Buzzfeed, Inc. v. Dep't of Justice

344 F. Supp. 3d 396
CourtCourt of Appeals for the D.C. Circuit
DecidedSeptember 26, 2018
DocketCivil Action No. 17-0900 (ABJ)
StatusPublished
Cited by6 cases

This text of 344 F. Supp. 3d 396 (Buzzfeed, Inc. v. Dep't of Justice) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buzzfeed, Inc. v. Dep't of Justice, 344 F. Supp. 3d 396 (D.C. Cir. 2018).

Opinion

AMY BERMAN JACKSON, United States District Judge

Plaintiffs BuzzFeed, Inc. ("BuzzFeed"), a media corporation, and two of its journalists, Peter Aldhous and Charles Seife, have sued the Department of Justice ("DOJ") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq. , seeking documents from the Federal Bureau of Investigation ("FBI") concerning its aerial surveillance program. In particular, plaintiffs request flight logs and evidence logs associated with twenty-seven planes, identified by their unique tail numbers and the locations where they were allegedly sighted: the Washington, D.C./Baltimore area, California, and New York. Although the agency acknowledges the general existence of the aerial surveillance program, it refuses to confirm or deny whether records exist for these particular aircraft, asserting that merely stating whether the records exist is itself covered by a FOIA exemption. This is commonly known as a "Glomar response" to a FOIA request, and it can be overcome by a showing that the information has already been officially disclosed.1

The parties have filed cross-motions for summary judgment, and the Court will grant summary judgment in favor of DOJ and deny plaintiffs' motion since it finds that the agency's invocation of the FOIA

*401exemptions was proper and that the particular information sought has not been officially acknowledged. At bottom, the Court agrees that simply revealing whether or not the FBI has records concerning any of these particular airplanes would be enough to let the cat out of the bag. Disclosing this information - which has never been officially acknowledged by the FBI before - would interfere with law enforcement proceedings, and disclose law enforcement techniques in a way that would risk circumvention of the law.

BACKGROUND

Plaintiffs submitted a FOIA request to the FBI on March 4, 2016 seeking to examine the government's aerial surveillance practices. Ex. A to First Hardy Decl. [Dkt. # 9-1] ("FOIA Request"). The request sought records on "recent surveillance or monitoring flights," and it identified twenty-seven planes presumed to be "associated with FBI surveillance operations."2 Id. The following twenty-seven planes were listed by their tail numbers as "recently observed" in the "greater DC/Baltimore area," "California," and the "greater New York area":

[T]he greater DC/Baltimore area:
N208EB, N467TS, N539MY, N610AG, N629ET, N632MR, N632TK, N728MP and N859JA
California:
N143GS, N168DK, N301A, N404KR, N514NY, N610AG, N632TK, N657TP, N879WM and N956D
[G]reater New York area:
N232DW, N236KS, N461AJ, N520EP, N629BA, N687RT, N910LF, N912EX, N916WR, and N6971A.

Id. For each of these aircraft, plaintiffs requested the "flight logs" and "evidence logs" from August 15, 2015 through the present. Id.

After acknowledging receipt of the request, the FBI informed plaintiffs that due to unspecified "unusual circumstances" there would be a delay in processing their request. Def.'s Statement of Material Facts Not In Dispute [Dkt. # 9] ("Def.'s SOF") ¶ 3; Pls.' Statement of Material Facts Not In Dispute [Dkt. # 13-1] ("Pls.' SOF") ¶ 1.

On May 2, 2016, the FBI issued its Glomar response, asserting that it could neither confirm nor deny the existence of records for the specified aircraft pursuant to FOIA Exemption 7(E) since disclosure of this information would reveal law enforcement techniques and procedures that would risk circumvention of law enforcement efforts. Def.'s SOF ¶ 4; Pls.' SOF ¶ 1. Plaintiffs administratively appealed this decision, but the agency affirmed the Glomar response. Def.'s SOF ¶¶ 7-8; Pls.' SOF ¶ 1.

Having exhausted their administrative remedies, plaintiffs filed this lawsuit on May 15, 2017, seeking to compel the agency to turn over the requested records. Compl. [Dkt. # 1]. Thereafter, the government moved for summary judgment on the basis that its Glomar response was justified under FOIA Exemption 7(E), and it also invoked Exemption 7(A) for the first time, arguing that acknowledging the existence of these records could interfere with pending law enforcement investigations, should any exist. Def.'s Mot. for Summ. J. [Dkt. # 9]; Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. [Dkt. # 9] ("Def.'s Mot.").

In response, plaintiffs opposed defendant's motion and cross-moved for summary *402judgment. Pls.' Cross-Mot. for Summ. J. [Dkt. # 12]; Mem. of P. & A. in Opp. to Def.'s Mot. & In Supp. of Pl.'s Mot for Cross-Mot. for Summ. J. [Dkt. # 12] ("Pls.' Cross-Mot."). They maintain that FOIA Exemption 7(A) does not apply because the agency failed to identify "specific proceedings" that would be compromised. Pls.' Cross-Mot. at 10. Plaintiffs also argue that the agency's right to rely on a Glomar response under Exemption 7(E) has been waived by the "abundance of public information linking these aircraft to FBI missions," which reduces or eliminates the risk of circumvention of law enforcement efforts. Id. at 1, 11-14.

STANDARD OF REVIEW

Summary judgment is appropriate "if the movant shows 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). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted).

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344 F. Supp. 3d 396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buzzfeed-inc-v-dept-of-justice-cadc-2018.