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James Madison Project v. Central Intelligence Agency

United States District Court, District of Columbia

September 26, 2018

JAMES MADISON PROJECT, et al., Plaintiffs,
v.
CENTRAL INTELLIGENCE AGENCY, et al., Defendants.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE

         The James Madison Project, an organization concerned with promoting government accountability and reducing secrecy, and Noah Shachtman and Spencer Ackerman, an editor and reporter for the Daily Beast, have brought this suit against the Department of State, the Central Intelligence Agency (“CIA”), the Department of Defense (on behalf of the National Security Agency (“NSA”) and Defense Intelligence Agency (“DIA”)), and the Department of Justice (on behalf of the Federal Bureau of Investigation (“FBI”)) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq. Plaintiffs have made FOIA requests for “records memorializing the circumstances surrounding the decision by President Donald J. Trump (“President Trump”) to convey classified information to Russian Government officials during a May 10, 2017, meeting in the Oval Office.” Compl. [Dkt. # 1] ¶ 10. In response, the CIA, NSA, and FBI each issued what is known as a “Glomar response, ” refusing to do so much as confirm or deny the existence of responsive records in the agencies' possession on the grounds that even that information would be covered by a FOIA exemption.[1] Status Report [Dkt. # 7] ¶ 2.

         The parties agreed to litigate the propriety of the three Glomar responses before addressing, if necessary, the substantive responses issued by the State Department and DIA. Id. ¶ 4. Plaintiffs moved for partial summary judgment, arguing that the agencies waived their right to issue Glomar responses because the existence of responsive records has already been acknowledged. Pls.' Mot. for Partial Summ. J. [Dkt. # 8]; Mem. in Supp. of Pls.' Mot. for Partial Summ. J. [Dkt. # 8-1] (collectively, “Pls.' Mot.”) at 5-12. Defendants opposed the motion and filed their own motion for partial summary judgment. Defs.' Opp. to Pls.' Mot. & Cross-Mot. for Partial Summ. J. [Dkt # 10]; Mem. of P. & A. in Supp. of Defs.' Cross-Mot. [Dkt. # 10-1] (collectively, “Defs.' Cross-Mot”). Upon review of the full record, including the agencies' affidavits and the alleged “official disclosures, ” the Court will grant the motion for partial summary judgment in favor of the CIA, NSA, and FBI, and it will deny plaintiffs' motion. This opinion does not address any questions that may arise in connection with the FOIA responses by the State Department or DIA.

         BACKGROUND

         On May 22, 2017, plaintiffs filed identical FOIA requests to the CIA, NSA, DIA, FBI, and Department of State. Ex. 1 to Pls.' Mot. [Dkt. # 8-3] (“FOIA Requests”). The requests sought information related to a May 10, 2017 meeting in which President Trump allegedly shared “sensitive classified information” concerning a terrorist threat with the Russian Foreign Minister and the Russian Ambassador to the United States. Id. at 1. The requesters sought three categories of “records created, received and/or maintained” by the five agencies:

1) Any documentation - including, but not limited to, transcripts or notes - memorializing the contents of the discussion between President Trump and the two Russian Government officials in the Oval Office on May 10, 2017;
2) Any documentation relied upon for the purpose of briefing President Trump on the intelligence information that falls within the scope of information referenced in category #1, including, but not limited to, documentation that identified the country that had originally gathered the information; and
3) Any documentation - including documentation reflecting verbal statements - memorializing the briefing in which President Trump was informed of the intelligence information that falls within the scope of information referenced in category #1, including, but not limited to, documentation that identified the country that had originally gathered the information.

Id. at 2. Plaintiffs specified the relevant time frame of November 8, 2016, to the date of the agencies' searches. Id. They advised the agencies that they were “preemptively” arguing that a Glomar response would be improper given remarks made by President Trump and his then-National Security Advisor, H.R. McMaster, concerning the May 10 meeting.[2] Id. at 3.

         None of the defendant agencies provided substantive responses to the FOIA requests, so plaintiffs filed this suit on June 22, 2017 seeking to compel each agency to respond. See Compl. Subsequently, the CIA, NSA, and FBI issued Glomar responses, informing plaintiffs that “they can neither confirm nor deny whether they possess responsive materials without revealing information that is exempt from disclosure by FOIA.” Status Report [Dkt. # 7] ¶ 2. The DIA completed its search and informed plaintiffs that it did not identify responsive materials, and the Department of State explained that it needed more time to complete its search. Id. ¶ 3. The parties agreed to litigate the propriety of the Glomar responses before addressing other issues. Id. ¶ 4.

         On September 18, 2017, plaintiffs filed a motion for partial summary judgment, identifying five statements made by President Trump, McMaster, and then-Secretary of State Rex Tillerson, which they argued waived the agencies' right to rely upon Glomar responses. Pls.' Mot. at 5-13. Defendants opposed that motion and cross-moved for partial summary judgment asserting that all three agencies properly invoked Glomar responses under FOIA Exemptions 1 and 3 and that the FBI response was also justified under FOIA Exemption 7. Defs.' Cross-Mot. at 7-25. The three agencies also argued that none of the statements plaintiffs identified constituted an official acknowledgment of the information sought in plaintiffs' requests. Id. at 25-30.

         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 Dep't of Justice 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, 630-31 (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), citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). When an agency withholds documents or parts of documents, it must explain what it is withholding and specify 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.” Id. Such a response is appropriate when revealing the 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. Defendants' Glomar responses are justified under FOIA Exemptions 1 and 3. [3]

         The FOIA requests at issue here deal with whether the President received certain “sensitive classified information, ” and whether he shared it with foreign officials. Under those circumstances, plaintiffs do not challenge the applicability of FOIA Exemptions 1 and 3, which authorize government agencies to withhold information that is classified to protect national security and information that may not be disclosed under another federal law. But since an agency bears the burden of proving that a FOIA exemption applies, Tax Analysts, 492 U.S. at 142 n.3, and defendants have moved for summary judgment on this issue as a matter of law, the Court will briefly address the undisputed validity of these exemptions.

         FOIA Exemption 1 provides that matters that are “specifically authorized under criteria established by an Executive [O]rder to be kept secret in the interest of national defense or foreign policy and . . . are in fact properly classified pursuant to such Executive [O]rder” are exempt from production under FOIA. 5 U.S.C. § 552(b)(1). “[I]n the FOIA context, [the D.C. Circuit has] consistently deferred to executive affidavits predicting harm to the national security, and have found it unwise to undertake searching judicial review.” Ctr. for Nat'l Sec. Studies, 331 F.3d at 927. “The [agency's] arguments need only be both ‘plausible' and ‘logical' to justify the invocation of a FOIA exemption in the national security context.” ACLU v. U.S. Dep't of Def., 628 F.3d 612, 624 (D.C. Cir. 2011) (“ACLU I”), quoting Wolf, 473 F.3d at 374-75; see also Morley v. CIA, 508 F.3d 1108, 1124 (D.C. Cir. 2007) (“[T]he text of Exemption 1 itself suggests that little proof or explanation is required beyond a plausible assertion that information is properly classified.”). The D.C. Circuit has advised courts to accord substantial deference to an agency's Glomar response when the information requested “implicat[es] national security, a uniquely executive purview.” Elec. Privacy Info. Ctr., 678 F.3d at 931, quoting Ctr. for Nat'l Sec. Studies, 331 F.3d at 926-27.

         Here, the three agencies' declarants aver that the question of whether or not these agencies have responsive records is itself a classified fact that is protected by Executive Order and that disclosure of this fact could pose a risk to national security. The agencies all rely on Executive Order 13, 526 which protects from disclosure classified information concerning “intelligence activities (including covert action), intelligence sources or methods, or cryptology.” See Decl. of David M. Hardy [Dkt. # 10-2] (“FBI Decl.”) ¶ 20, quoting Exec. Order No. 13, 526 (“E.O. 13, 526”), 75 Fed. Reg. 707 (Dec. 29, 2009); see also Decl. of Antoinette B. Shiner [Dkt. # 10-4] (“CIA Decl.”) ¶ 20; Decl. of David J. Sherman [Dkt. # 10-3] (“NSA Decl.”) ¶ 22.

         As to whether the requested information could reasonably be expected to damage national security, the FBI declarant avers:

Specifically, an official FBI acknowledgment that confirms or denies the existence or nonexistence of responsive FBI records would indicate the FBI's involvement in collecting, analyzing, and/or disseminating intelligence regarding the terror plot described in Plaintiffs' FOIA request. It would also reveal the existence or nonexistence of an FBI intelligence interest in the May 10th meeting, as well as intelligence sources and methods related to the collection of intelligence from diplomatic meetings generally. This would reveal classified and statutorily-protected information.

FBI Decl. ¶ 20; see also id ¶¶ 26, 28.

         The NSA declarant similarly avers that confirming whether responsive records exist within the agency's files is a classified fact because disclosure “would permit the public at large to determine information concerning the focus and direction of the NSA's intelligence efforts, as well as its capabilities, sources, and methods, ” and it “would disclose at minimum, that [signal intelligence], ” was or was not involved in the discussions that took place at the May 10th meeting. NSA Decl. ¶ 9; see also Id. ¶¶ 18, 26.

         Finally, the CIA declarant avers that a Glomar response is justified under Exemption 1 because:

It would be alerting and possibly alarming for foreign countries to learn that CIA was somehow involved or interested in specific diplomatic meetings, signaling to both the diplomats and the world that there was something about the diplomatic meeting that warranted CIA involvement. Here, for example, acknowledging the existence of records responsive to [p]laintiffs' FOIA request would tend to reveal that CIA actually participated in the White House meeting with the Russian diplomats; used the meeting to obtain intelligence from or about the Russian officials; had an intelligence interest in, information about, or relationship with the Russian officials; and/or had an intelligence interest in the topic discussed at the meeting, including alleged discussions about intelligence information allegedly provided by Israel about an alleged terrorist threat related to the use of laptop computers on commercial flights.

CIA Decl. ¶ 22. And on the other hand, “if it were disclosed that CIA was not involved or interested in a particular meeting with a foreign diplomat, then it would signal to the diplomat that his or her activities or the topics discussed were not of interest to CIA, ” which could be “problematic if, for example, the foreign diplomat is clandestinely engaging in intelligence-related activities because it would suggest that his or her activities have gone undetected by CIA activities, as it would indicate.” Id.

         After examining the declarations submitted by the three agencies in support of their motion, the Court is satisfied that they have put forth a “plausible” and “logical” argument in support of their ...


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