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

• Court: District Court, District of Columbia
• Decided: February 5, 2018
• Docket: Civil Action No. 2017-0916
• Status: Published

Opinion

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.

2 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.

3 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).

4 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.

5 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