Archive v. F.B.I., 759 F.

Supp. 872,       885    (D.D.C. 1991); Albuquerque Pub. co. v. U.S. Dep't

of Justice, 726 F. Supp. 851, 857 (D.D.C. 1989). Exemption 7(E) 's

                                      -27-
requirement that disclosure could risk circumvention of the law

"sets a relatively low bar for the agency to justify withholding."

Blackwell v. F.B.I., 646 F.3d 37, 42                   (D.C. Cir. 2011). "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."

Pub.   Emps.     for Envtl.        Responsibility v.           U.S.    Section,    740 F.3d

195, 205 (D.C. ·cir. 2014).

       The    Government         invokes     Exemption    7 (E)       to    withhold   symbol

source       numbers,   6   information          concerning     electronic        monitoring

conducted by the FBI,              internal FBI code names,                 and information

regarding law enforcement techniques that the FBI uses to obtain

intelligence in its investigations. See Second Hardy Deel ~~ 104-

05; Third Hardy Deel.             ~~   81-85. According to the Government, the

release of this information would,                   inter alia,           hamper the FBI's

law    enforcement          efforts     to    detect     and      apprehend       criminals,

compromise       means      of    collecting        intelligence           information,   and

enable criminal targets to better circumvent law enforcement by

developing countermeasures.                Id.    Plaintiff argues that Defendant

has not adequately shown that the underlying techniques are not

already known to the general public. Pl.'s Mot. at 39.


6 Symbol source numbers are designators for specific methods used to

obtain invaluable investigative intelligence information. Third Hardy
Deel. ~ 81.
                                             -28-
        As with the Government's Exemption 7 (D)                withholdings,        the

Parties do not dispute            that     the    information the Goverment has

withheld under Exemption 7 (E)              was compiled for law enforcement

purposes.     The    categories       of    information     that        Defendant    has

withheld here -          e.g. ,   FBI code names,       symbol methodology,          and

electronic monitoring techniques -                fall squarely within the type

of material envisioned by FOIA Exemption 7(E). The Court of Appeals

has explained that the government's burden under Exemption 7(E) is

to     "demonstrate[]     logically how the release of              [the requested]

information might create a risk of circumvention of the law," and

the     Government's       affidavits       which    outline,     in     detail,     the

anticipated       harm     that    would    follow     should     the     material    be

disclosed,     adequately meet this burden.             See Mayer Brown LLP v.

I.R.S., 562 F.3d 1190, 1194 (D.C. Cir. 2009).

        Relying   heavily on broad descriptions             of     law enforcement

techniques that he has witnessed in movies and on television, Mr.

Canning claims that the withheld information likely concerns well-

known techniques such as consensual monitoring and wiretaps. Pl.'s

Mot.    at 41-42.   Plaintiff's assertions,            however,    do not indicate

that the specific material withheld in this case is in the public

domain.    Nonetheless,       even if certain aspects of the techniques

described in the withheld material are publically known,                            "even

commonly known procedures may be protected from disclosure if the

                                           -29-
.
    disclosure     could   reduce    or    nullify      their    effectiveness."       Am.

    Immigration Lawyers Ass'n v. U.S. Dep't of Homeland Sec., 852 F.

    Supp. 2d 66, 78 (D.D.C. 2012). Because the Court is persuaded that

    the disclosure of this material could reasonably be expected to

    risk circumvention of the law, it finds that Defendant has properly

    withheld this material under Exemption 7(E).

          The Government also argues that the CBP properly withheld

    navigation codes from a CBP records system database ("TECS") under

    Exemption    7 (E)   because    disclosure     of    the    codes,    which     expose

    precise keystrokes and navigation instructions, would compromise

    the integrity of the CBP law enforcement database. Def.'s Mot. at

    21.   Plaintiff does not challenge Defendant's assertion.                       In its

    declaration,    the CBP adequately explains how disclosure of this

    information could reasonably be expected to risk circumvention of

    the law.    See Suzuki Deel.      ~~   20-23     [Dkt.     No.   30-12].   The Court

    therefore    concludes     that       Defendant      properly        withheld     this

    information under Exemption 7(E) . 7




    7
      Indeed, other courts in this District have reached the same result.
    See, e.g., Strunk v. U.S. Dep't of State, 905 F. Supp. 2d 142, 148
    (D.D.C. 2012) (concluding that CBP's decision to withhold TECS-related
    information under Exemption 7(E) was proper); Skinner v. U.S. Dep't of
    Justice, 893 F. Supp. 2d 109, 112-13 (D.D.C. 2012) (finding the
    withholding of TECS internal computer access codes to be justified);
    Miller v. U.S. Dep't of Justice, 872 F. Supp. 2d 12, 29 (D.D.C. 2012)
    (same); McRae v. U.S. Dep't of Justice, 869 F. Supp. 2d 151, 169
    (D.D.C. 2012) (same).
                                           -30-
          C. Public Domain Material

        Mr.    Canning raises      two public domain arguments,            asserting

that     the    Government      cannot    withhold     certain    information      from

disclosure          because    that      information    is   already      publically

available.

        First, Mr. Canning contends that the Government has withheld

the names and identifying information of two indi victuals,                        Fred

Lewis and Gary Howard, despite having previously identified them

as sources, in response to Plaintiff's July 2009 FOIA request. See

Pl.'s    Mot.       at   19.   Because    some    information     about   these     two

individuals has already been disclosed, he argues, the Government

"cannot properly withhold any information to shield the fact that

[Lewis        and   Howard]    provided      information."       Id.   (emphasis     in

original) .

        Second, Mr. Canning alleges that certain information that the

Government has withheld in response to his July 2009 request (the

"Boston ELSUR Searches" documents)                was previously released to a

different FOIA requester, Mr. Steinberg. Id. at 20. For example,

Mr. Canning claims Defendant released to Mr. Steinberg the name of

the co-prosecutor in a            Boston case regardl.ing Mr.          LaRouche yet

withheld the same information in response to Plaintiff's request.

Id.    In response,       the Government contends that Plaintiff has not

met    his burden to identify specific               information in the public

                                           -31-
domain that corresponds to the withheld material. Def.'s Reply at

13.

       Mr.    Canning's    first    argument     is persuasive.    The   Court    of

Appeals has held that "the government cannot rely on an otherwise

valid exemption claim to justify withholding information that has

been     'officially acknowledged'          or   is   in the   'public domain.'"

Davis,      968 F.2d at 1279       (quoting Afshar v. U.S. Dep't of State,

702 F.2d 1123, 1130-34 (D.C. Cir. 1983) and Fitzgibbon, 911 F.2d

at 765-66) . In asserting a claim of prior disclosure, plaintiffs

bear the burden of production to "point[] to specific information

in    the    public     domain    that   appears      to   duplicate   that    being

withheld[.]"      Id.     Mr.    Canning has met his burden here.             He has

identified specific material that has been officially disclosed to

him by the Government -           i.e., identifying information concerning

Mr. Lewis and Mr. Howard -           which duplicates the information the

Government continues to withhold. 8 Accordingly, the Court concludes

that Mr. Canning is entitled to this information.

       Turning to Mr. Canning's second argument, the Court reaches

the    same     conclusion.       Whereas    the      Government   released      the

identifying information concerning Mr.                 Lewis and Mr.     Howard in


8 Contrary to the Government's assertion, Mr. Canning does not request
all information that the Government has in its possession concerning
Mr. Lewis and Mr. Howard. Mr. Canning instead requests the withheld
material demonstrating that these individuals provided information to
the Government. Pl.'s Mot. at 19.
                                         -32-
response    to     Mr.    Canning's       own   FOIA    request,       Mr.    Canning    has

demonstrated that the Government previously released the Boston

ELSUR information in response to Mr.                     Steinberg's FOIA request.

Fifth Canning Deel., Ex. C. The Government has not explained why

the   identity of         the     FOIA requester should affect                the   Court's

analysis.    In both instances,              the material has been previously

released to the public,             a fact that warrants the disclosure of

withheld information in this                 case.     Accordingly,      the Government

shall    disclose        to Mr.    Canning:     ( 1)    the    names    and   identifying

information concerning Mr.                Lewis and Mr. Howard in the withheld

material,    and    (2)       the information contained in the Boston ELSUR

documents     that        the     Government       previously      disclosed        to   Mr.

Steinberg but continues to withhold from Mr. Canning.

  IV.     CONCLUSION

        For the    foregoing reasons,           Defendant's Motion for Summary

Judgment    shall        be     granted    in   part     and    denied       in   part   and

Plaintiff's Cross-Motion for Partial Summary Judgment shall be

granted in part and denied in part. An Order shall accompany this

Memorandum Opinion.




June 5, 2017                                       Gla~S~/_~
                                                   United States District Judge


                                            -33-
