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James Madison Project v. Department of Justice

United States District Court, District of Columbia

January 4, 2018

JAMES MADISON PROJECT, et al., Plaintiffs,
DEPARTMENT OF JUSTICE, et al., Defendants.




         The now infamous “Trump Dossier” is a collection of memoranda prepared by former British intelligence operative Christopher Steele during the 2016 presidential election concerning then-candidate Donald J. Trump. As has been reported extensively in the media, the 35-page Dossier contains, among other things, allegations that the government of Russia possesses compromising personal and financial information about President Trump.

         Though the Dossier and its contents animate this case, the case's actual subject matter concerns a related document-a two-page synopsis of the Dossier (the “Synopsis”) that certain executive branch officials presented to President-elect Trump in January 2017. After media reports surfaced that President-elect Trump had received the Synopsis, Plaintiffs James Madison Project and Josh Gerstein filed a Freedom of Information Act request with various executive branch agencies seeking a copy of the Synopsis, as well as any documents related to any “final determinations” reached by those agencies regarding the factual accuracy of the allegations in the Synopsis.

         Not surprisingly, none of the agencies made any meaningful disclosures. Three agencies- the Office of the Director of National Intelligence (“ODNI”), the Central Intelligence Agency (“CIA”), and the National Security Agency (“NSA”)-acknowledged that they possess the Synopsis, but refused to produce it. Additionally, these agencies declined to confirm or deny whether they have any “final determinations” regarding the allegations contained in the Synopsis or related investigative files-an answer known as a “Glomar response.” Another agency-the Federal Bureau of Investigation (“FBI”)-took a slightly different approach: It issued a blanket Glomar response to the entirety of Plaintiffs' request. That is, the FBI refused to confirm or deny that it has any of the requested records. Plaintiffs contend that these Glomar responses are improper because President Trump and two past executive branch officials-former Director of National Intelligence James Clapper and former Director of the FBI James Comey-have publicly acknowledged, through tweets and other statements, the existence of the Synopsis and related records. The agencies stand by their Glomar responses.

         Before the court are the parties' cross-motions for summary judgment. For the reasons set forth below, the court holds that none of the President's statements, whether made by tweet or otherwise, constitute the type of official acknowledgement of the existence of the requested records that is necessary to overcome the agencies' Glomar responses. The same holds true for the statements of the former executive branch officials. Finally, the court finds that ODNI, CIA, and NSA properly withheld the Synopsis, and that neither President Trump nor former FBI Director Comey has officially disclosed its contents. Accordingly, Defendants' Motion for Summary Judgment is granted and Plaintiffs' Cross-Motion for Partial Summary Judgment is denied.


         A. Factual Background

         1. The Synopsis

         Following the 2016 presidential general election, President Barack Obama assigned Director of National Intelligence James Clapper the task of preparing an intelligence report addressing the activities of the Russian government in connection with the election. Director Clapper delegated this task to the National Intelligence Council (“NIC”), a component of ODNI comprised of senior analysts and national security policy experts. The NIC coordinated with and drew intelligence from the CIA, the NSA, and the FBI to draft a classified analytical assessment.

         On January 6, 2017, ODNI released to the public a declassified version of that assessment, entitled “Assessing Russian Activities and Intentions in Recent U.S. Elections.” See Defs.' Mot. for Summ. J., ECF No. 14 [hereinafter Defs.' Mot.], Ex. E, ECF No. 14-7. The declassified assessment covers “the motivation and scope of Moscow's intentions regarding U.S. elections and Moscow's use of cyber tools and media campaigns to influence U.S. public opinion.” Defs.' Mot., Ex. E, ECF No. 14-7, at i.

         At about the same time, intelligence officials shared a classified version of the assessment with President-elect Trump. On January 11, 2017, CNN reported that senior intelligence officials appended to the classified assessment a two-page synopsis of the allegations contained in the Dossier. See Defs.' Mot., Ex. G, ECF No. 14-9.

         2. Plaintiffs' FOIA Request

         Plaintiff James Madison Project is a non-partisan organization established to promote government accountability and the reduction of secrecy on issues relating to intelligence and national security. Am. Compl., ECF No. 7 [hereinafter Am. Compl.], ¶ 3. Plaintiff Josh Gerstein is the senior White House reporter for Politico and a news media representative. Am. Compl. ¶ 4. Referring to the above-cited CNN report for context, Plaintiffs submitted a Freedom of Information Act (“FOIA”) request by letters dated January 11, 2017, to ODNI, CIA, FBI, and NSA seeking production of the Synopsis and any documents or investigative files related to any final determinations reached regarding the factual accuracy of the allegations contained in the Synopsis. Noting the considerable public interest in shedding light on the degree to which any federal intelligence or law enforcement agency viewed the allegations contained in the Dossier as credible, Plaintiffs specifically requested Defendants produce the following records:

(1) The two-page “synopsis” provided by the U.S. Government to President-Elect Trump with respect to allegations that Russian Government operatives had compromising personal and financial information about President-Elect Trump (“Item One”);
(2) Final determinations regarding the accuracy (or lack thereof) of any of the individual factual claims listed in the two page synopsis (“Item Two”); and
(3) Investigative files relied upon in reaching the final determinations referenced in [Item Two] (“Item Three”).

See Am. Compl. ¶¶ 14, 20, 24, 28; see, e.g., Defs.' Mot., Ex. C, ECF No. 16 [hereinafter Hardy Decl.], Ex. A. At the time of the filing of this action, none of the agencies had provided a substantive response to Plaintiffs' FOIA demand. Am. Compl. ¶¶ 32, 35, 38, 41.

         B. Procedural History

         On January 23, 2017, Plaintiffs brought this action under FOIA, naming as Defendants the Department of Justice, as the parent agency of the FBI; the Department of Defense, as the parent agency of the NSA; the CIA; and the ODNI (collectively, “Defendants”). Compl., ECF No. 1. Before Defendants filed a responsive pleading, Plaintiffs filed an Amended Complaint on February 13, 2017. Am. Compl. Their suit seeks an order compelling Defendants to produce the requested records. Id. at 8.

         Defendants now move for summary judgment, although they part ways in their approaches. The FBI relies on a Glomar response to all three items of Plaintiffs' request, thereby refusing to confirm or deny the existence of any responsive records.[1] Citing FOIA Exemption 7(A), 5 U.S.C. § 552(b)(7)(A), the FBI contends that merely acknowledging the existence or non-existence of responsive records in the FBI's files would “require the FBI to confirm or deny whether it has and is investigating the alleged ‘dossier' and synopsis, either in a separate investigation or as part of its Russian interference investigation, ” which itself could hamper and interfere with any such investigation. See Hardy Decl. The FBI therefore asserts a blanket Glomar response.

         The remaining Defendants-ODNI, CIA, and NSA (the “Intelligence Community Defendants”)-also invoke Glomar responses, but their response departs from the FBI's in one important respect: They confirm that they have identified a two-page document responsive to Item One of the Plaintiffs' FOIA request. They contend, however, that the document must be withheld in full pursuant to FOIA Exemption 1, 5 U.S.C. § 552(b)(1), and Exemption 3, 5 U.S.C. § 552(b)(3). See Defs.' Mot., Ex. B, ECF No. 14-4 [hereinafter Gistaro Decl.].[2] As for Items Two and Three, like the FBI, the Intelligence Community Defendants invoke FOIA Exemptions 1 and 3 to justify their Glomar responses. In their view, the mere act of confirming whether they even have such records would reveal a classified fact-whether the Intelligence Community has verified or attempted to verify the truth of the Dossier's allegations. Gistaro Decl. at 8-10. Specifically, the Intelligence Community Defendants assert that confirming or denying the existence of responsive records as to Items Two and Three would “reveal that the two-page synopsis played some role in the [Intelligence Community's] conclusions [in the classified analytical assessment], which would, in turn, be revealing of the analytic process employed for this intelligence assessment.” Id. at 9. So, although the Intelligence Community Defendants concede they have the Synopsis, they refuse to admit the existence of any other responsive records.

         Plaintiffs oppose Defendants' Motion largely on one ground. See Pls.' Opp. to Defs.' Mot., ECF No. 17; Pls.' Cross-Mot. for Partial Summ. J., ECF No. 18 [hereinafter Pls.' Cross-Mot.]. Plaintiffs do not challenge Defendants' invocation of any of the FOIA Exemptions upon which their Glomar responses are predicated. Stated differently, they do not contest that the fact of the existence or non-existence of the requested records is subject to FOIA Exemptions 1, 3, and 7(A). Rather, Plaintiffs assert that Defendants' Glomar responses are vitiated because President Trump has officially acknowledged the existence of the records Plaintiffs seek in his tweets and other public statements. So, too, have two past executive branch officials, former Director of National Intelligence James Clapper and former Director of the FBI James Comey. Plaintiffs also assert that official public disclosures of some of the specific information contained in the Synopsis create a genuine issue of material fact that precludes granting summary judgment in favor of the Intelligence Community Defendants as to their withholding of the Synopsis itself.


         Most FOIA cases are appropriately decided on motions for summary judgment. Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment is appropriate when the record shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The agency can carry its burden on summary judgment if it submits affidavits or declarations that “describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal quotation marks omitted). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” Judicial Watch, Inc. v. U.S. Dep't of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (quoting Am. Civil Liberties Union v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011)). On the other hand, “a motion for summary judgment should be granted in favor of the FOIA requester where an agency seeks to protect materials which, even on the agency's version of the facts, falls outside the proffered exemption.” Smith v. CIA, 246 F.Supp.3d 28, 31 (D.D.C. 2017) (internal quotation marks omitted).


         The parties' dispute raises two predicate legal questions the answers to which are critical to framing the merits of this case. First, what is the applicable legal standard to determine whether the existence of the Synopsis, “final determinations, ” and related records have been “officially acknowledged?” Second, what weight, if any, should the court give to the public statements of former executive branch officials who have commented on the Dossier and Synopsis since leaving their government posts? The court addresses each of these questions in turn.

         A. “Official Acknowledgment” in the Glomar Context

         The court starts with the basics. A Glomar response is “an exception to the general rule that agencies must acknowledge the existence of information responsive to a FOIA request and provide specific, non-conclusory justifications for withholding that information.” Roth v. U.S. Dep't of Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011). Thus, a Glomar response is allowable only “when confirming or denying the existence of records would itself ‘cause harm cognizable under an FOIA exception.'” Id. at 1178 (quoting Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)). In other words, a Glomar response is appropriate when revealing the very fact that an agency possesses responsive records would itself be subject to a FOIA exception.

         A dissatisfied requester may challenge a Glomar response in “two distinct but related ways.” Agility Pub. Warehousing Co. K.S.C. v. NSA, 113 F.Supp.3d 313, 326 (D.D.C. 2015). First, a requester can challenge the agency's assertion that confirming or denying the existence of records would cause harm under the FOIA exception invoked by the agency. See Id. Second, a requester can demonstrate that the agency has previously “official acknowledged” the fact of the existence of a requested record. See id. If the requester take the second approach and shows that the agency has “officially acknowledged” that it possesses records responsive to the FOIA request, “the agency can no longer use a Glomar response” and therefore must either “(1) disclose the record to the requester or (2) establish that its contents are exempt from disclosure and that such exemption has not been waived.” Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011) (internal citation omitted).

         In this case, Plaintiffs assert only the second basis to overcome Defendants' Glomar responses. See Pls.' Cross-Mot., Mem. in Opp. to Defs.' Mot. & in Supp. of Pls.' Cross-Mot., ECF No. 18-1 [hereinafter Pls.' Mem.], [3] at 5. They do not contest the agencies' reliance on Exemptions 1, 3, and 7(A) as the grounds for those responses. Thus, the court need not inquire whether Defendants have shown that “the fact of the existence or nonexistence of agency records falls within a FOIA exemption.” Wolf, 473 F.3d at 374.

         1.The Applicable Standard

         With official acknowledgement as the sole issue, the court turns to the particulars of that doctrine. The parties agree that while a plaintiff bears the initial burden of pointing to specific public statements that officially acknowledge the records subject to a Glomar response, the agency bears the ultimate burden of justifying its Glomar response. See Am. Civil Liberties Union (ACLU) v. CIA, 710 F.3d 422, 427-28 (D.C. Cir. 2013). The parties disagree, however, as to how precisely a plaintiff must establish that an agency has officially acknowledged the existence of a document.

         Defendants argue for a strict standard under which the official statement identified by the Plaintiffs must “match[] exactly” the documents requested in order to waive a Glomar response. Defs.' Suppl. Submission, ECF No. 29 [hereinafter Defs.' Mem. re: Tweets], at 2; Oral Arg. Tr., ECF No. 32 [hereinafter Arg. Tr.], at 4:8-15. Their proposed standard derives from Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990), wherein the D.C. Circuit identified three criteria to determine whether the contents-as distinct from the existence-of a withheld record have been “officially acknowledged” by an agency:

First, the information requested must be as specific as the information previously released. Second, the information requested must match the information previously disclosed . . . . Third, . . . the information requested must already have been made public through an official and documented disclosure.

Id. at 765. Fitzgibbon's “insistence on exactitude recognizes ‘the Government's vital interest in information relating to national security and foreign affairs.'” Wolf, 473 F.3d at 378 (quoting Pub. Citizen v. Dep't of State, 11 F.3d 198, 203 (D.C. Cir. 1993)). According to Defendants, the D.C. Circuit applies this three-pronged test equally in the Glomar context.

         Plaintiffs, on the other hand, urge rejection of Defendants' “overly-cramped interpretation” of the standard of proof required to overcome a Glomar response. Pls.' Reply to Defs.' Mem. re: Tweets, ECF No. 31 [hereinafter Pls.' Reply to Defs.' Mem. re: Tweets], at 2. They maintain that the specificity requirement in the Glomar context should be “applied in a manner slightly different than that which is ordinarily done with respect to the substantive contents of actual records, ” id. at 2-3 (citing Wolf, 473 F.3d at 379), and accordingly that “Fitzgibbon's matching and specificity criteria . . . are not applicable in the Glomar context, ” id. at 3 (emphasis omitted) (quoting Smith, 246 F.Supp.3d at 32). In their view, to overcome a Glomar response, a plaintiff must point to official disclosures that warrant a “logical and plausible” inference as to the existence or nonexistence of the requested records. Arg. Tr. at 16:12-18.

         To the extent Plaintiffs contend that Fitzgibbon's three-part test does not apply in the Glomar context, they are mistaken. The D.C. Circuit consistently has applied Fitzgibbon's three prongs to evaluate a claim of “official acknowledgement” in the Glomar context. E.g., Mobley v. CIA, 806 F.3d 568, 583-84 (D.C. Cir. 2015); Moore, 666 F.3d at 1333; Wolf, 473 F.3d at 378. That said, the three prongs of the Fitzgibbon test are not as differentiated in the Glomar context as they are with respect to a withheld document's contents. As the court explained in Wolf: “In the Glomar context . . . if the prior disclosure establishes the existence (or not) of records responsive to the FOIA request, the prior disclosure necessarily matches both the information at issue-the existence of records-and the specific request for that information.” Wolf, 473 F.3d at 378-79 (cit ing Fitzgibbon, 911 F.2d at 765-66). In other words, in the Glomar context, the first and second prongs of Fitzgibbon merge into one and the third prong continues to operate independently. Ultimately, then, to overcome an agency's Glomar response when relying on an official acknowledgement, “the requesting plaintiff must pinpoint an agency record that both matches the plaintiff's request and has been publicly and officially acknowledged by the agency.” Moore, 666 F.3d at 1333 (emphasis added).

         Plaintiffs also argue that the D.C. Circuit in ACLU, 710 F.3d 422 (D.C. Cir. 2013), announced a “slightly different” “official acknowledgement” standard in the Glomar context. See Pls.' Reply to Defs.' Mem. re: Tweets at 3-4; see also Arg. Tr. at 16-17. As support for their position, Plaintiffs point to the court's holding that the CIA's refusal to confirm the existence of records concerning drone strikes was “neither logical nor plausible” in light of public statements made by President Obama, Assistant to the President for Homeland Security and Counterterrorism John Brennan, and CIA Director Leon Panetta. See Pls.' Reply to Defs.' Mem. re: Tweets at 3-4 (citing ACLU, 710 F.3d at 428-32). They urge the court to apply the “logical nor plausible” standard here instead of the “specificity” requirement of Fitzgibbon. Id.

         The court declines to do so for two reasons. First, as Defendants point out, the Circuit has applied Fitzgibbon's three-pronged test in the Glomar context subsequent to ACLU, demonstrating that the Circuit plainly has not jettisoned the specificity requirement. See Mobley, 806 F.3d at 583-84. Second, Plaintiffs read ACLU too broadly. They conflate the specificity requirement of the official acknowledgement doctrine with the standard by which an agency's invocation of a FOIA exemption is judged. In the Glomar context, the specificity requirement concerns the “fit” between the particular records sought and the records that are the subject of the public official statements. So, as in ACLU, if a requester seeks records about drone strikes, and the agency refuses to confirm or deny the existence of those records, the public acknowledgment must bear out the existence of records concerning drone strikes, not something different, to overcome that Glomar response. Thus, the records sought must match the records whose existence the plaintiff claims are publicly acknowledged through official statements. The “logical nor plausible” language of ACLU, by contrast, and which the court discusses further below, is used to evaluate an agency's justification for invoking a FOIA exemption to withhold records or issue a Glomar response. Judicial Watch, Inc., 715 F.3d at 941. That standard is apparent from the ACLU court's reasoning that an agency's “justification” for invoking a Glomar response “is sufficient if it appears ‘logical' or ‘plausible.'” ACLU, 710 F.3d at 427 (emphasis added) (internal quotation marks omitted). Applying that standard, the court in ACLU found, based on the public statements of the President and key intelligence community officials, that it was “neither logical nor plausible” for the CIA to justify its refusal to confirm or deny whether it possessed records relating to drone strikes. See id. at 429-31. Accordingly, while ACLU establishes a standard relevant to the Glomar context, it does not displace the specificity requirement of Fitzgibbon.

         2. Quantum of Proof

         The discussion above begs the question: What type of proof is required to establish that the existence of a document has been officially acknowledged? The Circuit has provided guidance on this issue in two types of cases: (1) where the existence of responsive records is plain on the face of the official statement, e.g., Wolf, 473 F.3d at 370, and (2) where the substance of an official statement and the context in which it is made permits the inescapable inference that the requested records in fact exist, e.g., ACLU, 710 F.3d at 422. Defendants emphasize the former, while Plaintiffs emphasize the latter.

         The first type of case is best illustrated by Wolf. In that case, Wolf, an historian, requested from the CIA “all records about Jorge Eliecer Gaitan, ” an assassinated Colombian politician. Wolf, 473 F.3d at 373. The CIA issued a Glomar response to the request, claiming that the fact of the existence or nonexistence of records regarding a foreign national was itself classified. Id. After the agency moved for summary judgment, Wolf asserted that the CIA had waived its right to issue a Glomar response because then-CIA Director Admiral R.K. Hillenkoetter “officially acknowledged” the existence of responsive records by reading from official CIA dispatches referencing Gaitan during a 1948 congressional hearing. Id. at 373-74, 378. Drawing from Fitzgibbon, the D.C. Circuit confirmed the applicability of the “official acknowledgment” doctrine in the Glomar context and concluded that Director Hillenkoetter's testimony acknowledged the “specific information at issue”-the “existence vel non of records about Jorge Eliecer Gaitan.” Id. at 378-79 (internal quotation marks omitted). Because Director Hillenkoetter read directly from CIA dispatches concerning “Gaitan, his followers, and their associates in connection with possible communist activity in Colombia, ” his official statements disclosed the existence of responsive records and waived the CIA's Glomar response. Id. at 378-79. Critically, though, the court's ultimate holding was quite narrow. The court held that the Director's official acknowledgment waiver related only to the existence or nonexistence of the records about Gaitan disclosed by Hillenkoetter's testimony. As a result, Wolf was entit led to disclosure of that informat ion, “namely the existence of CIA records about Gaitan that ha[d] been previously disclosed”-the officially acknowledged dispatches-“but not any others.” Id. at 379 (emphasis added). Thus, even though Wolf had requested “all records” about Gaitan, and the CIA's Glomar response was to the “all records” request, the court held that the CIA was not required to confirm or deny the existence of any other records that it might have in its possession.

         The second type of Glomar case is best exemplified by ACLU. In that case, the ACLU requested from the CIA “records pertaining to the use of use of . . . drones . . . by the CIA and the Armed Forces for the purpose of killing targeted individuals.” ACLU, 710 F.3d at 425. The CIA issued a Glomar response, arguing that confirming or denying whether it had responsive documents would reveal “whether or not the CIA is involved in drone strikes or at least has an intelligence interest in drone strikes.” Id. at 427. The ACLU challenged the CIA's Glomar response, arguing that the existence of such records had already been officially acknowledged by President Obama, Assistant to the President for Homeland Security and Counterterrorism John Brennan, and CIA Director Leon Panetta, in various public statements and speeches. Id. at 429- 30. Though none of these official statements “specifically stated that the CIA has documents relating to drone strikes, ” id. at 430 (emphasis omitted), the D.C. Circuit held that the public statements left “no doubt that some U.S. agency” possessed such records, id. at 429 (emphasis added). According to the D.C. Circuit, the CIA was one such agency because, after all, “it strains credulity to suggest that an agency charged with gathering intelligence affecting the national security does not have an ‘intelligence interest' in drone strikes”-the narrow interest the CIA sought to protect by invoking a Glomar response-“even if that agency does not operate the drones itself.” Id. at 429-30. Additionally, the court observed that, in light of various public statements made by the CIA Director about the precision of targeted drone strikes, the level of collateral damage they cause, and their comparative usefulness to other weapons, “it is implausible that the CIA does not possess a single document on the subject of drone strikes.” Id. at 431. The court reasoned:

Unless we are to believe that the Director was able to “assure” his audience that drone strikes are “very precise and . . . very limited in terms of collateral damage” without having examined a single document in his agency's possession, those statements are tantamount to an acknowledgment that the CIA has documents on the subject.

Id. (alteration in original). Accordingly, the court concluded that, even though none of the public statements expressly acknowledged the existence of documents, the substance of those statements made it “neither ‘logical' nor ‘plausible' to maintain that the ...

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