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Property of People, Inc. v. Department of Justice

United States District Court, District of Columbia

September 24, 2019

PROPERTY OF THE PEOPLE, INC. et al. Plaintiffs,


          Emmet G. Sullivan, United States District Judge.

         Plaintiffs 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 redactions.

         I. Background

         On May 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.[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 name.”).[2]

         On May 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 ¶¶ 13-15.[3]

         In its 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.

         The FBI 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.

         Following 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).[4] 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.

         After 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.[5]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”).[6] 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 37-38.

         In 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.

         The 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.[7] 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.

         II. Legal Standard

         The “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).

         When 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).

         III. Analysis

         The 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.[8] The Court will address each argument in turn.

         A. The FBI’s Partial Glomar Response

         DOJ 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.

         A 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).

         The 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 toto.”

         In this 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.

         Here, 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 follow suit.

         Exemption 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)).

         The 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.

         The 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.

         Plaintiffs 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.

         To 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.

         1. ...

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