United States District Court, District of Columbia
A. HOWELL CHIEF JUDGE.
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. 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.
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),
ECF No. 18-1. 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.
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.
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.
responses by each agency are described below.
FBI'S RESPONSE TO PLAINTIFFS' FOIA REQUESTS
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).
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). 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).
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.
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.
SECRET SERVICE'S RESPONSE TO PLAINTIFFS' FOIA
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).
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
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.
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).
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).
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
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 ...