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Leopold v. Department of Treasury

United States District Court, District of Columbia

March 19, 2018

JASON LEOPOLD and RYAN NOAH SHAPIRO, Plaintiffs,
v.
DEPARTMENT OF JUSTICE and DEPARTMENT OF HOMELAND SECURITY, Defendants.

          MEMORANDUM OPINION

          BERYL A. HOWELL CHIEF JUDGE.

         The plaintiffs, Jason Leopold, an investigative reporter, and Ryan Noah Shapiro, “an historian of national security, the policing of dissent, and governmental transparency, ” First Am. Compl. (“FAC”) ¶¶ 1-2, ECF No. 4, challenge the responses of the Federal Bureau of Investigation (“FBI”), a component of the Department of Justice (“DOJ”), and the Secret Service, a component of the Department of Homeland Security, to their four records requests submitted pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.[1] The FOIA requests at issue seek information about “how” the FBI and Secret Service “referenced or discussed internally, ” Pls.' Mem. Supp. Cross-Mot. Summ. J. & Opp'n Defs.' Mot. Summ. J. (“Pls.' Opp'n”) at 2, ECF No. 22-1, two statements made in July and August 2016 by then-Republican presidential candidate Donald Trump, and a third statement made in July 2016 by a New Hampshire state legislator. These statements, in the plaintiffs' view, “arguably crossed the line between free speech and inciting imminent unlawful action.” Id. at 1. The parties have now cross-moved for summary judgment. Defs.' Mot. Summ. J. (“Defs.' Mot.”), ECF No. 18; Pls.' Cross-Mot. Summ. J. & Opp'n Defs.' Mot. Summ. J. (“Pls.' Cross-Mot.”), ECF No. 22. For the reasons set forth below, the defendants' motion is granted and the plaintiffs' cross-motion is denied.

         I. BACKGROUND

         A news article published on July 20, 2016, attributed to a New Hampshire legislator, Alfred P. Baldasaro, the following statement: “Hillary Clinton should be put in the firing line and shot for Treason.” Defs.' Statement of Material Facts as to Which There is No Genuine Issue (“Defs.' SMF”) ¶ 23 (citing Asawin Suebsaeng, Secret Service Investigating Trump Adviser Al Baldasaro for Hillary Execution Comments, The Daily Beast (July 20, 2016), https://www.thedailybeast.com/secret-service-investigating-trump-adviser-al-baldasaro-for-hillary-execution-comments), ECF No. 18-1.[2] This statement purportedly urging the shooting of a Democratic presidential candidate prompted the U.S. Secret Service Spokesperson Robert Hoback to give the following statement to the Daily Beast: “The U.S. Secret Service is aware of this matter and will conduct the appropriate investigation.” Id. ¶¶ 22-23.

         The following week, on July 27, 2016, then-candidate Trump stated: “Russia, if you're listening, I hope you're able to find the 30, 000 emails that are missing, ” and, “I think you will probably be rewarded mightily by our press.” FAC ¶ 17. Two weeks later, on August 9, 2016, then-candidate Trump made what the plaintiffs' characterize as an “astonishing statement” that “was a thinly veiled threat on Secretary Clinton's life, ” Pls.' Opp'n at 1, that “[i]f she gets to pick her judges, nothing you can do, folks, ” and, “[a]lthough the Second Amendment people - maybe there is, I don't know.” FAC ¶ 16. Similarly to the Secret Service's earlier response to the state legislator's statement urging the shooting of the Democratic presidential candidate, the Secret Service responded to Trump's statement on the same day, stating in an official Tweet: “The Secret Service is aware of the comments made earlier this afternoon.” Defs.' SMF ¶ 24 (emphasis omitted). By contrast, however, to the Secret Service's earlier response to the New Hampshire legislator's statement, the Secret Service's response to the Trump statement did not indicate that the agency would conduct any investigation.

         These provocative statements by the Republican presidential candidate and a state legislator prompted the plaintiffs, on August 18, 2016, to submit, by separate emails, two FOIA requests to the FBI and two FOIA requests to the Secret Service. FAC ¶¶ 23-25, 30-32; Defs.' SMF ¶¶ 1-2, 22, 24. The plaintiffs explain that “[b]ecause these statements could be viewed as illegal incitement, they would likely have at least piqued the interest of federal law enforcement agencies if made by an ordinary citizen, ” and the FOIA requests were intended to obtain records regarding how “federal law enforcement agencies react to such statements from a major political party's candidate for President” and “convey their response or lack thereof to the public.” Pls.' Opp'n at 1.

         The responses by each agency are described below.

         A. FBI'S RESPONSE TO PLAINTIFFS' FOIA REQUESTS

         The plaintiffs' FOIA requests to the FBI seek: (1) “disclosure of any and all records, including investigative records, mentioning or referring to Donald J. Trump's statements on 9 August 2016, ‘If she gets to pick her judges, nothing you can do folks, ' and ‘Although the Second Amendment people - maybe there is, I don't know, '” (“Second Amendment Request”), Defs.' SMF ¶1 (quoting Defs.' Mot., Attach. 5, Decl. of David M. Hardy, Section Chief of Records Management Division (FBI), dated July 26, 2017 (“Hardy Decl.”) ¶ 5, ECF No. 18-5); and (2) “disclosure of any and all records, including investigative records, mentioning or referring to Donald J. Trump's statement on 27 July 2016, ‘Russia, if you're listening, I hope you're able to find the 30, 000 emails that are missing, ' and ‘I think you will probably be rewarded mightily by our press, '” (“Russia Reward Request”), id. ¶ 2 (quoting Hardy Decl. ¶ 5).[3]

         Relying on FOIA Exemptions 7(A) and 7(E), 5 U.S.C. §§ 552(b)(7)(A) & (E), the FBI, on November 18, 2016, issued Glomar responses, indicating the agency could “neither confirm nor deny the existence of records responsive” to either request. Id. ¶ 3-6 (quoting Hardy Decl. ¶¶ 7-8).[4] A few months later, however, on March 20, 2017, then-FBI director James Comey publicly acknowledged for the first time in congressional testimony an ongoing FBI counterintelligence investigation into “the Russian government's efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia's efforts.” Id. ¶ 7 (quoting Hardy Decl. ¶ 9).

         In light of the then-FBI Director's confirmation of an investigation, and interpreting the Russia Reward Request as seeking “records from the investigation that Director Comey acknowledged on March 20, 2017, ” the FBI withdrew “its Glomar response, and is now relying on FOIA Exemption (b)(7)(A) to withhold in full, on a categorical basis, all records responsive to the” Russia Reward Request. Id. ¶ 9 (citing Hardy Decl. ¶ 11). The FBI construed the Russia Reward Request to cover “all records from the relevant investigative files (which are now part of Special Counsel Mueller's Russia investigation), ” and therefore “assum[ed] that the universe of responsive records is co-extensive with the contents of the investigative files as they existed on March 20, 2017.” Hardy Decl. ¶ 29. The search of the “relevant investigative files” by counsel from the FBI's National Security and Cyber Law Branch “confirmed that all records responsive to Plaintiffs' request” are part of the Special Counsel's investigation, and served as the basis for the FBI's invocation of Exemption 7(A). Id. ¶¶ 30-31.

         The FBI's Glomar response to the Second Amendment Request relies on Exemptions 7(A) and 7(E). Defs.' SMF ¶ 4. The FBI explains that Exemption 7(A) is implicated because declaring “the existence or non-existence of any records responsive to the Second Amendment Request” would effectively acknowledge the existence or non-existence of “a pending investigation it has not previously acknowledged, and that, assuming such an investigation existed, ‘acknowledging its existence prematurely could reasonably be expected to hamper and interfere with it.'” Id. ¶ 12 (quoting Hardy Decl. ¶ 19). Similarly, the FBI invokes Exemption 7(E), explaining that confirming the existence or non-existence of a previously unacknowledged investigation “would expose information about the types of statements, actions, allegations, or threats the FBI deems appropriate to commit (or not commit) investigative resources toward, ” thereby providing “significant insight into the activities likely to attract (or not attract) the FBI's law enforcement attention, ” which insight could facilitate circumvention of the law without drawing the FBI's notice. Id. ¶ 13 (quoting Hardy Decl. ¶ 24).

         B. SECRET SERVICE'S RESPONSE TO PLAINTIFFS' FOIA REQUESTS

         The plaintiffs' FOIA requests to the Secret Service sought records regarding the agency's public statements in response to the statement by the New Hampshire legislator urging the shooting of the Democratic presidential candidate and Trump's “Second Amendment people” statement. FAC ¶¶ 30-32; Defs.' SMF ¶¶ 22, 24. Specifically, the request regarding the New Hampshire legislator urging the shooting of the Democratic presidential candidate, stated that “On 20 July 2016, U.S. Secret Service Spokesperson Robert Hoback gave the following statement to the Daily Beast: ‘The U.S. Secret Service is aware of this matter and will conduct the appropriate investigation, '” and requested “disclosure of any and all records that mention or refer to the matter, ” along with “any records compiled as part of any investigation into the referenced matter.” Defs.' SMF ¶ 22 (citing Defs.' Mot., Attach. 6, Decl. of Kim E. Campbell, Special Agent in Charge of Secret Service FOIA Division, dated July 12, 2017 (“Campbell Decl.”) ¶ 4, ECF No. 18-6). The plaintiffs' other request to the Secret Service stated that “On 9 August 2016, the U.S. Secret Service tweeted the following message: The Secret Service is aware of the comments made earlier this afternoon, ” and requested “disclosure of any and all records that mention or refer to these comments, ” along with “any records compiled as part of any investigation into the referenced comments.” Id. ¶ 24 (citing Campbell Decl. ¶ 3) (emphasis in original).

         The Secret Service interpreted the first request as seeking information regarding the agency's response to “comments that had been attributed to Alfred P. Baldasaro, a member of the New Hampshire House of Representatives: ‘Hillary Clinton should be put in the firing line and shot for Treason, '” id. ¶23 (citing Campbell Decl. ¶ 4), and the second request as referring to Trump's “Second Amendment people” statement, id. ¶ 24 (citing Campbell Decl. ¶ 3). Following a search of “all locations likely to contain responsive records, ” id. ¶ 25 (citing Campbell Decl. ¶ 7), and a “line by line [examination], to identify non-exempt information that could be reasonably segregated from exempt information for release, ” id. ¶ 36 (citing Campbell Decl. ¶ 21), the Secret Service, on or before February 17, 2017, produced “268 pages of responsive records, most of them in partially redacted form, ” id. ¶ 27 (citing Campbell Decl. ¶¶ 7-8). The Secret Service withheld information reflected in the partial redactions pursuant to FOIA Exemptions 5, 6, 7(C), and 7(E). Id. ¶ 28 (citing Campbell Decl. ¶ 8). While not disputing the adequacy of the Secret Service's search or withholdings under Exemptions 6 or 7(C), the plaintiffs dispute the redactions on 41 pages under Exemptions 5 and 7(E).[5]

         As urged by the plaintiffs, see Pls.' Reply Supp. Cross-Mot. Summ. J. (“Pls.' Reply”) at 22, ECF No. 27, the Court ordered the Secret Service to submit for in camera inspection the disputed redacted pages, see Minute Order, February 5, 2018.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if the movant 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). “In FOIA cases, ‘summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.'” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (quoting Consumer Fed'n of Am. v. U.S. Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)) (alteration adopted). Indeed, the D.C. Circuit has observed that “the vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).

         The 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) (quoting U.S. Dep't of Justice v. Julian, 486 U.S. 1, 8 (1988)). Reflecting the necessary balance between the public's interest in governmental transparency and “legitimate governmental and private interests that could be harmed by release of certain types of information, ” United Techs. Corp. v. U.S. Dep't of Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (quoting Critical Mass. Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc) (alterations omitted)), the FOIA contains nine exemptions, set forth in 5 U.S.C. § 552(b), which “are explicitly made exclusive and must be narrowly construed, ” Milner v. U.S. Dep't of Navy, 562 U.S. 562, 565 (2011) (internal quotation marks and citations omitted); see also Murphy v. Exec. Office for U.S. Attys., 789 F.3d 204, 206 (D.C. Cir. 2015); Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice (“CREW”), 746 F.3d 1082, 1088 (D.C. Cir. 2014); Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir. 2010). “[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976).

         In litigation challenging the sufficiency of “the release of information under the FOIA, ‘the agency has the burden of showing that requested information comes within a FOIA exemption.'” Pub. Citizen Health Research Grp. v. Food & Drug Admin., 185 F.3d 898, 904 (D.C. Cir. 1999) (quoting Niagara Mohawk Power Corp. v. U.S. Dep't of Energy, 169 F.3d 16, 18 (D.C. Cir. 1999)); see also U.S. Dep't of Justice v. Landano, 508 U.S. 165, 171 (1993) (noting that “[t]he Government bears the burden of establishing that the exemption applies”); Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979) (finding that the agency invoking an exemption bears the burden “to establish that the requested information is exempt”); Elec. Frontier Found. v. U.S. Dep't of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014). This burden does not shift even when the requester files a cross-motion for summary judgment because “the Government ‘ultimately [has] the onus of proving that the [documents] are exempt from disclosure, '” while the “burden upon the requester is merely ‘to establish the absence of material factual issues before a summary disposition of the case could permissibly occur, '” Pub. Citizen Health Research Grp., 185 F.3d at 904-05 (quoting Nat'l Ass'n of Gov't Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)) (alterations in original).

         An agency may carry its burden of showing an exemption was properly invoked by submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, or both, to demonstrate that the government has analyzed carefully any material withheld and provided sufficient information as to the applicability of an exemption to enable the adversary system to operate. See Judicial Watch, Inc., 726 F.3d at 215 (“In FOIA cases, ‘summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.'” (quoting Consumer Fed'n of Am., 455 F.3d at 287) (alteration adopted)); CREW, 746 F.3d at 1088 (noting that an agency's burden is sustained by submitting an affidavit that “describe[s] the justifications for nondisclosure with reasonably specific detail, demonstrate[s] that the information withheld logically falls within the claimed exemption, and [is] not controverted by either contrary evidence in the record nor by evidence of agency bad faith” (quoting Larson v. U.S. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009))); Oglesby v. U.S. Dep't of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (instructing that an agency's description “should reveal as much detail as possible as to the nature of the document, without actually disclosing information that deserves protection[, ] . . . [which] serves the purpose of providing the requestor with a realistic opportunity to challenge the agency's decision.” (internal citation omitted)). While “an agency's task is not herculean” it must “‘describe the justifications for nondisclosure with reasonably specific detail' and ‘demonstrate that the information withheld logically falls within the ...


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