MEMORANDUM OPINION
CHRISTOPHER R. COOPER JUDGE
In
March 2017, Plaintiff Judicial Watch, Inc. submitted a
Freedom of Information Act (“FOIA”) request to
the Federal Bureau of Investigation (“FBI”), a
component of Defendant Department of Justice
(“DOJ”), regarding the FBI's relationship
with former British intelligence operative Christopher
Steele. When the FBI provided a Glomar response
stating that it could “neither confirm nor deny the
existence of records responsive to [Judicial Watch's]
request, ” see Declaration of David M. Hardy
(“First Hardy Decl.”), Ex. C, ECF No. 10-3,
Judicial Watch filed suit, see Complaint, ECF No. 1.
An initial round of summary judgment briefing followed,
focused on whether the FBI's Glomar response was
proper. See Mot. for Summ. J., ECF No. 9; Cross Mot.
for Summ. J., ECF No. 13. In February 2018, the Court held
that it was and granted DOJ's motion. See Order,
ECF No. 18.
Less
than a month later, Steele's relationship with the FBI
was declassified-meaning that records the Bureau had refused
to confirm or deny even existed were made public. Shortly
thereafter, Judicial Watch asked the Court to reconsider its
February 2018 order, see Pl's Mot. for
Reconsideration, ECF No. 20, the FBI withdrew its
Glomar response, see Response re Mot. for
Reconsideration, ECF No. 21, and the Court vacated its prior
order granting summary judgment to the government,
see Minute Order of March 26, 2018.
The FBI
has since conducted a search for records responsive to
Judicial Watch's request, and now seeks summary judgment
for a second time. See Def's Mot. for Summ. J.,
ECF No. 33. Judicial Watch opposes the Bureau's motion
and seeks summary judgment in its favor. See
Pl's Cross Mot. for Summ. J., ECF No. 38. Although
Judicial Watch initially questioned both the adequacy of the
Bureau's search and the propriety of its withholdings,
developments during the briefing of the competing motions
have winnowed the parties' dispute down to a single
issue: whether the FBI should have searched for records
post-dating Steele's service as an FBI confidential
source. On that score, and for the reasons that follow, the
Court agrees with Judicial Watch and will grant its
cross-motion for summary judgment.
I.
Background [1]
As
reported extensively by the media, during the 2016 election
former British intelligence operative Christopher Steele
compiled a 35-page dossier on then-candidate Donald Trump.
The dossier allegedly included “allegations that the
government of Russia possesses compromising personal and
financial information about President Trump.”
Id. The question of who commissioned and paid for
the Trump Dossier was a subject of much contention in media
and political circles.
On
February 28, 2017, the Washington Post reported that
the FBI had once intended to pay Steele to continue looking
into ties between then-candidate Trump and the Russian
government.[2] The story concluded that the FBI did not
pay Steele and noted that the FBI declined to comment on the
report. Eight days later, on March 8, 2017, Judicial Watch
lodged a FOIA request with the FBI seeking three categories
of documents related to the Post story:
1. Any and all records of communication between any official,
employee, or representative of the FBI and Steele.
2. Any and all records regarding, concerning, or related to
the proposed, planned, or actual payment of any funds to
Steele and/or his company Orbis Business Intelligence.
3. Any and all records produced in preparation for, during,
or pursuant to any meetings or telephonic conversations
between any official, employee, or representative of the FBI
and Steele and/or any employee or representative of his
company Orbis Business Intelligence.
First Hardy Decl. Ex. A, at 1.
As
discussed in the beginning of this opinion, when the FBI
failed to respond to this request in a timely fashion,
Judicial Watch filed suit under FOIA against the Department
of Justice. See Compl. ¶¶ 7, 11. That same
day, on May 16, 2017, the FBI issued a letter that asserted a
Glomar response to Judicial Watch's request,
refusing to confirm or deny the existence of any responsive
documents on the basis of six separate FOIA exemptions. First
Hardy Decl. Ex. C, at 1. After an initial round of summary
judgment briefing concerning the legitimacy of that
Glomar response, the Court sided with the
government. See Order, ECF No. 18.
Once
Steele's relationship with the FBI was declassified,
however, the Bureau withdrew its Glomar response,
see Response re Mot. for Reconsideration, and the
Court vacated its prior order granting summary judgment to
the government, see Minute Order of March 26, 2018.
The FBI followed up with a search for records responsive to
Judicial Watch's three requests. It searched Steele's
confidential human source (“CHS”) file and made
two productions of responsive, non-exempt records, releasing
five pages in full and another 85 in part. Second Declaration
of David M. Hardy (“Second Hardy Decl.”), ECF No.
34, ¶¶ 12, 22-24, 29. For the partial
redactions-and the 14 documents it withheld in full-the
Bureau claimed cover under FOIA Exemptions 1, 3, 6, 7(A),
7(C), 7(D), and 7(E). See generally Second Hardy
Decl.; see also 5 U.S.C. § 552(b)(1)-(7).
When
briefing began in this latest round of summary judgment
briefing, Judicial Watch found three faults with DOJ's
search and another two with its withholdings. See
Pl's Mem. Pts. and Auth. in Opp. to Def's Mot. Summ.
J. and in Supp. of Pl's Cross-Mot. for Summ. J.
(“Pl's Opp.”), ECF No. 37, at 2-3. After DOJ
conducted a supplemental search (though without admitting any
legal obligation to do so) and highlighted its alternative
bases for withholding certain records, Judicial Watch
concedes that just “[o]ne issue remains”-whether
DOJ improperly failed to search for “records of
communications with Steele after he was closed as a
confidential ...