United States District Court, District of Columbia
PROPERTY OF THE PEOPLE, INC. et al. Plaintiffs,
DEPARTMENT OF JUSTICE, Defendant.
G. Sullivan, United States District Judge.
Property of the People, Inc., a non-profit organization, and
its founder, Ryan Noah Shapiro, bring this lawsuit against
the United States Department of Justice (“DOJ”)
under the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552. Plaintiffs seek records from the Federal
Bureau of Investigation (“FBI”)-a component of
DOJ-concerning its investigative and non-investigative files
of a former Congressman who publicly confirmed that the FBI
warned him that Russian spies were attempting to recruit him.
Pending before the Court are the parties’ cross-motions
for summary judgment. Upon careful consideration of the
parties’ submissions, the applicable law, and the
entire record, the Court GRANTS IN PART and
DENIES IN PART Defendant’s Renewed
Motion for Summary Judgment and GRANTS IN
PART, DENIES IN PART, and
HOLDS IN ABEYANCE IN PART Plaintiffs’
Cross-Motion for Summary Judgment. The Court
DEFERS ruling on the issues of segregability
and the applicability of the “official
acknowledgement” doctrine with respect to certain
19, 2017, the New York Times published an article
stating that, in 2012, the FBI warned former Congressman Dana
Rohrabacher of California that Russian spies were attempting
to recruit him as an “agent of influence.”
Pls.’ Ex. 1, ECF No. 26-3 at 3; see also
Pls.’ Statement of Material Facts (“Pls.’
SOMF”), ECF No. 26-1 at 1 ¶ 1. In an interview for
the article, Congressman Rohrabacher confirmed that the FBI
met with him and that “meeting had focused on his
contact with one member of the Russian Foreign Ministry, whom
he recalled meeting on a trip to Moscow.” Pls.’
SOMF, ECF No. 26-1 at 1 ¶ 1. The article includes a
quote from Congressman Rohrabacher, stating that the FBI
agents “were telling [him that] he had something to do
with some kind of Russian intelligence” and one of the
agents told him that “Moscow ‘looked at [him] as
someone who could be influenced.’” Id. 1
¶ 2; see also Pls.’ Ex. 5, ECF No. 26-3
at 16 (“[Congressman] Rohrabacher has been of value to
the Kremlin, so valuable in recent years that the F.B.I.
warned him in 2012 that Russia regarded him as an
intelligence source worthy of a Kremlin code
20, 2017, Plaintiffs submitted a FOIA request to the FBI,
seeking: “Any and all records constituting, mentioning,
or referring to the living person Dana Tyrone
Rohrabacher . . . . This request is intended to
include both investigative and non-investigative files (e.g.
correspondence to or from Rep. Rohrabacher in his capacity as
a member of Congress).” Ex. A, Decl. of Michael G.
Seidel (“Seidel Decl.”), ECF No. 24-1 at 45
(emphasis in original). Plaintiffs attached the New York
Times article to their request, and they explained that
Congressman Rohrabacher “is known for his friendship
with Vladimir Putin and defense of Russia.”
Id. at 46. Plaintiffs asserted that Congressman
Rohrabacher waived his privacy interests because he publicly
disclosed the 2012 meeting. Id. Upon receipt of the
FOIA request, the FBI declined to confirm or deny the
existence of any investigative records-in FOIA terms, a
Glomar response-to protect the privacy rights of
third parties. Def.’s Statement of Material Facts
(“Def.’s SOMF”), ECF No. 24 at 6
Glomar response, the FBI advised Plaintiffs that it
could not confirm or deny the existence of any other records
pertaining to Congressman Rohrabacher unless one of three
conditions were met: “(1) the requester provides a
notarized authorization (privacy waiver) from the third
party, (2) the requester provides proof of death, or (3) the
requestor demonstrates a public interest in the records
sufficient to outweigh the third party’s individual
privacy rights.” Id. at 6 ¶ 13.
Subsequently, the FBI modified its Glomar response,
determined that Congressman Rohrabacher waived his privacy
interests by making public statements about the 2012 meeting,
and conducted a search for responsive records. Seidel Decl.,
ECF No. 24-1 at 9-10 ¶ 18.
used its databases-the Central Records System
(“CRS”), the Universal Index (“UNI”)
application of the Automated Case Support (“ACS”)
system, and the next generation case management system
(“Sentinel”)-for the initial search. Def.’s
SOMF, ECF No. 24 at 7-8 ¶¶ 22-23, 8 ¶¶
24-26. The FBI crafted search terms, including “Dana
Tyrone Rohrabacher, ” “Dana T. Rohrabacher,
” and “Dana Rohrabacher, ” and the FBI used
Congressman Rohrabacher’s date of birth and other
personal identifying information. Seidel Decl., ECF No. 24-1
at 17-18 ¶ 35. The FBI contacted its Office of
Congressional Affairs, the Washington Field Office, and the
Office of the Executive Secretariat to find responsive
records. Def.’s SOMF, ECF No. 24 at 8 ¶ 29, 9
¶ 31; see also Seidel Decl., ECF No. 24-1 at 17
¶ 34. The FBI searched the internal databases of the
Office of Congressional Affairs and the Office of the
Executive Secretariat. See Seidel Decl., ECF No.
24-1 at 21 ¶ 42; see also Decl. of David M.
Hardy (“Hardy Decl.”), ECF No. 30-1 at 10 ¶
17. Unsatisfied, Plaintiffs challenged the adequacy of the
searches. Seidel Decl., ECF No. 24-1 at 19 ¶ 38.
an administrative appeal of a fee waiver, id. at 4
¶ 9, Plaintiffs filed this action on August 24, 2017.
See generally Compl., ECF No. 1. The FBI released
230 responsive pages pertaining to Congressman Rohrabacher
between January and March 2018, and 29 pages in November
2018. See, e.g., Def.’s SOMF, ECF No. 24 at 5
¶¶ 6-10; Pls.’ Resp. to Def.’s SOMF,
ECF No. 25-1 at 2-3; Seidel Decl., ECF No. 24-1 at 21 ¶
43. The FBI withheld certain documents and redacted
information under FOIA Exemptions 3, 6, 7(C), (7)(D), and
(7)(E). Def.’s SOMF, ECF No. 24 at 5
¶ 7, 6 ¶ 10. As the FBI made its productions, the
parties filed cross-motions for summary judgment in May and
June 2018, respectively. See generally Docket of
Civil Action No. 17-1728.
litigation had already begun, Plaintiffs learned that
Congressman Rohrabacher, Paul J. Manafort, Jr. (“Mr.
Manafort”), and “a senior Company A
lobbyist” attended a March 2013 meeting about Ukraine
in the District of Columbia, and Plaintiffs sought the
FBI’s records regarding the investigation into that
meeting.Pls.’ Cross-Mot. for Summ. J.,
ECF No. 16 at 12; see also Statement of Offense,
United States v. Richard W. Gates III, Criminal
Action No. 17-201-2 (D.D.C. Feb. 23, 2018), ECF No. 206 at 7
¶ 16 (stating that the “Member of Congress,
” who met with Mr. Manafort and the lobbyist, served
“on a subcommittee that had Ukraine within its
purview”). Congressman Rohrabacher’s
spokesperson confirmed that he was the “Member of
Congress” referenced in the court filing, and that
former Congressman Vin Weber, who was a lobbyist, attended
the meeting. Pls.’ SOMF, ECF No. 26-1 at 4 ¶¶
12-13; see also Pls.’ Ex. 8, ECF No. 26-3 at
September 2018, the government withdrew its motion for
summary judgment to conduct an additional search after the
initial round of briefing. Def.’s Notice of Withdrawal,
ECF No. 19 at 1. The FBI searched for responsive records
regarding the SCO’s investigation, but that search did
not yield any responsive records. Seidel Decl., ECF No. 24-1
at 18 ¶ 36. The FBI also contacted the SCO, and the SCO
confirmed that there were no records within the scope of
Plaintiffs’ FOIA request. Id. at 19 ¶ 37.
The FBI maintained that it could neither confirm nor deny
responsive investigative records concerning Congressman
Rohrabacher outside of his official duties as a
member of Congress. Id. at 41 ¶ 83. The FBI
released records “associated with Congressman
Rohrabacher’s execution of his official duties as a
United States Congressman.” Id. Dissatisfied,
Plaintiffs challenged the search and the scope of the
Glomar response. See Hardy Decl., ECF No.
30-1 at 3 ¶ 6, 5 ¶ 10.
parties renewed their cross-motions for summary judgment. In
the second round of briefing, DOJ argues that it is entitled
to summary judgment because it properly applied the
Glomar response, it conducted adequate searches, it
appropriately invoked Exemptions 3, 6, 7(C), 7(D), and 7(E),
and it reasonably segregated the non-exempt information from
the exempt information. Def.’s Renewed Mot. for Summ.
J. (“Def.’s Mot.”), ECF No. 24 at 20-30. In
support of its motion, DOJ submits two declarations from the
FBI’s Assistant Section Chief of the Record/Information
Dissemination Section (“RIDS”), Information
Management Division (“IMD”), see Seidel
Decl., ECF No. 24-1 at 1 ¶ 1, and the FBI’s
Section Chief of RIDS, IMD, see Hardy Decl., ECF No.
30-1 at 1 ¶ 1. Plaintiffs move for summary judgment,
see Pls.’ Mot., ECF No. 26 at 1, arguing that:
(1) the declarations constitute hearsay and the declarants
lack personal knowledge, id. at 6-8; (2) the
Glomar response is unwarranted because the
“FBI has narrowly pierced the Glomar veil by
carving out a category of responsive documents, ”
id. at 11; (3) the FBI improperly invokes Exemption
7(C) because Congressman Rohrabacher has a de
minimis privacy interest, id. at 9-12; (4) the
FBI failed to conduct adequate searches of its investigative
records, id. at 16-24, and its records related to
Congressman Rohrabacher in his official capacity as a U.S.
Congressman, id. at 24-26; and (5) the FBI
improperly withheld the names of certain individuals because
it has previously “officially acknowledged” the
identities of those persons in the released documents,
see Pls.’ Reply, ECF No. 32 at 27-28. In
DOJ’s memorandum in opposition to Plaintiffs’
cross-motion for summary judgment and reply memorandum in
support of its renewed motion for summary judgment,
Plaintiffs received notice that the FBI implemented a July
15, 2017 cutoff date for the SCO’s search. See,
e.g., Def.’s Opp’n & Reply Mem. in Supp.
of Def.’s Mot. (“Def.’s
Opp’n”), ECF No. 30 at 20; Hardy Decl., ECF No.
30-1 at 8 ¶ 15 n.4. The motions are ripe and ready for
the Court’s adjudication.
“vast majority” of FOIA cases can be resolved on
summary judgment. Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A
court may grant summary judgment only if “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). Likewise, in ruling on cross-motions for summary
judgment, the court shall grant summary judgment only if one
of the moving parties is entitled to judgment as a matter of
law upon material facts that are not genuinely disputed.
See Citizens for Responsibility & Ethics in Wash. v.
U.S. Dep’t of Justice, 658 F.Supp.2d 217, 224
(D.D.C. 2009) (citation omitted). Under FOIA, “the
underlying facts and the inferences to be drawn from them are
construed in the light most favorable to the FOIA requester[,
]” and summary judgment is appropriate only after
“the agency proves that it has fully discharged its
[FOIA] obligations . . . .” Moore v. Aspin,
916 F.Supp. 32, 35 (D.D.C. 1996) (citations omitted).
considering a motion for summary judgment under FOIA, the
court must conduct a de novo review of the record.
See 5 U.S.C. § 552(a)(4)(B). The court may
grant summary judgment based on information provided in an
agency’s affidavits or declarations when they are
“relatively detailed and non-conclusory, ”
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991) (citation omitted), and “not
controverted by either contrary evidence in the record nor by
evidence of agency bad faith[, ]” Military Audit
Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).
Such affidavits or declarations are “accorded a
presumption of good faith, which cannot be rebutted by purely
speculative claims about the existence and discoverability of
other documents.” SafeCard, 926 F.2d 1197 at
1200 (citation and internal quotation marks omitted).
cross-motions for summary judgment raise four main issues:
(1) whether the partial Glomar response was proper;
(2) whether the FBI made a good faith effort to conduct a
search for the requested documents; (3) whether the FBI
waived its claimed exemptions to certain information that the
agency has “officially acknowledged” by
previously releasing such information; and (4) whether the
Court should consider the agency declarations that contain
hearsay and purportedly fail to attest to the
declarants’ familiarity with the documents in
question. The Court will address each argument
The FBI’s Partial Glomar Response
argues that the FBI properly issued a Glomar
response, refusing to confirm or deny the existence of
certain records relating to Congressman Rohrabacher.
Def.’s Opp’n, ECF No. 30 at 8. After Congressman
Rohrabacher publicly acknowledged his interactions with the
FBI, the FBI confirmed that records existed for three
categories: (1) “records reflecting communications
between it and the Congressman in the performance of his
official duties[, ]” id.; (2) records relating
to communications between the Congressman and the FBI
concerning the 2012 meeting, id. at 8-9; and (3)
“records related to the statement of offense in the
[Mr.] Gates prosecution that [Mr.] Manafort and a lobbyist
for ‘Company A’ had met with a ‘member of
Congress[, ]’” id. at 9. Characterizing
the FBI’s approach as “narrowly pierc[ing] the
Glomar veil, ” Pls.’ Mot., ECF No. 26 at
11, Plaintiffs contend that the FBI “carved out from
its Glomar response records relating to specific,
narrow instances” and that “approach is not
consistent with D.C. Circuit precedent[, ]” Pls.’
Reply, ECF No. 32 at 12-13.
Glomar response is appropriate “only when
confirming or denying the existence of records would itself
‘cause harm cognizable under a FOIA
exception.’” ACLU v. CIA, 710 F.3d 422,
426 (D.C. Cir. 2013) (quoting Roth, 642 F.3d at
1178). “When addressing an agency’s
Glomar response, courts must accord
‘substantial weight’ to agency
determinations.” Sea Shepherd Conservation
Soc’y v. IRS, 208 F.Supp.3d 58, 89 (D.D.C. 2016)
(citing Gardels v. CIA, 689 F.2d 1100, 1104 (D.C.
Cir. 1982)). The agency must “tether its refusal to
respond to one of the nine FOIA Exemptions.”
Montgomery v. IRS, No. CV 17-918 (JEB), 2019 WL
2930038, at *2 (D.D.C. July 8, 2019) (citation omitted).
“Ultimately, an agency’s justification for
invoking a FOIA exemption is sufficient if it appears
‘logical’ or ‘plausible.’”
Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)
(quoting Gardels, 689 F.2d at 1105).
parties disagree about whether “there exists a [narrow]
category of responsive documents for which a Glomar
response would be unwarranted[.]” PETA v.
Nat’l Inst. of Health, 745 F.3d 535, 545 (D.C.
Cir. 2014). The United States Court of Appeals for the
District of Columbia Circuit (“D.C. Circuit”) has
applied the categorical rule-the “SafeCard
rule”-“permitting an agency to withhold
information identifying private citizens mentioned in law
enforcement records, unless disclosure is necessary in order
to confirm or refute compelling evidence that the agency is
engaged in illegal activity.” Schrecker v. U.S.
Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir.
2003) (citation and internal quotation marks omitted). The
D.C. Circuit has clarified this rule as follows:
[W]e do not read SafeCard as permitting an agency to
exempt from disclosure all of the material in an
investigatory record solely on the grounds that the record
includes some information which identifies a private citizen
or provides that person’s name and address. Because
such a blanket exemption would reach far more broadly than is
necessary to protect the identities of individuals mentioned
in law enforcement files, it would be contrary to
FOIA’s overall purpose of disclosure, and thus is not a
permissible reading of Exemption 7(C).
Nation Magazine, Wash. Bureau v. U.S. Customs Serv.,
71 F.3d 885, 896 (D.C. Cir. 1995) (emphasis in original). For
example, in Citizens for Responsibility & Ethics in
Washington v. U.S. Department of Justice, 746 F.3d 1082,
1094 (D.C. Cir. 2014) (“CREW”), the D.C.
Circuit determined that the FBI’s Glomar
response was inappropriate where “DOJ [did] not seek to
withhold only the identities of private citizens; it [sought]
to withhold every responsive document in
case, the Court observes that the FBI’s partial
Glomar response does not categorically withhold
all responsive records. See Def.’s
Opp’n, ECF No. 30 at 8. The FBI has searched for
responsive records regarding Congressman Rohrabacher’s
public statements, set forth above, and the FBI has invoked
Glomar as to the existence or non-existence of any
other records. See id. at 12-13. Plaintiffs,
however, continue to attack the partial Glomar
response. “To overcome a Glomar response, the
plaintiff[s] can either challenge the agency’s position
that disclosing the existence of a record will cause harm
under the FOIA exemption asserted by the agency, or the
plaintiff[s] can show that the agency has ‘officially
acknowledged’ the existence of records that are the
subject of the request.” James Madison Project v.
Dep’t of Justice, 320 F.Supp.3d 143, 148 (D.D.C.
2018). Here, Plaintiffs have selected the first route to
attack the FBI’s partial Glomar response,
see id., arguing that Congressman Rohrabacher has
“little privacy interest in the fact of the existence
or nonexistence of [the investigative] records associating
him with an FBI investigation.” Pls.’ Mot., ECF
No. 26 at 11. The FBI concedes that it was required to search
for records that have been publicly confirmed by Congressman
Rohrabacher. Def.’s Opp’n, ECF No. 30 at 12.
Plaintiffs, however, argue that the FBI has failed to justify
its Glomar response.
the FBI justifies its invocation of Glomar under
Exemptions 6 and 7(C). E.g., Def.’s
Opp’n, ECF No. 30 at 9; Hardy Decl., ECF No. 30-1 at
3-4 ¶ 6, 5 ¶ 9. Both exemptions are foundationally
similar. See, e.g., Garza v. U.S. Marshals
Serv., No. CV 16-0976, 2018 WL 4680205, at *11 (D.D.C.
Sept. 28, 2018) (Sullivan, J.); Am. Ctr. for Law &
Justice v. U.S. Dep’t of Justice, 334 F.Supp.3d
13, 18 (D.D.C. 2018) (recognizing that “[c]ourts tasked
with evaluating withholdings made pursuant to both statutory
exemptions generally look first to the agency’s
justification under Exemption 7(C), because information
properly withheld under Exemption 7(C) would also be covered
by Exemption 6”). Plaintiffs focus on Exemption 7(C),
see, e.g., Pls.’ Mot., ECF No. 26 at 11;
Pls.’ Reply, ECF No. 32 at 14, and this Court will
7(C) protects from disclosure records compiled for law
enforcement purposes to the extent that their disclosure
“could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” Id.
§ 552(b)(7)(C). “[J]udicial review of an asserted
Exemption 7 privilege requires a two-part inquiry.”
FBI v. Abramson, 456 U.S. 615, 622 (1982). The
threshold requirement has been met here because it is
undisputed that the FBI’s records were compiled for law
enforcement purposes. See 5 U.S.C. § 552(b)(7);
see also Seidel Decl., ECF No. 24-1 at 7 ¶ 15
(“[T]he records include contacts by Congressman
Rohrabacher to the FBI regarding its duties and
responsibilities as a law enforcement and national security
agency, and the information discussed between the FBI and
Congressman relate to the FBI’s investigative role and
obtained from investigative records.”). Next, the FBI
“must show that release of those records ‘could
reasonably be expected to constitute an unwarranted invasion
of personal privacy.’” Prop. of People v.
U.S. Dep’t of Justice, 310 F.Supp.3d 57, 65-66
(D.D.C. 2018) (quoting 5 U.S.C. § 552(b)(7)(C)).
Court must “balance the privacy interests that would be
compromised by disclosure against the public interest in
release of the requested information.” Davis v.
U.S. Dep’t of Justice, 968 F.2d 1276, 1281 (D.C.
Cir. 1992). The D.C. Circuit has held “categorically
that, unless access to the names and addresses of private
individuals appearing in files within the ambit of Exemption
7(C) is necessary in order to confirm or refute compelling
evidence that the agency is engaged in illegal activity, such
information is exempt from disclosure.”
SafeCard, 926 F.2d at 1206. Where a FOIA request
“is made for FBI investigative records regarding a
particular individual, the FBI’s mere acknowledgment
that it possesses responsive records associates the
individual named in the request with suspected criminal
activity.” CREW, 746 F.3d at 1091. As such,
“the FBI’s Glomar response, absent a
countervailing public interest in disclosure, [is]
appropriate under Exemption 7(C).” Roth, 642
F.3d at 1179.
FBI’s first declaration cites its policy of
categorically withholding investigatory records concerning a
third party unless he consents, there is proof of his death,
or there is a demonstrated overriding public interest. Seidel
Decl., ECF No. 24-1 at 8 ¶ 17. Absent the third
party’s consent and a death certificate, the FBI
determined that the privacy interests at stake outweighed the
public interest here. See id. at 12 ¶ 24
(stating that “the mere presence of FBI records
concerning any individual in connection with an FBI
investigation, should they exist, could cast the individual
in an unfavorable or negative light to members of the
public”). The FBI’s second declaration avers that
“if [investigative] records, that may or may not exist,
were released, they would only provide a narrow view of
specific FBI counterintelligence actions, and not a broader
understanding of the government’s operations or
activities regarding the countering of Russian efforts to
influence the U.S. political and electoral system.”
Hardy Decl., ECF No. 30-1 at 5 ¶ 8.
do not challenge the FBI’s policy, but they dispute the
FBI’s determination after weighing the competing
interests. Plaintiffs contend that the public interest in
knowing how the FBI handled the counterintelligence matter
involving Congressman Rohrabacher tips the balance in favor
of disclosure. See Pls.’ Mot., ECF No. 26 at
11-13. Plaintiffs acknowledge that “in some cases a
blanket Glomar response made pursuant to Exemption
7(C) can be sustained after a carve-out is made for ‘a
category of responsive documents for which a Glomar
response would be unwarranted[.]’” Id.
at 11 (quoting PETA, 745 F.3d at 545). Nonetheless,
Plaintiffs argue that in this case “neither the
documents to be carved out nor the remaining documents fall
into groupings as to which balancing as a categorical matter
would be appropriate.” Id. at 12.
determine whether DOJ properly balanced the competing
interests when it declined to confirm or deny the existence
of any other investigative records concerning Congressman
Rohrabacher, the Court first addresses the privacy interest,
then turns to the public interest, and concludes with
balancing the competing interests at stake.