MEMORANDUM OPINION
AMY
BERMAN JACKSON UNITED STATES DISTRICT JUDGE.
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.
BACKGROUND
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
California:
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.
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).
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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