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Judicial Watch, Inc. v. CIA

United States District Court, District of Columbia

September 29, 2019

Judicial Watch, Inc., Plaintiff,
CIA et al., Defendants.



         Plaintiff Judicial Watch, Inc. brings this action against Defendants the Central Intelligence Agency (“CIA”), the U.S. Department of Justice (“DOJ”), and the U.S. Department of the Treasury (“Treasury”), under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.

         The parties have cross-moved, pursuant to Federal Rule of Civil Procedure 56, for summary judgment. For the reasons set forth below, the court will GRANT Defendants' motion for summary judgment and DENY Plaintiff's motion for summary judgment.

         I. BACKGROUND

         Plaintiff sent requests to Defendants on January 25, 2017, asking for “[a]ny and all records regarding, concerning, or related to the investigation of retired Gen. Michael Flynn's communications with Russian Ambassador to the United States Sergey Kislyak between October 1, 2016 and the present.” (ECF No. 13 (“Pl.'s Resp. 7(h)(1) Statement”) ¶¶ 1, 20, 32.) In addition, Plaintiff conveyed the following to each agency: “[f]or purposes of clarification, please find enclosed a CNN report regarding the investigation, which cites information that was provided to CNN by members of the Intelligence Community.” (ECF No. 10-5, Ex. A (“FBI FOIA Request”); ECF No. 10-6, Ex. A (“Treasury FOIA Request”); ECF No. 10-7, Ex. A (“CIA FOIA Request”).)

         Within three weeks of receiving the requests, the FBI and Treasury separately responded to Plaintiff and assigned separate tracking numbers. (Pl.'s Resp. 7(h)(1) Statement ¶¶ 1-2, 20- 21.) The CIA, however, did not acknowledge receipt of Plaintiff's request until after Plaintiff filed this lawsuit on March 6, 2017, at which point the CIA responded and assigned a tracking number. (Id. ¶¶ 32-35.)

         Shortly after Plaintiff filed its Complaint, the President posted two tweets mentioning Flynn. On March 20, 2017, he tweeted: “FBI Director Comey refuses to deny he briefed President Obama on calls made by Michael Flynn to Russia.” (Pl.'s Resp. 7(h)(1) Statement ¶ 1.)[1] And on March 31, 2017, he tweeted: “Mike Flynn should ask for immunity in that this is a witch hunt (excuse for big election loss), by media & Dems, of historic proportion!” (Id. ¶ 2.)[2]

         On May 3, 2017, former FBI Director James Comey testified before the Senate Judiciary Committee and “acknowledged [] that some investigative actions had been conducted in relation to General Flynn.” (Pl.'s Resp. 7(h)(1) Statement ¶ 6.) During Comey's testimony, Senator Whitehouse mentioned that there was a “two-day interval” between an “FBI interview of Michael Flynn . . . and [the] deputy attorney general's report to White House counsel.” (ECF No. 10-5 (“First Hardy Decl.”) ¶ 11 n. 1.) Senator Whitehouse then asked Comey whether he had participated in conversations about communications between Kislyak and Flynn during this time period. (Id.) Comey replied, “I don't know whether two days is right. I think it might have been a day. I could be wrong. It could have been two days. And I did participate in conversations about that matter, and I think I'll stop there because I don't . . .” (Id.)

         Weeks later, on May 16, 2017, the White House issued a statement that provided, in part:

While the president has repeatedly expressed his view that General Flynn is a decent man who served and protected our country, the president has never asked Mr. Comey or anyone else to end any investigation, including any investigation involving General Flynn . . . The president has the utmost respect for our law enforcement agencies, and all investigations. This is not a truthful or accurate portrayal of the conversation between the president and Mr. Comey.

(ECF No. 14-1 (“Pl.'s Resp.”) at 6 (quoting Michael S. Schmidt, Comey Memo Says Trump Asked Him to End Flynn Investigation, N.Y. Times, May 16, 2017, at ¶ 1).)

         The next day, the CIA informed Plaintiff, in what is known as a Glomar response, [3] that the CIA could neither confirm nor deny the existence of records responsive to Plaintiff's FOIA request. (ECF 10-7 (“Shiner Decl.”) ¶¶ 7-8.) The CIA asserted that the existence vel non of the requested records is exempt from release under FOIA exemptions (b)(1) and (b)(3). (Id. ¶ 15.)

         On May 19, 2017, Treasury also issued a Glomar response. (ECF No. 10-6 (“Jordan Decl.”) ¶ 5.) However, it invoked FOIA exemptions 1, 3, 7(A) and 7(E). (Id. ¶ 25.)

         Lastly, on May 19, the FBI informed Plaintiff that it was withholding all responsive records pursuant to FOIA exemption 7(A), which permits agencies to withhold records if disclosure “could reasonably be expected to interfere with enforcement proceedings.”[4] (First Hardy Decl. ¶¶ 10, 19 (citing 5 U.S.C. § 552(b)(7)(A)).) After the parties had filed motions for summary judgment, Flynn pleaded guilty to violating 18 U.S.C. § 1001. (ECF No. 16-1 (“Second Hardy Decl.”) ¶ 5.) And because some of the information relating to his case, such as the information, plea agreement, and statement of offense, was made public, the FBI assessed whether any modifications to its application of the 7(A) exemption were warranted, and concluded that its assertion of the 7(A) exemption had not been undermined and that no additional information about the investigation could be disclosed without adversely affecting the still-pending investigation and now-pending prosecution.[5] (Id. ¶¶ 5-6.)

         On December 17, 2018, in connection with the Flynn criminal matter, Judge Emmet Sullivan found that “the January 24, 2017 FD-302, which was drafted immediately after Mr. Flynn's FBI interview, is relevant to Mr. Flynn's sentencing” and that the government's proposed redactions to the FD-302 were appropriate. Dec. 17, 2018 Min. Order, United States v. Flynn, 17-cr-232-EGS (D.D.C.). Judge Sullivan ordered the government to file the redacted version of the document on the docket, and the government did so. Id.; ECF No. 62.

         Following this development, the FBI conducted a third review of its 7(A) withholding and “concluded that it was no longer appropriate to withhold the released records from Plaintiff in their entirety pursuant to FOIA Exemption (b)(7)(A).” (ECF No. 22 (“Aug. 14, 2019 Notice of FOIA Records Release”) at 1.) Consequently, on July 31, 2019, the FBI released two non- exempt redacted records to Plaintiff. (Id.) The FBI maintains that the records are properly redacted pursuant to FOIA exemptions (b)(3), (b)(6), (b)(7)(C), and (b)(7)(E); and Plaintiff does not challenge the redactions. (Id. at 1-2.) Further, after releasing the records, the FBI conducted an additional review and determined that “no additional records are impacted by its disclosure.” (ECF No. 24 (“Sept. 20, 2019 Joint Status Report”).)


         Summary judgment is appropriate where the record shows there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). “A fact is ‘material' if a dispute over it might affect the outcome of a suit under governing law; factual disputes that are ‘irrelevant or unnecessary' do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). “An issue is ‘genuine' if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Id.

         FOIA cases are typically and appropriately decided on motions for summary judgment. Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). “FOIA provides a ‘statutory right of public access to documents and records' held by federal government agencies.” Citizens for Responsibility & Ethics in Wash. (“CREW) v. U.S. Dep't of Justice, 602 F.Supp.2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982)). FOIA requires that federal agencies comply with requests and make their records available to the public unless such “information is exempted under [one of nine] clearly delineated statutory [exemptions].” Id.; see also 5 U.S.C. §§ 552(a)-(b). The district court conducts a de novo review of the government's decision to withhold requested documents under any of FOIA's specific statutory exemptions. See Id. § 552(a)(4)(B). The burden is on the government agency to show that nondisclosed, requested material falls within a stated exemption. See Petroleum Info. Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)).

         In cases where the applicability of certain FOIA exemptions is at issue, agencies may rely on supporting declarations that are reasonably detailed and non-conclusory. The declarations must provide enough information “to afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding.” King v. Dep't of Justice, 830 F.2d 210, 218 (D.C. Cir. 1987). “If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone.” Am. Civil Liberties Union v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted). However, a motion for summary judgment should be granted in favor of the FOIA requester where “an agency seeks to protect material which, even on the agency's version of the facts, falls outside the proffered exemption.” Coldiron v. U.S. Dep't of Justice, 310 F.Supp.2d 44, 48 (D.D.C. 2004) (quoting Petroleum Info. Corp., 976 F.2d at 1433).

         III. ANALYSIS

         Plaintiff challenges each Defendant's response. It maintains that the FBI, on behalf of the DOJ, should not be permitted to categorically withhold information under exemption 7(A), because it failed to “demonstrate with ‘detail and specificity' that there are no records that cannot be released.” (Pl.'s Resp. at 7-8 (emphasis in original).) And with respect to Treasury and the CIA, Plaintiff contends that each agency improperly issued a Glomar response. (Id. at 3-7.)

         Defendants raise several bases for their withholdings in their motion for summary judgment, only some of which Plaintiff contests. Although “a motion for summary judgment cannot be ‘conceded' for want of opposition, ” Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016), “this does not mean . . . that the Court must assess the legal sufficiency of each and every exemption invoked by the government in a FOIA case, ” Shapiro v. U.S. Dep't of Justice, 239 F.Supp.3d 100, 106 n.1 (D.D.C. 2017). Instead,

[w]here the FOIA requester responds to the government's motion for summary judgment without taking issue with the government's decision to withhold or to redact documents, the Court can reasonably infer that the FOIA requester does not seek those specific records or information and that, as to those records or information, there is no case or controversy sufficient to sustain the Court's jurisdiction.

Id. Therefore, the court will address only Plaintiff's arguments in response to Defendants' motion for ...

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