Judicial Watch, Inc. v. U.S. Department of Justice ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
v. Case No. 17-cv-0916 (CRC)
U.S. DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION
This case involves another request made under the Freedom of Information Act (“FOIA”)
for documents concerning the infamous “Trump Dossier,” a “collection of memoranda prepared
by former British intelligence operative Christopher Steele during the 2016 presidential election
concerning then-candidate Donald J. Trump.” James Madison Project v. Dep’t of Justice, 2018
WL 294530, at *1 (D.D.C. Jan. 4, 2018), appeal docketed (Jan. 25, 2018). Judicial Watch, Inc.
submitted a FOIA request to the Federal Bureau of Investigation for documents related to the
FBI’s relationship with Mr. Steele. When the FBI failed to timely respond, Judicial Watch filed
suit. The FBI ultimately refused to confirm or deny the existence of any such documents, issuing
a so-called “Glomar response.” Both parties have now moved for summary judgment. Because
the FBI’s Glomar response was proper and Judicial Watch has failed to carry its burden to show
public acknowledgment of the requested documents, the Court will grant the Department’s
motion and deny Judicial Watch’s.
I. Background
As reported extensively by the media, during the 2016 election former British
intelligence operative Christopher Steele compiled a 35-page dossier on then-candidate Donald
Trump. James Madison Project, 2018 WL 294530, at *1. The dossier allegedly includes
“allegations that the government of Russia possesses compromising personal and financial
information about President Trump.” Id. The question of who commissioned and paid for the
Trump Dossier has been a subject of much contention in media and political circles.
On February 28, 2017, the Washington Post reported that the FBI had once intended to
pay Steele to continue looking into ties between then-candidate Trump and the Russian
government.1 The story concluded that the FBI did not pay Steele and noted that the FBI
declined to comment on the report. Eight days later, on March 8, 2017, plaintiff Judicial Watch,
Inc. filed a FOIA request with the FBI seeking three categories of documents related to the Post
story:
1. Any and all records of communication between any official, employee, or
representative of the FBI and Steele.
2. Any and all records regarding, concerning, or related to the proposed, planned,
or actual payment of any funds to Steele and/or his company Orbis Business
Intelligence.
3. Any and all records produced in preparation for, during, or pursuant to any
meetings or telephonic conversations between any official, employee, or
representative of the FBI and Steele and/or any employee or representative of
his company Orbis Business Intelligence.
Hardy Decl. Ex. A, at 1.
When the FBI failed to respond to this request in a timely fashion, Judicial Watch filed
suit under FOIA against the Department of Justice, the parent agency of the FBI. See Compl.
¶¶ 7, 11. That same day, on May 16, 2017, the FBI issued a letter that asserted a Glomar
1
See Tom Hamburger & Rosalind S. Helderman, FBI Once Planned to Pay Former
British Spy who Authored Controversial Trump Dossier, Wash. Post (Feb. 28, 2017),
https://www.washingtonpost.com/politics/fbi-once-planned-to-pay-former-british-spy-who-
authored-controversial-trump-dossier/2017/02/28/896ab470-facc-11e6-9845-
576c69081518_story.html?utm_term=.db8d68d38f3c.
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response to Judicial Watch’s request, refusing to confirm or deny the existence of any responsive
documents on the basis of six separate FOIA exemptions. Hardy Decl. Ex. C, at 1. The parties
subsequently filed briefs for summary judgment.
II. Legal Standard
Congress enacted FOIA “to promote the ‘broad disclosure of Government records’ by
generally requiring federal agencies to make their records available to the public on request.”
DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (citation omitted). But Congress also
recognized that legitimate governmental and privacy interests could be harmed by the release of
documents and thus carved out nine exemptions from FOIA’s reach. See 5 U.S.C. § 552(b).
These exemptions are to be narrowly construed, and the agency has the burden of justifying any
withholding it makes. DiBacco, 795 F.3d at 183–84.
The courts have also recognized that “[i]n certain cases, merely acknowledging the
existence of” records responsive to a FOIA request “would itself ‘cause harm cognizable under
[a] FOIA exception.’” People for the Ethical Treatment of Animals v. NIH (“PETA”), 745 F.3d
535, 540 (D.C. Cir. 2014) (citation omitted) (second alteration in original). When such situations
arise, an agency may refuse to confirm or deny the existence of any responsive records by
issuing what is known as a “Glomar response.” Id.2 A Glomar response is appropriate “if the
fact of the existence or nonexistence of agency records falls within a FOIA exception.” Id.(citation omitted). In assessing the validity of a Glomar response, the Court can rely on agency
affidavits. Id.2
This name is derived from the CIA’s refusal to confirm or deny records related to the
Hughes Glomar Explorer, a ship used in a classified CIA project to raise a sunken Soviet
submarine for U.S. intelligence analysis. PETA, 745 F.3d at 540.
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An agency may not issue a Glomar response, however, if it has already publicly
acknowledged the existence of the records sought. American Civil Liberties Union v. CIA
(“ACLU”), 710 F.3d 422, 427 (D.C. Cir. 2013). A plaintiff bears the burden of proving such
public acknowledgment. Id. To meet this burden, a plaintiff in a Glomar case “must pinpoint an
agency record that both matches the plaintiff’s request and has been publicly and officially
acknowledged by the agency.” Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011); see also
James Madison Project, 2018 WL 294530, at **5–6 (continuing to apply this specificity
requirement after the D.C. Circuit’s decision in ACLU).
III. Analysis
The FBI has asserted six separate FOIA exemptions that it contends justifies its Glomar
response.3 Judicial Watch does not challenge the applicability of any of these exemptions,
except for a brief argument that the Department has failed to “demonstrate the production of the
records could reasonably be expected to interfere with law enforcement proceedings.” Pl.’s
Mem. P. & A. Opp’n Def.’s Mot. Summ. J. (“Pl.’s MSJ”) at 5. Even if that were so, at least
three of the six exemptions asserted—Exemptions 1, 3, and 6—do not require that the release of
documents would interfere with ongoing investigations. See 5 U.S.C. § 552(b)(1), (3), (6). In
3
The six exemptions are: Exemption 1 (which protects classified documents), Exemption
3 (which protects documents exempted from disclosure by certain statutes), Exemption 6 (which
protects personnel and similar files whose disclosure would constitute an unwarranted invasion
of personal privacy), Exemption 7(A) (which protects law enforcement records whose disclosure
would interfere in an ongoing enforcement proceeding), Exemption 7(C) (which protects law
enforcement records whose disclosure would constitute an unwarranted invasion of personal
privacy), and Exemption 7(D) (which protects law enforcement records whose disclosure could
be expected to disclose the identity of a confidential source). Hardy Decl. ¶ 14; see 5 U.S.C.
§ 552(b).
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any event, the Department has provided a detailed affidavit from an FBI employee that
sufficiently justifies all of the asserted exemptions. See generally Hardy Decl.
Instead, Judicial Watch mainly argues that the FBI has publicly acknowledged the
requested records’ existence, thereby defeating its Glomar response. Pl.’s MSJ at 3–5. As
evidence of public acknowledgment, Judicial Watch points exclusively to an October 21, 2017
tweet from President Trump’s personal Twitter account that reads: “Officials behind the now
discredited ‘Dossier’ plead the Fifth. Justice Department and/or FBI should immediately release
who paid for it.” Pl.’s MSJ at 4. Judicial Watch argues that this tweet acknowledged the
existence of records responsive to its FOIA request. Id. at 4–5.4
As noted, a plaintiff must “pinpoint an agency record that both matches the plaintiff’s
request and has been publicly and officially acknowledged by the agency.” Moore, 666 F.3d at
1333. Clearly, this tweet does not publicly and officially acknowledge the existence of any
documents related to the first and third parts of Judicial Watch’s FOIA request—which sought
records of communication between the FBI and Mr. Steele and records produced in preparation
for any meetings or conversations between the FBI and Mr. Steele, see Hardy Decl. Ex. A. The
tweet makes no reference to any meetings or communications between the FBI and Steele. As
such, it does not constitute a public acknowledgment of the existence of any documents within
the scope of the first and third parts of Judicial Watch’s request.
Nor does it constitute an official acknowledgment of any documents within the scope of
the second part of Judicial Watch’s request, which seeks documents related to “the proposed,
4
While the public acknowledgment must come from the specific agency the FOIA
request is made to, the D.C. Circuit has stated that an acknowledgment of records’ existence by a
parent agency—such as the President as head of the Executive Branch—is imputed to its
component agencies. See ACLU, 710 F.3d at 429 n.7.
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planned, or actual payment of any funds to Mr. Steel and/or Orbis Business Intelligence,” Hardy
Decl. Ex. A, at 1. Given the Washington Post story that inspired Judicial Watch’s FOIA request,
the FBI has consistently and reasonably interpreted that request as seeking documents related to
payments by the FBI to Mr. Steel or his company. See Hardy Decl. ¶¶ 19–21, 41; Def.’s Mem.
P. & A. Supp. Mot. Summ. J. at 7–8; Def.’s Mem. Opp’n Pl.’s Cross-Mot. Summ. J. at 4–5.
Judicial Watch has never contested this characterization of its FOIA request before the FBI or in
this Court. While the President’s tweet could arguably suggest that the FBI has some records
concerning who paid for the Trump Dossier, it does not acknowledge that there are records that
the FBI paid for it. Because Judicial Watch must point to a public acknowledgment of the
specific records it seeks, see, e.g., Moore, 666 F.3d at 1333, this tweet is insufficient to constitute
public acknowledgment.
Since there has been no public acknowledgment of the existence of any specific records
responsive to Judicial Watch’s request (as reasonably construed by the FBI), the FBI’s assertion
of a Glomar response was appropriate in this case. The Court will therefore grant the
Department’s motion for summary judgment and deny Judicial Watch’s cross motion. A
separate Order shall accompany this Memorandum Opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: February 5, 2018
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