United States District Court, District of Columbia
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE
case involves another request made under the Freedom of
Information Act (“FOIA”) for documents concerning
the infamous “Trump Dossier, ” a
“collection of memoranda prepared by former British
intelligence operative Christopher Steele during the 2016
presidential election concerning then-candidate Donald J.
Trump.” James Madison Project v. Dep't of
Justice, 2018 WL 294530, at *1 (D.D.C. Jan. 4, 2018),
appeal docketed (Jan. 25, 2018). Judicial Watch,
Inc. submitted a FOIA request to the Federal Bureau of
Investigation for documents related to the FBI's
relationship with Mr. Steele. When the FBI failed to timely
respond, Judicial Watch filed suit. The FBI ultimately
refused to confirm or deny the existence of any such
documents, issuing a so-called “Glomar
response.” Both parties have now moved for summary
judgment. Because the FBI's Glomar response was
proper and Judicial Watch has failed to carry its burden to
show public acknowledgment of the requested documents, the
Court will grant the Department's motion and deny
reported extensively by the media, during the 2016 election
former British intelligence operative Christopher Steele
compiled a 35-page dossier on then-candidate Donald Trump.
James Madison Project, 2018 WL 294530, at *1. The
dossier allegedly includes “allegations that the
government of Russia possesses compromising personal and
financial information about President Trump.”
Id. The question of who commissioned and paid for
the Trump Dossier has been a subject of much contention in
media and political circles.
February 28, 2017, the Washington Post reported that
the FBI had once intended to pay Steele to continue looking
into ties between then-candidate Trump and the Russian
government. The story concluded that the FBI did not
pay Steele and noted that the FBI declined to comment on the
report. Eight days later, on March 8, 2017, plaintiff
Judicial Watch, Inc. filed a FOIA request with the FBI
seeking three categories of documents related to the
1. Any and all records of communication between any official,
employee, or representative of the FBI and Steele.
2. Any and all records regarding, concerning, or related to
the proposed, planned, or actual payment of any funds to
Steele and/or his company Orbis Business Intelligence.
3. Any and all records produced in preparation for, during,
or pursuant to any meetings or telephonic conversations
between any official, employee, or representative of the FBI
and Steele and/or any employee or representative of his
company Orbis Business Intelligence.
Hardy Decl. Ex. A, at 1.
the FBI failed to respond to this request in a timely
fashion, Judicial Watch filed suit under FOIA against the
Department of Justice, the parent agency of the FBI.
See Compl. ¶¶ 7, 11. That same day, on May
16, 2017, the FBI issued a letter that asserted a
Glomar response to Judicial Watch's request,
refusing to confirm or deny the existence of any responsive
documents on the basis of six separate FOIA exemptions. Hardy
Decl. Ex. C, at 1. The parties subsequently filed briefs for
enacted FOIA “to promote the ‘broad disclosure of
Government records' by generally requiring federal
agencies to make their records available to the public on
request.” DiBacco v. U.S. Army, 795 F.3d 178,
183 (D.C. Cir. 2015) (citation omitted). But Congress also
recognized that legitimate governmental and privacy interests
could be harmed by the release of documents and thus carved
out nine exemptions from FOIA's reach. See 5
U.S.C. § 552(b). These exemptions are to be narrowly
construed, and the agency has the burden of justifying any
withholding it makes. DiBacco, 795 F.3d at 183-84.
courts have also recognized that “[i]n certain cases,
merely acknowledging the existence of” records
responsive to a FOIA request “would itself ‘cause
harm cognizable under [a] FOIA exception.'”
People for the Ethical Treatment of Animals v. NIH
(“PETA”), 745 F.3d 535, 540 (D.C. Cir.
2014) (citation omitted) (second alteration in original).
When such situations arise, an agency may refuse to confirm
or deny the existence of any responsive records by issuing
what is known as a “Glomar response.”
Id. A Glomar response is appropriate
“if the fact of the existence or nonexistence of agency
records falls within a FOIA exception.” Id.
(citation omitted). In assessing the validity of a
Glomar response, the Court can rely on agency
agency may not issue a Glomar response, however, if
it has already publicly acknowledged the existence of the
records sought. American Civil Liberties Union v.
CIA (“ACLU”), 710 F.3d 422, 427
(D.C. Cir. 2013). A plaintiff bears the burden of proving
such public acknowledgment. Id. To meet this burden,
a plaintiff in a Glomar case “must pinpoint an
agency record that both matches the plaintiff's request
and has been publicly and officially acknowledged by the
agency.” Moore v. CIA, 666 F.3d 1330, 1333
(D.C. Cir. 2011); see ...