Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 13 of 22
Second, “the nexus between the investigation and one of the agency’s law enforcement
duties must be based on information sufficient to support at least ‘a colorable claim’ of its
rationality.” Id. at 421. In other words, “the agency’s basis for the claimed connection between
the object of the investigation and the asserted law enforcement duty cannot be pretextual or
wholly unbelievable.” Id. In sum, an agency’s declarations filed in support of Exemption 7(A)
must provide facts that “establish a rational ‘nexus’ between the investigation and one of the
agency’s law enforcement duties, and a connection between an individual or incident and a
possible security risk or violation of federal law.” Campbell, 164 F.3d at 24-25.
The documents generated in the course of investigating the unauthorized release of
classified material on the WikiLeaks website were quite obviously related to the FBI and CRM’s
law enforcement duties to enforce criminal laws and to protect against national security threats.
Defendants FBI and CRM have filed seven declarations in this case, three of which were filed ex
parte and in camera. David Hardy from the FBI states that “responsive records are contained in
files pertaining to the FBI’s investigation of the disclosure of classified information that was
published on the WikiLeaks website.” Hardy 1st Decl. ¶ 23. Similarly, John Cunningham 8 from
CRM states that “the responsive records in the possession of the Criminal Division are all part of
the Department of Justice’s investigation into the unauthorized disclosure of classified
information that resulted in the publication of materials on the WikiLeaks website.”
Cunningham 1st Decl. ¶ 12. The fact that the agencies have identified a possible security risk or
violation of federal law sufficiently establishes, at least for purposes of Exemption 7, that they
8
John E. Cunningham III is a trial attorney in the Department of Justice, Criminal Division, and is
currently assigned to the Office of Enforcement Operations, Freedom of Information Act/Privacy Act
Unit. Cunningham 1st Decl. ¶ 1.
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