United States District Court, District of Columbia
MEMORANDUM OPINION
JAMES
E. BOASBERG UNITED STATES DISTRICT JUDGE.
Although
the Special Counsel's investigation into Russian election
interference may have come to an end, this long-running
litigation over the Comey Memos marches on. Since the
existence of the Memos first came to light, Plaintiff Cable
News Network has steadfastly sought copies of these
documents, which were penned by then-Federal Bureau of
Investigation Director James Comey to memorialize his
meetings with President Trump. Last year, this Court ruled
that the ongoing nature of the Special Counsel's
investigation barred the records from release under the
Freedom of Information Act. Much has changed since. Most
notably, Defendant FBI publicly released lightly redacted
copies of the Memos, and the Special Counsel's
investigation has concluded. Still hoping to see what lies
beneath the few remaining redaction boxes, CNN now renews its
quest for disclosure. It also asks the Court to release an in
camera declaration submitted by the Bureau to justify its
withholding in this litigation's last go-round. The FBI
resists both requests. Finding that the Government has
partially - but not completely - met its burden on the Memos,
the Court will grant in part and deny in part both the
FBI's Motion for Summary Judgment as well as
Plaintiff's Cross-Motion. Presented with little
meaningful opposition from Defendant to Plaintiff s Motion
for Access to Judicial Records, moreover, the Court will also
grant CNN's request to see the unredacted declaration.
I.
Background
Given
the array of prior Opinions and the extensive press coverage
on this topic, the background of this case will be familiar
to most not lost at sea for the past couple of years. The
Court will thus offer only a brief synopsis of the facts that
first led to this lawsuit, saving its ink for events that
have transpired since its last telling. Readers curious for a
more comprehensive treatment are directed to this Court's
earlier Opinions. See Cable News Network, Inc. v. FBI
(CNN III), 298 F.Supp.3d 124, 125-27 (D.D.C. 2018);
Cable News Network, Inc. v. FBI (CNN II), 293
F.Supp.3d 59, 65-67, 69-70 (D.D.C. 2018); Cable News
Network, Inc. v. FBI (CNN I), 271 F.Supp.3d
108, 110 (D.D.C. 2017).
As
Director of the FBI, Comey authored several confidential
memoranda immediately following his meetings with President
Trump. The purpose of such documentation, Comey later
reported, lay in his concern that the President “might
lie about the nature of [their] meeting.” CNN
II, 293 F.Supp.3d at 66 (citation omitted). After Trump
fired Comey from his post, the existence of these records did
not stay secret. Within a week, a New York Times
story catapulted the Memos to the forefront of public
consciousness, galvanizing CNN and others to seek their
release. Id. at 65-66. As a means to get its hands
on these written narratives, CNN employed a well-known tool:
the Freedom of Information Act, 5 U.S.C. § 552 et
seq. Unhappy with the Government's rebuff of its
request, Plaintiff filed suit here.
Unmoved,
the FBI invoked a slew of FOIA exemptions, including 1, 3, 6,
7(C), and 7(E). See CNN II, 293 F.Supp.3d at 69.
Most notably, however, Defendant relied on the protection of
Exemption 7(A), which shields documents whose release
“could reasonably be expected to interfere with
enforcement proceedings, ” 5 U.S.C. § 552(b)(7)(A)
- namely, the then-nascent Special Counsel's
investigation into Russian interference in the 2016
presidential election. To aid the Court in understanding why
release could obstruct the investigation, the Government
submitted two declarations from FBI Special Agent David W.
Archey in camera. See CNN II, 293 F.Supp.3d
at 66-67. It also provided additional explanation in a
sealed, on-the-record proceeding. Id. at 67.
Digesting this material and thereafter agreeing that the
pendency of the investigation shielded the Memos from
release, the Court granted Defendant's motion for summary
judgment. Id. at 77. “[T]he Comey Memos,
” the Court said, “at least for now, will remain
in the hands of the Special Counsel and not the
public.” Id. at 65. In making this decision,
the Court relied on Exemption 7(A) only, without passing on
the merit of the FBI's other claimed exemptions.
Id. at 69.
Understandably
disappointed, CNN appealed. But before much could happen in
that legal proceeding, outside circumstances intervened. In
response to a congressional request, the Department of
Justice agreed to turn over copies of the Comey Memos to the
Hill - its calculation altered, it appears, by the recent
publication of Comey's memoir - but only after redacting
what it deemed to be classified information. See ECF
No. 69, Attach. 3 (Def Statement of Facts), ¶ 14; ECF
No. 70 (Pl. MSJ & Opp.) at 27 (Pl. Statement of Facts),
¶¶ 3-4. The deletions were fairly minor, and these
versions of the Memos soon found themselves splashed across
the front pages of multiple outlets. See Def. SOF,
¶ 14; Pl. SOF, ¶ 5. The FBI then followed suit.
Believing that its tight-handedness could no longer be
justified, it published the redacted versions of the Memos on
its public site, which is dubbed the Vault. See Def.
SOF, ¶ 15. In light of these developments and
“subsequent statements by government officials that
release of the memoranda would no longer adversely impact any
ongoing investigation, ” the D.C. Circuit remanded the
case to this Court for further proceedings without deciding
the merits of Plaintiffs appeal. See Cable News Network,
Inc. v. FBI, No. 18-5041, 2018 WL 3868760, at *1 (D.C.
Cir. Aug. 8, 2018). With the ball now back in this Court, the
facts on the ground stand thus: the vast majority of the
Memos have been publicly released, but some minor redactions
remain.
The FBI
has again moved for summary judgment. It invokes multiple
FOIA exemptions to justify keeping the redacted snippets of
the Comey Memos from public view - namely, Exemptions 1, 3,
and 7. See ECF No. 69, Attach. 1 (Def MSJ) at 9, 17,
19. Believing the Government overzealous in its
protectiveness, CNN, too, has moved for summary judgment,
urging the Court to order release of the information
underlying all 24 redactions remaining in the Memos.
See Pl. MSJ & Opp. at 6, 17, 18, 20. As in the
last iteration of this investigation, the Court ordered the
FBI to produce in camera unredacted versions of the
Memos to the Court. See Minute Order of Mar. 28,
2019. This has been done.
Plaintiff
has also taken another step in its efforts to deliver
information withheld by the Government to the public eye. It
filed a second motion in this case, this time seeking access
to the two in camera Archey Declarations from the
last round of briefing and a transcript of the sealed, ex
parte proceeding that the Court relied upon in its
earlier Opinion. As the legal bases for this relief, it leans
on both the First Amendment and common-law rights of access
to judicial records. See ECF No. 72 (Pl. Access
Mot.) at 1. On this count, the FBI has shown some
flexibility. In response to CNN's Motion, Defendant
released both Archey Declarations with redactions. See ECF
No. 76 (Def. Access Opp.) at 2; see also ECF No. 74, Attach.
1, Exh. A (Redacted Third Archey Declaration) & Exh. B
(Redacted First Archey Declaration). Plaintiff, however, is
not yet satisfied and maintains its request for access to the
unredacted documents. See ECF No. 78 (Pl. Access
Reply) at 1-2. In order to provide thorough consideration,
here, too, the Court required the Government to provide
unredacted copies of the declarations at issue in camera.
See Minute Order of Mar. 28, 2019.
Despite
this already protracted saga, the tale is not yet over.
Demonstrating, again, the ability of real-world events to
outpace judicial proceedings, the Special Counsel announced
the end of his investigation after the latest round of
briefing in this case had been completed. Because the
Government's opposition to releasing some of the
materials requested by CNN relied, in part, on the ongoing
nature of that investigation, the Court ordered the FBI to
file a notice indicating whether the investigation's
conclusion altered the positions taken in its briefs.
See Minute Order of Apr. 1, 2019. In response, the
Government agreed to release one of the two Archey
Declarations at issue in full and narrowed the redactions of
the second. See ECF No. 79 (First Def. Response) at
2. A week later, the FBI filed another copy of this redacted
declaration, removing again some of the claimed redactions
and explaining its rationale for retaining the remainder.
See ECF No. 81 (Def. Notice) at 1. Defendant also
withdrew its reliance on one exemption - namely, Exemption
7(A), which protects information collected for ongoing
law-enforcement proceedings. See First Def. Response
at 1. The import of that last concession is narrow, however.
The FBI's invocation applied to only one redaction in the
Comey Memos, and Defendant maintained that two other
exemptions continued to shield this information from public
release. Id.
Just a
few days after this response from the Government, the Special
Counsel's Report was publicly released in redacted form.
As this disclosure, too, could affect the FBI's
calculation, the Court sought to learn “whether such
release alters the Government's position in relation to
any withheld portions of the Comey memos, the Archey
Declaration, or the ex parte proceeding.” Minute Order
of Apr. 18, 2019. Once again, this development resulted in a
further softening of the Bureau's stance. More
specifically, it dropped its objection to release of the
transcript of the ex parte proceeding. See
ECF No. 84 (Second Def Response) at 2. The Court thus ordered
the Government to turn over that transcript to Plaintiff.
See Minute Order of May 7, 2019.
Winnowed
down over this lengthy history, what remains disputed are the
propriety of 24 redactions to the Comey Memos and a handful
of redactions to one Archey Declaration. After setting out
the legal standards that govern its analysis, the Court will
turn to the merits of these two legal quarrels.
II.
Legal Standard
Summary
judgment may be granted 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). A genuine issue of material fact is one
that would change the outcome of the litigation. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) (“Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”). In the event
of conflicting evidence on a material issue, the Court is to
construe the conflicting evidence in the light most favorable
to the non-moving party. See Sample v. Bureau of
Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).
FOIA
cases typically and appropriately are decided on motions for
summary judgment. See Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 527 (D.C. Cir. 2011); see
also Defenders of Wildlife v. U.S. Border Patrol 623
F.Supp.2d 83, 87 (D.D.C. 2009); Bigwood v. U.S. Agency
for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C. 2007).
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 grant summary judgment
based solely on information provided in an agency's
affidavits or declarations when they “describe 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.” Larson v. Dep't of
State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation
omitted). “Uncontradicted, plausible affidavits showing
reasonable specificity and a logical relation to the
exemption are likely to prevail.” Ancient Coin
Collectors Guild v. U.S. Dep't of State, 641 F.3d
504, 509 (D.C. Cir. 2011). This standard applies most
saliently in national-security cases. See ACLU v.
U.S. Dep't of Def., 628 F.3d 612, 624 (D.C.
Cir. 2011). That said, “[u]nlike the review of other
agency action that must be upheld if supported by substantial
evidence and not arbitrary or capricious, the FOIA expressly
places the burden ‘on the agency to sustain its
action' and directs the district courts to
‘determine the matter de novo.'” U.S.
Dep't of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. §
552(a)(4)(B)).
Plaintiffs
separate request for access to judicial records under the
common law - the only ground ultimately addressed in this
Opinion - is governed by a two-part inquiry. The Court will
save a rehearsal of that legal framework for the relevant
discussion below.
III.
Analysis
It
begins with Plaintiffs attempt to pry from the
Government's clutches the remaining text in the Comey
Memos that has not yet seen the light of day. The Court will
next consider CNN's request for access to the full Archey
Declaration.
A.
Comey Memos
FOIA,
Plaintiff says, entitles it to view the unredacted Memos.
Congress enacted this law “to pierce the veil of
administrative secrecy and to open agency action to the light
of public scrutiny.” Dep't of the Air Force v.
Rose, 425 U.S. 352, 361 (1976) (quotation marks and
citation omitted). In doing so, FOIA helps “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.”
John Doe Agency v. John Doe Corp., 493 U.S. 146, 152
(1989) (citation omitted). 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). Consistent with this statutory mandate, federal
courts have jurisdiction to order the production of records
that an agency improperly withholds. See Id. §
552(a)(4)(B); Reporters Comm., 489 U.S. at 754-55.
The
Government need not, however, turn over requested information
that falls into one of nine statutorily created exemptions
from FOIA's broad directive. See 5 U.S.C. §
552(b)(1)-(9). These exemptions are to be “narrowly
construed.” Rose, 425 U.S. at 361. That is so
because courts must “[a]t all times . . . bear in mind
that FOIA mandates a ‘strong presumption in favor of
disclosure.'” Nat'l Ass'n of Home
Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002)
(quoting U.S. Dep't of State v. Ray, 502 U.S.
164, 173 (1991)).
Plaintiff
no longer challenges the adequacy of the Government's
search, an issue the Court addressed in its prior Opinion,
see CNN II, 293 F.Supp.3d at 68-69, nor does it
question Defendant's representation as to the number of
pertinent Memos in existence. See Pl. MSJ & Opp.
at 5. What remains disputed, therefore, is solely the
propriety of the FBI's 24 withholdings pursuant to the
listed exemptions.
Because
“the Government may withhold documents or portions
thereof as long as [one] privilege applies, ” Cause
of Action Inst. v. U.S. Dep't of Justice, 330
F.Supp.3d 336, 351-52 (D.D.C. 2018), the Court “need
not address the other exemptions invoked” for any
particular withholding justified by a single exemption. See
Ctr. for Nat'l Sec. Studies v. U.S. Dept' of
Justice, 331 F.3d 918, 925 (D.C. Cir. 2003). The FBI
here continues to rely on Exemptions 1 and 3, which, for ease
of discussion, the Court addresses in reverse order. The
parties have labeled the redactions numerically and refer to
blocks of redactions in their briefs grouped by subject
matter. The Court follows suit.
1.
Exemption 3
First
up is Exemption 3, which the Bureau invokes to protect
redactions 8 through 19. This exemption permits agencies to
withhold information “specifically exempted from
disclosure by [a] statute” that meets one of two
requirements. See 5 U.S.C. § 552(b)(3). Namely,
that statute must either “(A)(i) require[] that the
matters be withheld from the public in such a manner as to
leave no discretion on the issue; or (A)(ii) establish[]
particular criteria for withholding or refer[] to particular
types of matters to be withheld.” Id. The
applicability of Exemption 3 turns largely on the terms of
the statute, as the “sole issue” necessary to
invoke the exemption's protection is “the existence
of a relevant statute and the inclusion of the withheld
material within the statute's coverage.” Morley
v. CIA, 508 F.3d 1108, 1126 (D.C. Cir. 2007) (citation
omitted). Although the invocation of other FOIA exemptions
depends on “the detailed factual contents of specified
documents, ” Exemption 3's applicability is thus
more categorical. Id.
As its
statutory basis for withholding here, the FBI rests on
Section 102A(i)(1) of the National Security Act of 1947,
codified at 50 U.S.C. § 3024(i)(1). It contends that
this statute, which provides that “[t]he Director of
National Intelligence shall protect intelligence sources and
methods from unauthorized disclosure, ” Id.,
“prohibits]” the disclosure of the redacted
information and thus “leaves no discretion” to
the Bureau. See ECF No. 69, Attach. 2 (Fifth David
M. Hardy Declaration), ¶¶ 41-42.
CNN
does not dispute, “nor could [it], ” that this
Act “is a valid Exemption 3 statute.” DiBacco
v. U.S. Army, 795 F.3d 178, 197 (D.C. Cir. 2015); see
also Elec. Privacy Info. Ctr. v. Dep't of
Justice, 296 F.Supp.3d 109, 121 (D.D.C. 2017) (noting
that Director of National Intelligence “has delegated
enforcement of this National Security Act mandate to the
heads of the 17 agencies that constitute the
‘Intelligence Community, '” including FBI);
Pl. MSJ & Opp. at 17-18 (discussing Exemption 3
arguments). The remaining question thus becomes whether the
redacted information falls within the statute's coverage
- i.e., whether turning over the information would
result in the disclosure of “intelligence sources and
methods.” 50 U.S.C. § 3024(i)(1).
The
D.C. Circuit has interpreted this provision of the Act
broadly, holding that material is properly withheld if it
“relates to intelligence sources and methods, ”
Larson, 565 F.3d at 865 (emphasis added) (citation omitted),
or “can reasonably be expected to lead to unauthorized
disclosure of such material. See Halperin v. CIA,
629 F.2d 144, 147 (D.C. Cir. 1980) (citation omitted). Courts
have recognized that the Act's protection of sources and
methods is a “near-blanket FOIA exemption.”
Elec. Privacy Info. Ctr. v. Office of Dir. of Nat'l
Intelligence, 281 F.Supp.3d 203, 213 (D.D.C. 2017)
(citation omitted); accord Whalen v. U.S. Marine Corps, 407
F.Supp.2d 54, 59 n.5 (D.D.C. 2005) (quoting Minier v.
CIA, 88 F.3d 796, 801 (9th Cir. 1996)). It includes the
“power to withhold superficially innocuous information
on the ground that it might enable an observer to discover
the identity of an intelligence source [or method].”
CIA v. Sims, 471 U.S. 159, 178 (1985). This is so
because, in the intelligence context, “bits and pieces
of data may aid in piecing together bits of other information
even when the individual piece is not of obvious importance
in itself.” Id. (internal quotation marks
omitted).
The
Bureau's assessments in this realm must not be lightly
brushed off. In enacting the National Security Act,
“Congress gave [the intelligence agencies] broad power
to control the disclosure of intelligence sources.”
Sims, 471 U.S. at 173. “[I]t is the
responsibility of” these agencies, and “not that
of the judiciary, to weigh the variety of complex and subtle
factors” inherent in the intelligence context.
Id. at 180. Because of this “‘sweeping
power,' courts are required to give ‘great
deference' to the [agency's] assertion that a
particular disclosure could reveal intelligence sources or
methods.” Whitaker v. CIA, 64 F.Supp.3d 55,
63-64 (D.D.C. 2014) (quoting Berman v. CIA, 501 F.3d
1136, 1140 (9th Cir. 2007)).
Having
reviewed both the Government's rationale and the
unredacted Memos, the Court concludes that the FBI has met
its minimal burden. At issue here are several redactions
whose disclosure - as described in the Bureau's publicly
filed affidavit - would reveal whether the FBI used
information from “confidential intelligence
sources” and the “reliability of that
information, ” as well as the Bureau's possible
reliance on particular intelligence methods to gather other
material. See Fifth Hardy Decl., ¶ 31
(characterizing redaction blocks 10-19). Other portions of
the redactions concern “a statement about information
known to the FBI concerning Lieutenant General Flynn as of a
particular date” and “non-public details about to
whom a defensive intelligence briefing was provided.”
Id. (characterizing redaction blocks 8-9).
If the
redacted text were made public, the FBI says, it would reveal
Defendant's intelligence practices “at a particular
time and in relation to a particular set of
circumstances.” Id., ¶¶ 32; accord
Id., ¶ 33. This is knowledge that, the Bureau
contends, “[adversaries could use . . . in conjunction
with other information” to “reveal particular,
singular details about the FBI's intelligence interests,
priorities, activities, and methods.” Id.,
¶¶ 32-33. For this reason, the Bureau contends that
the information properly falls within the statute's
coverage. Id., ¶ 44; see also Def MSJ
at 17-18.
Combining
the D.C. Circuit's broad interpretation of the statutory
language and the deference owed to the FBI's
determination, the Court has little trouble concluding that
the redacted information “relates” to
intelligence sources and methods. See Larson, 565
F.3d at 865. This is particularly so because, as mentioned
above, the Bureau is empowered to “withhold
superficially innocuous information on the ground” that
it may offer ...