Judicial Watch, Inc. v. U.S. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.
Plaintiff,
v. Case No. 1:21-cv-01216-RCL
DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION
This case arises out of a Freedom of Information Act (“FOIA”) request that plaintiff
Judicial Watch, Inc. (“Judicial Watch”) submitted to the Federal Bureau of Investigation (“FBI”),
a component of the defendant U.S. Department of Justice (“DOJ”). Judicial Watch requested
communications between the FBI and financial institutions about the violent attack at the United
States Capitol on January 6, 2021 (“January 6”). The FBI issued a Glomar response, 1 which allows
the government to avoid confirming the existence of certain records when confirmation of those
records would implicate an exemption to FOIA’s disclosure requirements. Subsequently, Judicial
Watch sued the DOJ for failing to turn over these purported records. See Pl.’s Compl., ECF No. 1.
DOJ asserts that all FOIA obligations have been met and seeks summary judgment. See Def.’s
Mot., ECF No. 10; Def.’s Mem. in Supp. (“Def.’s Mem.”), ECF No. 10-1. Judicial Watch argues
that it is entitled to summary judgment in its favor. See Pl.’s Opp’n., ECF No. 15; Pl.’s Cross-
Mot., ECF No. 16. After reviewing the parties’ motions, applicable law, and the record as a whole,
1
The phrase “Glomar response” refers to the facts of Phillippi v. C.I.A., 546 F.2d 1009 (D.C. Cir. 1976). There, the
CIA refused to confirm or deny whether it had any records related to a ship—the Glomar Explorer. The phrase
“Glomar response” is now well-entrenched in FOIA precedent. See Am. C.L. Union v. C.I.A., 710 F.3d 422, 426 n.1
(D.C. Cir. 2013).
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the Court will GRANT the DOJ’s motion for summary judgment and DENY Judicial Watch’s
cross-motion for summary judgment.
I. BACKGROUND
Judicial Watch is a non-profit educational foundation that “regularly requests records from
federal agencies” and disseminates the resulting information to the public. Pl.’s Compl. ¶ 3. As
part of this mission, on February 10, 2021, Judicial Watch submitted a FOIA request to the FBI
for:
All records of communication between the FBI and any financial
institution, including but not limited to Bank of America, Citibank,
Chase Manhattan Bank, Discover, and/or American Express, in
which the FBI sought transaction data for those financial
institutions’ debit and credit card account holders who made
purchases in Washington, D.C., Maryland and/or Virginia on
January 5, 2021 and/or January 6, 2021.
Pl.’s Compl. ¶ 5. In a letter dated February 19, 2021, the FBI acknowledged Judicial Watch’s
request and assigned it a FOIA Request Number. Seidel Decl. ¶ 7, ECF No. 10-4. In a separate
letter sent the same day, the FBI invoked FOIA’s 10-day extension based on “unusual
circumstances.” Id. at ¶ 8. Judicial Watch filed this lawsuit in response. See Pl.’s Compl.
A little more than a month after this suit was filed, the FBI sent a letter to Judicial Watch
advising that the FOIA request did not comport with the requirements of 28 C.F.R. § 16-3(b).
Seidel Decl. ¶ 10. The FBI took the position that Judicial Watch’s “request did not provide enough
detail to enable FBI personnel to search for potentially responsive records with a reasonable
amount of effort.” Id. In response, Judicial Watch emailed a news article dated February 5, 2021,
from Mail Online, which provided further details supplementing Judicial Watch’s FOIA request.
See id. at ¶ 11; ECF No. 15-2. The FBI accepted this supplemental news article as narrowing the
scope of Judicial Watch’s FOIA request “to records of FBI communications seeking financial
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transaction records, identified by the dates and locations specified in Plaintiff’s request, as part of
the investigation into the events at the Capitol on January 6, 2021.” Seidel Decl. ¶ 11. Judicial
Watch has not disputed that this is the scope of its request. See Pl.’s Opp’n 2, 9; Pl.’s Reply 4; Pl.’s
Resps. to Def.’s Material Facts 2, ECF No. 16.
After narrowing the scope to the specific investigation into January 6, the FBI asserted that
it could neither confirm nor deny the existence of the sought-after records—that is, issued a Glomar
response. Seidel Decl. ¶¶ 12, 18, 20. The FBI explained that FOIA Exemption 7(E) applied to
Judicial Watch’s request because disclosure would reveal law enforcement techniques and
procedures. See id.; 5 U.S.C. § 552(b)(7)(E).
Relying on its Glomar response and FOIA Exemption 7(E), the DOJ moved for summary
judgment. Def.’s Mem. 8. Judicial Watch filed an opposition and cross-motion for summary
judgment, arguing that a Glomar response under Exemption 7(E) is improper because the DOJ has
officially acknowledged the use of financial records for its investigation into January 6 and that
the FBI’s activities are otherwise unlawful and thus unprotected. See Pl.’s Opp’n; Pl.’s Cross-Mot.
The DOJ filed a corresponding opposition and reply. Def.’s Reply, ECF No. 17 & 18. Judicial
Watch replied. Pl.’s Reply, ECF No. 19. And the DOJ filed a sur-reply. Def.’s Sur-Reply, ECF
No. 20.
These motions are now ripe for this Court’s review.
II. LEGAL STANDARD
A. Summary Judgment
FOIA requires disclosure of requested government records unless the information falls
within one of its exemptions. 5 U.S.C. § 552; Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011).
The statute contains a “strong presumption in favor of disclosure.” Am. C.L. Union v. Dep't of
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Just., 655 F.3d 1, 5 (D.C. Cir. 2011) (quoting Nat’l Ass’n of Home Builders v. Norton, 309 F.3d
26, 32 (D.C. Cir. 2002)). FOIA cases are typically resolved at the summary judgment stage. James
Madison Project v. Dep't of Just., 302 F. Supp. 3d 12, 19 (D.D.C. 2018).
On a motion for summary judgment, a ruling for the movant is appropriate “where the
evidence is such that a reasonable jury could not return a verdict for the nonmoving party.” Id.(internal quotation marks omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). In a FOIA case, the burden is on the government to prove “that it has not improperly
withheld” information requested under FOIA. Ctr. for Investigative Reporting v. U.S. Customs &
Border Prot., 436 F. Supp. 3d 90, 99 (D.D.C. 2019) (internal quotation marks omitted) (quoting
Citizens for Resp. & Ethics in Wash. v. Dep't of Justice, 922 F.3d 480, 487 (D.C. Cir. 2019)). “This
burden does not shift even when the requester files a cross-motion for summary judgment”; the
Government must always demonstrate that it has properly invoked the exemption relied upon. See
id. Summary judgment in a FOIA case may be granted in favor of an agency based on government
declarations supporting invocation of a FOIA exemption, provided that they (1) “describe the
documents and the justifications for nondisclosure with reasonably specific detail,” (2)
“demonstrate that the information withheld logically falls within the claimed exemption,” and (3)
“are not controverted by either contrary evidence in the record nor by evidence of agency bad
faith.” Mil. Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).
B. Glomar Standard
A Glomar response allows agencies to refuse to confirm or deny the existence of responsive
records when to answer the inquiry would cause harm cognizable under a FOIA exemption. Am.
C.L. Union, 710 F.3d at 426 & n.1. An agency must justify its Glomar response with a detailed
affidavit demonstrating that acknowledgment of “the mere existence of responsive records would
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disclose exempt information.” Elec. Priv. Info. Ctr. v. N.S.A., 678 F.3d 926, 931 (D.C. Cir. 2012).
The standard is not burdensome, and “[u]ltimately, an agency's justification for invoking a FOIA
exemption is sufficient if it appears logical or plausible.” Id. (internal quotation marks omitted)
(quoting Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009)).
III. DISCUSSION
Judicial Watch can challenge the DOJ’s Glomar response in “two distinct but related
ways.” See James Madison Project, 302 F. Supp. 3d at 20 (quoting Agility Pub. Warehousing Co.
K.S.C. v. N.S.A., 113 F. Supp. 3d 313, 326 (D.D.C. 2015)).
First, Judicial Watch can overcome Glomar by demonstrating “that the agency has
previously ‘official[ly] acknowledged’ the fact of the existence of a requested record.” See id.(citing Agility Pub. Warehousing, 113 F. Supp. 3d at 326). Judicial Watch has the burden of
“pointing to specific information in the public domain that appears to duplicate that being
withheld.” See Am. C.L. Union, 710 F.3d at 427. If Judicial Watch meets this burden, then “the
agency can no longer use a Glomar response and therefore must either (1) disclose the record to
the requester or (2) establish that its contents are exempt from disclosure and that such exemption
has not been waived.” See James Madison Project, 302 F. Supp. 3d at 20 (internal quotation marks
omitted) (quoting Moore v. C.I.A., 666 F.3d 1330, 1333 (D.C. Cir. 2011)).
Second, if Judicial Watch cannot establish official acknowledgment, it has an alternative
avenue. It can challenge the agency’s Glomar response on the merits and argue “that confirming
or denying the existence of records” would not “cause harm under the FOIA exemption invoked
by the agency.” See id. Here, the exemption invoked is Exemption 7(E).
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Judicial Watch takes both routes. It contends that the DOJ’s Glomar response was improper
because the FBI’s use of financial records for investigations into January 6 has been officially
acknowledged; and, in the alternative, that the FBI had no basis to invoke Exemption 7(E).
For the reasons set forth below, this Court concludes that the DOJ’s Glomar response was
proper and that summary judgment for the government is warranted.
A. The Official Acknowledgment Exception is Inapplicable
The official acknowledgment exception to a Glomar response is a matter of common sense.
“[W]hen an agency has officially acknowledged otherwise exempt information through prior
disclosure, the agency has waived its right to claim an exemption with respect to that information.”
Am. C.L. Union, 710 F.3d at 426. A plaintiff “bear[s] the initial burden of pointing to specific
information in the public domain that appears to duplicate that being withheld.” Id. (quoting Wolf
v. C.I.A., 473 F.3d 370, 378 (D.C. Cir. 2007)). And the specific information involved for a Glomar
response is the mere “existence (or not) of records responsive to the FOIA request.” Id. at 427(internal quotation marks omitted) (quoting Marino v. D.E.A., 685 F.3d 1076, 1081 (D.C. Cir.
2012)).
In Judicial Watch’s briefing, it identifies two primary sources of information that could
constitute official acknowledgments of existing responsive records: (1) FBI agent statements in
support of charges against January 6 participants, where there are references to financial records,
Pl.’s Reply 2–4, and (2) the FBI’s response to a FOIA request from Dan Heily, Pl.’s Opp’n 8–9.
Moreover, this Court will liberally construe Judicial Watch’s prior communications with the FBI
to allege that the Mail Online news article it cited is an official acknowledgment. See Seidel Decl.
¶ 11.
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The D.C. Circuit has imposed a “strict test” for claims of official acknowledgment. See
Moore, 666 F.3d at 1333 (quoting Wilson v. C.I.A., 586 F.3d 171, 186 (2d Cir. 2009)). “(1) the
information requested must be as specific as the information previously released; (2) the
information requested must match the information previously disclosed; and (3) the information
requested must already have been made public through an official and documented disclosure.”
Id. (quoting Am. C.L. Union v. Dep't of Def., 628 F.3d 612, 620–21 (D.C. Cir. 2011)). Thus,
Judicial Watch must point to a specific, official, acknowledgment that the FBI collected financial
records to further its investigation into January 6.
The Mail Online article is not an official acknowledgment because there is no evidence
that the information in it was endorsed or otherwise supplied by the government. A plaintiff cannot
meet the burden of demonstrating prior disclosure when the prior disclosure of information was
made by someone other than the agency from which the information is sought. Frugone v. C.I.A.,
169 F.3d 772, 774 (D.C. Cir. 1999). No evidence indicates that the DOJ or FBI provided Mail
Online with the information in the article. See Seidel Decl. ¶ 19. Official acknowledgment cannot
be based on mere public speculation, even if widespread. Wolf, 473 F.3d at 378 (citing Afshar v.
Dep't of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)). Speculation in a news article, without more,
does not constitute official acknowledgment.
Second, the submitted statements by FBI agents in specific January 6 cases do not
constitute an official acknowledgment. As the D.C. Circuit has repeatedly held, the key question
is whether the existence of the specific information sought has already been disclosed. See, e.g.,
Am. C.L. Union, 710 F.3d at 427. Consider Afshar v. Dep’t of State, in which a plaintiff requested
information about the supposed relationship between SAVAK, a foreign intelligence organization,
and the CIA. Afshar, 702 F.2d at 1133. The plaintiff pointed to several books written by former
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CIA officials and agents that, plaintiff alleged, constituted official acknowledgments. Id. at 1133–
34. The D.C. Circuit rejected that argument, in part, because the books provided “only the most
general outline or suggestion of a CIA–SAVAK relationship,” but the plaintiff was seeking “a far
more precise idea of the extent to which the services relied upon each other.” Id. at 1133. Thus,
the information in the books did not satisfy the requirement that the information requested had
been “specifically revealed to the public.” Id. at 1133–34 (quoting Lamont v. Dep't of Just., 475 F.
Supp. 761, 772 (S.D.N.Y. 1979)).
Similarly, Judicial Watch’s official acknowledgment argument fails because the cited
materials do not specifically acknowledge that the FBI has communicated with financial
institutions to obtain any financial records. The statements reference financial documents, but do
not state that the FBI obtained them through communications with financial institutions. See Def.’s
Sur-Reply 3. The statements only establish that the agent reviewed financial records related to the
case. See id. at 3–4. Those financial records could have been obtained by any number of law
enforcement agencies and later reviewed by the FBI agent. The statements, by themselves, do not
establish that there are “records of FBI communications seeking financial transaction records,” see
Seidel Decl. ¶ 11, much less communications about financial transaction records as part of a
January 6 investigation. Because the statements fail to specifically acknowledge the existence of
the records sought by Judicial Watch, they cannot pierce Glomar. See Am. C.L. Union, 710 F.3d
at 427.
Judicial Watch’s final argument is that the government’s response to a prior set of FOIA
requests by Dan Heily establishes an official acknowledgment.
Mr. Heily sent the FBI the following four requests:
• FOIA Request 1: Please provide all Federal Register data
required by 5 U.S.C. § 552a (e)(4) for every system of
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records that you [FBI] use to store data from the firms that
you [FBI] requested financial data from during the period
December 5, 2020 through February 6, 2021.
• FOIA Request 2: Please provide all Federal Register notices
required by 5 U.S.C. § 552a (e)(4) for every system of
records that you [FBI] use to store data from cell phone
providers that you [FBI] requested data from the period
January 1, 2021 through January 31, 2021 for data near the
Nations [sic] Capital.
• FOIA Request 3: Please provide the forms you [FBI] issued
to each financial institution to obtain financial data during
the period December 5, 2020 through February 6, 2021.
• FOIA Request 4: Please provide the forms you [FBI] issued
to obtain data from cell phone providers in January 2021 for
data in the area around the Nations Capital. I assume that you
[FBI] requested name, address, phone number, texts, emails,
GPS data and pen register data.
Heily Decl. 4–5, ECF No. 15-4. The government did not issue a Glomar response. Rather, it
confirmed the existence of these records and asserted that they were exempt from disclosure under
FOIA Exemptions (b)(7)(A) and 7(E). Id. at 7.
Judicial Watch must show that the government’s prior disclosure to Mr. Heily “necessarily
matches both the information at issue—the existence of records—and the specific request for that
information.” Wolf, 473 F.3d at 379. Yet, Mr. Heily’s request encompassed financial information
that could cover many investigations. The FBI’s response thus constitutes an acknowledgment that
it has responsive records for some investigation or investigations between December 5, 2020 and
February 6, 2021. However, Judicial Watch requested information on the FBI’s alleged collection
of financial transaction records for an investigation into January 6. See Seidel Decl. ¶ 11; Pl.’s
Opp’n 9; Pl.’s Reply 4. This scope differs from Mr. Heily’s requests, which were not tailored to
any specific investigation. Nor does Mr. Heily’s requested multi-month time period directly align
with Judicial Watch’s request for communications concerning purchases made on “January 5, 2021
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and/or January 6, 2021.” Pl.’s Compl. ¶ 5. Therefore, the response to Mr. Heily’s request does not
necessarily or specifically acknowledge that there are responsive records for Judicial Watch’s
FOIA request. It acknowledges only that some number of records exist that relate to financial data
obtained for some investigation or investigations between December 5, 2020 and February 6, 2021.
* * *
Judicial Watch has not demonstrated that the Mail Online’s news article, FBI agents’
statements in several January 6 cases, nor FBI’s response to Dan Heily’s FOIA request constitute
official acknowledgments of the existence of records responsive to Judicial Watch’s request.
Accordingly, it cannot rely on the official acknowledgment exception.
B. The FBI Properly Invoked FOIA Exemption 7(E)
Because the official acknowledgment exception does not apply, the propriety of the DOJ’s
Glomar response turns on whether its use of Exemption 7(E) is justified.
Exemption 7(E) exempts disclosure of information “compiled for law enforcement
purposes” when doing so “would [1] disclose techniques and procedures for law enforcement
investigations or prosecutions, or [2] disclose guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.”
5 U.S.C. § 552(b)(7)(E). Its purpose “is to prevent publication of information that would ‘train
potential violators to evade the law or instruct them how to break the law,’ and to protect
information that, if disclosed, ‘increases the risks that a law will be violated or that past violators
will escape legal consequences.’” Elec. Priv. Info. Ctr. v. D.E.A., 192 F. Supp. 3d 92, 112 (D.D.C.
2016) (quoting Mayer Brown LLP v. I.R.S., 562 F.3d 1190, 1193 (D.C. Cir. 2009)).
“Exemption 7(E) only requires that the [agency] demonstrate logically how the release of
the requested information might create a risk of circumvention of the law.” Blackwell v. F.B.I.,
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646 F.3d 37, 42 (D.C. Cir. 2011) (quoting Mayer Brown, 562 F.3d at 1194). This is a “relatively
low bar.” Id. Furthermore, Exemption 7(E) applies to both known and unknown techniques and
procedures, so long as disclosure of known techniques “might reduce their effectiveness.” Light v.
Dep't of Just., 968 F. Supp. 2d 11, 29 (D.D.C. 2013) (citing Coleman v. F.B.I., 13 F. Supp. 2d 75,
83 (D.D.C. 1998)).
The DOJ has met Exemption 7(E)’s requirements here. It asserts that disclosing these
records “would enable investigative subjects to circumvent similar and currently used techniques.”
Seidel Decl. ¶¶ 22–23. Furthermore, it asserts a specific danger to its investigation of January 6,
since disclosure of the existence of responsive documents would either enable “compensating
measures” or, if the FBI acknowledged that there are no records, would show a gap in the
investigative process. Seidel Decl. ¶¶ 20–21.
Judicial Watch confronts the DOJ’s position on two grounds: (1) that the FBI’s use of
financial records is commonly known and thus the DOJ’s asserted harm is not substantiated; and
(2) that the FBI’s activities, if they exist, were improper and thus cannot be exempted. Pl.’s Opp’n
5–8. The Court is unpersuaded by Judicial Watch’s avenues of attack. 2
Judicial Watch’s first argument is that the DOJ cannot use a Glomar response based on
Exemption 7(E) because it is publicly known that the FBI uses financial records for investigations.
See Pl.’s Opp’n 5–6. 3 Thus, Judicial Watch asserts that there is no logical risk of circumvention,
2
As an initial matter, it is clear that, if responsive records exist, they were compiled for a law enforcement purpose.
In Blackwell, the D.C. Circuit explained that the government “need only ‘establish a rational nexus between the
investigation and one of the agency's law enforcement duties and a connection between an individual or incident and
a possible security risk or violation of federal law.’” Blackwell, 646 F.3d at 40 (quoting Campbell v. Dep't of Just.,
164 F.3d 20, 32 (D.C. Cir. 1998)). The Circuit concluded that the documents there qualified as records compiled for
law enforcement because they were generated while investigating and prosecuting Blackwell on insider trading
charges. Id. at 41. Similarly, the possible documents sought in this case easily have a rational nexus to the January 6
incident and any cases flowing from the investigation.
3
Judicial Watch’s argument that Exemption 7(E) fundamentally requires the technique to be “secret” clearly fails as
such a requirement does not exist in the relevant case law. See, e.g., Shapiro v. Dep't of Just., 893 F.3d 796, 800–01
(D.C. Cir. 2018) (reasoning that even if it is commonly known that the FBI uses a specific database, Exemption 7(E)
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nor a plausible basis by which disclosure would reduce the effectiveness of the technique. The
DOJ concedes that its January 6 investigation is common knowledge. See Seidel Decl. ¶ 4. It also
concedes that it is commonly known that “the FBI might seek financial transaction records as part
of a criminal investigation.” Def.’s Mem. 7. However, public awareness that the FBI sometimes
uses financial records as an investigative technique is not the same as public awareness about
whether and how the technique is being used in a specific investigation. See BuzzFeed, Inc. v.
Dep't of Just., 344 F. Supp. 3d 396, 407 (D.D.C. 2018) (holding that even though aerial
surveillance by the FBI was commonly known, the FBI properly invoked Exemption 7(E) to avoid
confirming the existence of responsive records for specified aircraft and flight plans); cf. Wilner v.
N.S.A., 592 F.3d 60, 70 (2d Cir. 2009) (“The fact that the public is aware of [a] program’s existence
does not mean that the public is entitled to have information regarding the operation of the
program, its targets, [or] the information it has yielded. . . .”).
The FBI’s declaration “demonstrate[s] logically” why confirming the existence of the
responsive records poses a risk of circumvention of the law. See Blackwell, 646 F.3d at 42. The
DOJ has explained that acknowledging whether it sought financial records to identify those who
participated in January 6 would afford future defendants an opportunity to evade the law. Seidel
Decl. ¶¶ 21–22. Even if a defendant knows that the FBI could generally seek financial information
for its investigations, no confirmation one way or the other has been made for the January 6
investigation. See supra Part III.A. An acknowledgment in either direction would give insight into
how the FBI investigates matters like this one, id. at ¶ 21, and specifically reveal how it has chosen
to identify subjects for its January 6 investigation, id. at ¶¶ 20–22.
may still bar disclosure of the methods used to search the database which would “reveal information to criminals
regarding the ‘scope, capabilities, and vulnerabilities’ of [the FBI’s] investigations”).
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Thus, the DOJ has met the threshold for showing a logical risk of circumvention of the law,
the “relatively low bar” for withholding under Exemption 7(E). See Blackwell, 646 F.3d at 42. The
risk plausibly exists for future wrongdoers who, through disclosure of these records, would learn
about how the FBI obtains, or does not obtain, financial transaction information in investigations
like this one. And it also plausibly exists for individual subjects in the January 6 investigation, who
would be motivated by the FBI’s answer to employ “compensating measures.” See Seidel Decl. ¶
21. Both hazards suggest that disclosure would reduce the effectiveness of the FBI’s techniques
for this and future investigations. See Light, 968 F. Supp. 2d at 29.
Judicial Watch’s second argument is a bold contention: that the FBI has engaged in
improper behavior sufficient to deny use of Exemption 7(E). Pl.’s Opp’n 6–8. “The presumption
of regularity supports the official acts of public officers and, in the absence of clear evidence to
the contrary, [means that] courts presume that [public officers] have properly discharged their
official duties.” See Latif v. Obama, 666 F.3d 746, 748 (D.C. Cir. 2011) (quoting Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007)). In the FOIA context, courts must “accord[]
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. S.E.C., 926 F.2d 1197,
1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. C.I.A., 692 F.2d 770, 771 (D.C. Cir.
1981)). Here, Judicial Watch’s speculation is not necessarily about the existence of documents,
but rather the official acts that might have led to the creation of records. Specifically, Judicial
Watch avers that the FBI could have acted improperly if it had communicated with companies
seeking financial information.
Judicial Watch gives scant evidence for this argument. It cites an opinion piece on the Fox
News website along with (what appears to be) the public-comment section for the article. ECF No.
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15-1. There are several assertions of fact in the piece, centered around the statement that the author
has
exclusively obtained evidence that Bank of America, the second
largest bank in the country with more than 60 million customers, is
actively but secretly engaged in the hunt for extremists in
cooperation with the government. Bank of America is, without the
knowledge or the consent of its customers, sharing private
information with federal law enforcement agencies.
Id. The article does not provide any detail about this claim’s source, nor does Judicial Watch
provide any underlying evidence. The second piece of evidence, the Mail Online article, appears
to be based solely on the claims made in the Fox News opinion piece. ECF No. 15-2. Its third piece
of evidence, Kevin Brock’s declaration, offers opinions and conclusions based on the assumption
that Judicial Watch’s allegations are true, but offers no personal knowledge regarding the veracity
of the allegations. See ECF No. 15-3. Therefore, the only factual support that Judicial Watch brings
for its assertion of improper conduct comes from the opinion piece. But that article, with unclear
sourcing, cannot overcome the presumption of good faith and regularity. 4 Furthermore, neither of
Judicial Watch’s articles even confirm that, if the sourcing were true, the FBI made the relevant
communications as opposed to a different law enforcement agency. See Def.’s Reply 10.
Accordingly, Judicial Watch’s speculative allegations of impropriety do nothing to overcome the
Glomar response. Cf. Wilner, 592 F.3d at 75 (“We cannot base our judgment on mere speculation
that the [agency] was attempting to conceal the purported illegality of the [program] by providing
a Glomar response to plaintiffs' requests. A finding of bad faith must be grounded in evidence
suggesting bad faith on the part of the [agency].” (internal quotation marks omitted) (quoting
Larson, 565 F.3d at 862)).
4
Because Judicial Watch’s evidence is insufficient on its face, the Court does not reach the issue of whether it is even
proper to consider possible impropriety underlying a Glomar response under Exemption 7(E). See Pl.’s Opp’n 6–7;
Def.’s Reply 7.
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