DocketNumber: Case No. 17–cv–0916 (CRC)
Citation Numbers: 293 F. Supp. 3d 124
Filed Date: 2/5/2018
Status: Precedential
Modified Date: 7/25/2022
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. 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 response to Judicial *127Watch'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,
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"),
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"),
III. Analysis
The FBI has asserted six separate FOIA exemptions that it contends justifies its Glomar response.
*128Pl.'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
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.
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,
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, 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,
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 *129Order shall accompany this Memorandum Opinion.
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.
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,
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
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,