United States Court of Appeals, District of Columbia Circuit
Reporters Committee for Freedom of the Press and Associated Press, Appellants
Federal Bureau of Investigation and United States Department of Justice, Appellees
November 13, 2017
from the United States District Court for the District of
Columbia (No. 1:15-cv-01392)
Townsend argued the cause for appellants. With her on the
briefs was Bruce D. Brown.
F. Busa, Attorney, U.S. Department of Justice, argued the
cause for appellees. With him on the brief was Matthew M.
Before: Tatel and Kavanaugh, Circuit Judges, and Silberman,
Senior Circuit Judge.
Freedom of Information Act case, the Reporters Committee for
Freedom of the Press and the Associated Press seek
information from the Federal Bureau of Investigation
regarding its use of undercover tactics involving
impersonation of the media and creation of fake news. After
the Bureau turned over several pertinent records, the
district court granted summary judgment in its favor. We
reverse. As explained below, the Bureau has failed to
demonstrate that it "conduct[ed] a search for the
requested records, using methods which can be reasonably
expected to produce the information requested."
Oglesby v. U.S. Department of the Army, 920 F.2d 57,
68 (D.C. Cir. 1990).
2007, Seattle-area Timberline High School began receiving
anonymous bomb threats, which prompted daily evacuations.
See U.S. Department of Justice, Office of the
Inspector General, A Review of the FBI's
Impersonation of a Journalist in a Criminal
Investigation 1 (2016) ("OIG Report"), Joint
Appendix (J.A.) 538. Unable to trace the emailed threats to
their sender, local authorities called in cybercrime experts
from the FBI's Seattle Division. Id. Sensing the
handiwork of a narcissist, the FBI agents devised a plan: if
they could flatter the culprit into clicking a link to what
appeared to be press coverage suggesting that he had
outsmarted the authorities, they could, in turn, outsmart him
by secretly delivering specialized malware that would reveal
his computer's location. Id. at 11-12, J.A.
548-49. Warrant in hand, an FBI Special Agent contacted an
anonymous social-media account associated with the threats,
identified himself as an Associated Press "Staff
Publisher, " and requested input on a draft article
accessible through an emailed link. Id. at 14-15,
J.A. 551-52. The suspect took the bait, clicking the link and
unwittingly downloading the malware. Id. at 16, J.A.
553. Within hours, the FBI had its man. Id.
forward seven years to October 2014, when an American Civil
Liberties Union technologist spotted a reference to the
FBI's ruse-which had previously drawn little public
attention-in a set of FBI documents released years earlier to
an electronic privacy organization. Troubled, the
technologist took to Twitter, and within days, news of the
media impersonation tactics employed at Timberline prompted
headlines nationwide. Facing outcry from news outlets,
interest groups, and members of Congress, then-FBI Director
James Comey, Jr., penned a letter to the New York
Times justifying the tactics. But the public's
interest had already been roused.
those wanting to learn more were the Reporters Committee for
Freedom of the Press and the Associated Press, appellants
here, which were concerned that "[t]he utilization of
news media as a cover for delivery of electronic surveillance
software" both "endangers the media's
credibility and creates the appearance that it is not
independent of the government" and "undermines
media organizations' ability to independently report on
law enforcement." Letter from Reporters Committee for
Freedom of the Press et al. to Eric H. Holder, Jr.,
Attorney General, U.S. Department of Justice, and James B.
Comey, Jr., Director, FBI, at 3 (Nov. 6, 2014), J.A. 384.
Between them, the two organizations (hereinafter "the
Reporters Committee") submitted three requests under the
Freedom of Information Act (FOIA), 5 U.S.C. § 552,
seeking FBI records on the Bureau's policies governing
media impersonation, the use of such tactics during the
Timberline investigation, and any other occasions on which
the FBI had used fake news links to deliver malware. After
the FBI responded to one request by declaring it had found no
responsive records, and failed to respond at all to the other
two, the Reporters Committee filed suit against the Bureau
and its parent agency, the Department of Justice, claiming
among other things that the FBI had conducted an inadequate
records search. During the course of litigation, the FBI
eventually located and released some responsive records, most
pertaining to Timberline and none identifying any other
instances of media impersonation. The Reporters Committee
insisted that the FBI's search efforts were insufficient,
but the district court disagreed and granted summary judgment
to the agencies.
'to facilitate public access to Government documents,
' [FOIA] requires federal agencies to disclose
information to the public upon reasonable request unless the
records at issue fall within specifically delineated
exemptions." Judicial Watch, Inc. v. FBI, 522
F.3d 364, 365-66 (D.C. Cir. 2008) (quoting Department of
State v. Ray, 502 U.S. 164, 173 (1991)). No exemption is
at issue in this appeal; rather, the lone issue before us is
whether the FBI responded to the Reporters Committee's
FOIA requests by conducting a search adequate to support
summary judgment in the government's favor. To prevail on
summary judgment, an "agency must show that it made a
good faith effort to conduct a search for the requested
records, using methods which can be reasonably expected to
produce the information requested, " which it can do by
submitting "[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, 920 F.2d at 68. "[S]ummary judgment is
inappropriate" if "a review of the record raises
substantial doubt" as to the search's adequacy,
"particularly in view of 'well defined requests and
positive indications of overlooked materials.'"
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321,
326 (D.C. Cir. 1999) (quoting Founding Church of
Scientology v. NSA, 610 F.2d 824, 837 (D.C. Cir. 1979)).
"We review de novo the adequacy of the
[agency's] search." DiBacco v. U.S. Army,
795 F.3d 178, 188 (D.C. Cir. 2015).
the government submitted two declarations from David M.
Hardy, Section Chief of the FBI's Record/Information
Dissemination Section ("Records Section"), which
describe a two-phase search. In the first phase, made up of
so-called "targeted searches, " the Records Section
identified the Bureau divisions it considered reasonably
likely to hold responsive records, and transmitted to each
such division the verbatim text of the relevant FOIA request
along with instructions to "send an e-mail to each of
its employees asking them to search for all relevant records
pertaining to th[e] request" and "help identify all
potentially responsive documents, regardless of whether they
may be located in their office or elsewhere in the
Bureau." Declaration of David M. Hardy ¶¶
38-40, 43-45 ...