                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

 RYAN NOAH SHAPIRO,

                       Plaintiff,

                       v.                            Case No. 1:14-CV-00019 (CRC)

 CENTRAL INTELLIGENCE AGENCY, et.
 al.,
               Defendants.

                                    MEMORANDUM OPINION

       Plaintiff Ryan Shapiro filed Freedom of Information Act requests with the Central

Intelligence Agency, the National Security Agency, the Department of Defense’s Defense

Intelligence Agency, and the Federal Bureau of Investigation seeking any document that mentions

or references former South African President Nelson Mandela, and later filed suit to compel

compliance with his requests. Three of the agencies are still in the process of reviewing and

releasing responsive records, but the FBI completed its production and moved to dismiss Shapiro’s

complaint or, alternatively, for summary judgment. The Court ruled on the motion, as well as

Shapiro’s cross-motion for summary judgment, earlier this year. See Shapiro v. Cent. Intelligence

Agency, 2017 WL 1216505, at *1 (D.D.C. Mar. 31, 2017).

       The Court rejected most of Shapiro’s numerous objections to the FBI’s withholdings, but

two issues remained unresolved. First, the Court reserved judgment on the FBI’s application of

Exemption 5—which covers pre-decisional documents that are part of the agency’s deliberative

process—to withhold a draft operations plan for a U.S. delegation’s attendance at President

Mandela’s funeral. See id. at *3–4. Accordingly, it ordered the FBI to submit an unredacted

version of that plan for the Court’s in camera review. See March 31, 2017 Order, ECF No. 80.

Second, the Court denied both parties’ motions with respect to the FBI’s determination of what
constitutes a responsive record because “[w]ithout further details in the record about how the FBI

determined which pages within these documents were responsive, the Court [was] unable to resolve

this issue.” Shapiro, 2017 WL 1216505, at *12. The Court invited the FBI to either release the

pages identified by Shapiro as responsive to his request or renew its motion for summary judgment

by filing a supplemental declaration explaining how it made these determinations. See March 31,

2017 Order, ECF No. 80. Upon studying the FBI’s ex parte filing and its supplemental

declarations, and for the reasons discussed below, the Court is convinced that the FBI has

successfully discharged its FOIA obligations and will grant summary judgment in its favor.1

       Exemption 5 covers “inter-agency or intra-agency memorandums[,]” 5 U.S.C. § 522(b)(5),

that are both “pre-decisional” and “deliberative.” Shapiro, 2017 WL 1216505, at *3 (quoting Tax

Analysts v. IRS, 117 F.3d 607, 616 (D.C. Cir. 1997)). In its earlier ruling, the Court was unable to

determine if a “ten-page draft Operations Plan concerning preparations for sending a U.S.

delegation to South Africa for former President Mandela’s funeral” was properly withheld because

it was unclear if this plan was merely “logistical” or included the type of “conclusions,

recommendations, or opinions” that Exemption 5 was intended to protect. Id. Now, having

reviewed the document for itself, the Court finds it was properly withheld under Exemption 5: The

plan was distributed between agencies; it was a pre-decisional draft that was “recommendatory in

nature” and could not have become final without additional inputs; and it was part of the “give-and-

take of the consultative process” that occurs between governmental agencies when preparing for an




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         In its Memorandum Opinion, the Court also ordered the FBI to release other potentially
responsive information withheld under Exemptions 7(C) and 7(E) or to submit a supplemental
declaration justifying its position. The FBI apparently released pages Mandela 1216-1217 in
response to the Court’s ruling and invoked Exemption 7(D) as an alternative basis for withholding
the remaining information. See Pl.’s Opp’n to Def.’s Renewed Mot. Summ. J. (“Pl.’s Opp’n”) 1
n.1. Shapiro no longer challenges those additional withholdings. See id.
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international event with potential security threats. Hooker v. U.S. Dep’t of Health & Human Servs.,

887 F. Supp. 2d 40, 56 (D.D.C. 2012), aff'd by 2014 WL 3014213 (D.C. Cir. May 13, 2014). And

while the plan does include some factual material, “[t]he choice of what factual material . . . to

include or remove during the drafting process” appears to have been “part of the [FBI’s]

deliberative process, and thus is properly exempt under Exemption 5.” Id. (citing ViroPharma Inc.

v. Dep’t of Health and Human Servs., 839 F. Supp. 2d 184, 193 (D.D.C. 2012)).

       The final loose end concerns Shapiro’s challenges to the FBI’s non-responsiveness

determinations. The crux of Shapiro’s argument was this: once the FBI locates a reference to the

subject of a FOIA inquiry in a document or file—no matter the type of document or its size—the

agency must release the entire document because it constitutes a single responsive record.

Specifically, Shapiro pointed to the FBI’s release of non-consecutive pages within a larger

document, arguing that he was entitled to all pages between those released pages, which he refers to

as “the missing pages.” The FBI disagreed, relying on the agency’s longstanding practice of

locating responsive pages within an off-topic “cross-reference” file and providing additional pages

as needed for context without releasing the document as a whole. The Court found that the “FBI’s

practice is consistent with the D.C. Circuit’s guidance[,]” which permitted agencies to use their own

definitions of a responsive record, subject to certain limitations. Shapiro, 2017 WL 1216505, at

*11. In addition, it set forth a standard, reproduced below, for reviewing such responsiveness

determinations:

       The burden will first rest with the agency to justify its actions when singling out a
       responsive record from a greater compilation of documents. If satisfactory, the
       agency’s explanation will merit a presumption of good faith. The requester,
       however, remains free to challenge the agency’s explanation by offering evidence
       of positive indicia that the responsive material was inappropriately withheld or of
       bad faith on the part of the agency. The agency will then have an opportunity to
       respond to the requester’s allegations, and the Court will review their arguments
       on the merits.



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Shapiro, 2017 WL 1216505, at *12. The Court requested more information from the FBI about its

responsiveness determinations here because the record lacked the necessary level of detail to permit

effective review of the agency’s actions.

       In renewing its motion for summary judgment, the FBI offers two new declarations from

Records Management Division Section Chief David M. Hardy that detail the agency’s

responsiveness determination process. Mr. Hardy explains that the FBI treats main files differently

from cross-references for the purposes of defining a responsive record. Fifth Decl. of David M.

Hardy (“Fifth Hardy Decl.”) ¶ 10. If, for example, the subject of a FOIA request is also “indexed as

a main subject of an investigative file[,]” then all of the pages within the file are considered

responsive and processed accordingly. Id. By contrast, if “Nelson Mandela” (the subject of

Shapiro’s FOIA request) is simply indexed to a cross-reference within another subject’s main file,

then “only the cross-reference [is] reviewed to locate the mention of Nelson Mandela in the

documents, and then only the specific pages he is mentioned on” are considered responsive records.

Id. Each page that mentions Nelson Mandela is considered an independent, responsive record for

the purposes of FOIA. See id. Those pages, along with any additional pages that help provide

context for the specific references, are processed for release. See id. at ¶ 8. The FBI created this

distinction between main files and cross-references because cross-references often contain a high

volume of largely irrelevant information and documents. See id.

       Mr. Hardy explains that when the FBI reviewed Shapiro’s request and searched for

responsive records, it located specific mentions of Mandela’s name in cross-references. The FBI

found the specific pages with those references and only processed those pages that “contained

information about the subject of the FOIA request (contextual or concrete).” Id. at ¶ 10. This

resulted in non-consecutive pages being released to Shapiro. In other words, “the missing pages”

Shapiro seeks neither mention Nelson Mandela nor put the relevant pages in context, and therefore

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fall outside the scope of his FOIA request. Because the FBI applied its longstanding and reasonable

practice of distinguishing main files and cross-references for responsiveness determinations, the

Court finds that the practice “merit[s] a presumption of good faith.”

       Shapiro criticizes the FBI’s practice of using pages—rather than “serials”—as the “basic

unit” for defining a responsive record. See Pl.’s Opp’n 3. Serials are a sub-component of a case

file and can be composed of multiple documents regarding multiple subjects. See Fifth Hardy Decl.

¶¶ 7, 11. Shapiro points to deposition testimony from FBI officials in previous FOIA litigation and

FBI training materials as evidence that a serial is generally thought of as a single document in a file.

Pl.’s Opp’n 3 (citing Exs. A–D). He thus argues that any serial containing references to Mandela

should have been marked responsive and released in its entirety. The FBI responds that the

evidence offered by Shapiro is not fully representative of its recordkeeping practices because the

deponents in the prior cases were discussing specific investigative files not at issue here. See Fifth

Hardy Decl. ¶ 11. Furthermore, the explanations they offer are not at odds with how Mr. Hardy has

explained the FBI’s process: a serial could be a single document, but it also could be many

documents covering different topics. See Fifth Hardy Decl. ¶ 11 (“A serial can be a single

document, but it can also be multiple documents, just as each document may contain numerous

records or pages.”). That is why the FBI concluded that pages and not serials were the most

appropriate unit for defining a record. And it is not Shapiro’s place to dictate how an agency

should manage or define its records as long as its actions are reasonable and supported by the

record. Therefore, Shapiro has failed to offer evidence of bad faith and the Court will uphold the

FBI’s responsiveness determinations here.




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      For the foregoing reasons, the Court will grant the FBI’s motion for summary judgment. A

separate Order accompanies this Memorandum Opinion.




                                                        CHRISTOPHER R. COOPER
                                                        United States District Judge

Date: August 8, 2017




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