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James Madison Project v. Department of Justice

United States District Court, District of Columbia

September 7, 2018

JAMES MADISON PROJECT, et al., Plaintiffs,
v.
DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON, UNITED STATES DISTRICT JUDGE

         Plaintiffs Josh Gerstein, a journalist, and The James Madison Project, an organization established “to promote government accountability, ” Compl. [Dkt. # 1] ¶ 3, brought this suit against the Department of Justice (“DOJ”), and the Federal Bureau of Investigation (“FBI”), under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq. They have requested records related to the question of “whether President Donald J. Trump is or ever was a target of, subject of, or material witness to any investigation.” Id. ¶ 6. The government issued what is known as a “Glomar response, ”[1] refusing to confirm or deny the existence of responsive records.

         DOJ has moved for summary judgment, and plaintiffs opposed the motion and filed their own motion for partial summary judgment. They argue that the President waived the government's right to insist on confidentiality with a Glomar response by making a series of public statements, including tweets, in which plaintiffs contend he officially acknowledged the existence of responsive records. Upon review of the full record, including the agency's affidavits, the parties' supplemental filings, and each of the alleged “official statements, ” the Court will grant defendant's motion for summary judgment, and it will deny plaintiffs' motion. The government has met its burden of establishing that the information withheld is protected under FOIA Exemption 7(A), and none of the President's statements satisfy the “stringent test required to establish . . . a waiver.” Pub. Citizen v. Dep't of State, 11 F.3d 198, 199 (D.C. Cir. 1993).

         BACKGROUND

         On May 12, 2017, plaintiffs submitted a FOIA request to DOJ. Ex. A to Castellano Decl. [Dkt. # 11-2] (“FOIA Request”). They sought the following records “created, received and/or maintained by the Office of Attorney General (“AG”), the Office of the Deputy Attorney General (“DAG”), and/or the Office of the Associate Attorney General (“AAG”)”:

(1) Any records memorializing discussions between Department of Justice (“DOJ”) staff and FBI staff regarding whether President Trump is or ever was a target of, subject of or material witness to any investigation; and
(2) Any records memorializing disclosures to President Trump or any White House staff regarding whether President Trump is or ever was a target of, subject of or material witness to any investigation;
(3) Any records memorializing discussion among DOJ staff regarding the appropriateness of informing President Trump if he is or ever was a target of, subject of or material witness to any investigation; and
(4) Any records memorizing [sic] discussion between DOJ staff and FBI staff regarding the appropriateness of informing President Trump if he is or ever was a target of, subject of or material witness to any investigation.

Id.

         Plaintiffs asked for records from the period of January 1, 2016, to the date of DOJ's search. Id. They submitted an identical FOIA request to the FBI, a component of DOJ, on May 12, 2017. Ex. A to Hardy Decl. [Dkt. # 11-1] (“FOIA Request”). As part of their request, plaintiffs advised the agencies that the letter in which President Trump terminated then-FBI Director James Comey “stated that Director Comey had informed him on three separate occasions that he (President Trump) was not under investigation.” FOIA Request at 1. The requestors also noted that in a subsequent interview with NBC News, the President stated that he asked Comey, “[A]m I under investigation?” and that Comey responded, “You are not under investigation.” Id. at 1-2.

         On June 20, 2017, the FBI issued its Glomar response asserting that the agency could “neither confirm nor deny the existence of any records” responsive to plaintiffs' request pursuant to FOIA Exemptions 7(A) and 7(E). Ex. C to Hardy Decl. [Dkt. # 11-1]. Plaintiffs administratively appealed this decision, but the agency's final response was affirmed. Ex. D to Hardy Decl. [Dkt. # 11-1]; Ex. C to Hardy Decl. [Dkt. # 11-1]. The DOJ did not issue a separate response to the same FOIA request. Compl. ¶ 22.

         On July 14, 2017, plaintiffs filed a two-count complaint against DOJ. See Compl. In count one, plaintiffs challenged DOJ's failure to respond to their request, and in count two they challenged the FBI's response. Id. ¶¶ 23, 32. After the suit was filed, DOJ responded by also issuing a Glomar response, based solely on FOIA Exemption 7(A). Ex. C to Castellano Decl. [Dkt. # 11-2].

         Defendant moved for summary judgment, arguing that its Glomar response was justified under FOIA Exemption 7(A) and that the existence of responsive records had not been officially acknowledged. Def.'s Mot. for Summ. J. [Dkt. 11] (“Def.'s Mot.”). Plaintiffs then cross-moved for partial summary judgment and identified additional statements from President Trump which they argued waived the DOJ's Glomar response. Pls.' Cross. Mot. for Partial Summ. J. [Dkt. # 13]; Pls.' Mem. in Supp. of Pls.' Mot. [Dkt. # 13-1], (collectively, “Pls.' Cross-Mot.”).

         After the motions were fully briefed, plaintiffs moved to supplement the factual record with more statements, including tweets, from President Trump which they contend constitute additional official disclosures. See Mot. For Leave to Suppl. the Factual Record [Dkt. # 21] (“First Factual Suppl.”); Mot. For Leave to Suppl. the Record [Dkt. # 22] (“Second Factual Suppl.”); Mot. for Leave to Suppl. the Record [Dkt. # 24] (“Third Factual Suppl.”); Mot. for Leave to Suppl. the Record [Dkt. # 25] (“Fourth Factual Suppl.”).[2] Most recently, plaintiffs filed motions to again supplement the record with additional statements from the President and they also requested oral argument. Mot. for Leave to Suppl. the Record and for Oral Argument [Dkt. # 28] (“Fifth Factual Suppl.”); Mot. for Leave to File Suppl. the Record [Dkt. # 29] (“Sixth Factual Suppl.”). The Court granted the motions to supplement, but it has determined that there is no need for oral argument.

         STANDARD OF REVIEW

         Summary judgment is appropriate “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). The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). When the court is presented with cross-motions for summary judgment, it analyzes the underlying facts and inferences in each party's motion in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

         The mere existence of a factual dispute is insufficient to preclude summary judgment. Id., at 247-48. A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving party; a fact is “material” only if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987).

         FOIA cases are typically and appropriately decided on motions for summary judgment. Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). 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 award summary judgment based solely on information provided in an agency's affidavits or declarations that identify “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). These affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.'” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981).

         ANALYSIS

         FOIA requires government agencies to release records upon request in order to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). The statute provides that: “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person, ” 5 U.S.C. § 552(a)(3)(A), unless the records fall within one of nine narrowly construed exemptions. See 5 U.S.C. § 552(b); FBI v. Abramson, 456 U.S. 615, 630 (1982). This framework “represents a balance struck by Congress between the public's right to know and the government's legitimate interest in keeping certain information confidential.” Ctr. for Nat'l Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003). When an agency withholds documents or parts of documents, it must explain what it is withholding and the statutory exemptions that apply. See Vaughn v. Rosen, 484 F.2d 820, 825-28 (D.C. Cir. 1973).

         In some instances, however, the government may refuse to even confirm or deny the existence of responsive records. Wolf v. CIA., 473 F.3d 370, 374 (D.C. Cir. 2007). This is called a “Glomar response.” Such a response is appropriate when revealing the very fact that an agency possesses responsive records would itself “cause harm cognizable under [a] FOIA exception.” Id., quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982) (internal quotation marks omitted).

         To justify a Glomar response, the agency must supply the court with a detailed affidavit that explains why it cannot provide a substantive response pursuant to a FOIA exemption. Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926, 931 (D.C. Cir. 2012). To determine whether a Glomar response “fits a FOIA exemption, courts apply the general exemption review standards established in non-Glomar cases.” Wolf, 473 F.3d at 374.

         I. FOIA Exemption 7(A)

         FOIA Exemption 7(A) permits agencies to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A).

         Plaintiffs do not dispute that the information sought is covered by this exemption. Instead, they argue that the executive branch has waived its right to assert the exemption as the basis for its Glomar response because the existence of responsive records has already been disclosed through official statements. See Pls.' Cross-Mot. at 5-13. Nonetheless, an agency bears the ultimate burden of proving that a FOIA exemption applies, Tax Analysts, 492 U.S. at 142 n.3, so the Court will begin its analysis there before moving on to the question of whether the exemption has been waived.

         To justify the withholding of records under Exemption 7(A), DOJ must “demonstrate that ‘disclosure (1) could reasonably be expected to interfere with (2) enforcement proceedings that are (3) pending or reasonably anticipated.'” Citizens for Responsibility & Ethics in Wash. v. DOJ, 746 F.3d 1082, 1096 (D.C. Cir. 2014) (“CREW”), quoting Mapother v. DOJ, 3 F.3d 1533, 1540 (D.C. Cir. 1993). In creating the exemption, Congress recognized that “law enforcement agencies ha[ve] legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it [comes] time to present their case.” CREW, 746 F.3d at 1096, quoting Robbins Tire & Rubber Co., 437 U.S. at 224.

         The FBI's declarant confirmed that on March 20, 2017, the then-FBI Director, James Comey, testified before the House Permanent Select Committee on Intelligence (“HPSCI”) that the agency was

investigating the Russian government's efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any link between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia's efforts.

Hardy Decl. [Dkt. # 11-1] ¶ 19.[3] But at that time, the FBI Director cautioned that “[b]ecause it is an open, ongoing investigation and is classified, I cannot say more about what we are doing and whose conduct we are examining.” Id.

         The FBI's declarant avers that the “Russia investigation” is still ongoing, so to the extent plaintiffs' request can be interpreted as a request for records pertaining to that effort, merely confirming the existence of responsive records could significantly hamper the investigation. Id. ¶¶ 20-21.

[O]fficial confirmation of who is or who is not considered a subject or witness in an investigation would also alert others - including other potential subjects and witnesses - about the focus and scope of the investigation, which could influence their behavior and testimony in ways that adversely affects the investigation. Specifically, it would arm them with valuable information necessary to alter or offensively structure their testimony, and also to take defensive actions to conceal their activities, elude detection, and destroy, adulterate, or fabricate evidence. It would also expose any potential witnesses or sources to harassment, intimidation, or coercion. This is true regardless of whether or not responsive records exist. That is, regardless of whether a particular individual is or is not subject or witness in the pending investigation, such information provides those intent on interfering with the investigation additional pieces of information necessary to target their behaviors in such a way as to maximize the effect of any efforts to undermine the investigation.

Id. ¶ 26.

         The FBI declarant adds that if plaintiffs' request is interpreted to extend beyond the Russia investigation, it would relate to a pending investigation that the agency has not publicly acknowledged. Id. ¶ 27. The agency asserts that prematurely revealing an investigation carries the same risks identified above and could ultimately interfere with the agency's ability to determine whether a crime was committed. Id. In further support of the motion for summary judgment, DOJ submitted a similar declaration. See Castellano Decl. [Dkt. # 11-2] ¶¶ 12-13.

         Based on the Court's review of defendant's declarations, it concludes that the agency has supplied sufficient information to support its claim that merely revealing whether or not responsive records exist would give rise to a risk of interference with law enforcement proceedings that are pending or reasonably anticipated; therefore, a Glomar response is justified under Exemption 7(A). See CREW, 746 F.3d at 1096; 5 U.S.C. § 552(b)(7)(A).

         II. The Official Acknowledgment and Public Domain Doctrine

         Once the defendant has met its burden of establishing that the FOIA exemption applies, the burden shifts to plaintiffs to prove that the government waived its right to invoke the exemption through a prior official statement. See Pub. Citizen, 11 F.3d at 201.

         It is well established that a FOIA plaintiff may compel disclosure of information “even over an agency's otherwise valid exemption claim” if the government previously “officially acknowledged” the information. ACLU v. DOD, 628 F.3d 612, 620 (D.C. Cir. 2011). The rationale behind the doctrine is that once information has become public, any damage the agency fears from disclosure has already been sustained. See Niagara Mohawk Power Corp. v. U.S. Dep't of Energy, 169 F.3d 16, 19 (D.C. Cir. 1999). This is commonly referred to as an “official acknowledgement” challenge or the “public domain exception.” See ACLU v. CIA, 710 F.3d at 422, 426-27 (D.C. Cir. 2013) (using the terms interchangeably) (“ACLU”).

         A plaintiff mounting this type of challenge “bears the initial burden of pointing to specific information in the public domain that duplicates that being withheld.” Pub. Citizen, 11 at 201; see also Mobley v. CIA., 806 F.3d 568, 583 (D.C. Cir. 2015) (same).

         The D.C. Circuit has imposed a “strict test” to be applied to claims of official disclosure. Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011). Information is officially acknowledged by an agency where: (1) “the information requested [is] as specific as the information previously released, ” (2) the requested information “match[es] the information previously disclosed, ” and (3) the requested information was already “made public through an official and documented disclosure.” Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990).

         In Glomar cases, however, a plaintiff need not show that that the actual contents of the particular records sought have been disclosed; rather they must establish that the agency has previously acknowledged the fact of the existence of responsive records. Marino v. DEA, 685 F.3d 1076, 1081 (D.C. Cir. 2012).

         The D.C. Circuit has articulated the official acknowledgment test in Glomar cases as follows:

[I]f the prior disclosure establishes the existence (or not) of records responsive to the FOIA request, the prior disclosure necessarily matches both the information at issue - the existence of records - and the specific request for that information.

Wolf, 473 F.3d at 379. This standard has been reaffirmed by the D.C. Circuit in subsequent Glomar cases. See Moore, 666 F.3d at 1333 (holding that a plaintiff must “pinpoint an agency record that both matches the plaintiff's request and has been publicly and officially acknowledged by the agency.”); see also Mobley v. CIA., 806 F.3d 568, 583 (D.C. Cir. 2015) (re-stating the three-part Fitzgibbon official acknowledgement test).

         The D.C. Circuit has repeatedly emphasized the importance of the applying this test with rigor, because “the fact that information exists in some form in the public domain does not necessarily mean that official disclosure will not cause harm cognizable under a FOIA exemption.” Wolf, 473 F.3d at 378, citing Fitzgibbon, 911 F.2d. at 766. Therefore, “[p]rior disclosure of similar information does not suffice; instead, the specific information sought by the plaintiff must already be in the public domain by official disclosure.” Morley v. CIA., 508 F.3d 1108, 1124 (D.C. Cir. 2007) (emphasis in original).

         If a court determines that a Glomar response has been waived because the information was previously officially acknowledged, then the government must either: “(1) disclose the record to the requester or (2) establish that its contents are exempt from disclosure and that such exemption has not been waived.” Moore, 666 F.3d at 1333. In other words, a failed Glomar response “does not mark the end” of a case. ACLU, 710 F.3d at 432. Instead, the case is remanded to the agency to process the FOIA request and assert any exemptions to disclosure on a document by document based on their content. Wolf, 473 F.3d at 379-80.

         III. The Statements

         Plaintiffs do not point to any statements issued by the FBI or DOJ that explicitly acknowledge that the agency has records on whether President Trump was or is a target, subject, or material witness of an investigation. Indeed, the only official statement in the record made by the FBI is the March 2017 Congressional testimony of then-Director Comey, in which he expressly declined to provide details on the Russia investigation, much less whether any particular individuals had been designated to be targets, subjects, or witnesses: “Because it is an open, ongoing investigation and is classified, I cannot say more about what we are doing and whose conduct we are examining.” Comey Congressional Testimony.

         Plaintiffs base their case solely on statements made by President Trump, including some of his early morning tweets. Plaintiffs invite the Court to conclude that responsive records exist based on the President's summaries of conversations he had with the former FBI director as well as a number of vague, and sometimes hostile, comments made on social media concerning the investigation.

         The D.C. Circuit has recognized that a President may be capable of waiving an agency's Glomar response in some circumstances. Although typically a “[d]isclosure by one federal agency does not waive another agency's right to assert a FOIA exemption, ” Mobley, 806 F.3d at 583, a prior disclosure “made by an authorized representative of the agency's parent, ” including the President, can trigger a waiver. ACLU, 710 F.3d at 426 n.7.[4] However, this does not mean that any statement from the President automatically waives an agency's Glomar response. The Court must consider whether the President's statement meets the other requirements of the official acknowledgment test, including the rule that the information publicly disclosed must “match” the information sought in the request. Fitzgibbon, 911 F.2d at 765.

         Plaintiffs bear the burden of overcoming the government's Glomar response by pointing to the “specific information in the public domain that duplicates that being withheld, ” Pub. Citizen, 11 F.3d at 201, and here, they have directed the Court's attention to twelve statements by the President which they describe as relating to the “Russian collusion” investigation or the alleged “obstruction of justice” investigation. Pls.' Cross-Mot. at 4. Based on the individual analysis to be set forth below, the Court finds that none of the statements identified by the plaintiffs satisfy the stringent legal test for an official acknowledgment. No. statement explicitly acknowledges the existence of responsive records within the FBI or DOJ, and none of them “match” the information sought in the FOIA request. Moreover, the Court cannot infer that the President based any of his assertions on FBI and DOJ records because he makes no reference to any such material in his statements, Moore, 666 F.3d. at 1333, and none of the statements provided are “tantamount to an acknowledgment” that the FBI or DOJ has responsive records. ACLU, 710 F.3d at 431.[5]

         1. May 9, 2017 Statement in Comey Termination Letter

         Plaintiffs point to President Trump's May 9, 2017 letter to former FBI Director James Comey. In terminating the Director ...


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