You are on page 1of 26

Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

)
RY AN NOAH SHAPIRO )
)
Plaintiff, )
)
v. )
) Case No. 1: l 3-cv-00729
UNITED STATES DEPARTMENT OF )
JUSTICE )
)
Defendant. )
_______________ )

FIFTH DECLARATION OF DAVID M. HARDY

I, David M. Hardy, declare as follows:

(1) I am the Section Chief of the Record/Information Dissemination Section

("RIDS"), Information Management Division ("IMD"), in Winchester, Virginia. 1 I have held

this position since August 1, 2002. Prior to my joining the Federal Bureau oflnvestigation

("FBI"), from May 1, 2001 to July 31, 2002, I was the Assistant Judge Advocate General of the

Navy for Civil Law. In that capacity, I had direct oversight of Freedom oflnformation Act

("FOIA") policy, procedures, appeals, and litigation for the Navy. From October 1, 1980 to

April 30, 2001, I served as a Navy Judge Advocate at various commands and routinely worked

with FOIA matters. I am also an attorney who has been licensed to practice law in the State of

Texas since 1980.

(2) In my official capacity as Section Chief of RIDS, I supervise approximately 237

employees who staff a total of twelve (12) Federal Bureau of Investigation Headquarters

("FBIHQ") units and two (2) field operational service center units whose collective mission is to

1
In May 2018, the name ofIMD was changed from the Records Management Division ("RMD").

1
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 2 of 26

effectively plan, develop, direct, and manage responses to requests for access to FBI records and

information pursuant to the FOIA as amended by the OPEN Government Act of 2007, the OPEN

FOIA Act of 2009, and the FOIA Improvement Act of2016; the Privacy Act of 1974; Executive

Order 13526; Presidential, Attorney General, and FBI policies and procedures; judicial

decisions; and Presidential and Congressional directives. The statements contained in this

declaration are based upon my personal knowledge, upon information provided to me in my

official capacity, and upon conclusions and determinations reached and made in accordance

therewith.

(3) Due to the nature of my official duties, I am familiar with the procedures followed

by the FBI in responding to Plaintiffs requests for information from its files under the provisions

of the FOIA, 5 U.S.C. § 552. Specifically, I am familiar with the FBI's handling of Plaintiffs

Freedom oflnformation Act ("FOIA") request dated January 14, 2013 seeking records on Aaron

H. Swartz. The background of this matter is set forth in my prior declarations and will not be

fully recounted. See ECF No. 5-1, Declaration of David M. Hardy; ECF No. 22-1, Second

Declaration of David M. Hardy; ECF No. 33-1, Third Declaration of David M. Hardy; ECF No.

39-1, Fourth Declaration of David M. Hardy.

(4) The FBI provided a supplemental release to Plaintiff by letter dated March 12,

2018 consisting of Serial 91 from file no. 315T-HQ-C147587 Sub IP. See Exhibit A. The

United States Circuit Court of Appeals issued an Opinion on June 26, 2018 vacating the District

Court's grant of summary judgment and remanding the case for further proceedings necessitated

by the FBI's redactions on Serial 91.

(5) Pursuant to the Joint Status Report dated September 17, 2018, the two remaining

issues are Plaintiffs challenges to the FBI's withholdings in Serial 91 and their request for

2
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 3 of 26

attorney's fees. 2 This declaration supports the FBI's Motion for Renewed Summary Judgment

and justifies its withholdings in Serial 91 under FOIA Exemptions 3, 6, 7(C), and 7(E) in

accordance with Vaughn v. Rosen, 454 F. 2d 820 (D.C. Cir. 1973). See 5 U.S.C. §§ 552 (b)(3),

(b )(6), (b )(7)(C), and (b )(7)(E).

EXPLANATION OF CODED FORMAT USED FOR THE


JUSTIFICATION OF DELETED MATERIAL

(6) The FBI reviewed and processed Serial 91 to achieve maximum disclosure

consistent with the access provisions of the FOIA. No reasonably segregable, nonexempt

portions were withheld from Plaintiff. Further description of the information withheld, beyond

what is provided in this declaration, could identify the actual exempt information. Copies of the

pages released in part were numbered "Swartz-92" and "Swartz-93." The FBI asserted

exemptions (b)(3), (b)(6), (b)(7)(C), and (b)(7)(E) as grounds for non-disclosure.

(7) The Bates-numbered documents contain, on their face, coded categories of

exemptions. The coded categories detail the nature of the information withheld pursuant to the

provisions of the FOIA. They are provided to aid the Court's and Plaintiffs review of the FBI's

explanations of FOIA exemptions. Additionally, the FBI included an Exemption Application

Index detailing where specific exemptions were asserted. See Exhibit B. The coded, Bates-

numbered pages, together with this declaration and index, demonstrate all withheld material is

exempt from disclosure pursuant to the cited FOIA Exemptions, or is so intertwined with

protected material that segregation is not possible without revealing the protected material.

(8) Each instance of information withheld on the Bates-numbered document is

accompanied by a coded designation that corresponds to the categories listed below. For

example, if"(b)(7)(C)-1" appears on a document, the "(b)(7)(C)" designation refers to FOIA

2
The issue of attorney's fees will not be addressed in this declaration and will be handled at a later date.

3
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 4 of 26

Exemption (7)(C) protecting names or information of third parties merely mentioned against

unwarranted invasions of personal privacy. The numerical designation of "l" following the

"(b)(7)(C)" narrows the main category into a more specific subcategory, such as "Names and/or

Identifying Information of FBI Special Agents/Support Personnel." Listed below are the

categories used to explain the FOIA exemptions the FBI asserted to withhold the exempt

material:

SUMMARY OF JUSTIFICATION CATEGORIES

CODED CATEGORIES INFORMATION WITHHELD

Category (b)(3) INFORMATION PROTECTED BY STATUTE


Information Specifically Exempted by the National Security
(b)(3)-2
Act of 1947, 50 U.S.C. §3024(i)(l)
CLEARLY UNWARRANTED INVASION OF PRIVACY
Categories (b)(6) and
AND UNWARRANTED INVASION OF PERSONAL
(b)(7)(C)
PRIVACY
Names and/or Identifying Information of FBI Special
(b)(6)-l and (b)(7)(C)-l
Agents/Support Personnel
Names and/or Identifying Information of Third Parties Merely
(b)(6)-2 and (b)(7)(C)-2
Mentioned

(b )( 6)-5 and (b )(7)( C)-5 Name of Third Party oflnvestigative Interest

Category (b )(7)(E) INVESTIGATIVE TECHNIQUES AND PROCEDURES

(b)(7)(E)-2 Sensitive File Number


Identity and/or Location of FBI or Joint Units, Squads,
(b )(7)(E)-3
Divisions
(b )(7)(E)-4 Database Identifier

(b )(7)(E)-5 Collection and Analysis of Information

4
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 5 of 26

EXEMPTION (b)(3)
INFORMATION PROTECTED BY STATUTE

(9) Exemption (b)(3) protects information specifically exempted from disclosure by

statute ... provided that such statute (A)(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; and (B) if enacted after the

date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph. 5 U.S.C.

§ 552(b)(3).

(b)(3)-2: Information Specifically Exempted by the National Security Act of


1947, 50 u.s.c. § 3024(i)(l)

(10) Exemption (b)(3) protects information covered by Section 102A(i)(l) of the

National Security Act of 1947 ("NSA"), as amended by the Intelligence Reform and Terrorism

Prevention Act of2004 ("IRTPA"), 50 U.S.C. § 3024(i)(l). This statute provides the Director of

National Intelligence ("DNI") "shall protect from unauthorized disclosure intelligence sources

and methods." 3 On its face, this federal statute leaves no discretion to agencies about

withholding information concerning intelligence sources and methods. Thus, the protection

afforded to intelligence sources and methods by 50 U.S.C. § 3024(i)(l) is absolute. See CIA v.

Sims, 471 U.S. 159 (1985).

(11) To fulfill its obligation of protecting intelligence sources and methods, the DNI is

authorized to establish and implement guidelines for the Intelligence Community ("IC") for the

classification of information under applicable laws, Executive Orders, or other Presidential

Directives, and for access to and dissemination of intelligence. See 50 U.S.C. §§ 3024(i)(l ).

3 The National Security Act was enacted in 1947; the IRTPA was enacted in 2004.

5
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 6 of 26

The FBI is one of 17 member agencies comprising the IC, and as such, must protect intelligence

sources and methods.

(12) Congress enacted the NSA, as amended by the IRTPA, to protect the IC's sources

and methods of gathering intelligence. Disclosure of such information presents the potential for

individuals to develop and implement countermeasures, resulting in the loss of significant

intelligence information relied upon by national policymakers and the IC. Given Congress

specifically prohibited the disclosure of information pertaining to intelligence sources and

methods used by the IC as a whole, the FBI applied (b)(3) to protect intelligence sources and

methods within Serial 91, 50 U.S.C. § 3024(i)(l).

(13) In this case, the FBI created Serial 91 in the course of a sensitive counterterrorism

investigation. The FBI' s intelligence sources and methods detailed within Serial 91 identify a

specific investigative method such as e-mail header data as well as sources used in collecting

valuable intelligence on known or suspected terrorists, who are the subject of national security

investigations. Disclosing such information could afford terrorists the opportunity to develop

and implement countermeasures, allow them to thwart efforts in collecting information through

the specific intelligence method, and result in the loss of vital intelligence relied upon by the FBI

in effectively pursuing subjects in national security investigations. As a member of the IC, the

FBI is statutorily prohibited from disclosing intelligence sources and methods used by the IC.

Therefore, the FBI protected intelligence sources and methods detailed in Serial 91 pursuant to

Exemption (b)(3), based on 50 U.S.C. § 3024(i)(l).

(14) Exemption (b)(3)-2 applies to the redactions under "Case ID," under "Synopsis,"

next to "Reference," and the last redaction under "Enclosure(s)" on Bates page Swartz-92 and to

both redacted blocks on Bates page Swartz-93.

6
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 7 of 26

EXEMPTION 7 THRESHOLD

(15) Exemption (b)(7) of the FOIA protects from mandatory disclosure records or

information compiled for law enforcement purposes if disclosure could reasonably be expected

to cause one of the six sets of harms enumerated in the subpart of the exemption. See 5 U.S.C. §

552 (b )(7). In this case, the harm that could reasonably be expected to result from disclosure

concerns: information which, if disclosed, could reasonably be expected to invade the personal

privacy interests of third-party individuals and law enforcement techniques or procedures which,

if released, could be used to circumvent the law.

(16) Before an agency can invoke any of the harms enumerated in Exemption (b)(7), it

must first demonstrate the records or information at issue were compiled for law enforcement

purposes. Pursuant to 28 USC§§ 533, 534, and Executive Order 12333 as implemented by the

Attorney General's Guidelines for Domestic FBI Operations ("AGG-DOM"), and 28 CFR §

0.85, the FBI is the primary investigative agency of the federal government with authority and

responsibility to investigate all violations of federal law not exclusively assigned to another

agency, to conduct investigations and activities to protect the United States and its people from

terrorism and threats to national security, and further the foreign intelligence objectives of the

United States.

(17) Serial 91 was created in connection with a sensitive counterterrorism investigation

with links to al Qaeda, a designated foreign terrorist organization. The FBI utilized a database to

collect and analyze intelligence gathered from the investigative target's e-mail header data.

Therefore, the responsive record was compiled for a law enforcement purpose, falls squarely

within the law enforcement duties of the FBI, and meets the threshold requirement for

Exemption (b )(7).

7
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 8 of 26

EXEMPTIONS {b){6) AND {b){7){C)


CLEARLY UNWARRANTED AND UNWARRANTED
INVASION OF PERSONAL PRIVACY 4

(18) 5 U.S.C. § 552 (b)(6) exempts from disclosure "personnel and medical files and

similar files when the disclosure of such information would constitute a clearly unwarranted

invasion of personal privacy." 5 U.S.C. § 552 (b)(7)(C) exempts from disclosure:

records or information compiled for law enforcement purposes, but


only to the extent that the production of such law enforcement
records or information ... could reasonably be expected to
constitute an unwarranted invasion of personal privacy.

(19) In withholding information pursuant to these two exemptions, the FBI is required

to balance the privacy interests of the individuals mentioned in these records against any public

interest in disclosure. For purposes of this analysis, a public interest exists when information

would shed light on the FBI's performance of its mission to protect and defend the United States

against terrorists and foreign intelligence threats, to uphold and enforce the criminal laws of the

United States, and provide leadership and criminal justice services to federal, state, municipal,

and international agencies and partners. In each instance where information was withheld

pursuant to Exemptions (b)(6) and (b)(7)(C), the FBI determined the individuals' privacy

interests outweighed the public interest in the information.

(20) The FBI asserted FOIA Exemptions (b)(6) and (b)(7)(C) to protect the names and

identifying information of third-party individuals in Serial 91. See 5 U.S.C. § 552 (b)(6) and

4
The practice of the FBI is to assert Exemption (b)(6) in conjunction with Exemption (b)(7)(C).
Although the balancing test for Exemption (b)(6) uses a "would constitute a clearly unwarranted
invasion of personal privacy" standard and the test for Exemption (b)(7)(C) uses the lower
standard of "could reasonably be expected to constitute an unwarranted invasion of personal
privacy," the analysis and balancing required by both exemptions is sufficiently similar to
warrant a consolidated discussion. The privacy interests are balanced against the public's
interest in disclosure under the analysis of both exemptions.

8
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 9 of 26

(b )(7)(C). The FBI balanced the privacy interests of the third-party individuals against the public

interest in disclosure and determined the information would not demonstrate how the FBI

performs its statutory mission or significantly increase the public's understanding of the FBI's

operations and activities. Therefore, disclosure of their name or identifying information would

constitute an unwarranted invasion of personal privacy. The FBI explains the individual coded

categories below.

(b )(6)-1 and (b)(7)(C)-1: Names and/or Identifying Information of FBI Special


Agents and/or Support Personnel

(21) Exemptions (b)(6) and (b)(7)(C) have been asserted to protect the names and

identifying information of FBI Special Agents ("SAs") who were responsible for conducting,

supervising, and maintaining the investigative activities reflected in the document responsive to

Plaintiffs FOIA request as well as managing the day to day administrative functions necessary

for the FBI to operate. These responsibilities include conducting interviews and compiling

information, as well as reporting on the status of investigations. Assignments of SAs to any

particular investigation are not by choice. Publicity (adverse or otherwise) regarding any

particular investigation they have been assigned may seriously prejudice their effectiveness in

conducting other investigations. The privacy consideration is also to protect FBI SAs, as

individuals, from unnecessary, unofficial questioning as to the conduct of this or other

investigations, whether or not they are currently employed by the FBI. FBI SAs conduct official

inquiries into various criminal and national security cases. They come into contact with all strata

of society, conducting searches and making arrests, resulting in reasonable but nonetheless

serious disturbances to people and their lives. It is possible for an individual targeted by such

law enforcement actions to carry a grudge which may last for years. These individuals may seek

revenge on the agents and other federal employees involved in a particular investigation. The

9
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 10 of 26

publicity associated with the release of an agent's identity in connection with a particular

investigation could trigger hostility toward a particular agent. Thus, SAs maintain substantial

privacy interests in information about them in criminal investigative files.

(22) The FBI also protected the names and identifying information of FBI support

personnel. These individuals are assigned to handle tasks related to official investigations. They

are in positions of access to information regarding official law enforcement investigations.

Support personnel could become targets of harassing inquiries for unauthorized access to

investigations or for recruitment if their identities were released. Thus, these individuals

maintain substantial privacy interests.

(23) In this case, the FBI reviewed the names and/or identifying information of FBI

SAs and support personnel identified in Serial 91 to determine whether the public interest in

disclosure outweighed the individuals' substantial privacy interests. The FBI could not determine

how disclosure of the identities of FBI SAs and support personnel to the general public would

significantly increase the public's understanding of the FBI's operations and activities.

Accordingly, after balancing the interests, the FBI determined these individuals' substantial

privacy interests outweighed public interest, and disclosure of the information would constitute a

clearly unwarranted and unwarranted invasion of personal privacy. Therefore, the FBI protected

the names and identifying information of FBI SAs and support personnel pursuant to FOIA

Exemptions (b)(6) and (b)(7)(C).

(24) Exemptions (b)(6)-l and (b)(7)(C)-l apply to the redaction next to "Declassified

by," the second redaction under "Attn," the redaction next to "Approved by," and the redaction

next to "Drafted by" on Bates page Swartz-92.

10
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 11 of 26

(b)(6)-2 and (b)(7)(C)-2: Names and/or Identifying Information of Third Parties


Merely Mentioned

(25) Exemptions (b)(6) and (b)(7)(C) have been asserted to protect the names and

identifying information of third parties merely mentioned within the responsive record. These

individuals are not of investigative interest to the FBI. Releasing information about private

citizens, without notarized authorizations permitting such a release, violates their individual

privacy interests. Disclosure of their names and/or other personal information would reveal they

were at one time connected with an FBI investigation. Disclosure of their identities could

subject them to possible harassment or criticism, and focus derogatory inferences and suspicion

on them.

(26) The FBI examined Serial 91 and balanced the individuals' personal privacy

interests against the public interest in disclosure. The FBI could not determine how the release

of third-party names or identifying information would significantly increase the public's

understanding of FBI operations and activities. Therefore, the FBI concluded these individuals

maintain substantial privacy interests greater than the public interest in disclosure, as disclosure

would constitute a clearly unwarranted and unwarranted invasion of their personal privacy.

Thus, the FBI protected third-party names pursuant to FOIA Exemptions (b)(6) and (b)(7)(C).

(27) Exemptions (b)(6)-2 and (b)(7)(C)-2 apply to both redacted blocks on Bates page

Swartz-93.

(b)(6)-5 and (b)(7)(C)-5: Name and/or Identifying Information of Third Party of


Investigative Interest

(28) Exemptions (b )( 6) and (b )(7)(C) have been asserted to protect the name of a third

party of investigative interest. Being linked with any law enforcement investigation carries a

strong negative connotation and a stigma. To release the identities of a third-party individual,

11
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 12 of 26

who is of investigative interest and who has not been charged or convicted of a crime, to the

public could subject them to harassment or embarrassment, as well as undue public attention.

(29) The protected information within Serial 91 includes the name of an individual

who was, directly or indirectly, connected to a counterterrorism investigation. Release in this

context could result in embarrassment, ridicule, and negative inferences, whether or not this

individual ever actually committed criminal acts or was connected to the subject(s) of the

investigation. The FBI balanced this individual's personal privacy interests against the public

interest in disclosure and determined the release would not significantly increase the public's

understanding of FBI operations and activities. Therefore, this individual maintains privacy

interests greater than the public interest in disclosure, and disclosure would constitute a clearly

unwarranted invasion of their personal privacy. Thus, the FBI withheld the information pursuant

to FOIA Exemptions (b)(6) and (b)(7)(C).

(30) Exemptions (b )( 6)-5 and (b )(7)(C)-5 apply to the second redaction under "Title"

and the first two redactions under "Enclosure(s)" on Bates page Swartz-92.

EXEMPTIONS (b)(7)(E)
INVESTIGATIVE TECHNIQUES AND PROCEDURES

(31) 5 U.S.C. § 552(b)(7)(E) provides protection for:

Law enforcement records which would 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.

(32) Exemption (b)(7)(E) protects information containing sensitive investigatory

techniques and procedures authorized for use by the FBI. This exemption affords categorical

protection to these techniques and procedures used in such investigations; it protects techniques

and procedures not well-known to the public as well as non-public details about the use of well-

12
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 13 of 26

known techniques and procedures. Providing further detail about the techniques, procedures,

and/or guidelines used in an investigation would disclose the very information the FBI seeks to

protect through Exemption (b)(7)(E) and would risk circumvention of the law.

(b)(7)(E)-2: Sensitive File Number

(33) The FBI asserted exemption (b)(7)(E) to protect a sensitive case file number. File

numbers often contain a three-digit FBI file classification number. The classification number

indicates the type of investigative/intelligence gathering programs to which the file belongs.

Sensitive file numbers are not known to the general public. Additionally, the nature of the file

numbers often reveals the size and scope of the files, thus revealing the scope and size of the

programs related to these files. The FBI also determined this exemption is appropriate for

protecting file numbers because such information, if released, would identify the FBI's

investigative interest or priority given to such matters. Applying a mosaic analysis, suspects

could use sensitive file numbers (indicative of investigative priority), in conjunction with other

information known about other individuals and/or techniques, to change their pattern of activity

to avoid detection, apprehension, or create alibis for suspected activities, etc. Thus, the FBI

protected a sensitive file number in Serial 91 pursuant to FOIA Exemption (b )(7)(E).

(34) Exemption (b )(7)(E)-2 applies to the redactions under "Case ID" and next to

"Reference" on Bates page Swartz-92.

(b)(7)(E)-3: Identity and/or Location of FBI or Joint Units, Squads, or Divisions

(35) The FBI asserted Exemption (b )(7)(E) to protect the identity of an FBI unit which

conducts sensitive counterterrorism investigations. The FBI created this unit to utilize and

implement specific sensitive law enforcement techniques used in counterterrorism investigations.

Revealing the identity of the unit and its focus of interest would reveal unknown investigative

13
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 14 of 26

techniques and key information about the unit as well as the FBI' s use of these investigative

techniques; therefore, the law enforcement circumvention risk from disclosure is two-fold. First,

the release of the unit's identity would reveal the FBI's capabilities as it relates to

implementation of specific techniques. This would allow criminals to anticipate the use of these

techniques, especially in investigations similar to the one described in Serial 91. Second,

considering the FBI has limited investigative resources, revealing the FBI created a unit to

implement a specific law enforcement technique reveals key information about the FBI's

allocation of investigative resources. This knowledge could enable investigative subjects to

structure their behavior to avoid the FBI's investigative strengths and exploit its weaknesses.

Release of the unit's identity would educate criminals as to the FBI's allocation of resources as

well as use and reliance on specific law enforcement techniques, enabling them to better evade

the FBI's investigative efforts and circumvent the law. Accordingly, the FBI withheld this

information pursuant to Exemption (b )(7)(E).

(36) Exemption (b )(7)(E)-3 applies to the redactions next to "Attn:" and "Title" on

Bates page Swartz-92.

(b)(7)(E)-4: Database Identifier

(37) The FBI asserted Exemption (b )(7)(E) to protect the name of a database that is not

well-known to the public. Releasing the identity of the database and any specific information

relating to the database would give criminals insight into the available tools and resources the

FBI uses to conduct national security investigations (i.e., the scope, capabilities, and

vulnerabilities).

(38) In addition, revealing the database identity could jeopardize the FBI's

investigative mission by revealing exactly where the FBI is storing and obtaining valuable

14
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 15 of 26

investigative data. Knowing the database names makes the original source data an attractive

target for compromise. At a minimum, it would reveal to terrorists which databases are most

likely to be utilized based on specific levels of terrorist-related activities or certain investigative

factors. This would enable terrorists to predict FBI investigative strategies and enhance their

ability to avoid detection by the FBI.

(39) Database inquiries increase the FBI's overall efficiency and save time by bringing

together a comprehensive suite of tools. The database helps the FBI find vital information

regarding subjects and victims of terrorist-related activity. Release of this information could

enable terrorists to employ countermeasures to avoid detection or deprive the FBI of much

needed investigative data, thus jeopardizing the FBI's investigative mission. To provide

additional information regarding these investigative techniques would reveal the very

information the FBI seeks to protect. Disclosure would impede the FBI's effectiveness and

potentially aid in circumvention of valuable investigative techniques. Therefore, the FBI

withheld this information pursuant to Exemption (b )(7)(E).

(40) Exemption (b )(7)(E)-4 applies to the redaction under "Synopsis" and the final

redaction under "Enclosure(s) on Bates page Swartz-92.

(b )(7)(E)-5: Collection and analysis of information

(41) Exemption (b )(7)(E) protects methods used by the FBI in collecting and analyzing

information obtained for investigative purposes. Releasing the information would disclose the

identity of methods used in collection and analysis, including how and from where the FBI

collects information and the methodologies employed to analyze data. In this case, the relative

utility of these techniques used in analyzing email header data could be diminished if the FBI

released the actual techniques employed within this counterterrorism investigation. This in turn

15
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 16 of 26

would facilitate the accumulation of information regarding the circumstances under which

specific techniques are used or requested and the utility of the information. Disclosing the

information would enable terrorists to educate themselves on the techniques employed in the

collection and analysis of information, and allow individuals to adopt countermeasures to

circumvent the effectiveness of these techniques, specifically within counterterrorism

investigations. Thus, the FBI applied Exemption (b)(7)(E) to protect the collection and/or

analysis of information within Serial 91.

(42) Exemption (b)(7)(E)-5 applies to both redacted blocks on Bates page Swartz-93.

SEGREGABILITY

(43) The FBI reviewed and processed Serial 91 to achieve maximum disclosure

consistent with the access provisions of the FOIA. The FBI provided all non-exempt portions of

the record to Plaintiff in response to his FO IA request. During the processing of Plaintiffs

request, each responsive page was individually examined to identify non-exempt information

that could be reasonably segregated from exempt information for release. As demonstrated

herein, the FBI only withheld information that would trigger reasonably foreseeable harm to one

or more interests protected by the cited FOIA exemptions.

(44) Following the segregability review, the FBI determined 2 pages could be

segregated for release and the withheld material would trigger foreseeable harm to one or more

interests protected by the FO IA exemptions cited within Serial 91.

CONCLUSION

(45) Following the oral argument in front of the DC Circuit Court of Appeals on

February 23, 2018, the FBI made a discretionary release of Serial 91. The FBI asserted FOIA

Exemptions (b)(3), (b)(6), (b)(7)(C), and (b)(7)(E) to protect exempt information. The FBI

16
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 17 of 26

carefully examined the document and determined the information withheld from Plaintiff is

specifically exempted by the National Security Act of 1947; if disclosed, would cause a clearly

unwarranted invasion of personal privacy and could reasonably be expected to constitute an

unwarranted invasion of personal privacy; and/or would disclose techniques and procedures for

law enforcement investigations or prosecutions, the disclosure of which, could reasonably be

expected to risk circumvention of the law. After extensive review of Serial 91, I determined no

further non-exempt information can be reasonably segregated and released without revealing

exempt information.

17
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 18 of 26

(46) Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing

is true and correct, and Exhibits A and B attached hereto are true and correct copies.

Executed this 10~ of December, 2018.

DAVID M. HARDY
Section Chief
Record/Information Dissemination Sectio
Information Management Division
Federal Bureau of Investigation
Winchester, Virginia

18
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 19 of 26

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

)
RYAN NOAH SHAPIRO )
)
Plaintiff, )
)
V. )
) Case No. 1: 13-cv-00729
UNITED STATES DEPARTMENT OF )
JUSTICE )
)
Defendant. )
______________ )

Exhibit A
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 20 of 26

U.S. Department of Justice

Federal Bureau of Investigation


Washington, D. C. 20535

March 12, 2018

Mr. Jeffrey L. Light


Law Office of Jeffrey L. Light
Suite 915
1712 Eye Street, NW
Washington, DC 20006
Appellate Court No.: 17-5122
Civil Action No.: 13-cv-0729
FOIPA Request No.: 1206993-0
Subject: Aaron Swartz

Dear Mr. Light:

The enclosed documents were reviewed under the Freedom of Information Act (FOIA), Title 5, United States
Code, Section 552. Below you will find check boxes under the appropriate statute headings which indicate the types
of exemptions asserted to protect information which is exempt from disclosure. The appropriate exemptions are
noted on the enclosed pages next to redacted information. The checked exemptions boxes used to withhold
information are further explained in the enclosed Explanation of Exemptions.

Section 552 Section 552a


r (bJ(1J r (b)(?)(A) r (d)(5)
r (bJ(2J r (b)(7)(B) r rn<2)
W (b)(3) W (b)(7)(C) r (k)(1)

50 USC Section 3024 (i)(I) r (b)(7)(D) r (k)(2)


P' (b)(7)(E) r (k)(3)
r (b)(?)(F) r (k)C4)

r Cb)(4) r (b)(B) r (k)(5)

r Cb)(5) r (b)(9) r (k)(6)


W (b)(6) r (k)(7)

2 page(s) were reviewed and 2 page(s) are being released. This release is being provided to you at no
charge.

Below you will also find additional informational paragraphs about your request. Where applicable, check
boxes are used to provide you with more information about the processing of your request. Please read each item
carefully.

r Document(s) were located which originated with, or contained information concerning, other
Government Agency [OGAJ.

t This information has been referred to the OGA(s) for review and direct response to you.
r We are consulting with another agency. The FBI will correspond with you regarding this information
when the consultation is completed.
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 21 of 26

w In accordance with standard FBI practice and pursuant to FOIA exemption (b)(7)(E) and Privacy Act
exemption 0)(2) [5 U.S.C. § 552/552a (b)(7)(E)/U)(2)], this response neither confirms nor denies the
existence of your subject's name on any watch lists.

For your information, Congress excluded three discrete categories of law enforcement and national security
records from the requirements of the Freedom of Information Act (FOIA). See 5 U.S.C. § 552(c) (2006 & Supp. IV
(2010). This response is limited to those records that are subject to the requirements of the FOIA. This is a
standard notification given to all our requesters and should not be taken as an indication that excluded records do,
or do not, exist. Enclosed for your information is a copy of the Explanation of Exemptions.

Although your request is in litigation, we are required by law to provide you the following information:

You may file an appeal by writing to the Director, Office of Information Policy (OIP), United States
Department of Justice, Suite 11050, 1425 New York Avenue, NW, Washington, D.C. 20530-0001, or you may submit
an appeal through OIP's FOIA online portal by creating an account on the following web
site: https://foiaonline.regulations.gov/foia/action/public/home. Your appeal must be postmarked or electronically
transmitted within ninety (90) days from the date of this letter in order to be considered timely. If you submit your
appeal by mail, both the letter and the envelope should be clearly marked "Freedom of Information Act Appeal."
Please cite the FOIPA Request Number assigned to your request so that it may be easily identified.

You may seek dispute resolution services by contacting the Office of Government Information Services
(OGIS) at 877-684-6448, or by emailing ogis@nara.gov. Alternatively, you may contact the FBl's FOIA Public
Liaison by emailing foipaquestions@fbi.gov. If you submit your dispute resolution correspondence by email, the
subject heading should clearly state "Dispute Resolution Services." Please also cite the FOIPA Request Number
assigned to your request so it may be easily identified.

I The enclosed material is from the main investigative file(s), meaning the subject(s) of your request was
the focus of the investigation. Our search located additional references, in files relating to other
individuals, or matters, which may or may not be about your subject(s). Our experience has shown
such additional references, if identified to the same subject of the main investigative file, usually contain
information similar to the information processed in the main file(s). As such, we have given priority to
processing only the main investigative file(s) given our significant backlog. If you would like to receive
any references to the subject(s) of your request, please submit a separate request for the reference
material in writing. The references will be reviewed at a later date, as time and resources permit.

p
See additional information which follows.

Sincerely,

~
David M. Hardy
Section Chief
Record/Information
Dissemination Section
Records Management Division

Enclosure - Bates pages Swartz-92 - Swartz-93.

Per Oral Argument held on February 23, 2018, enclosed is one cross-reference, file 315T-HQ-C1475879
Sub IP Serial 91, which is identifiable with the subject of your request. Cross-references are defined as mentions of
the subject of your request in files to other individuals, organizations, events, or activities. In processing the cross-
reference, the pages considered for possible release included only those pages which mention the subject of your
request and any additional pages showing the context in which the subject of your request was mentioned. The
cross-reference was processed pursuant to the provisions of the FOIA and is being released to you in redacted form.
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 22 of 26

EXPLANATION OF EXEMPTIONS

SUBSECTIONS OF TITLE 5, UNITED STATES CODE, SECTION 552

(b)( 1) (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 to such Executive order;

(b )(2) related solely to the internal personnel rules and practices of an agency;

(b)(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters
be withheld from the public in such a manner as to leave no discretion on issue, or (B) establishes particular criteria for withholding or refers
to particular types of matters to be withheld;

(b)( 4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(b )(5) 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;

(b)(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(b)(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or
information ( A ) could reasonably be expected to interfere with enforcement proceedings, ( B ) would deprive a person of a right to a fair
trial or an impartial adjudication, ( C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, ( D) could
reasonably be expected to disclose the identity of confidential source, including a State, local, or foreign agency or authority or any private
institution which furnished information on a confidential basis, and, in the case ofrecord or information compiled by a criminal law
enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence
investigation, information furnished by a confidential source, ( E ) would 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, or ( F ) could reasonably be expected to endanger the life or physical safety of any
individual;

(b)(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for
the regulation or supervision of financial institutions; or

(b )(9) geological and geophysical information and data, including maps, concerning wells.

SUBSECTIONS OF TITLE 5, UNITED STATES CODE, SECTION 552a

(d)(5) information compiled in reasonable anticipation of a civil action proceeding;

(j)(2) material reporting investigative efforts pertaining to the enforcement of criminal law including efforts to prevent, control, or reduce crime
or apprehend criminals;

(k)(l) information which is currently and properly classified pursuant to an Executive order in the interest of the national defense or foreign policy,
for example, information involving intelligence sources or methods;

(k)(2) investigatory material compiled for law enforcement purposes, other than criminal, which did not result in loss of a right, benefit or privilege
under Federal programs, or which would identify a source who furnished information pursuant to a promise that his/her identity would be
held in confidence;

(k)(3) material maintained in connection with providing protective services to the President of the United States or any other individual pursuant to
the authority of Title 18, United States Code, Section 3056;

(k)( 4) required by statute to be maintained and used solely as statistical records;

(k)(5) investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian
employment or for access to classified information, the disclosure of which would reveal the identity of the person who furnished
information pursuant to a promise that his/her identity would be held in confidence;

(k)(6) testing or examination material used to determine individual qualifications for appointment or promotion in Federal Government service he
release of which would compromise the testing or examination process;

(k)(7) material used to determine potential for promotion in the armed services, the disclosure of which would reveal the identity of the person who
furnished the material pursuant to a promise that his/her identity would be held in confidence.
FBI/DOJ
' Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 23 of 26
................................................................................................................................................................................................................................................................................................................................ .

FEDERAL BUREAU OF INVESTIGATION b7C -1

Preeedenoe: ROUTINE Date: 02/21/2007


To: Pittsburgh . Attn: b6 -1
'l'E'O ... I ________. b7C -1
b7E -3

~~terte•rprjs:;·
Contact: IA _______________ _.
b6 -1
b7C -1

I
b7E -3

Appro-.ed By:

P x: afted By~
';:::========;-
I I tJ>~nbOJ.1&-c
b6 -1
b7C -1 •

Case ID#:. !;81 £s'l'-RQ-;;1475f79-I,P .


(U)· ~ m~~ {PendJ..ngt. -
'.'Plr~i·eel ·dl\\
I b6 -s
Title: ~ (U) b7C -5
b7E -2, 3
INVESTIGA'l'IVE ASSISTANCE PROVIDED b3 -2

(x)(TJ) -
IT - -QAE:DA
- AL -----

,.s...YD......a2....p....s..,.;i....s....·--r....r....n......._'T'._.o..., provide Pittsburgh with results of requested


._!_ _ _ _ _ _ _ ___.!of e-ma:i..l header data.

b7E -2, 4
b3 -2
Reference: ~
1
u{______________,
E:ncl.osu.re ( s} :(U) . (.~ Enclosed for Pittsburgh are the following:
• Ap_endix A: A list of. e-ma:U. headers associated with
...I- . .-
. - - - - - - - - - - - - - - - - - -. . . account labeled "Computei: ! b6 -5
Science. t• b7C -5
• Appendix B; 8 1 ist 9£ e-rai.1
I...li....-c-.o-m_p_a_c'""'·t-:-a..-l~,...i.s'":"'-;,,..:.-,-).r_1_w...,·.l'....11.~....· c"""':t.-l_,....two
_account
headers assoc.iat.ed with
labeled "CSSD."
b7E -4
b3 -2
• .Excel files contain the
total ~I- - - - - - - - ~ ! f o r the above lists.

Swartz-92

_ .........___···--······------
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 24 of 26
.....~ _. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J

To:
Re:
Pittsburgh F'.rom: Count~rterro.rism
)>s:} (U):315T-HQ-C14'75879···1P, 02/21/2007
••

b6 -2
b7C -2
b7E -5
b3 -2

undlsputednexis@aaroosw.com

b6 -2
b7C -2
b7E -5
b3 -2

26

Swartz-93
......,....... u,. .... .,..,.H' •nH•nH••-•••••"..,..._..,....,......,u,.u.a,u,uu••••• •••••••••••••••••••••·••••••••••••••••••·•-··-·····••••••••••••••-·••••••·-··•••
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 25 of 26

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

)
RYAN NOAH SHAPIRO )
)
Plaintiff, )
)
V. )
) Case No. 1: 13-cv-00729
UNITED STATES DEPARTMENT OF )
JUSTICE )
)
Defendant. )
_____________ )

Exhibit B
Case 1:13-cv-00729-PLF Document 53-2 Filed 12/14/18 Page 26 of 26

Ryan Shaprio v. DOJ


13-cv-0729
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Exemption Application Index

SUMMARY OF FOIA EXEMPTION JUSTIFICATION CATEGORIES

CODED CATEGORIES INFORMATION WITHELD

EXEMPTION (b)(3) INFORMATION PROTECTED BY STATUE

(b)(3)-2 Information Specifically Exempted by the National Security Act of 1947, 50


U.S.C. §3024(i)(1)
EXEMPTION (b)(6) and CLEARLY UNWARRANTED INVASION OF PERSONAL PRIVACY
EXEMPTION (b)(7)(C) AND UNWARRANTED INVASION OF PERSONAL PRIVACY
Names and/or Identifying Information of FBI Special Agents/Support
(b)(6)-1 and (b)(7)(C)-1
Personnel
(b)(6)-2 and (b)(7)(C)-2 Names and/or Identifying Information of Third Parties Merely Mentioned
(b)(6)-5 and (b)(7)(C)-5 Names and/or Identifying Information of Third Parties of Investigative Interest
EXEMPTION (b)(7)(E) INVESTIGATIVE TECHNIQUES AND PROCEDURES

(b)(7)(E)-2 Sensitive File Numbers or Subfile Names


(b)(7)(E)-3 Identity and/or Location of FBI or Joint Units, Squads, Divisions
(b)(7)(E)-4 Database Identifiers or Printouts
(b)(7)(E)-5
Collection and Analysis of Information

b3 b3 6/7C 6/7C 6/7C 7E 7E 7E 7E


RIP
1 2 1 2 5 2 3 4 5
92 1 1 1 1 1 1 1
93 1 1 1 1

Index Key
RIP: Released in Part
Page Disposition Totals
Total: 2
RIP: 2
FOIA Exemptions: b3, b6, b7C, b7E