United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. MEHTA UNITED STATES DISTRICT COURT JUD.
March 6, 2017, Plaintiffs The James Madison Project and Brad
Heath submitted a Freedom of Information Act
(“FOIA”) request to Defendant Department of
Justice for, among other things, orders by or applications to
the United States Foreign Intelligence Surveillance Court
concerning the Trump Organization, President Trump, President
Trump's campaign for the presidency, or people associated
with President Trump. See Def.'s Mot. for Summ.
J., ECF No. 40 [hereinafter Def.'s Mot.], Def.'s
Stmt. of Material Facts, ECF No. 40 at 1-11 [hereinafter
Def.'s Facts], ¶ 1; see also Pls.' Mot.
for Summ. J., ECF No. 41 [hereinafter Pl.'s Mot.], at 2
(incorporating Defendant's fact). On July 20, 2018, in
response to multiple FOIA requests like the one at issue
here, Defendant made public 412 pages, which constituted
“all responsive, non-exempt and reasonably segregable
information” from Foreign Intelligence Surveillance Act
(“FISA”) applications related to Carter Page.
See Def.'s Facts ¶ 11; see also
Pl.'s Mot. at 2.
released 412 pages were heavily redacted and identified a
range of FOIA exemptions to justify the withholdings. See
visited July 30, 2019).
continued redaction of 21 of the 412 pages is the sole
contested issue in the parties' cross-motions for summary
judgment. See Pl.'s Mot. at 1. The dispute
arises because, nearly two months after releasing
the 412 pages, on September 17, 2018, the White House
announced in a Press Release that President Trump had
directed the Office of the Director of National Intelligence
and the Department of Justice (including the FBI) to provide
for the immediate declassification of the following
materials: (1) pages 10-12 and 17-34 of the June 2017
application to the FISA court in the matter of Carter W. Page
. . .
See Pl.'s Mot. at 4; see also Press
Release, White House Press Secretary (Sept. 17, 2018),
(last visited July 30, 2019) [hereinafter Press Release].
Plaintiffs contend that the Press Release reflects a
presidential order to declassify the referenced 21 pages
(“the Pages”) in full. Yet, in this FOIA
litigation, Defendant has not withdrawn Exemptions 1 and
3-both based on the purported classification of the redacted
material-as a basis for withholding information from the
Pages. It also continues to assert other exemptions,
including Exemptions 7(D) and 7(E), to justify withholding
the same information. See Pl.'s Mot. at
Plaintiffs contend that the Press Release creates a genuine
dispute of material fact as to (1) whether Defendant validly
can maintain See Def.'s Facts ¶¶ 7-11.
“[N]o authorized government official has confirmed or
denied the existence of any other responsive FISA-related
records.” See Id. ¶ 12. Exemptions 1 and
3, and (2) whether the court can in good faith rely on
Exemptions 7(D) and 7(E) in the alternative to affirm the
cases, “the agency bears the burden of justifying its
decision to withhold requested information.” King
v. U.S. Dep't of Justice, 830 F.2d 210, 217 (D.C.
Cir. 1987). The agency here relies on FOIA Exemption 1 to
justify the redactions. That exemption protects against
disclosing matters that are “(A) specifically
authorized under criteria established by an Executive order
to be kept secret in the interest of national defense or
foreign policy and (B) are in fact properly classified
pursuant to such Executive order.” 5 U.S.C. §
552(b)(1). Conversely, Exemption 1 cannot apply to
information that has been declassified.
disputes that “the President, as head of the Executive
Branch, has broad declassification authority.” New
York Times Co. v. CIA, 314 F.Supp.3d 519, 526 (S.D.N.Y.
2018) (citing Dep't of Navy v. Egan, 484 U.S.
518, 527 (1988)). The question here is whether President
Trump exercised that authority with respect to the Pages.
Because the agency is asserting Exemption 1 with respect to
the Pages, it bears the burden of showing that the President
did not declassify the Pages in full.
asserts that “[t]here is no presidential
declassification order, and the President has publicly
indicated that he is not requiring declassification at this
time, much less full disclosure.” See
Def.'s Opp'n to Pl.'s Mot., ECF No. 43
[hereinafter Def.'s Opp'n], at 1. To support its
position, Defendant relies on legal arguments, and not sworn
declarations. To start, Defendant insists that the Press
Release is, “indisputably, a statement from the press
secretary, not an order from the President.”
Id. at 3. That argument, however, ignores the plain
text of the Press Release. It says that the President
“directed . . . the Department of Justice . .
. to provide for the immediate declassification” of the
Pages. Press Release (emphasis added). The Release's use
of the word “direct” suggests that the President
ordered the Department of Justice to declassify the
Pages. And, while it is true that the Press
Release is a statement of the Press Secretary, and not the
President, see Def.'s Opp'n at 3, Defendant
offers no reason to believe that the Press Release
inaccurately conveys the President's
“directive.” Thus, contrary to what Defendant
says, it would appear that the President did make “his
intentions clear . . . to declassify information.”
Defendant contends the Pages were not declassified because
the Press Release is “ambiguous as to what the
President may have directed.” Def.'s Opp'n at
3. That argument has it precisely backwards. The agency bears
the burden to show that Exemption 1 applies. It cannot carry
that burden by suggesting that a potential declassification
order is ambiguous. Rather, the agency must dispel any
ambiguity. In this case, that means Defendant must establish
that the Pages were not declassified in full. Defendant has
not done so.
Defendant argues that, whatever was meant by the Press
Release, the President later “made clear . . . that he
had not ordered the documents declassified.”
Id. Defendant points to a tweet from the President
four days after the Press Release, stating:
I met with the DOJ concerning the declassification of various
UNREDACTED documents. They agreed to release them but stated
that so doing may have a perceived negative impact on the
Russia probe . . . Therefore, the Inspector General has been
asked to review these documents on an expedited basis . . .
In the end I can always declassify if it proves necessary.
Def.'s Opp'n at 3-4. Defendant maintains that this
tweet makes “crystal clear” that the President
did not declassify documents relating to the Russia probe.
Id. at 4. Far from it. The tweet only injects
ambiguity as to the President's intentions. The tweet
does not identify the documents to which the President is
referring, let alone refer to the Pages, and it leaves
unclear whether the President rescinded the directive
announced in the Press Release. Ultimately, as Defendant