Cable News Network, Inc. v. Federal Bureau of Investigation

          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 ...