Case 1:12-cv-00127-BJR Document 40 Filed 03/04/15 Page 16 of 22
too vague to support a withholding under Exemption 7(A). Pl.’s Supp’l Br. at 6 (citing Citizens
for Responsibility & Ethics in Washington v. Dep’t of Justice, 746 F.3d 1082 (D.C. Cir. 2014)).
“Exemption 7(A) explicitly requires a predictive judgment of the harm that will result
from disclosure of information, permitting withholding when it ‘could reasonably be expected’
that the harm will result.” Ctr. for Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918, 927 (D.C.
Cir. 2003) (quoting 5 U.S.C. § 552(b)). “So long as the investigation continues to gather
evidence for a possible future criminal case, and that case would be jeopardized by the premature
release of that evidence, Exemption 7(A) applies.” Citizens for Responsibility & Ethics in
Washington v. Dep’t of Justice, 746 F.3d at 1098 (quoting Juarez v. Dep’t of Justice, 518 F.3d
54, 59 (D.C. Cir. 2008)). The government has the burden of demonstrating a reasonable
likelihood of interference with enforcement proceedings. Ctr. for Nat’l Sec. Studies, 331 F.3d at
926. The government’s declarations, especially when viewed in light of the appropriate
deference to the executive on issues of national security, may satisfy this burden. Id.
Here, the FBI and CRM have determined that the release of information on the
techniques and procedures employed in their WikiLeaks investigation would allow targets of the
investigation to evade law enforcement, and have filed detailed affidavits in support thereof.
Hardy 1st Decl. ¶ 25; Cunningham 1st Decl. ¶ 11. As Plaintiff notes, certain court documents
related to the Twitter litigation have been made public and describe the agencies’ investigative
techniques against specific individuals. To the extent that Plaintiff seeks those already-made
public documents, the Court is persuaded that their release will not interfere with a law
enforcement proceeding and orders that Defendants turn those documents over. 11
11
In its supplemental briefing, Plaintiff notes that subpoenas for information on Smari McCarthy
and Herbert Snorrason, “two Icelandic freedom of information activists who supported WikiLeaks,” have
also been unsealed. Pl.’s Supp’l Opp’n at 7. Plaintiff argues that since McCarthy and Snorrason are now
in possession of the subpoenas, the agencies’ disclosure of responsive records is not likely to interfere
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