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Buzzfeed, Inc. v. Department of Justice

United States District Court, District of Columbia

September 26, 2018

BUZZFEED, INC., et al., Plaintiffs,



         Plaintiffs BuzzFeed, Inc. (“BuzzFeed”), a media corporation, and two of its journalists, Peter Aldhous and Charles Seife, have sued the Department of Justice (“DOJ”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., seeking documents from the Federal Bureau of Investigation (“FBI”) concerning its aerial surveillance program. In particular, plaintiffs request flight logs and evidence logs associated with twenty-seven planes, identified by their unique tail numbers and the locations where they were allegedly sighted: the Washington, D.C./Baltimore area, California, and New York. Although the agency acknowledges the general existence of the aerial surveillance program, it refuses to confirm or deny whether records exist for these particular aircraft, asserting that merely stating whether the records exist is itself covered by a FOIA exemption. This is commonly known as a “Glomar response” to a FOIA request, and it can be overcome by a showing that the information has already been officially disclosed.[1]

         The parties have filed cross-motions for summary judgment, and the Court will grant summary judgment in favor of DOJ and deny plaintiffs' motion since it finds that the agency's invocation of the FOIA exemptions was proper and that the particular information sought has not been officially acknowledged. At bottom, the Court agrees that simply revealing whether or not the FBI has records concerning any of these particular airplanes would be enough to let the cat out of the bag. Disclosing this information - which has never been officially acknowledged by the FBI before - would interfere with law enforcement proceedings, and disclose law enforcement techniques in a way that would risk circumvention of the law.


         Plaintiffs submitted a FOIA request to the FBI on March 4, 2016 seeking to examine the government's aerial surveillance practices. Ex. A to First Hardy Decl. [Dkt. # 9-1] (“FOIA Request”). The request sought records on “recent surveillance or monitoring flights, ” and it identified twenty-seven planes presumed to be “associated with FBI surveillance operations.”[2] Id. The following twenty-seven planes were listed by their tail numbers as “recently observed” in the “greater DC/Baltimore area, ” “California, ” and the “greater New York area”:

[T]he greater DC/Baltimore area:
N208EB, N467TS, N539MY, N610AG, N629ET, N632MR, N632TK, N728MP and N859JA
N143GS, N168DK, N301A, N404KR, N514NY, N610AG, N632TK, N657TP, N879WM and N956D
[G]reater New York area:
N232DW, N236KS, N461AJ, N520EP, N629BA, N687RT, N910LF, N912EX, N916WR, and N6971A.

Id. For each of these aircraft, plaintiffs requested the “flight logs” and “evidence logs” from August 15, 2015 through the present. Id.

         After acknowledging receipt of the request, the FBI informed plaintiffs that due to unspecified “unusual circumstances” there would be a delay in processing their request. Def.'s Statement of Material Facts Not In Dispute [Dkt. # 9] (“Def.'s SOF”) ¶ 3; Pls.' Statement of Material Facts Not In Dispute [Dkt. # 13-1] (“Pls.' SOF”) ¶ 1.

         On May 2, 2016, the FBI issued its Glomar response, asserting that it could neither confirm nor deny the existence of records for the specified aircraft pursuant to FOIA Exemption 7(E) since disclosure of this information would reveal law enforcement techniques and procedures that would risk circumvention of law enforcement efforts. Def.'s SOF ¶ 4; Pls.' SOF ¶ 1. Plaintiffs administratively appealed this decision, but the agency affirmed the Glomar response. Def.'s SOF ¶¶ 7-8; Pls.' SOF ¶ 1.

         Having exhausted their administrative remedies, plaintiffs filed this lawsuit on May 15, 2017, seeking to compel the agency to turn over the requested records. Compl. [Dkt. # 1]. Thereafter, the government moved for summary judgment on the basis that its Glomar response was justified under FOIA Exemption 7(E), and it also invoked Exemption 7(A) for the first time, arguing that acknowledging the existence of these records could interfere with pending law enforcement investigations, should any exist. Def.'s Mot. for Summ. J. [Dkt. # 9]; Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. [Dkt. # 9] (“Def.'s Mot.”).

         In response, plaintiffs opposed defendant's motion and cross-moved for summary judgment. Pls.' Cross-Mot. for Summ. J. [Dkt. # 12]; Mem. of P. & A. in Opp. to Def.'s Mot. & In Supp. of Pl.'s Mot for Cross-Mot. for Summ. J. [Dkt. # 12] (“Pls.' Cross-Mot.”). They maintain that FOIA Exemption 7(A) does not apply because the agency failed to identify “specific proceedings” that would be compromised. Pls.' Cross-Mot. at 10. Plaintiffs also argue that the agency's right to rely on a Glomar response under Exemption 7(E) has been waived by the “abundance of public information linking these aircraft to FBI missions, ” which reduces or eliminates the risk of circumvention of law enforcement efforts. Id. at 1, 11-14.


         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).


         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).

         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. The FOIA exemptions were properly invoked.

         A. ...

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