Leopold v. Department of Justice ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
JASON LEOPOLD et al., )
)
Plaintiffs, )
)
v. ) Civil No. 17-cv-2819 (APM)
)
U.S. DEPARTMENT OF JUSTICE, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
I. INTRODUCTION
In July 2017, the United States Senate Homeland Security & Government Affairs
Committee released a report titled “State Secrets: How an Avalanche of Media Leaks is Harming
National Security.” Appended to the report was a list of 152 news articles allegedly containing
leaks of classified national security information. The day after the report’s release, Plaintiffs Jason
Leopold, a journalist, and his then-employer, BuzzFeed News, filed Freedom of Information Act
(“FOIA”) requests with various offices of Defendant U.S. Department of Justice (“DOJ”) seeking
records related to the articles. At issue here is the response by DOJ component National Security
Division (“NSD”). NSD issued what is known as a Glomar response, that is, they neither
confirmed nor denied the existence of records.
Both parties have moved for summary judgment. Having carefully reviewed NSD’s
affidavit, the court finds it wanting. And so, for the reasons that follow, the two cross-motions are
denied without prejudice. Because national security considerations are at the heart of the parties’
dispute, the court will permit Defendant to resubmit and supplement its motion if it so chooses.
II. BACKGROUND
On July 7, 2017, Plaintiffs submitted identical FOIA requests through DOJ’s online portal
to five DOJ components, not including NSD, seeking six categories of records. Compl.,
ECF No. 1 [hereinafter Compl.], ¶ 9. Plaintiffs emailed a separate FOIA request to NSD (“NSD
request”) the same day seeking all but one of the same records categories. Id. ¶ 27. That request
sought:
(1) Any and all records mentioning, referring to and memorializing
internal discussions about the list of 152 news articles attached to
the request;
(2) Any and all crimes reports drafted/prepared by DOJ NSD
mentioning or referring to the list of news articles;
(3) Any and all media leaks questionnaires in possession of DOJ
NSD mentioning or referring to the listed news articles;
(4) Any and all documents memorializing correspondence between
the named reporters who authored the listed news articles and/or
their editors.
(5) Any and all directives, memos, and announcements to the DOJ
workforce issued in 2017 mentioning or referring to leaks, insider
threats, disclosure of classified information and any of the listed
news articles.
Def.’s Suppl. Mot. for Summ. J., ECF No. 47 [hereinafter Def.’s Mot], Ex. B, ECF No. 47-4
[hereinafter Pls.’ FOIA Request], 1 at 15–16. The 152 news articles referenced in Part 1 of the
request were those listed in the appendix to the Senate Homeland Security Committee’s report on
the adverse national security impacts of media leaks of classified information. 2 As to the five DOJ
components, DOJ “asserted a Glomar response” to most of the categories, and “Plaintiffs
1
The court uses ECF pagination for this Exhibit.
2
See STAFF OF S. COMM. ON HOMELAND SEC. & GOV’TAL AFFS., 115th CONG., State Secrets: How an Avalanche of
Media Leaks is Harming National Security, at 14–23 (Comm. Print 2017) (available at
https://www.hsgac.senate.gov/imo/media/doc/2017-07-06%20State%20Secrets%20report.pdf) (last visited Sept. 30,
2022).
2
administratively appealed the decisions.” Compl. ¶¶ 15–20. In their cross-motion, Plaintiffs do
not challenge the results of their appeals as to these five components. As to the NSD request,
Plaintiffs did not administratively appeal because they claim not to have “received a final
determination from NSD.” See id. ¶ 33.
Plaintiffs filed the instant action on December 28, 2017. Id. at 7. Nearly four years later,
DOJ filed its initial motion for summary judgment. Def.’s Mot. for Summ. J., ECF No. 39
[hereinafter Def.’s First Mot.]. As to NSD, the motion only raised an exhaustion defense. Def.’s
First Mot., Def.’s Mem. of P. & A. in Supp. of Def.’s First Mot, ECF No. 39-2, at 24–26. 3
Plaintiffs moved for an order directing Defendant to amend its motion to include any other
defenses, Pls.’ Mot. for an Order Directing Def. to Amend its Mot. for Summ. J., ECF No. 40,
which the court granted, Minute Order, Oct. 19, 2021. DOJ filed its supplemental motion for
summary judgment only on behalf of NSD on January 7, 2022. Def.’s Mot. Therein, NSD asserted
a Glomar response as to Parts 1, 3, and 4 of the request. Def.’s Mot., Decl. of Patrick Findlay,
ECF No. 47-4 [hereinafter Findlay Decl.], ¶¶ 9–16, 18–19. As to Parts 2 and 5, NSD determined
it was reasonable not to search for records. Id. ¶¶ 17, 20. Plaintiffs opposed and cross-moved,
Pls.’ Cross-Mot. for Summ. J., ECF No. 49 [hereinafter Pls.’ Cross-Mot.], and the motions are
now ripe for consideration.
III. LEGAL STANDARD
Summary judgment is appropriate when the pleadings and evidence show that “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); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A genuine issue of material fact is one that “might
3
Defendant’s initial summary judgment motion also was brought on behalf of another DOJ component, the Office of
Information Policy, but the parties resolved that dispute before the supplemental briefing.
3
affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248. The party
seeking summary judgment must demonstrate the absence of a genuine issue of material fact. See
Celotex, 477 U.S. at 323. When determining whether a genuine issue of material fact exists, the
trier of fact must view all facts, and reasonable inferences drawn therefrom, in the light most
favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587-88 (1986).
“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.
Off. of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011); see also Media Rsch. Ctr. v. Dep’t of
Just., 818 F. Supp. 2d 131, 136 (D.D.C. 2011) (“FOIA cases typically and appropriately are
decided on motions for summary judgment.”). A government agency may obtain summary
judgment in a FOIA case by relying on “relatively detailed” and “nonconclusory” declarations.
McGehee v. CIA, 697 F.2d 1095, 1102 (D.C. Cir. 1983). The court may enter summary judgment
based solely upon information provided in affidavits or declarations when those affidavits or
declarations describe “the justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within the claimed exception, and are not
controverted by either contrary evidence in the record nor by evidence of agency bad faith.”
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “An agency’s justification
for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Media Rsch.,
818 F. Supp. 2d at 137 (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)
(internal alteration omitted)).
Courts give agency declarations “a presumption of good faith, which cannot be rebutted by
purely speculative claims about the existence and discoverability of other documents.” SafeCard
Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted). Once
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the court determines that an agency has released all non-exempt material, it has no further judicial
function to perform under FOIA, and the FOIA claim is moot. See Perry v. Block, 684 F.2d 121,
125 (D.C. Cir. 1982).
IV. DISCUSSION
A. Administrative Exhaustion
FOIA requires reviewing agencies to “determine within 20 days . . . after the receipt of any
[FOIA] request whether to comply with such request” and notify the requester “in the case of an
adverse determination” of their right to administratively appeal to the agency. 5 U.S.C.
§ 552(a)(6)(A)(i)(III)(aa). This is known as FOIA’s administrative exhaustion requirement.
While exhaustion is not jurisdictional, “FOIA’s administrative scheme favors treating
[it] . . . as a bar to judicial review.” Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (internal
quotation marks omitted). The D.C. Circuit has consistently required requesters to exhaust their
administrative remedies in FOIA cases before seeking relief in federal court. Oglesby v. U.S. Dep’t
of Army, 920 F.2d 57, 61–62 (D.C. Cir. 1990) (citing cases). Exhaustion is required “so that [an]
agency may function efficiently and so that it may have an opportunity to correct its own errors,
to afford the parties and the courts the benefit of its experience and expertise, and to compile a
record which is adequate for judicial review.” Hines v. United States, 736 F. Supp. 2d 51, 53
(D.D.C. 2010).
NSD argues it “provided Plaintiffs with a final determination letter” “on August 9, 2017”
and that Plaintiffs failed thereafter to file an administrative appeal before they filed suit on
December 28, 2017. Def.’s Mot., Def.’s Mem. of P. & A. in Supp. of Def.’s Mot, ECF No. 47-2
[hereinafter Def.’s Mem.], at 5 (first citing Def.’s Mot., Ex. D, ECF No. 47-3, and then citing
5
Def.’s Mot, Decl. of Kevin Tiernan, ECF No. 47-3, ¶ 7). NSD therefore contends that Plaintiffs
failed to exhaust their administrative remedies before filing suit.
Plaintiffs offer multiple counterarguments. First, they cast doubt that the unsigned final
determination letter was ever actually sent. Pls.’ Cross-Mot., Pls.’ Mem. of P. & A. in Opp’n to
Def.’s Mot. and in Supp. of Pls.’ Cross-Mot, ECF No. 49 [hereinafter Pls.’ Mem.], at 1. Second,
Plaintiffs argue that “it is undisputed that [Leopold] never received it.” Id. (citing Pls.’ Cross-
Mot., Decl. of Jason Leopold, ECF No. 49-2 [hereinafter Leopold Decl.] ¶¶ 4–5). Third, Plaintiffs
assert that even if the court were to find NSD sent its final determination letter on August 9, 2017,
Plaintiffs’ request was still constructively exhausted because that date fell after the 20-day
deadline. Id. at 1–2 (citing 5 U.S.C. § 552(a)(6)(C)(i) (“Any person making a request to any
agency for records . . . shall be deemed to have exhausted his administrative remedies with respect
to such request if the agency fails to comply with the applicable time limit provisions of this
paragraph.”)). And finally, if the court rejects its constructive exhaustion argument, Plaintiffs ask
the court to excuse their failure to exhaust. Id. at 3. Because the court finds that Plaintiffs did not
receive the final determination letter, the court does not consider Plaintiffs’ other contentions.
NSD does not genuinely dispute that a plaintiff’s obligation to exhaust only arises after
receipt of an agency’s final determination letter. Def.’s Mem. of P. & A. in Opp’n to Pls.’ Cross-
Mot. & Reply in Supp. of Def.’s Mot., ECF No. 50 [hereinafter Def.’s Reply], at 2–7. And this is
for sound reason. As the D.C. Circuit explained in Oglesby, “[t]he purpose of the [20]-day limit
for an agency response is to allow a FOIA requester, who has not yet received a response from the
agency, to seek a court order compelling the release of the requested documents.” 920 F.2d at 64(emphasis added). Similarly, courts in this District have declined to grant summary judgment
against a requester on exhaustion grounds, where a requester submits a sworn statement attesting
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to non-receipt of the agency response. Kleinert v. Bureau of Land Mgmt., 132 F. Supp. 3d 79, 87
n.2 (D.D.C. 2015) (“The agency presumably recognizes that because Kleinert did not receive the
agency’s response within the relevant statutory period and before filing this suit (even if BLM did
send it), Kleinert constructively exhausted his administrative remedies.”); Bloomgarden v. Dep’t
of Just., 10 F. Supp. 3d 146, 151–52 (D.D.C. 2014); Pinson v. Dep’t of Just., 177 F. Supp. 3d 56,
78 (D.D.C. 2016).
Rather than challenge the legal premise, NSD attacks Plaintiffs’ assertion of non-receipt.
First, NSD argues that Plaintiffs waived any argument of non-receipt through a single line in a
Joint Status Report filed by the parties. Def.’s Reply at 4 (citing Joint Status Report, ECF No. 6,
at 1 (“Defendant issued a final response to [Plaintiffs’ FOIA] request on August 9, 2017.”)).
Additionally, NSD claims that, measured against the Joint Status Report, Leopold’s declaration is
akin to an improper “sham affidavit” used to “creat[e] an issue of material fact by contradicting
prior sworn testimony.” Def.’s Reply at 5 (quoting Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1030
(D.C. Cir. 2007) (internal quotation marks omitted)). And finally, NSD states that Leopold’s
declaration “runs afoul of the presumption of regularity that attaches to government acts and
documents.” Def.’s Reply at 5–6 (citing Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117
(D.C. Cir. 2007)).
The court is unconvinced. First, the Joint Status Report does not concede receipt or waive
the defense of non-receipt. Plaintiffs had already stated in both the Complaint and in email
correspondence between the parties that Leopold had not received a final determination from NSD.
Pls.’ Reply in Supp. of Pls.’ Cross-Mot., ECF No. 52 [hereinafter Pls.’ Reply], at 3–5 (first citing
Compl. ¶ 33 (“Although 20 business days have elapsed since July 7, 2017, Plaintiffs have not
received a final determination from NSD as to the request.”) and then citing Pls.’ Reply, Ex. 1,
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ECF No. 52-1 (email from Plaintiffs’ counsel stating “We will also be litigating the NSD request
which we believe was properly exhausted because Plaintiff never received the letter”)). The Joint
Status Report did not negate these representations. Further, given the absence of any concession
as to receipt, the “sham affidavit” rule has no application. See Galvin, 488 F.3d at 1030 (“[T]he
so-called ‘sham affidavit rule[]’ . . . precludes a party from creating an issue of material fact by
contradicting prior sworn testimony unless the shifting party can offer persuasive reasons for
believing the supposed correction is more accurate than the prior testimony.” (internal quotation
marks omitted)). Finally, accepting Leopold’s attestation of non-receipt is not at odds with the
presumption of regularity. The court has no reason to doubt that DOJ issued a final determination
letter; the sole question is whether Leopold received it. And he says he did not. Leopold
represents, under oath, that he “never received [NSD’s Final Determination Letter] or any similar
letter” nor did he “receive[] any final response” as to that FOIA request. Leopold Decl. ¶¶ 4–5.
Leopold goes on to state that he “would have known if any correspondence regarding” the NSD
FOIA request “had been delivered to [his] address” because he “had been specifically watching
[his] mail for a response” as he “considered this FOIA request to be very important.” Id. ¶ 6.
Defendant offers nothing that causes the court to question Leopold’s veracity. “Therefore, because
it cannot be said that the evidence is so one-sided that one party must prevail as a matter of law, a
disputed issue of material fact exists and the Court will not grant [NSD’s] motion for summary
judgment on exhaustion grounds.” Bloomgarden, 10 F. Supp. 3d at 152 (internal quotation marks
and alteration omitted).
B. Adequacy of Defendant’s Part 1 Search
Plaintiffs contend that “NSD misconstrued Part 1 of [their] FOIA request.” Pls.’ Mem.
at 3. Part 1 requested “[a]ny and all records mentioning, referring to and memorializing internal
8
discussions about the list of 152 news articles attached to the request.” Compl. ¶ 27(1). Plaintiffs
complain that rather than adhering to their “broad ‘any and all’ request,” NSD unduly cabined it
to “the context of an Intelligence Community (IC) element having referred to NSD an allegation
of an authorized disclosure of classified information to the news media,” what are known as
“crimes reports.” Pls.’ Mem. at 3, 6 (citing Findlay Decl. ¶ 11). But NSD’s declarant, NSD
general counsel Patrick N. Findlay, says otherwise. Findlay writes that “NSD FOIA determined
that any [responsive] records . . . would only exist in” that context. Findlay Decl. ¶ 11 (emphasis
added). In other words, Findlay says that any responsive records to Part 1 would be found, if at
all, only in the context of an intelligence community referral contained in a crimes report. The
court therefore agrees with Defendant that NSD did not misconstrue Plaintiffs’ request. Def.’s
Reply at 10–11.
C. Procedural Compliance with Glomar for Parts 1, 3, and 4
NSD asserted a Glomar response neither confirming nor denying the existence of records
to Parts 1, 3, and 4 of Plaintiffs’ request. Plaintiffs assert that NSD’s Glomar response falls short
because it is procedurally insufficient. Pls.’ Mem. at 4–6. This argument requires some initial
unpacking.
The D.C. Circuit has stated that, in evaluating a Glomar response, “courts apply the general
exemption review standards established in non-Glomar cases.” Wolf v. CIA, 473 F.3d 370, 374
(D.C. Cir. 2007). Here, NSD relies on both Exemptions 1 and 7(A). Def.’s Mem. at 7; Findlay
Decl. ¶¶ 13, 15. Plaintiffs only raise a procedural challenge with respect to Exemption 1.
Under the text of FOIA, Exemption 1 carves out from disclosure records that are both
“(A) specifically authorized under criteria established by an Executive order to be kept secret in
the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to
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such Executive order.” 5 U.S.C. § 552(b)(1). The Executive Order in question here is Executive
Order 13526. Def.’s Mem. at 7 (citing Classified National Security Information, 75 Fed. Reg. 707(Dec. 29, 2009)). The Order authorizes classification “only if all of the following” four criteria
are satisfied:
(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the
control of the United States Government;
(3) the information falls within one or more of the categories of
information listed in section 1.4 of this order; and
(4) the original classification authority determines that the
unauthorized disclosure of the information reasonably could be
expected to result in damage to the national security, which
includes defense against transnational terrorism, and the original
classification authority is able to identify or describe the
damage.
Classified National Security Information, 75 Fed. Reg. at 707 § 1.1(a); see also Lindsey v. FBI
(Lindsey II), 490 F. Supp. 3d 1, 11 (D.D.C. 2020) (setting out the same procedural requirements);
ACLU v. CIA (ACLU Interrogations), 892 F. Supp. 2d 234, 245 (D.D.C. 2012) (same); Mobley v.
CIA, 924 F. Supp. 2d 24, 47–48 (D.D.C. 2013) (same). Plaintiffs dispute NSD’s compliance with
the last two of these requirements, Sections 1.1(a)(3) and (4). Pls.’ Reply at 8.
1. Section 1.1(a)(3)
Section 1.1(a)(3) of Executive Order 13526 directs a classifier to Section 1.4’s
Classification Categories. In evaluating a Glomar response based on Exemption 1, courts in this
Circuit have considered whether the agency has identified one of the eight Classification
Categories contained in Section 1.4. 4 In Wolf, the D.C. Circuit upheld the CIA’s Exemption 1-
4
The categories include:
10
based Glomar response predicated on a predecessor Executive Order. 5 473 F.3d at 375–76. The
CIA’s affidavit in Wolf asserted the information concerned “an intelligence source or method” and
“outline[d] the potential harm to foreign relations that would reasonably result from” a non-
Glomar response. 473 F.3d at 376. “[I]ntelligence sources or methods” and “foreign relations”
were two of the seven classification categories in the prior Executive Order. Classified National
Security Information, 60 Fed. Reg. at 19,827 § 1.5(c), (d). And in Lindsey II, the district court
granted summary judgment in favor of the FBI based on an affiant’s statement that he had
“determined that the existence or nonexistence of requested records is a properly classified fact
that concerns sections 1.4(c) (‘intelligence sources or methods’) and 1.4(d) (‘foreign relations or
foreign activities of the United States’).” Id. at 12, 14.
NSD’s affidavit falls short in comparison to those in Wolf and Lindsey II. In it, Findlay
states that “[c]lassified information in NSD records is frequently, though not exclusively, classified
under section 1.4(c) of Executive Order 13526 which covers intelligence activities, sources, and
methods.” Findlay Decl. ¶ 10. While Findlay cites to one of the Classification Categories, it is
not for the responsive records but for “[c]lassified information in NSD records” in general. Id.
(a) military plans, weapons systems, or operations;
(b) foreign government information;
(c) intelligence activities (including covert action), intelligence sources or
methods, or cryptology;
(d) foreign relations or foreign activities of the United States, including
confidential sources;
(e) scientific, technological, or economic matters relating to the national security;
(f) United States Government programs for safeguarding nuclear materials or
facilities;
(g) vulnerabilities or capabilities of systems, installations, infrastructures,
projects, plans, or protection services relating to the national security; or
(h) the development, production, or use of weapons of mass destruction.
Classified National Security Information, 75 Fed. Reg. at 709 § 1.4.
5
This predecessor Executive Order’s classification requirements largely mirrored the 2009 update at issue here. The
prior Executive Order’s Section 1.2(a)(3), like Executive Order 13526’s Section 1.1(a)(3), mandated that classified
“information falls within one or more of” specifically enumerated Classification Categories listed elsewhere in the
Order. Classified National Security Information, 60 Fed. Reg. 19,825, 19,826 § 1.2(a)(3) (Apr. 17, 1995).
11
Furthermore, Findlay undercuts even that minimal offering by later writing that “the particular
reason a piece of information that was provided to a reporter might have been classified could span
the entirety of the reasons information is classified under Executive Order 13526.” Id. ¶ 12. This
language does speak more directly to the requested records, but it is premised on equivocal
language that “the particular reason . . . could span” the full roster of reasons available under the
Executive Order. Id. (emphasis added). Thus, Findlay fails to affirmatively state that the crimes
reports “fall[] within one or more of the categories of information listed in section 1.4.” Classified
National Security Information, 75 Fed. Reg. at 707 § 1.1(a)(3).
Defendant argues that Plaintiffs misread the Findlay Declaration. Def.’s Reply at 12–14.
First, the fact of the existence of any crimes reports fitting Plaintiffs’ request necessitates that “an
agency other than the Department . . . determine[] that classified information was revealed in a
news article.” Def.’s Reply at 12 (quoting Findlay Decl. ¶ 12). And “NSD is bound by the
classification determination of the other agency.” Def.’s Reply at 12 (citing Derivative
Classification, 32 C.F.R. § 2001.22 (2021) and Classified National Security Information, 75 Fed.
Reg. at 712–14 §§ 2.1, 3.1). This is dispositive of Plaintiffs’ argument, NSD presses, because
FOIA Exemption 1 requires nothing more than that “the most recent classification of a requested
document be in” procedural compliance with the Executive Order in question. Def.’s Reply at 12
(quoting Allen v. CIA, 636 F.2d 1287, 1291 (D.C. Cir. 1980), overruled on other grounds by
Founding Church of Scientology v. Smith, 721 F.2d 828 (D.C. Cir. 1983)). At bottom, NSD says
that the proper Classification Category for a crimes report is fixed by the referring agency, not
NSD, so NSD must accept whatever classification is ascribed to a report.
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But even if that is true it does not resolve the fundamental problem with the Findlay
Declaration: it does not identify any Section 1.4 category that is particular to the crimes reports, as
opposed to NSD records generally. This lack of specificity renders the declaration inadequate.
2. Section 1.1(a)(4)
Section 1.1(a)(4) requires both that “the original classification authority determines that
the unauthorized disclosure of the information reasonably could be expected to result in damage
to the national security” and that “the original classification authority is able to identify or describe
the damage.” Classified National Security Information, 75 Fed. Reg. at 707 § 1.1(a)(4). NSD has
satisfied the first inquiry but not the second.
Because “courts lack the expertise necessary to second-guess . . . agency opinions in the
typical national security FOIA case,” the D.C. Circuit has directed district courts to “accord
substantial weight to an agency’s affidavit.” ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C.
Cir. 2011) (internal quotation marks omitted). Courts must be mindful “that any affidavit or other
agency statement of threatened harm to national security will always be speculative to some extent,
in the sense that it describes a potential future harm.” Wolf, 473 F.3d at 374.
Findlay states that the fact of NSD possession of specific, IC-referred crimes reports “could
provide hostile foreign powers operationally valuable information about United States intelligence
activities” based on whatever classified information was in the articles. Findlay Decl. ¶ 12. Under
the Circuit’s deferential standard, this is enough to satisfy the requirement than an original
classification authority deem unauthorized disclosure reasonably harmful to national security.
Even Plaintiffs concede as much. Pls.’ Reply at 9. Yet nowhere in the relevant part of Findlay’s
13
Declaration does he take the next required step and “identify or describe the damage.” See Findlay
Decl. ¶¶ 9–16.
Prior decisions from this Circuit make clear the level of detail expected of that description.
The CIA’s affidavit in Wolf detailed how confirming or denying the existence of records requested
about a former Colombian politician might “thwart[] or ma[k]e more difficult” the agency’s efforts
to use “foreign nationals as sources . . . to carry out its intelligence-gathering duties,” thereby
“reducing the CIA’s effectiveness.” 473 F.3d at 372, 376. Confidentiality is paramount to the
CIA’s efforts, the agency explained, because “official confirmation of a source’s cooperation with
the Agency could cause the target government to take retaliatory action against that person, or, if
he is no longer alive, against his surviving family and friends.” Id. at 376 (internal alterations
omitted). Failure to maintain confidentiality would not only “seriously damage this nation’s
credibility with all other current intelligence sources”; it would also “undermine CIA’s ability to
attract potential intelligence sources in the future.” Id.; see also Lindsey II, 490 F. Supp. 3d at 12–
13 (providing a detailed explanation of the potential harm that would result to both intelligence
sources and methods and foreign relations from revealing the existence of responsive records);
ACLU Interrogations, 892 F. Supp. 2d at 246–47 (in a non-Glomar case, affirming the agency’s
Exemption 1 withholding in response to a request for records regarding “unauthorized
interrogation techniques” where the agency’s declarant explained that disclosure of the requested
records “would reveal U.S. intelligence needs, priorities, and capabilities to” adversaries who
would then “be put on notice that their activities and information had been targeted by the CIA;
future intelligence collection activities would be made more difficult; and, as a result, the conduct
of such operations would become even more dangerous”).
14
Here, Findlay does not go beyond saying that adversaries may gain “operationally valuable
information.” Findlay Decl. ¶ 12. It is not for the court to surmise what harm might befall the
United States if such information ended up in the wrong hands; the burden is NSD’s. 5 U.S.C.
§ 552(a)(4)(B) (“[T]he burden is on the agency to sustain its action.”). The court recognizes that,
in this unique case, making the requisite harm assessment is made more challenging given the
likely diverse national security interests implicated by the 152 news articles at issue and the
different intelligence-community components that might have prepared a crimes report. See Pls.’
FOIA Request at 19–28. It may be that NSD needs “some kind of system for soliciting the views
of the original classifier.” McGehee, 697 F.2d at 1110 n.71. In any event, NSD’s evaluation of
potential damage requires more than simply saying that disclosure could lead adversaries to obtain
“operationally valuable information.” It has not met its burden under Section 1.1(a)(4) of the
Executive Order.
D. Justification for Glomar Response as to Parts 1, 3, and 4
Plaintiffs also contest whether NSD has sufficiently justified its Glomar response on the
merits to allow it to refuse to confirm or deny the existence of records under either Exemptions 1
or 7(A). Pls.’ Mem. at 6–9, 10–11. Plaintiffs mount this challenge as to Parts 1, 3, and 4 of their
FOIA request. Id. at 6–9.
“An agency may issue a Glomar response when ‘ . . . answer[ing] the FOIA inquiry would
cause harm cognizable under’ an applicable statutory exemption.” Elec. Priv. Info. Ctr. v. NSA,
678 F.3d 926, 931 (D.C. Cir. 2012) (quoting Wolf, 473 F.3d at 374). “The agency must
demonstrate that acknowledging the mere existence of responsive records would disclose exempt
information.” Id. An agency affidavit that supports the Glomar response must justify the
invocation based on “general exemption review standards established in non-Glomar cases.” Wolf,
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473 F.3d at 374. Ultimately, the question for the court is whether the agency’s justification for
asserting the exemption is “logical or plausible.” Id. at 374–75 (internal quotation marks omitted).
In cases such as this one, where national security concerns are implicated, the courts “must accord
substantial weight to an agency’s affidavit concerning the details of the classified status of the
disputed record.” Id. at 374 (internal quotation marks omitted).
The cases cited relating to Executive Order Section 1.1(a)(4), supra, illustrate what it
means for the justification to be “logical or plausible” for purposes of an Exemption 1 Glomar
response. In Wolf, the Circuit found it “plausible that either confirming or denying an Agency
interest in a foreign national reasonably could damage sources and methods by revealing CIA
priorities, thereby providing foreign intelligence sources with a starting point for applying
countermeasures against the CIA and thus wasting Agency resources.” 473 F.3d at 376–77. It
similarly found it logical that “the need to assure confidentiality to a foreign source includes neither
confirming nor denying the existence of records even decades after the death of the foreign
national.” Id. at 377. Lindsey II provided detailed examples tying the Glomar response’s
invocation of Exemption 1 to real-world harm to both intelligence sources and foreign relations.
490 F. Supp. 3d. at 12–13. As in Wolf, the court found it was “plausible” that confirmation or
denial of “the existence, or non-existence, of any other records responsive to the [p]laintiff’s
request, which regard[ed] a foreign national,” might foreseeably “damage intelligence sources and
methods” through the exposure of “investigative interests and priorities, which” foreign
adversaries might use in their counterintelligence efforts. Id. at 14; see also Frugone v. CIA, 169
F.3d 772, 775 (D.C. Cir. 1999) (same where CIA’s invocation of Glomar kept secret whether
Chilean requester was ever a CIA asset). And in ACLU Interrogations, the court credited the
agency’s argument “that disclosure of information about” the “unauthorized interrogation
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techniques” “would reveal details . . . that could assist foreign terrorist organizations and foreign
governments, and thereby damage national security.” 892 F. Supp. 2d at 246–47; see also ACLU
v. CIA (ACLU Drones), 710 F.3d 422, 428–30 (D.C. Cir. 2013) (rejecting CIA’s “sweeping
Glomar response” in response to request for records related to drone strikes as unjustified where
President and his counterterrorism advisor had publicly acknowledged United States use of drones
because it was “neither logical nor plausible” that CIA had no “intelligence interest” in them).
Exemption 7 Glomar cases are to the same effect. For example, in Montgomery v. IRS, the
Circuit upheld the agency’s Glomar response under Exemption 7(D) where it prevented requesters
from confirming whether a whistleblower contributed to the underlying IRS investigation into their
tax-fraud scheme. 40 F. 4th 702, 707, 711–12 (D.C. Cir. 2022). And in Weddington v. U.S.
Department of Justice, the court permitted NSD’s Exemption 7(A) Glomar response where a
requester sought records relating to a potential counterterrorism investigation that may or may not
have been undertaken by the DOJ component. 581 F. Supp. 3d 218, 232–35 (D.D.C. 2022).
In evaluating this caselaw, a consistent theme emerges: “[A] Glomar response[] [is]
appropriate where an acknowledgment that records exist would provide the requester with the very
information the exemption is designed to protect.” Students Against Genocide v. Dep’t of State,
257 F.3d 828, 834 n.9 (D.C. Cir. 2001) (internal quotation marks omitted). Or, put differently, the
response is typically credited where the “Glomar fact” is the requested information. See Mobley,
924 F. Supp. 2d at 47 (“The parties refer to the fact of the existence or nonexistence of responsive
records as the Glomar fact.” (internal quotation marks omitted)).
In this case, NSD’s justification for invoking Glomar does not measure up for either
Exemption 1 or 7(A). As part of its reliance on Exemption 1, NSD argues that “[c]onfirming the
existence [of] ‘any crimes reports related to the cited articles’ is a confirmation of the existence of
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particular crimes reports.” Def.’s Reply at 9 n.4 (quoting Findlay Decl. ¶ 12). And NSD similarly
justifies its reliance on Exemption 7(A) by explaining that “acknowledg[ing] the existence of a
related crimes report would necessarily confirm the existence or non-existence of a[] related
investigation.” Id. at 15 (citing Findlay Decl. ¶¶ 13, 15). These abbreviated justifications do not
“plausibly” or “logically” explain how the mere acknowledgement of the existence of crimes
reports in response to this particular FOIA request would disclose the existence of leaked classified
intelligence (Exemption 1) or an ongoing law enforcement investigation (Exemption 7(A)).
Unlike Wolf, Lindsey II, or any of the other cited cases, this case does not involve an
information request about a specific individual or subject matter. Rather, Plaintiffs request crimes
reports, media leak questionnaires, and correspondence relating to 152 articles on a variety of
subject matters spanning the course of 16 years. See Pls.’ FOIA Request at 19–28. It is not clear
to the court how divulging the existence (and nothing more) of a crimes report, for instance, would
tell the public anything about whether there was any classified information in one of the
152 articles or that there is an ongoing leak investigation regarding any particular article. The
agency has not explained how a non-Glomar response would divulge any protected information
concerning, for example, the tardy disclosure of evidence related to the prosecution of convicted
Oklahoma City bomber Timothy McVeigh, see Pls.’ FOIA Request at 27; President Trump’s firing
of FBI Director Jim Comey, see id. at 19–21 (cataloging at least a dozen related articles from May
2017); President Trump’s contemplated relaxation of “rules governing drone strikes,” id. at 23; or
another topic entirely. Even with the substantial deference the court must afford an agency in the
national security setting, NSD has not persuaded the court that its Glomar response in this case is
plausible or logical.
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Furthermore, Exemption 7(A) allows an agency to withhold law enforcement records and
information only if the release of such information “relates to a concrete prospective law
enforcement proceeding.” Carson v. U.S. Dep’t of Just., 631 F.2d 1008, 1018 (D.C. Cir. 1980)
(emphasis added) (internal quotation marks omitted). But here, the key law NSD cites as a legal
predicate for opening any of these investigations, 18 U.S.C. § 798, has a five-year statute of
limitations. Findlay Decl. ¶ 13; see 18 U.S.C. §§ 798, 3282(a). Therefore, it may be that, as a
matter of law, there can be no “prospective” law enforcement proceeding with respect to many of
the articles, particularly the 27 cited from the first year of each of the Bush and Obama
administrations. See Pls.’ FOIA Request at 26–28. Presumably, any prosecution of a leaker
relating to those articles would be time barred. It therefore cannot be true that acknowledging the
existence of any crimes report would reveal an ongoing law enforcement investigation as to those
articles. The court therefore remains unconvinced by the justification of NSD’s Glomar response
even as to Exemption 7(A).
E. Adequacy of Search as to Part 5
The final dispute concerns NSD’s response to Part 5 of Plaintiffs’ request, which seeks
“directives, memos, [and] announcements” sent to the entirety of DOJ in 2017 about the
152 articles and “leaks, insider threats, [or] disclosure of classified information.” Id. at 16. NSD
argues it “reasonably determined that it would not have records responsive” because NSD is not
the DOJ component responsible for issuing such memos. Def.’s Mem. at 13.
“[W]hen an agency receives a FOIA request for ‘agency records’ in its possession, it must
take responsibility for processing the request. It cannot simply refuse to act on the ground that the
documents originated elsewhere.” McGehee, 697 F.2d at 1110. But that is precisely what NSD
did here. Findlay does not explain why NSD would not have any responsive records. Rather, he
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simply states that “as just one component, [NSD] does not issue directives, memos, or
announcements to the entire DOJ workforce.” Findlay Decl. ¶ 20. But, of course, Part 5 does not
ask solely for records that NSD “issue[d]” to the “entire DOJ workforce.” Fairly construed, it also
sought responsive all-workforce documents that NSD would have received. See Nation Mag.,
Washington Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (“Although a
requester must reasonably describe the records sought, an agency also has a duty to construe a
FOIA request liberally.” (cleaned up)). Findlay makes clear that NSD did not conduct a search for
any such records.
NSD’s sole proffered justification for directing Plaintiffs elsewhere is a departmental
regulation that informs requesters that DOJ “has a decentralized system for responding to FOIA
requests . . . . To make a request for records of the Department, a requester should write directly
to the FOIA office of the component that maintains the records being sought.” 28 C.F.R.
§ 16.3(a)(1) (2021); see also Def.’s Mem. at 11–12. But that regulation is simply instructional.
It does not require a person to make a request only to the DOJ component that originated a
responsive record. The following sentence of the regulation makes its instructional nature clear:
“A request will receive the quickest possible response if it is addressed to the FOIA office of the
component that maintains the records sought.” 28 C.F.R. § 16.3(a)(1). The regulation does not
relieve NSD from the obligation to search for records responsive to Part 5 of Plaintiffs’ FOIA
request.
V. CONCLUSION
Although the court has concluded that NSD has not met its burden with respect to its
Glomar responses as to Parts 1, 3, and 4 of Plaintiffs’ request, the court declines at this time to
enter judgment in favor of Plaintiffs. Because NSD asserts both national security and law
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enforcement justifications for its Glomar invocations, the court will allow NSD another
opportunity to defend its Glomar responses and renew its motion for summary judgment. If it
chooses not to, NSD must then conduct a search and submit a Vaughn index explaining the grounds
for any withholdings. Additionally, NSD must conduct a search for records responsive to Part 5
of Plaintiffs’ request. Accordingly, the parties’ cross-motions for summary judgment are denied.
The parties shall submit a Joint Status Report by October 14, 2022, which proposes a
schedule for further proceedings.
Dated: September 30, 2022 Amit P. Mehta
United States District Judge
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