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Judicial Watch, Inc. v. U.S. Department of State

United States District Court, District of Columbia

March 13, 2019

JUDICIAL WATCH, INC., Plaintiff,
v.
U.S. DEPARTMENT OF STATE, Defendant.

          MEMORANDUM OPINION

          TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE.

         Plaintiff Judicial Watch made a Freedom of Information Act request for records about any requests by former Ambassador to the United Nations Samantha Power for intelligence reports related to Russia's attempts to influence the 2016 presidential election and other associated matters. Both Plaintiff and Defendant Department of State have moved for summary judgment. Because Defendant has more than adequately justified its Glomar response, its motion will be granted, and Plaintiff's motion will be denied.

         I. Background

         In October 2017, Plaintiff submitted a request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to the Department of State (“State”) for the following categories of records:

         First, “[a]ny and all requests for information, analyses, summaries, assessments, transcripts, or similar records submitted to any Intelligence Community member agency by former United States Ambassador to the United Nations Samantha Powers [sic] concerning, regarding, or relating to” (a) “[a]ny actual or suspected effort by the Russian government or any individual acting on behalf of the Russian government to influence or otherwise interfere with the 2016 presidential election”; (b) “[t]he alleged hacking of computer systems utilized by the Democratic National Committee and/or the Clinton presidential campaign”; (c) “[a]ny actual or suspected communication between any member of the Trump presidential campaign or transition team and any official or employee of the Russian government or any individual acting on behalf of the Russian government”; and (d) “[t]he identities of U.S. citizens associated with the Trump presidential campaign or transition team who were identified pursuant to intelligence collection activities.” ECF No. 8-2 at 1.

         Second, “[a]ny and all records or responses received by former United States Ambassador to the United Nations Samantha Powers [sic] and/or any employee, staff member, or representative of United States Mission to the United Nations in response to” those requests. Id. at 1-2.

         Third, “[a]ny and all records of communication between any official, employee, or representative of any Intelligence Community member agency and former United States Ambassador to the United Nation Samantha Powers [sic] and/or any employee, staff member, or representative of the United States Mission to the United Nations” related to those requests. Id. at 2.

         On February 9, 2018, Plaintiff filed this action without having received a response to its request. ECF No. 1. And in May 2018, State provided a Glomar response, declining to confirm or deny the existence of the requested records because, it asserted, doing so would itself reveal classified information protected by FOIA Exemptions 1 and 3.[1] ECF No. 8-4. The next month, State moved for summary judgment on those grounds. ECF No. 8. And the month after that, Plaintiff moved for summary judgment as well. ECF No. 9.[2]

         II. Legal Standard

         To prevail on a motion for summary judgment, a movant must show “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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). FOIA requires federal agencies to “disclose information to the public upon reasonable request unless the records at issue fall within specifically delineated exemptions.” Judicial Watch, Inc. v. FBI, 522 F.3d 364, 365-66 (D.C. Cir. 2008); see also 5 U.S.C. § 552(a)(3)(A). Thus, a FOIA defendant is entitled to summary judgment if it shows that there is no genuine dispute “that each document that falls within the class requested either has been produced, is unidentifiable or is wholly exempt from the Act's inspection requirements.” See Weisberg v. Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980) (quoting Nat'l Cable Television Ass'n, Inc. v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)). The “vast majority of FOIA cases” are decided on motions for summary judgment. See Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).

         An agency “may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under an FOIA exception.” Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982). In that circumstance, a Glomar response is “proper if the fact of the existence or nonexistence of agency records falls within a FOIA exemption.” Wolf, 473 F.3d at 374. To determine whether a Glomar response “fits a FOIA exemption, courts apply the general exemption review standards established in non-Glomar cases.” Id. An agency issuing a Glomar response must explain in as much detail as possible why it cannot confirm or deny the existence of certain records or categories of records, which it may seek to do by affidavit. James Madison Project v. Dep't of Justice, 208 F.Supp.3d 265, 283 (D.D.C. 2016). If a Glomar response is justified, “the agency need not conduct any search for responsive documents or perform any analysis to identify segregable portions of such documents.” People for the Ethical Treatment of Animals v. Nat'l Insts. of Health, Dep't of Health & Human Servs., 745 F.3d 535, 540 (D.C. Cir. 2014).

         III. Analysis

         A. Exemption 1

         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 disclosure. 5 U.S.C. § 552(b)(1). While the burden is on the agency to sustain any asserted exemption, id. at § 552(a)(4)(B), 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. v. NSA, 678 F.3d 926, 931 (D.C. Cir. 2012) (alteration in original) (quoting Ctr. for Nat'l Sec. Studies v. Dep't of Justice, 331 F.3d 918, 926-27 (D.C. Cir. 2003)). “[T]he text of Exemption 1 itself suggests that little proof or explanation is required beyond a plausible assertion that information is properly classified.” Morley v. CIA, 508 F.3d 1108, 1124 ...


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