Judicial Watch, Inc. v. U.S. Dep't of Justice

293 F. Supp. 3d 124
CourtCourt of Appeals for the D.C. Circuit
DecidedFebruary 5, 2018
DocketCase No. 17–cv–0916 (CRC)
StatusPublished
Cited by2 cases

This text of 293 F. Supp. 3d 124 (Judicial Watch, Inc. v. U.S. 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
Judicial Watch, Inc. v. U.S. Dep't of Justice, 293 F. Supp. 3d 124 (D.C. Cir. 2018).

Opinion

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 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, 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.

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, --- F.Supp.3d at ---- - ----, 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."

*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 5 U.S.C. § 552(b)(1), (3), (6). In 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.

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Related

James Madison Project v. Dep't of Justice
330 F. Supp. 3d 192 (D.C. Circuit, 2018)

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Bluebook (online)
293 F. Supp. 3d 124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/judicial-watch-inc-v-us-dept-of-justice-cadc-2018.