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James Madison Project v. United States Department of Justice

United States District Court, District of Columbia

July 30, 2019

JAMES MADISON PROJECT, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION AND ORDER

          AMIT P. MEHTA UNITED STATES DISTRICT COURT JUD.

         I. On 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.[1]

         The released 412 pages were heavily redacted and identified a range of FOIA exemptions to justify the withholdings. See https://vault.fbi.gov/d1-release/d1-release (last visited July 30, 2019).

         Defendant's 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), https://www.whitehouse.gov/briefings-statements/statement-press-secretary-34/ (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 4-8.[2] 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 withholdings.

         II.

         In FOIA 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.[3] 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.

         No one 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.[4]

         Defendant 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.[5] 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.” Id.

         Next, 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.

         Additionally, 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 concedes, ...


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