United States District Court, District of Columbia
BERMAN JACKSON, UNITED STATES DISTRICT JUDGE
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,
” refusing to confirm or deny the existence
of responsive records.
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).
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
(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.
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.
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.
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].
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.'
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.”). 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.
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).
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).
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).
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).
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).
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
FOIA Exemption 7(A)
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.
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
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.
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. 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
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
Id. ¶ 26.
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] ¶¶
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. §
The Official Acknowledgment and Public Domain
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.
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”).
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).
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).
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).
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
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
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).
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.
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
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
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. 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.
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.
May 9, 2017 Statement in Comey Termination Letter
point to President Trump's May 9, 2017 letter to former
FBI Director James Comey. In terminating the Director ...