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Judicial Watch, Inc. v. Central Intelligence Agency

United States District Court, District of Columbia

February 7, 2018




         In this Freedom of Information Act case, Plaintiff Judicial Watch, Inc. requested a specific document from the Central Intelligence Agency: an unclassified version of an assessment of Russian interference in elections across Europe that was purportedly read by Representative Mike Turner and later referenced in a December 2016 Wall Street Journal article. Because the CIA properly asserted a Glomar response under FOIA Exemptions 1 and 3, and because Judicial Watch has failed to overcome that response by proving that the Agency publicly acknowledged the existence of the document, the Court will grant the CIA's motion for summary judgment and deny Judicial Watch's cross-motion.

         I. Background

         On December 13, 2016, the Wall Street Journal published an article entitled “GOP Congressman Demands White House Release Report on Russian Meddling in Elections.” Def.'s Mot. Summ. J. Ex. A. The article reported that “[s]ince last year, [Representative Mike] Turner, a member of the House Intelligence Committee, has been pushing for the unclassified version of a report assessing Moscow's interference in foreign elections, particularly across Europe.” Id. The article went on to state that “[t]he White House already released a classified version of the assessment but Mr. Turner has been pushing for the unclassified version, which would be releasable to the public.” Id.

         The next day, Judicial Watch, Inc. submitted a request pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 to the CIA seeking “the unclassified assessment or report identified in the Wall Street Journal article.” On May 24, 2017, the CIA issued a Glomar response, refusing to confirm or deny that it had the requested record pursuant to FOIA Exemptions 1 and 3. Subsequently, on July 19, 2017, the CIA moved for summary judgment, and Judicial Watch filed a cross-motion for summary judgment.

         II. Legal Standard

         FOIA was enacted “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). There are nine exemptions from FOIA's general policy of disclosure that seek to balance governmental and privacy interests. 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 recognized that in “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). In these situations, an agency may issue what is known as a “Glomar response, ” refusing to confirm or deny the existence of any responsive records.[1] 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). The Court can rely on agency affidavits in evaluating a Glomar response. Id.

         An 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 by showing: (1) “the information requested must be as specific as the information previously released”; (2) “the information requested must match the information previously disclosed”; and (3) “the information requested must have already been made public through an official and documented disclosure.” Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007) (quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)). In the context of a Glomar response, the relevant agency acknowledgment is that the record exists, not that the record contains certain content. See, e.g., ACLU, 710 F.3d at 427. Thus, a plaintiff seeking to prove public acknowledgment “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).

         FOIA cases are typically resolved on summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment is appropriately granted if “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).

         III. Analysis

         A. Public Acknowledgment

         Judicial Watch challenges the CIA's Glomar response by arguing that the Agency has already publicly acknowledged the existence of the requested document in two ways: (1) in a January 6, 2017 report issued by the Office of the Director of National Intelligence about Russian activities in recent U.S. elections; and (2) through the existence of a statute that requires the Director of National Intelligence to submit an “intelligence community assessment on the funding of political parties and nongovernmental organizations in former Soviet States and countries in Europe by the Russian Security Services since January 1, 2006.” See Pub. L. No. 114-113, § 502, 129 Stat. 2924 (2015); Pl.'s Cross Mot. Summ. J. at 5. Neither, however, amounts to a public acknowledgment that “matches the plaintiff's request.” Moore, 666 F.3d at 1333.

         1. The ...

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