Property of the People, Inc. v. Department of Justice ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PROPERTY OF THE PEOPLE, INC.,
et al.
Plaintiffs,
No. 17-cv-1728 (EGS)
v.
DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION
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
1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
2
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
2 Congressman Rohrabacher served in Congress from 1989 to 2019,
losing his bid for re-election in 2018. See Pls.’ Cross-Mot. for
Summ. J. (“Pls.’ Mot.”), ECF No. 26 at 8 n.2; see also Pls.’
Reply, ECF No. 32 at 26. The Court takes judicial notice of the
existence of news articles concerning Congressman Rohrabacher.
See Sandza v. Barclays Bank PLC, 151 F. Supp. 3d 94, 113 (D.D.C.
2015). News articles have documented Congressman Rohrabacher’s
foreign contacts: (1) “[d]uring a trip to Moscow in April 2016,
Rohrabacher met Natalia Veselnitskaya, the Russian lawyer who
traveled to Trump Tower in New York two months later to meet
with Donald Trump Jr.[,]” Pls.’ Ex. 4, ECF No. 26-3 at 10;
(2) “[d]uring a trip to London in August 2016, he met with
WikiLeaks founder Julian Assange, who controlled the release of
hacked emails damaging to Hillary Clinton[,]” id. at 11; and
(3) “at a meeting on Capitol Hill in early 2017, he met with
Alexander Torshin, the deputy governor of the Russian central
bank, a controversial figure who also briefly met Trump Jr. at a
May 2016 gun convention[,]” id. It has also been reported that
“[i]n July [2018], Mr. Rohrabacher admitted to meeting with
Maria Butina, who was charged by federal prosecutors . . . with
conspiracy and acting as a foreign agent, during his trip to
Russia in 2015.” Adam Nagourney, Dana Rohrabacher Loses, Eroding
Republican Foothold in California, N.Y. Times (Nov. 10, 2018),
https://www.nytimes.com/2018/11/10/us/politics/dana-rohrabacher-
loses-harley-rouda.html; see also J., United States v. Mariia
Butina, Criminal Action No. 18-218 (D.D.C. May 1, 2019), ECF No.
123.
3
(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
3 In FOIA parlance, the Glomar response is a disclaimer that
neither confirms nor denies the existence of records. Bartko v.
U.S. Dep’t of Justice, 898 F.3d 51, 63 n.1 (D.C. Cir. 2018).
“The response is named for the Hughes Glomar Explorer, a ship
used in a classified Central Intelligence Agency project ‘to
raise a sunken Soviet submarine from the floor of the Pacific
Ocean to recover the missiles, codes, and communications
equipment onboard for analysis by United States military and
intelligence experts.’” Roth v. U.S. Dep’t of Justice, 642 F.3d
1161, 1171 (D.C. Cir. 2011) (quoting Phillippi v. CIA, 655 F.2d
1325, 1327 (D.C. Cir. 1981)).
4
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
5
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.
4 Under FOIA, an agency must release all responsive documents
unless the information contained within such documents falls
within one of nine exemptions. Summers v. U.S. Dep’t of Justice,
517 F. Supp. 2d 231, 236 (D.D.C. 2007) (Sullivan, J.) (citing 5
U.S.C. § 552(a),(b)). Exemption 3 permits an agency to withhold
information that is “specifically exempted from disclosure by
statute,” provided that the statute either (i) “requires that
the matters be withheld from the public in such a manner as to
leave no discretion on the issue”; or (ii) “establishes
particular criteria for withholding or refers to particular
types of matters to be withheld[.]” 5 U.S.C. § 552(b)(3).
Exemption 6 protects “personnel and medical files and similar
files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy[.]” Id. § 552(b)(6).
Exemption 7 protects from disclosure “records or information
compiled for law enforcement purposes,” but only to the extent
that disclosure of such records would cause an enumerated harm.
Id. § 552(b)(7).
6
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
5 In February 2018, Richard W. Gates III (“Mr. Gates”) pled
guilty to conspiring with Mr. Manafort to defraud the United
States and to making false statements to the FBI and the Special
Counsel’s Office (“SCO”). Plea Agreement, United States v.
Richard W. Gates III, Criminal Action No. 17-201-2 (D.D.C. Feb.
23, 2018), ECF No. 205 at 1 ¶ 1. Mr. Gates “stated falsely that
he was told by [Mr.] Manafort and the senior Company A lobbyist
that there were no discussions of Ukraine at the meeting.” Pls.’
Cross-Mot. for Summ. J., ECF No. 16 at 12 (citation omitted).
6 From 2017 to 2019, Special Counsel Robert S. Mueller III
investigated Russia’s interference in the 2016 presidential
election. See, e.g., In re Grand Jury Investigation, No. MC 17-
2336 (BAH), 2017 WL 4898143, at *1 (D.D.C. Oct. 2, 2017); United
States v. Stone, No. CR 19-0018 (ABJ), 2019 WL 3502929, at *20
(D.D.C. Aug. 1, 2019). The SCO uncovered evidence that resulted
in various indictments. See, e.g., Redacted Indictment, United
States v. Paul J. Manafort, Jr. & Richard W. Gates, III,
Criminal Action No. 17-201 (D.D.C. Oct. 30, 2017), ECF No. 13;
Superseding Indictment, United States v. Konstantin Kilimnik,
Criminal Action No. 17-201-3, (D.D.C. June 8, 2018), ECF No.
318; Indictment, United States v. Bijan Rafiekian & Kamil Ekim
Alptekin, Criminal Action No. 18-457 (E.D. Va. Dec. 12, 2018),
ECF No. 1; Indictment, United States v. Gregory B. Craig,
Criminal Action No. 19-125 (D.D.C. Apr. 11, 2019), ECF No. 1;
7
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
Indictment, United States v. Roger Jason Stone, Jr., Criminal
Action No. 19-18 (D.D.C. Jan. 24, 2019), ECF No. 1. And the SCO
charged certain individuals with making false statements,
obstruction of justice, or witness tampering. See, e.g.,
Information, United States v. George Papadopoulos, Criminal
Action No. 17-182 (D.D.C. Oct. 3, 2017), ECF No. 8; Information,
United States v. Michael T. Flynn, Criminal Action No. 17-232
(D.D.C. Nov. 30, 2017), ECF No. 1; Information, United States v.
Alex van der Zwaan, Criminal Action No. 18-31 (D.D.C. Feb. 16,
2018), ECF No. 1; Information, United States v. W. Samuel
Patten, Criminal Action No. 18-260 (D.D.C. Aug. 31, 2018), ECF
No. 1; Information, United States v. Michael Cohen, Criminal
Action No. 18-850 (S.D.N.Y. Nov. 29, 2018), ECF No. 2.
8
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
7 Although the Hardy declaration was attached to DOJ’s reply
brief, the Court may “rel[y] on supplemental declarations
submitted with an agency’s reply memorandum to cure deficiencies
in previously submitted declarations where, as here, the
‘[p]laintiff filed no motion for leave to file a surreply
challenging [the] defendant’s supplemental declarations.’”
DeSilva v. U.S. Dep’t of Hous. & Urban Dev., 36 F. Supp. 3d 65,
72 (D.D.C. 2014) (quoting Judicial Watch, Inc. v. FDA, 514 F.
Supp. 2d 84, 89 n. 1 (D.D.C. 2007)).
9
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
10
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
11
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,
8 Plaintiffs do not contest the applicability of the withholdings
under Exemptions 3, 7(D), and 7(E). See Pls.’ Mot., ECF No. 26
at 1-31; see also Def.’s Mot., ECF No. 24 at 23, 28-30. The
Court therefore treats those matters as conceded. See Hopkins v.
Women’s Div., Gen. Bd. of Glob. Ministries, 284 F. Supp. 2d 15,
25 (D.D.C. 2003) (“It is well understood in this Circuit that
when a plaintiff files an opposition to a dispositive motion and
addresses only certain arguments raised by the defendant, a
12
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,
court may treat those arguments that the plaintiff failed to
address as conceded.” (citation omitted)), aff’d sub nom.
Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries, United
Methodist Church, 98 F. App’x 8 (D.C. Cir. 2004). Accordingly,
the Court GRANTS Defendant’s motion for summary judgment as to
the withholdings under Exemptions 3, 7(D), and 7(E).
13
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
14
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
15
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
16
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
17
(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
18
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
19
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. Privacy Interest
Plaintiffs argue—and the Court disagrees—that Congressman
Rohrabacher has a de minimis privacy interest. See Pls.’ Mot.,
ECF No. 26 at 11. Plaintiffs contend that “[o]nce [Congressman]
Rohrabacher disclosed his association with an FBI investigation
. . ., the sole privacy interest identified by the FBI no longer
applies.” Id. at 12. Plaintiffs point out that Congressman
Rohrabacher’s public statements about his interactions with the
FBI “negate his privacy interest.” Id. at 9. Contrary to
Plaintiffs’ assertion, the FBI’s declarant avers that the
“negative stigma attached to disclosing an individual’s
association with any specific FBI investigation” is not negated
by the fact that Russian intelligence services have targeted a
Congressman. Hardy Decl., ECF No. 30-1 at 4 ¶ 7; see also Def.’s
Opp’n, ECF No. 30 at 14. Based on its review of the records, the
FBI concluded that “[Congressman] Rohrabacher’s privacy
20
interests outweighed [the] public interest in disclosure only
for investigative records, should they exist, not previously
disclosed or discussed [publicly] by [him].” Seidel Decl., ECF
No. 24-1 at 9 ¶ 18. DOJ argues—and the Court agrees—that “[t]he
privacy interests of parties mentioned in law enforcement files
are ‘substantial[.]’” Def.’s Opp’n, ECF No. 30 at 12 (quoting
SafeCard, 926 F.2d at 1205); see also Multi Ag Media LLC v.
Dep’t of Agric., 515 F.3d 1224, 1229-30 (D.C. Cir. 2008) (“A
substantial privacy interest is anything greater than a de
minimis privacy interest.”). Indeed, the D.C. Circuit has
consistently held that “individuals have an obvious privacy
interest cognizable under Exemption 7(C) in keeping secret the
fact that they were subjects of a law enforcement
investigation.” Nation Magazine, 71 F.3d at 894 (collecting
cases).
The D.C. Circuit’s decision in CREW, 746 F.3d at 1087—a
FOIA case involving the FBI’s investigative records of Tom
DeLay, the former Majority Leader of the U.S. House of
Representatives, arising from the activities of a former
lobbyist—is instructive on this point. In that case, Mr. DeLay
publicly announced that he had cooperated with the FBI’s
investigation into the Jack Abramoff scandal, that he had been
under investigation, and that the Justice Department had decided
not to pursue criminal charges against him. Id. at 1087, 1089,
21
1091-92. The D.C. Circuit determined that Mr. DeLay had “two
potential privacy interests at stake”: (1) “avoiding the stigma
of having his name associated with a criminal investigation[,]”
id. at 1091; and (2) “[a]lthough [Mr.] DeLay’s action [i.e. his
public statements] lessened his [privacy] interest in keeping
secret the fact that he was under investigation, he retained a
second, distinct privacy interest in the contents of the
investigative files[,]” id. at 1092 (emphasis in original). In
doing so, the D.C. Circuit found that the FBI’s Glomar response
was improper because of Mr. DeLay’s public statements confirmed
that he had been under investigation. Id. The D.C. Circuit,
however, made clear that “[Mr.] DeLay’s privacy interest in the
contents of the investigative files [was] not insubstantial”
even though he was a public official at the time. Id. For the
same reasons, the Court therefore finds that Congressman
Rohrabacher has a more than a de minimis privacy interest in the
contents of any FBI investigative records. See id.
2. Public Interest
Having determined that Congressman Rohrabacher’s privacy
interest is not insubstantial, the Court next considers the
“other side of the scale”-the public interest. Id. Plaintiffs
bear the burden of establishing that disclosure will advance the
public interest. Nat’l Archives & Records Admin. v. Favish, 541
U.S. 157, 158 (2004) (“[W]hen Exemption 7(C)’s privacy concerns
22
are present, the requester must show that the public interest
sought to be advanced is a significant one, an interest more
specific than having the information for its own sake, and that
the information is likely to advance that interest.”). As Judge
Boasberg recognized in a case that resembles the FOIA request
here, “it is critical to remember that ‘[t]he only relevant
public interest’ is ‘the extent to which disclosure of the
information sought would she[d] light on an agency’s performance
of its statutory duties or otherwise let citizens know what
their government is up to.’” Prop. of People, 310 F. Supp. 3d at
69 (quoting CREW, 746 F.3d at 1093) (emphasis in original). “The
inquiry is therefore not focused on any ‘general public interest
in the subject matter of the FOIA request’—i.e., [Congressman
Rohrabacher].” Id. (quoting Schrecker, 349 F.3d at 661).
CREW, again, is instructive. See id. There, the D.C.
Circuit held that there was a “weighty” public interest in
“shining a light on the FBI’s investigation of major political
corruption and the DOJ’s ultimate decision not to prosecute a
prominent member of the Congress for any involvement he may have
had” in the Abramoff scandal. CREW, 746 F.3d at 1092-93. The
D.C. Circuit concluded that “[d]isclosure of the records would
likely reveal much about the diligence of the FBI’s
investigation and the DOJ’s exercise of its prosecutorial
discretion: whether the government had the evidence but
23
nevertheless pulled its punches” where the FBI’s records related
to “a wide-ranging public corruption investigation as part of
[the FBI’s] ongoing efforts to root out systemic corruption
within the highest levels of government.” Id. at 1093 (emphasis
added). The D.C. Circuit made clear that the agency’s
categorical withholding of all responsive records under
Exemption 7(C) was inappropriate given the significant public
interest at stake, and thus remanded the case for the district
court to “weigh what information may be withheld under Exemption
7(C) and whether any information [was] reasonably segregable and
[could] be disclosed.” Id. at 1096.
In some respects, CREW is distinguishable from the present
action because the FBI in this case has not withheld all
responsive records under Exemption 7(C), and Plaintiffs seek
“[a]ny and all” records constituting, mentioning, or referring
to Congressman Rohrabacher in his capacity as a member of
Congress. Seidel Decl., ECF No. 24-1 at 3 ¶ 5. “It is important
to remember, however, that Plaintiffs are not requesting
information [in their FOIA request] about a particular
investigation.” Prop. of People, 310 F. Supp. 3d at 69 (emphasis
in original) (citing CREW, 746 F.3d at 1092-95). “Rather, they
request records related to a particular individual.” Id.
(emphasis in original). Plaintiffs attempt to show that there is
strong public interest through its FOIA request for
24
investigative records concerning Congressman Rohrabacher without
presenting any evidence that Congressman Rohrabacher was under
investigation—unlike in CREW where there was no question that
Mr. DeLay was under investigation. Compare Pls.’ Mot., ECF No.
26 at 13-17, with CREW, 746 F.3d at 1092. In fact, Plaintiffs
make clear that Congressman Rohrabacher’s name is associated
with an investigation. Pls.’ Mot., ECF No. 26 at 12 (stating
“Mr. Rohrabacher disclosed his association with an FBI
investigation”). Nevertheless, the Court cannot ignore the
existence of news articles, of which the Court takes judicial
notice, reporting that the SCO investigated a September 2016
meeting between Congressman Rohrabacher and one of the
President’s former National Security Advisors. See, e.g., Julia
Ainsley, Mueller Probing Pre-Election Flynn Meeting With Pro-
Russia Congressman, NBC News (Nov. 10, 2017, 12:59 PM),
https://www.nbcnews.com/news/us-news/mueller-probing-pre-
election-flynn-meeting-pro-russia-congressman-n819676; Michael
R. Blood, Rouda Claims Historic Victory Over Republican
Rohrabacher, NBC4 (Nov. 10, 2018, 10:17 PM) (stating that
Congressman Rohrabacher’s “name has come up in the investigation
into Russian meddling in the 2016 presidential election”),
https://www.nbclosangeles.com/news/local/Rouda-Declares-Victory-
in-House-Race-Against-Rohrabacher-500204551.html.
Over the course of this litigation, Plaintiffs have shifted
25
their focus to the SCO’s investigation into Russia’s influence
in the 2016 presidential election and the FBI’s
counterintelligence efforts. Compare Compl., ECF No. 1 at 2 ¶¶
9-10 (seeking the FBI’s records referring to Congressman
Rohrabacher and his contacts with the FBI), with Pls.’ Reply,
ECF No. 32 at 17 (asserting that “[t]he requested records may
reveal the extent to which the FBI took seriously the threat of
Russian interference in the United States’ political system”).
Indeed, as part of its search, the FBI contacted the SCO to
locate any records associated with Congressman Rohrabacher’s
2013 meeting with Mr. Manafort and Company A’s lobbyist. Def.’s
Opp’n, ECF No. 30 at 20. Plaintiffs rely on CREW to support
their argument that the public interest is strong in this case
and that the requested records will shed light on the FBI’s
investigation into potential foreign attempts to undermine the
U.S. electoral process because “it is important for the public
to understand not just what may have been said at the 2012
meeting, but also the FBI’s overall diligence in handling what
it perceived to be an attempt by Russian intelligence to
influence a member of Congress.” Pls.’ Mot., ECF No. 26 at 15.
Plaintiffs underscore the “criticisms that have been leveled
against the FBI for not doing enough to stem the influence of
Russian intelligence,” id., but they explain that highlighting
those criticisms is “independent of whether the FBI’s handling
26
[of the issue] was proper or not[,]” id. at 15 n.5. Plaintiffs
remain focused on “how the FBI carried out its statutory duty to
investigate counterintelligence matters.” Pls.’ Reply, ECF No.
32 at 16. And Plaintiffs ask this Court to “require the FBI to
exclude from its Glomar response any records which link
[Congressman] Rohrabacher to Russian counterintelligence
matters[.]” Id. at 17.
DOJ attempts to distinguish CREW from this case. See Def.’s
Opp’n, ECF No. 30 at 13. DOJ argues that the D.C. Circuit in
CREW found “that [Mr.] Delay’s privacy interest was clearly
outweighed by the need to inform the public ‘about the FBI’s and
the DOJ’s investigation of [a] major, wide-ranging public
corruption’ scandal. Here, there is no allegation of corruption
against the FBI or the Department of Justice.” Id. (quoting
CREW, 746 F.3d at 1096). Plaintiffs take issue with this
distinction. See Pls.’ Reply, ECF No. 32 at 16. Plaintiffs
correctly point out that in CREW there were no allegations of
corruption against the FBI or DOJ, and that the allegations of
corruption related to a member of Congress. Id.; see also CREW,
746 F.3d at 1095 (“CREW alleges no impropriety on the part of
the FBI or the DOJ.”).
The D.C. Circuit has made clear that the public has an
interest in knowing how the FBI investigated a sitting member of
Congress. CREW, 746 F.3d at 1094-96. “‘[M]atters of substantive
27
law enforcement policy . . . are properly the subject of public
concern,’ whether or not the policy in question is lawful.” ACLU
v. U.S. Dep’t of Justice, 655 F.3d 1, 14 (D.C. Cir. 2011)
(quoting U.S. Dep’t of Justice v. Reporters Comm. for Freedom of
Press, 489 U.S. 749, 766 n.18 (1989)). In Property of People v.
United States Department of Justice, Judge Boasberg refused to
permit the FOIA requesters there—consisting of two of the same
plaintiffs in this case—to “go on a fishing expedition for FBI
records” because the plaintiffs gave “no reason to think that
the FBI otherwise investigated [President Donald J. Trump], much
less that it ‘pulled its punches’ on any occasion.” 310 F. Supp.
3d at 70 (quoting CREW, 746 F.3d at 1093). Judge Boasberg found
that there was no public interest “[w]ithout such a ‘meaningful
evidentiary showing[.]’” Id. (quoting Favish, 541 U.S. at 175).
When “the public interest being asserted is to show that
responsible officials acted negligently or otherwise improperly
in the performance of their duties, the requester must establish
more than a bare suspicion in order to obtain disclosure.”
Favish, 541 U.S. at 174. And “courts must insist on a meaningful
evidentiary showing.” Id. at 175.
The Favish standard is inapplicable in this case. See ACLU
v. U.S. Dep’t of Justice, 655 F.3d at 14 (FOIA requester not
required to show evidence of misconduct where it did not seek to
show that a government “policy was legally improper, but rather
28
to show what that policy [was] and how effective or intrusive it
[was]”). The Favish evidentiary production is not required when,
as here, a “[p]laintiff does not argue that there was any
negligence or misfeasance on the part of government officials in
investigating or prosecuting [the officials].” Showing Animals
Respect & Kindness v. U.S. Dep’t of Interior, 730 F. Supp. 2d
180, 195 n.17 (D.D.C. 2010).
The Court is persuaded that Plaintiffs have demonstrated
that there is a significant public interest in the requested
records. See Citizens for Responsibility & Ethics in Wash. v.
U.S. Dep’t of Justice, 840 F. Supp. 2d 226, 234 (D.D.C. 2012)
(“[I]n these days of political turmoil, constant accusations and
name calling, and concern about our economic and social future,
there is, if anything, a heightened public interest in learning
what the Government is ‘up to.’” (quoting ACLU v. U.S. Dep’t of
Justice, 655 F.3d at 12)). Plaintiffs have given more than one
“reason to think that the FBI otherwise investigated
[Congressman Rohrabacher],” and that it ‘pulled its punches’[.]”
Prop. of People, 310 F. Supp. 3d at 70 (quoting CREW, 746 F.3d
at 1093). As the briefing makes clear, Plaintiffs seek the FBI’s
records concerning Congressman Rohrabacher to discover “how the
FBI handled the issue of threats posed by Russian intelligence
to the U.S. political system[.]” Pls.’ Mot., ECF No. 26 at 15
n.5. “Clearly, the American public has a right to know about the
29
manner in which its representatives are conducting themselves
and whether the government agency responsible for investigating
and, if warranted, prosecuting those representatives for alleged
illegal conduct is doing its job.” Citizens for Responsibility &
Ethics in Wash. v. U.S. Dep’t of Justice, 840 F. Supp. 2d 226,
234 (D.D.C. 2012).
3. Balancing the Competing Interests
The Court must balance the significant interests on both
sides of the scale. “In some, perhaps many, instances where a
third party asks if an agency has information regarding a named
individual in its law enforcement files, the cognizable public
interest in that information will be negligible; the requester
will be seeking records about a private citizen, not agency
conduct.” Nation Magazine, 71 F.3d at 895. “In this case,
however, [Plaintiffs] have identified a public interest
cognizable under FOIA in disclosure of any information regarding
[Congressman Rohrabacher] that might exist in [the FBI’s]
investigatory files.” Id. Given that the FBI has neither
confirmed nor denied the existence of investigative records
beyond the three categories that have already been publicly
acknowledged, “a more particularized approach is required.” Id.In Citizens for Responsibility & Ethics in Washington v. U.S.
Dep’t of Justice, 846 F. Supp. 2d 63, 76 (D.D.C. 2012), the
court concluded that it “simply [was] not able to come to a
30
conclusion as to the balance between the privacy and public
interests at [the] level of generality” in that case. There, the
court granted the plaintiff’s partial motion for summary
judgment and ordered the agency to submit a Vaughn index that
identified each document or group of documents that it sought to
withhold and “a relatively detailed justification” for its
withholdings. Id. (quoting Mead Data Central, Inc. v. Dep’t of
the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). 9 The court
made clear that it did “not decide whether the Government need
turn over anything at all in response to [the plaintiff’s FOIA]
request.” Id.Here, “[t]he Court expresses no view as to whether the FBI
may legitimately assert a partial Glomar response to some
aspects of [Plaintiffs’] request, perhaps even to entire
categories of [Plaintiffs’] request.” Elec. Frontier Found. v.
Dep’t of Justice, 384 F. Supp. 3d 1, 13 (D.D.C. 2019). That
being said, “[o]nce an agency acknowledges that it has some
responsive documents, there are a variety of forms that
subsequent filings in the district court may take. A pure ‘no
number, no list’ response is at one end of that continuum; a
9 “A Vaughn index describes the documents withheld or redacted
and the FOIA exemptions invoked, and explains why each exemption
applies.” Prison Legal News v. Samuels, 787 F.3d 1142, 1145 n.1
(D.C. Cir. 2015) (citing Vaughn v. Rosen, 484 F.2d 820 (D.C.
Cir. 1973); Keys v. U.S. Dep’t of Justice, 830 F.2d 337, 349
(D.C. Cir. 1987)).
31
traditional Vaughn index is at the other.” ACLU v. CIA, 710 F.3d
at 433. At this juncture, the Court cannot balance the competing
interests at this level of generality. See Citizens for
Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 846
F. Supp. 2d at 76. The Court therefore directs DOJ to submit a
Vaughn index and prescribes the following format for the Vaughn
index:
[A]ny supplemental Vaughn index [must] include
a separate numbered entry for each document,
including for each email (or email chain) and
for each email attachment (which shall be
separately listed in consecutive order after
its associated email): (1) a document number;
(2) an index identification number (i.e., a
Bates stamp number); (3) the document’s
subject or title; (4) its date; (5) the author
and the author’s job title; (6) the recipient
and the recipient’s job title; (7) the total
number of pages; (8) the disposition (whether
it is entirely or partially withheld); (9) the
reason for being withheld; (10) the statutory
authority for the withholding; and (11) the
number of pages with redacted, withheld
information.
Ctr. for Biological Diversity v. EPA, 279 F. Supp. 3d 121, 145
(D.D.C. 2017). The FBI “need not disclose the names and
addresses redacted from the documents[,]” SafeCard, 926 F.2d at
1206, but “documents simply assessing, for example, whether or
not to seek an indictment may not be covered by Exemptions 6 or
7(C)[,]” Citizens for Responsibility & Ethics in Wash. v. U.S.
Dep’t of Justice, 846 F. Supp. 2d at 76. Accordingly, the Court
DENIES IN PART DOJ’s motion for summary judgment and HOLDS IN
32
ABEYANCE Plaintiffs’ motion for summary judgment. 10
B. Adequacy of the Search
The Court next considers whether the FBI conducted an
adequate search. To prevail at the summary judgment stage, “the
agency must show that it made a good faith effort to conduct a
search for the requested records, using methods which can be
reasonably expected to produce the information requested.”
Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir.
1990). “[T]he issue to be resolved is not whether there might
exist any other documents possibly responsive to the request,
but rather whether the search for those documents was adequate.”
Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.
Cir. 1984) (emphasis in original). “The adequacy of the search,
in turn, is judged by a standard of reasonableness and depends,
not surprisingly, upon the facts of each case.” Id. (citation
omitted). To meet its burden, an agency may provide “a
reasonably detailed affidavit, setting forth the search terms
and the type of search performed, and averring that all files
likely to contain responsive materials . . . were searched.”
Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-14 (D.C.
Cir. 2003) (citation and internal quotation marks omitted). “If,
however, the record leaves substantial doubt as to the
10The Court DEFERS its ruling on segregability until after DOJ
submits it supplemental declarations and Vaughn index.
33
sufficiency of the search, summary judgment for the agency is
not proper.” Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C.
Cir. 1990).
To demonstrate the adequacy of the search, DOJ submits two
declarations. The first declarant avers that the FBI searched
its databases—CRS, UNI, and Sentinel—using various search terms
and that those databases contain the records of the FBI’s entire
organization, including the FBI headquarters, field offices, and
the Legal Attaché offices. Seidel Decl., ECF No. 24-1 at 12-19
¶¶ 25-37. As part of the search, the FBI contacted certain
offices to locate records, including the Office of Congressional
Affairs, the Office of the Executive Secretariat, the Washington
Field Office, and the SCO. Id. at 17-19 ¶¶ 34-37. Based on its
“practice to use the date [the FBI] initially conducts searches
for the request as the search cut-off date[,]” the FBI used a
cutoff date of June 15, 2017. Hardy Decl., ECF No. 30-1 at 8
n.4. The FBI did not search any other individuals or offices,
arguing that the its “RIDS is in a better position to know what
custodians are likely to hold potentially responsive records.”
Def.’s Opp’n, ECF No. 30 at 18. DOJ contends that “FOIA does not
require agencies to conduct exhaustive searches of every
database, individual, or office a requestor can name or
suggest.” Id.34
Plaintiffs challenge the adequacy of the FBI’s search on
numerous grounds. Plaintiffs argue that the FBI failed to
conduct a reasonable search of all offices likely to possess
responsive documents. Pls.’ Mot., ECF No. 26 at 17. Plaintiffs
assert—and DOJ does not dispute—that the FBI did not search for
records within the Counterintelligence Division and the Office
of General Counsel. Id. at 17-18, 26. Neither did the FBI search
for records from certain custodians—the Special Agent in Charge
of Washington Field Office, the Assistant Director of the
Counterintelligence Division, and the Assistant Director of the
Office of Congressional Affairs. Pls.’ Mot., ECF No. 26 at 18-
19, 22. Finally, Plaintiffs take issue with the cutoff date
because the FBI failed to inform Plaintiffs of that date. Pls.’
Reply, ECF No. 32 at 23. The Court will examine each argument.
1. The FBI’s Temporal Limitation Was Unreasonable
An agency’s decision to impose temporal limitations in
responding to a FOIA request “is only valid when the limitation
is consistent with the agency’s duty to take reasonable steps to
ferret out requested documents.” McGehee v. CIA, 697 F.2d 1095,
1101 (D.C. Cir. 1983) (emphasis in original). Indeed, the D.C.
Circuit has cautioned against a “reflexive application of the
cut-off policy to every request regardless of circumstance” and
has “expressly rejected the proposition that under FOIA, the
‘use of a time-of-request cut-off date is always reasonable.’”
35
Public Citizen v. Dep’t of State, 276 F.3d 634, 644 (D.C. Cir.
2002) (quoting McGehee, 697 F.2d at 1102). Even so, “specific
circumstances in some agencies may render an across-the-board
rule reasonable” so long as the agency makes a “showing that
warrants such an approach in its case.” Id. The D.C. Circuit
made clear that “[i]t would be extremely difficult for the [the
agency] to convince us that it may ‘reasonably’ use any cut-off
date without so informing the requester” because “[s]uch
notification would involve an insignificant expenditure of time
and effort on the part of the agency.” McGehee, 697 F.2d at 1105(emphasis in original). Prior notification of the cut-off date
“would enable the [FOIA] requester to submit supplementary
demands for information if [the requester] felt so inclined.”
Id.Here, the FBI’s “unpublicized temporal limitation of its
searches” was improper. Id. (emphasis in original). It is
undisputed that the FBI failed notify Plaintiffs of the July 15,
2017 cutoff date until it filed its memorandum in opposition to
Plaintiffs’ cross-motion for summary judgment and reply
memorandum in support of its renewed motion for summary
judgment. See, e.g., Def.’s Opp’n, ECF No. 30 at 20; Hardy
Decl., ECF No. 30-1 at 8 ¶ 15 n.4; Pls.’ Reply, ECF No. 32 at
24. Plaintiffs did not have an opportunity to submit any
supplemental demands for information before submitting their
36
reply brief. The FBI did not communicate the cutoff date during
its negotiations with Plaintiffs, provide a justification to
Plaintiffs, or afford Plaintiffs with an opportunity to object
to the cutoff date at the early stages of the litigation. See
Pls.’ Reply, ECF No. 32 at 24. The Court expresses no view on
the propriety of the FBI’s practice of employing cutoff dates,
see Hardy Decl., ECF No. 30-1 at 8 ¶ 15 n.4, but the FBI’s
failure to give Plaintiffs advance notice of the cutoff date was
inconsistent with D.C. Circuit precedent. See Public Citizen,
276 F.3d at 643-44 (invalidating agency’s cut-off date policy
because it permitted the agency to “withhold, with little or no
justification, a potentially large number of relevant
documents”). The Court therefore finds that the FBI’s temporal
limitation of its searches was improper.
2. The FBI Improperly Limited Its Searches
To allow a district court to determine whether the search
was adequate, the affidavit should include the agency’s
“rationale for searching certain locations and not others.”
Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 92
(D.D.C. 2009). Factual assertions in such an affidavit will be
accepted as true unless the requesting party submits evidence
contradicting those assertions or rebutting the presumption that
the agency’s search was made in good faith. Coffey v. Bureau of
Land Mgmt., 277 F. Supp. 3d 1, 7 (D.D.C. 2017) (Sullivan, J.).
37
i. Counterintelligence Office
Plaintiffs offer a factual basis to support their
contention that there was a reasonable likelihood that other
offices would possess responsive records. According to
Plaintiffs, “[t]he FBI’s Counterintelligence Division is
responsible for, among other things, [c]ounter[ing] the
activities of foreign spies.” Pls.’ SOMF, ECF No. 26-1 at 3 ¶ 8
(citation and internal quotation marks omitted). 11 The
Counterintelligence Division’s counterespionage section
documents interviews of non-subjects. Id. at 3 ¶ 9. Plaintiffs
argue that the FBI should have searched for responsive records
in the Counterintelligence Division because Congressman
Rohrabacher publicly confirmed that the FBI warned him that
Russian spies were trying to recruit him. Pls.’ Mot., ECF No. 26
at 17. DOJ does not explain the legal basis for the FBI’s
decision not to search for records in the Counterintelligence
Division. See Def.’s Opp’n, ECF No. 30 at 17. Rather, DOJ
responds that the FBI “determined the field office responsible
11DOJ concedes Plaintiffs’ Statement of Material Facts by
failing to challenge it. See Cruz v. Am. Airlines, 150 F. Supp.
2d 103, 115 n.8 (D.D.C. 2001) (finding that opposing party
conceded moving party’s statement of facts by not challenging
the statement), aff’d sub nom. Cruz v. Am. Airlines, Inc., 356
F.3d 320 (D.C. Cir. 2004); see also LCvR 7(h)(1) (“[T]he Court
may assume that facts identified by the moving party in its
statement of material facts are admitted, unless such a fact is
controverted in the statement of genuine issues filed in
opposition to the motion.”).
38
for the region where the meeting would have taken place was the
more likely custodian than the Headquarters (‘HQ’)
Counterintelligence Division.” Id. (citing Hardy Decl., ECF No.
30-1 at 6 ¶ 11). Both declarations provide the same language
without an explanation for why the FBI did not conduct a search
of the Counterintelligence Division. See Seidel Decl., ECF No.
24-1 at 19 ¶ 39; see also Hardy Decl., ECF No. 30-1 at 6 ¶ 11.
While the first declaration identifies the databases and
locations searched, see Seidel Decl., ECF No. 24-1 at 12-19 ¶¶
25-37, it does not provide the required “averment that all
locations likely to contain responsive records were searched,”
Powell v. IRS, 280 F. Supp. 3d 155, 162 (D.D.C. 2017); see also
Oglesby, 920 F.2d at 68. Instead, the first declaration avers
that the agency “contact[ed] the FBI components likely to
maintain or have knowledge as to the location of responsive
records[.]” Seidel Decl., ECF No. 24-1 at 41 ¶ 83 (emphasis
added). The FBI’s averment, however, will not pass muster
because searching the locations “most likely to contain
responsive documents . . . is not the relevant metric.” DiBacco
v. U.S. Army, 795 F.3d 178, 190 (D.C. Cir. 2015) (citation and
internal quotation marks omitted); see also Mobley v. CIA, 806
F.3d 568, 582 (D.C. Cir. 2015) (“Had the FBI only searched the
record systems ‘most likely’ to contain responsive records, its
search would be inadequate.”). The Court therefore finds that
39
the FBI’s declarations fail to provide this Court with
sufficient information to conclude that the FBI’s search was
“reasonably calculated to uncover all relevant documents.”
Truitt, 897 F.2d at 542 (citation omitted).
ii. Office of General Counsel
Plaintiffs argue that the FBI’s search should have covered
the Office of General Counsel because an older version of the
FBI’s policy states that the Office of General Counsel “responds
to Congressional requests for FBI documents.” Pls.’ Mot., ECF
No. 26 at 26 (citation omitted). The first declarant avers that
the FBI contacted the Office of General Counsel and that office
informed the agency that “staff in [the Office of General
Counsel] will review documents prepared to be sent to Congress
prior to their release, but all correspondence between Congress
and the FBI is routed through [the Office of Congressional
Affairs] and records of this correspondence is maintained by
[the Office of the Executive Secretariat].” Seidel Decl., ECF
No. 24-1 at 20 ¶ 41. The second declarant states that “all
correspondence between Congress and the FBI is routed through
[the Office of Congressional Affairs]” and that the FBI’s search
of the Office of Congressional Affairs “would have located any
records handled by [the Office of General Counsel] and the
search is both adequate and reasonable.” Hardy Decl., ECF No.
30-1 at 8 ¶ 16.
40
Although the FBI points out that Plaintiffs rely on an
outdated version of the FBI’s policy regarding the Office of
General Counsel’s involvement in Congressional inquiries, the
current version states that the Office of General Counsel
“assists [the Office of Congressional Affairs] in responding to
Congressional inquiries, including Congressional requests for
FBI documents.” Hardy Decl., ECF No. 30-1 at 9 ¶ 16. DOJ argues
that the Office of Congressional Affairs is the primary office,
and Plaintiffs’ suggestion that the Office of General Counsel
would have responsive documents is speculative. Def.’s Opp’n,
ECF No. 30 at 21. DOJ contends that the FBI did not find any
evidence that the Office of General Counsel created any records
within the released documents. Id.The FBI’s own policy undercuts DOJ’s arguments. Plaintiffs
correctly point out—and DOJ does not contest—that the older
version of the FBI’s policy clearly states that the Office of
General Counsel responded to Congressional requests for FBI
documents. Pls.’ Reply, ECF No. 32 at 25. Because Congressman
Rohrabacher began his service in the House in 1989, it is
reasonable to expect that the Office of General Counsel would
have responded to requests from Congressman Rohrabacher under
the older version of the FBI’s policy. See id. at 25-26. DOJ
does not argue—and the FBI’s declarations do not aver—that the
41
Office of General Counsel would have no responsive records. See
Def.’s Opp’n, ECF No. 30 at 20-22. The Court therefore finds
that the FBI’s search was not “reasonably calculated to uncover
all relevant documents.” Truitt, 897 F.2d at 542 (citation
omitted).
iii. Remaining Issues
Having found that the FBI’s declarations do not provide a
rationale for the FBI’s failure to search for responsive records
in the Office of General Counsel and Counterintelligence
Division, the Court turns to Plaintiffs’ remaining issues with
the FBI’s search. Plaintiffs argue that the FBI’s refusal to
search the Washington Field Office’s files, including e-mail
accounts, beyond the records located in the CRS is unreasonable.
The FBI’s second declarant avers that the FBI “determined the
individuals likely to possess and/or be cognizant of possible
responsive records would be those actually tasked to investigate
the allegations implicated by the potential records at issue –
the individuals at [the Washington Field Office] assigned to
investigate Russian counterintelligence operations in the
Washington metropolitan area.” Hardy Decl., ECF No. 30-1 at 6 ¶
11. The declarant also states that the FBI contacted individuals
at the Washington Field Office who were “likely to have
knowledge of potentially responsive records,” but the FBI
specified that it was seeking to find records related to
42
Congressman Rohrabacher’s 2012 meeting with the FBI. Id. at 7 ¶
14.
DOJ argues that any investigative files held by those
individuals in the Washington Field Office will be contained in
CRS; thus, additional searches will be duplicative. Def.’s
Opp’n, ECF No. 30 at 19. DOJ’s position fails, however, because
the FBI’s declarations do not explain how the individuals in the
Washington Field Office who were assigned to investigate Russian
counterintelligence operations would not have responsive records
in their e-mail accounts. Cf. McClanahan v. U.S. Dep’t of
Justice, 204 F. Supp. 3d 30, 44-45 (D.D.C. 2016) (finding that
the FBI reasonably set the scope of the search where it searched
CRS and conducted searches of e-mail accounts and located
additional responsive documents), aff’d sub nom. McClanahan v.
Dep’t of Justice, 712 F. App’x 6 (D.C. Cir. 2018).
Next, Plaintiffs argue that the FBI inadequately described
the searches of the SCO and the Office of the Executive
Secretariat. Pls.’ Mot., ECF No. 26 at 22-25; see also Pls.’
Reply, ECF No. 32 at 21, 26. With regard to the Office of the
Executive Secretariat, Plaintiffs challenge the FBI’s
description of that office’s “own internal database.” Pls.’
Reply, ECF No. 32 at 26 (quoting Hardy Decl., ECF No. 30-1 at 10
¶ 17). Plaintiffs contend that the text and index searches
within that database fail to account for variations of
43
Congressman Rohrabacher’s name because both searches of the “To”
and “From” fields included the words “Rohrabacher” and
“Rohrabacher, Dana.” Id. at 26-27. Plaintiffs argue that the
declarant does not provide three pieces of information:
(1) whether the Office of the Executive Secretariat maintains
any other databases; (2) whether “this particular database would
be the only one likely to contain responsive records”; and
(3) whether there are any paper copies of correspondence given
that Congressman Rohrabacher’s service began in 1989. Id. at 26.
Defendants maintain that the searches of the “internal database”
were adequate because those searches located 273 pages of
potentially responsive documents. Def.’s Opp’n, ECF No. 30 at
22.
The Court agrees with Plaintiffs’ arguments that the
declarations do not provide an adequate description of the
Office of the Executive Secretariat’s search. Neither declarant
indicates whether the Office of the Executive Secretariat
searched its paper records. See Armstrong v. Executive Office of
the President, 830 F. Supp. 19, 23-24 (D.D.C. 1993) (holding
that agency’s search was unreasonable because it produced only
electronic documents and withheld paper versions of otherwise
responsive documents). Nor do they confirm whether the internal
database identified was the only one. Unlike the search terms
for the CRS search that provide variations of Congressman
44
Rohrabacher’s name, see Seidel Decl., ECF No. 24-1 at 17-18 ¶
35, the description of the Office of the Executive Secretariat’s
search does not include any variations of Congressman
Rohrabacher’s name, see Hardy Decl., ECF No. 30-1 at 10 ¶ 17.
Because the declarations do not indicate that the FBI
“search[ed] for other permutations of the name, . . . the search
was not reasonably calculated to turn up all responsive files.”
Negley v. FBI, 658 F. Supp. 2d 50, 60–61 (D.D.C. 2009).
As to the SCO’s search, Plaintiffs argue that the
declarations provide inadequate descriptions of the search, and
that the Hardy declaration does not cure the deficiencies in the
Seidel declaration. Pls.’ Reply, ECF No. 32 at 21. The Seidel
declaration avers that it “contacted FBI personnel at SCO to
confirm if any records could be located relating to the meeting
with [Mr.] Manafort disclosed in [Mr.] Gates’ Statement of
Offense, and no records within the scope of Plaintiffs request
were located.” Seidel Decl., ECF No. 24-1 at 19 ¶ 37. The Hardy
declaration avers that certain personnel, known as “subject-
matter-experts,” “within the SCO located the appropriate
investigative case files, and conducted searches of [those]
files. They were unable to locate any responsive records
pertaining to the former Congressman or the meeting in question
in [Mr.] Gates’ Statement of Offense.” Hardy Decl., ECF No. 30-1
at 8 ¶ 15. Plaintiffs challenge those descriptions, arguing:
45
(1) the SCO fails to explain how it determine which files were
“appropriate investigative files”; (2) the SCO does not explain
how it “conducted searches of [those] files”; and (3) whether
the “investigative case files” are the only locations in the SCO
to likely contain responsive records. Pls.’ Reply, ECF No. 32 at
21. Plaintiffs rely on Reporters Committee for Freedom of Press
v. FBI, 877 F.3d 399, 404 (D.C. Cir. 2017), which is
instructive.
In that case, the D.C. Circuit made clear that agency
affidavits must “set[ ] forth the search terms and the type of
search performed with the specificity [this Circuit’s] precedent
requires.” Reporters Comm. for Freedom of Press v. FBI, 877 F.3d
at 403 (citation and internal quotation marks omitted). The D.C.
Circuit recognized that “[t]his [C]ircuit’s precedent has long
made clear that an affidavit containing ‘no information about
the search strategies of the [agency] components charged with
responding to [a] FOIA request’ and providing no ‘indication of
what each [component’s] search specifically yielded’ is
inadequate to carry the government’s summary-judgment burden.”
Id. (quoting Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir.
2007)).
DOJ’s descriptions of the SCO’s search fall short of this
standard. See id. at 403; see also Oglesby, 920 F.2d at 68. To
support its position that the search was adequate, DOJ repeats
46
the statement in the Hardy declaration: “The [subject-matter-
experts] within the SCO located the appropriate investigative
case files, and conducted searches of these files. They were
unable to locate any responsive records pertaining to the former
Congressman or the meeting in question in [Mr.] Gates’ Statement
of Offense.” Def.’s Opp’n, ECF No. 30 at 20 (quoting Hardy
Decl., ECF No. 30-1 at 8 ¶ 15). Neither DOJ nor the FBI explain
how the SCO’s search was conducted. Furthermore, DOJ does not
provide an explanation for the footnote in the Hardy declaration
regarding the June 15, 2017 cutoff date in connection with the
SCO’s search. See id. Instead, DOJ reiterates the statement in
the Hardy declaration: “The SCO was appointed by Deputy Attorney
General Rosenstein on May 17, 2017, leaving less than a month of
overlap between [Plaintiffs’] request and the existence of [the]
SCO.” Id. (quoting Hardy Decl., ECF No. 30-1 at 8 ¶ 15 n.4). The
Court cannot determine whether the SCO’s search was adequate
based on the declarations. “Accordingly, consistent with this
Circuit’s precedent, [the FBI] shall identify the search terms
that the staff members in [the various] offices used to search
their electronic records, as well as the reason for any
differences in the record systems they searched.” Trautman v.
Dep’t of Justice, 317 F. Supp. 3d 405, 413 (D.D.C. 2018) (citing
Reporters Comm. for Freedom of Press v. FBI, 877 F.3d at 403).
The FBI “shall also clarify how staff members searched their
47
desks, file cabinets, file drawers and file rooms for
nonelectronic records.” Id.
* * *
Accordingly, the Court DENIES DOJ’s motion for summary
judgment and HOLDS IN ABEYANCE Plaintiffs’ cross-motion for
summary judgment as to the adequacy of the searches. The FBI
must either: (1) conduct a new search (or searches) for the
requested records to ensure the adequacy of the search
consistent with this Circuit’s precedent; or (2) provide the
Court with declarations from which the Court can find that the
declarants have personal knowledge that the search methodology,
procedures, and searches actually conducted were reasonably
designed to locate documents responsive to Plaintiffs’ request
consistent with this Opinion. McKinley v. FDIC, 756 F. Supp. 2d
105, 113 (D.D.C. 2010) (Sullivan, J.). 12
12“Because the case will proceed, the Court may reserve judgment
on [the] remaining issues for another day, in the event they
remain disputed.” Bartko v. U.S. Dep’t of Justice, 62 F. Supp.
3d 134, 141 (D.D.C. 2014). Given that the parties may resolve
the remaining issues after the FBI conducts searches consistent
with this Opinion, the Court therefore reserves judgment on
Plaintiffs’ remaining arguments: (1) that the FBI’s search was
inadequate for its refusal to contact the Special Agent in
Charge, the Assistant Director of Counterintelligence, or the
Assistant Director of the Office of Congressional Affairs, see
Pls.’ Mot., ECF No. 26 at 19; and (2) that the FBI improperly
redacted information on Bates-stamped pages 15, 175, 185, 186,
190, 197, and 221 because the “official acknowledgment” doctrine
bars the FBI from withholding such information because it has
been previously released in other documents, see id. at 27-30.
48
C. Evidentiary Objections
The Court now turns to Plaintiffs’ evidentiary objections
to the FBI’s declarations. Plaintiffs argue that the
declarations fail to attest to the declarants’ familiarity with
the documents at issue, and that this Court should reject the
declarations because they contain hearsay. Pls.’ Mot., ECF No.
26 at 6; see also Pls.’ Reply, ECF No. 32 at 5-8. For the
reasons explained below, the Court cannot agree with Plaintiffs’
arguments.
Under Rule 56(c)(4), “[a]n affidavit or declaration used to
support or oppose a motion must be made on personal knowledge,
set out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the
matters stated.” Fed. R. Civ. P. 56(c)(4). “A declarant in a
FOIA case satisfies the personal knowledge requirement in [Rule
56(c)(4)] if in his declaration, [he] attests to his personal
knowledge of the procedures used in handling [a FOIA] request
and his familiarity with the documents in question.” Barnard v.
Dep’t of Homeland Sec., 531 F. Supp. 2d 131, 138 (D.D.C. 2008)
(citation and internal quotation marks omitted). And “[b]ecause
a declarant is deemed to have personal knowledge if he has a
general familiarity with the responsive records and procedures
used to identify those records, the declarant is not required to
independently verify the information contained in each
49
responsive record[.]” Id. at 138-39.
The Seidel declaration provides that “[t]he statements
contained in this declaration are based upon my personal
knowledge, upon information provided to me in my official
capacity, and upon conclusions and determinations reached and
made in accordance therewith.” Seidel Decl., ECF No. 24-1 at 2 ¶
2 (emphasis added). The Hardy declaration contains an identical
statement. Hardy Decl., ECF No. 30-1 at 2 ¶ 3. Both declarants
aver that they are “familiar with the procedures followed by the
FBI in responding to requests for information from its files”
and that they are “aware of the FBI’s response to Plaintiffs’
FOIA request for records relating to Congressman Dana
Rohrabacher.” Seidel Decl., ECF No. 24-1 at 2 ¶ 3 (emphasis
added); see also Hardy Decl., ECF No. 30-1 at 2 ¶ 3. In response
to Plaintiffs’ objections, the Hardy declaration explains:
[A]s part of our daily duties, Mr. Seidel and
I supervise all stages of the [FOIA] request
process including initial receipt and
handling, the search for responsive records,
and the processing of those records pursuant
to the FOIA . . . . This includes all
information submitted in consultation with
[other government agencies]. All withholdings
submitted by [other government agencies] are
reviewed by the FBI staff Mr. Seidel and I
supervise. Additionally, beyond supervision,
when preparing declarations to justify the
FBI’s actions for [FOIA] litigations, Mr.
Seidel and I are fully briefed by our staff on
the handling of the requests subject to
litigation and attest to the actions of our
staff.
50
Hardy Decl., ECF No. 30-1 at 3 ¶ 5. According to DOJ, that
statement satisfies the FOIA requirements and accurately
reflects the FBI’s process for the records. Def.’s Opp’n, ECF
No. 30 at 6. As Plaintiffs correctly point out, neither
declarant explicitly uses the phrase “familiarity with the
documents in questions.” Pls.’ Reply, ECF No. 32 at 5. Without
that language, Plaintiffs contend that the declarants have not
attested to being “familiar with the contents of the responsive
documents.” Id. at 6 (emphasis in original). Plaintiffs argue
that “the FBI offers no support for the proposition that an
affiant may testify to the contents of the documents without
having ever looked at them.” Id. at 7. To support their
position, Plaintiffs rely on Harris v. Gonzales, 488 F.3d 442,
446 (D.C. Cir. 2007).
As recognized in Harris, the D.C. Circuit has “expressly
held that affidavits based upon belief are inadequate to support
a motion for summary judgment.” 488 F.3d at 446 (citing
Londrigan v. FBI, 670 F.2d 1164, 1174 (D.C. Cir. 1981)). In
Harris, the D.C. Circuit determined that the statements in two
affidavits—“[t]o the best of [the affiant’s] knowledge and
belief, [the affiant] recall[ed] seeing an EEO poster
displayed”—left the Circuit “wondering whether the affiants
actually saw” the documents at issue there. Id. The D.C. Circuit
51
made clear that affidavits based merely on information and
belief cannot satisfy the requirements under Rule 56. Id. Here,
the declarants do not state that their statements were based on
“information and belief.” See Seidel Decl., ECF No. 24-1 at 2 ¶
2; see also Hardy Decl., ECF No. 30-1 at 2 ¶ 3. Nonetheless,
Plaintiffs argue that “[t]here is no meaningful difference
between statements based on ‘information provided’ to the
affiant . . . and statements based on the ‘information and
belief’ of the affiant.” Pls.’ Reply, ECF No. 32 at 7 (citations
omitted). The Court disagrees.
Faced with the same issue, the court in Wisdom v. United
States Trustee Program, 232 F. Supp. 3d 97, 116 (D.D.C. 2017)
upheld the exact language in the Seidel and Hardy declarations
as to personal knowledge and declined to strike the affidavits
as deficient. There, the affiant attested that he was
responsible for “for agency compliance with [FOIA]” and had
“direct involvement in the processing of responses to requests
for access to [USTP] records and information.” Id. at 115. The
affiant also explained that his statements were “based upon my
personal knowledge, upon information provided to me in my
official capacity, and upon conclusions and determinations
reached and made in accordance therewith.” Id. The court
interpreted those statements that the affiant “based his
conclusions on information provided to him by other agency
52
employees and his own review of agency records.” Id. The court
explained: “While the [affidavit] might have provided this
necessary information in a more direct and clear manner—e.g., by
using the tried-and-true recitation of a ‘familiarity with the
documents in question’—the language he has used nonetheless
presents a sufficient approximation to satisfy Rule 56’s
requirements here.” Id. at 115-16. For the same reasons, the
Court therefore finds that the Seidel and Hardy declarations
meet the requirements under Rule 56. See id.; see also Wisdom v.
U.S. Tr. Program, 266 F. Supp. 3d 93, 103 (D.D.C. 2017)
(rejecting FOIA requester’s argument that agency declaration was
deficient for using “upon information provided” language).
Plaintiffs’ other argument—that this Court should not
consider the declarations because they contain hearsay—is
unavailing. In FOIA cases, courts in this jurisdiction have held
that declarants may rely on “information they have obtained in
the course of their official duties.” Canning v. U.S. Dep’t of
State, 134 F. Supp. 3d 490, 510 (D.D.C. 2015) (citations
omitted). “[T]here is no requirement that the declarant must
have been personally involved in each of the challenged
searches.” Wisdom, 266 F. Supp. 3d at 102; see also Shapiro v.
U.S. Dep’t of Justice, 37 F. Supp. 3d 7, 20 (D.D.C. 2014)
(“[D]eclarations that contain hearsay in recounting searches for
documents are generally acceptable.”). The Court therefore finds
53
that it may consider the FBI’s declarations over Plaintiffs’
objections. Accordingly, the Court DENIES Plaintiffs’ cross-
motion for summary judgment as to the evidentiary objections to
the declarations.
IV. Conclusion
For the reasons set forth above, 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.
Within thirty days of issuance of this Memorandum Opinion, DOJ
shall submit an amended declaration or declarations as to the
adequacy of the FBI’s searches. Within sixty days of issuance of
this Memorandum Opinion, DOJ shall submit: (1) a Vaughn index
that identifies each document or group of documents for its
withholdings under Exemptions 6 and 7(C); and (2) an amended
declaration that addresses the balance between the privacy and
public interests in light of the FBI’s partial Glomar response.
The Court DEFERS ruling on the issues of segregability and the
applicability of the “official acknowledgement” doctrine with
respect to the redactions in Bates-stamped pages 15, 175, 185,
186, 190, 197, and 221. A separate Order accompanies this
Memorandum Opinion.
54
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
September 24, 2019
55