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Property of People v. United States Department of Justice

United States District Court, District of Columbia

April 23, 2018

PROPERTY OF THE PEOPLE, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION

          JAMES E. BOASBERG UNITED STATES DISTRICT JUDGE.

         Plaintiffs want to know more about President Donald Trump's relationship with the Federal Bureau of Investigation. More specifically, they wonder about Trump's interactions with the agency before he became President: “Was he friend or foe? A reliable or unreliable informant? The target of an investigation into serious misconduct? A cooperative or uncooperative witness?” ECF No. 14 (Pl. MSJ) at 14. Or, perhaps, “did he never cross paths with the FBI at all?” Id. In search of answers, Plaintiffs submitted a request under the Freedom of Information Act to Defendant Department of Justice. The Government, as it is wont to do with law-enforcement records, issued a so-called “Glomar” response, meaning that it would neither confirm nor deny whether it maintained any such documents about Trump.

         Plaintiffs responded by filing suit in this Court, and both parties have now moved for partial summary judgment. While the Court affirms that the Government may generally refuse to answer Plaintiffs' request, questions remain about whether “there exists a [narrow] category of responsive documents for which a Glomar response would be unwarranted.” PETA v. NIH, 745 F.3d 535, 545 (D.C. Cir. 2014). The Court therefore concludes that even partial summary judgment for either party is inappropriate, at least for the time being.

         I. Background

         Plaintiffs are Jason Leopold, an investigative reporter for Buzzfeed News; Ryan Shapiro, a PhD candidate at MIT; and Property of the People, a non-profit “dedicated to governmental transparency, ” including “for the Administration of Donald J. Trump.” Compl., ¶¶ 1-3. Together, they share an interest in whether “Donald Trump's past interactions with the FBI . . . [are] prologue to the current tumultuous relationship between the President and the Bureau.” Pl. MSJ at 1. To that end, they submitted a FOIA request on March 16, 2017, seeking access to eight categories of records, all ostensibly related to Trump. See ECF No. 12-2 (First Declaration of David M. Hardy, Exh. A). First, they requested records referencing several FBI files: Nos. 194-NK-88595, 166-LV-29911, 137-NY-19967, 137-22152, and 92-PH-99239. Id. They attached documents, released from previous FOIA requests, showing Trump's name associated with each case number. Id. As a catch-all, they also sought “[a]ny and all records mentioning or referring to the living person Donald John Trump” from June 14, 1946, to June 15, 2015 - the day before he announced his candidacy for president. Id.

         That last catch-all category is the only issue currently before the Court. The FBI has treated this group of records as distinct from Plaintiffs' requests tied to specific case numbers, opening a separate case within its FOIPA Document Processing System with its own tracking number (No. 1369375-000). See ECF No. 12-1 (First Hardy Decl.), ¶ 6. On March 23, 2017, the FBI issued a letter refusing to confirm or deny the existence of any law-enforcement records within that category. Id., Exh. B. After an unsuccessful administrative appeal, id., Exhs. C & D, Plaintiffs timely brought suit in this Court on June 18, 2017. The parties have now filed Cross- Motions for Partial Summary Judgment as to whether the agency fulfilled its FOIA obligations for “records mentioning or referring to . . . Donald John Trump.” Gov't MSJ at 2.

         II. Legal Standard

         Summary judgment may 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). A genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to construe the conflicting evidence in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).

         FOIA cases typically and appropriately are decided on motions for summary judgment. See Defenders of Wildlife v. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009); Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C. 2007). In FOIA cases, the agency bears the ultimate burden of proof. See DOJ v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989). The Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they describe “the documents and 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.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

         III. Analysis

         Generally, FOIA requires an agency to conduct a search and make requested records available unless they fall within one of the statute's nine enumerated exemptions. See 5 U.S.C. § 552(a)(3)(A), (b)(1)-(9). When an agency does withhold documents, it typically must explain what has been withheld and why. See, e.g., Vaughn v. Rosen, 484 F.2d 820, 825-28 (D.C. Cir. 1973) (requiring “relatively detailed” and “specific” explanations of withholdings). There is, however, an exception when “confirming or denying the existence of [certain] records would” itself reveal protected information. Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 893 (D.C. Cir. 1995). Such a reply is called a Glomar response, named after a Cold-War-era CIA project that the agency wished to keep confidential. See Marino v. DEA, 685 F.3d 1076, 1078 n.1 (D.C. Cir. 2012); Phillippi v. Cent. Intelligence Agency, 546 F.2d 1009, 1011 (D.C. Cir. 1976).

         In this case, the FBI has dusted off its Glomar playbook, refusing to “confirm or deny” whether it maintains records mentioning or referring to Trump. For such a (non-)response to be appropriate, the Government must show that revealing the very existence of records would “cause harm cognizable under a[] FOIA exception.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007). The exception principally at issue here is Exemption 7(C). That exemption protects “records of information compiled for law enforcement purposes . . . to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). In Glomar cases, Exemption 7(C) allows agencies to conceal the existence of responsive documents if the presence of such records in the agency's system would “associate the individual named in the request with criminal activity” or otherwise compromise the person's privacy. Nation Magazine, 71 F.3d at 893.

         Plaintiffs challenge the Government's 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, they argue that the agency has previously “officially acknowledged” that the requested records exist. If so, that would waive any right to offer a Glomar response. See Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011) (internal citation omitted). Second, they contend that even if not waived, Defendant has failed to justify its Glomar response under Exemption 7(C). The Court takes each argument in turn.

         A. Waiver

         Plaintiffs first posit that “[t]he FBI's broad Glomar response is untenable in light of its previous release of responsive records bearing Donald Trump's name.” Pl. MSJ at 4 (emphases omitted). It is true that agencies cannot rely on Exemption 7(C) - or any other exemption - to withhold “information that has been ‘officially acknowledged' or is in the ‘public domain.'” Davis v. DOJ, 968 F.2d 1276, 1279 (D.C. Cir. 1992). Here, Plaintiffs cite a litany of documents that the FBI released pursuant to previous FOIA requests, each of which either “mention[s] or refer[s]” to Donald Trump. Those materials include:

. Cover sheets from litigation related to Trump's Mirage Hotel, see First Hardy Decl., Exh. A (Addenda A & B);
. A 1981 FBI report mentioning Trump and his Atlantic City casinos, id. (Addendum C);
. A complaint apparently filed against a Trump employee, id. (Addendum E);
. Several news articles briefly referencing Trump, id. (Addendum F); Pl. MSJ, Exh. 1; Second ...

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