The New York Times Company v. Federal Bureau of Investigation

Background

The New York Times Company brought a Freedom of Information Act (FOIA) action seeking an FBI Behavioral Analysis Unit report about “Havana Syndrome.” The parties filed cross-motions for summary judgment concerning whether the report was exempt from disclosure under FOIA Exemptions 6, 7(A), 7(C), and 7(E).

In an earlier order, the court denied both motions without prejudice to renewal after reviewing the report privately. The court had previously found that the FBI properly invoked Exemptions 6 and 7(C) to withhold three specific categories of information, but had not shown that Exemptions 7(A) or 7(E) justified withholding the report in full. The FBI later withdrew its reliance on Exemption 7(A), stating that disclosure was no longer likely to interfere with its ongoing investigations.

Exemption 7(E)

Exemption 7(E) permits withholding law-enforcement records that would disclose investigative techniques, procedures, or guidelines when disclosure could reasonably be expected to risk circumvention of the law. After reviewing the report, the court found that it contained descriptions of investigative techniques and procedures that satisfied this standard.

The court nevertheless held that Exemption 7(E) did not justify withholding the report in full. It found that portions describing the FBI’s reliance on interview transcripts were generally known to the public and could be separated from descriptions of nonpublic techniques or their specific applications. The FBI had not logically shown that releasing those publicly known portions would increase the risk of law evasion.

The court also found that factual background and high-level conclusions about the investigation did not disclose protected techniques or procedures and were not inseparably connected to exempt material. Those portions therefore were not covered by Exemption 7(E) and had to be disclosed.

Exemptions 6 and 7(C)

The FBI invoked Exemptions 6 and 7(C) to withhold the names and phone numbers of FBI special agents who supported preparation of the report; information about locations where victims lived and worked and about their health; and titles or affiliations of certain witnesses at the United States Embassy in Havana, Cuba, or people mentioned to the FBI in connection with the investigation.

The Times did not dispute withholding this information under those exemptions. Based on its review, the court concluded that the identified information was protected under Exemption 7(C) alone and therefore did not separately decide whether Exemption 6 also applied. The ordered disclosures were subject to redactions for this protected information.

Disposition

The court granted in part and denied in part the FBI’s motion for summary judgment. It likewise granted in part and denied in part The New York Times Company’s motion for summary judgment. The FBI was ordered to produce a copy of the report with redactions consistent with the opinion within 21 days. The Clerk of Court was directed to enter judgment and close the case.