The New York Times Company v. Federal Bureau of Investigation

Background

The New York Times Company brought this Freedom of Information Act case against the Federal Bureau of Investigation. The Times sought a copy of a report prepared by the FBI’s Behavioral Analysis Unit about “Havana Syndrome,” a phenomenon involving reported noises followed by medical symptoms among some U.S. officials stationed abroad.

The Times submitted its request on December 9, 2021. The FBI declined to produce the report, citing FOIA Exemptions 7(A) and 7(E), and relying in part on Exemptions 6 and 7(C). Exemption 7(A) protects certain law-enforcement records whose disclosure could reasonably be expected to interfere with enforcement proceedings. Exemption 7(E) protects certain law-enforcement records that would reveal investigative techniques or guidelines and create a risk that the law could be evaded. Exemptions 6 and 7(C) protect certain personal privacy interests.

The parties filed cross-motions for summary judgment, asking the court to decide whether the report was exempt from disclosure.

Exemption 7(A)

The court held that the report was compiled for law-enforcement purposes because it was prepared as part of the FBI’s investigation into Havana Syndrome. But the court found that the FBI had not provided a logical and plausible explanation connecting the report’s contents to a reasonable expectation of interference with an ongoing investigation.

The FBI argued that disclosure could reveal what it knew and did not know when the report was prepared and could disrupt potential prosecutions or the continuing investigation. The court found those explanations insufficient, noting that the report was apparently drafted in or before 2021 and that the FBI had not adequately explained how disclosure of information from that earlier period would harm the investigation. The court also found that public disclosures about the government’s assessment of Havana Syndrome raised questions about whether Exemption 7(A) applied.

The court therefore denied the FBI’s motion for summary judgment as to Exemption 7(A).

Exemption 7(E)

The FBI argued that disclosure would reveal nonpublic methods used by the Behavioral Analysis Unit to conduct behavioral analysis. The court found that explanation too general. It noted that some FBI techniques had already been made public and that other government disclosures had described some investigative steps related to Havana Syndrome.

The court also said the FBI had not explained with enough specificity which techniques in the report were not publicly known or how releasing them could create a risk that the law would be evaded. In addition, the court found it unclear whether parts of the report involved health-related analysis rather than methods for investigating crimes. The court therefore concluded that the FBI had failed to justify withholding the report under Exemption 7(E).

Exemptions 6 and 7(C)

The FBI invoked the privacy exemptions for three categories of information: the names and phone numbers of FBI special agents who supported preparation of the report; information about victims’ locations and health, including references to medical records; and the titles or affiliations of certain witnesses or other people connected to the investigation.

The Times did not challenge withholding those categories of information. The court concluded that the FBI had properly invoked Exemptions 6 and 7(C) for that limited purpose. The court did not conclude that those exemptions justified withholding the report in its entirety.

In-Camera Review and Disposition

Because the FBI had not met its burden under Exemptions 7(A) and 7(E), its motion for summary judgment was denied. The court nevertheless declined to grant the Times’s cross-motion because genuine disputes of material fact remained. Those disputes concerned whether the report related to an ongoing investigation or completed parts of a proceeding, whether the investigative techniques were already publicly known, and whether portions of the report could be separated and released because they concerned health analysis rather than law-enforcement techniques.

The court ordered the FBI to submit the unredacted report for private judicial review within 21 days. The court denied both the FBI’s motion and the Times’s motion without prejudice to renewal after that review. The clerk was directed to close the two motions.