Lindsey v. Federal Bureau of Investigation
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Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
DAVID AUSTIN LINDSEY,
Plaintiff,
v. Civil Action No. 16-2032 (CKK) FEDERAL BUREAU OF INVESTIGATION,
Defendant.
MEMORANDUM OPINION (September 18, 2020)
This Freedom of Information Act (“FOIA”) matter concerns Plaintiff’s request to
Defendant Federal Bureau of Investigation (“FBI”) for the disclosure of “all FBI records of contact
between Imad Hage and U.S. government officials.” Compl., ECF No. 1, ¶ 1. The Court
previously discussed the background relevant to this case in its September 20, 2017 Memorandum
Opinion and Order, to which it refers the reader. See Lindsey v. Fed. Bureau of Investigation,
271 F. Supp. 3d 1, 3 (D.D.C. 2017).
In short, Plaintiff initially submitted his FOIA request on May 18, 2016, and Defendant
denied that request on June 23, 2016, and issued a privacy Glomar response neither confirming
nor denying the existence of any records responsive to Plaintiff’s response. Id. at 3. The Court
previously found that Defendant’s prior affidavit was insufficient to warrant summary judgment
on the basis of its initial Glomar response and denied without prejudice the parties’ cross-motions
for summary judgment. Id. The Court accordingly provided Defendant an opportunity to
supplement its affidavit or to pierce the Glomar veil and conduct a search for relevant, nonexempt
materials. Id. at 9.
1 Consequently, Defendant processed and released two pages of records related to a certain
incident involving Mr. Hage that took place at the Dulles Airport in January 2003, about which
some information was in the public record. Def.’s Stmt. ¶¶ 5, 8; Pl.’s Stmt. at 1 (admitting these
paragraphs). Defendant further issued a second Glomar response neither confirming nor denying
the existence or non-existence of any other responsive records. Def.’s Stmt. ¶ 9; Pl.’s Stmt. at 1
(admitting relevant sentence of paragraph). Now pending before the Court are the parties’ renewed
cross-motions for summary judgment regarding Defendant’s search, production, and second
Glomar response.
Upon consideration of the pleadings, 1 the relevant authorities, and the record as a whole,
the Court GRANTS Defendant’s Renewed Motion for Summary Judgment, ECF No. 20, and
DENIES Plaintiff’s Renewed Motion for Summary Judgment, ECF No. 22.
1 The Court’s consideration has focused on the following documents: • Def.’s Renewed Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 20; • Mem. of P. & A. in Supp. of Def.’s Renewed Mot. for Summ. J. (“Def.’s Mem.”), ECF No. 20-1; • Def.’s Stmt. of Material Facts as to Which There Is No Genuine Issue to Be Tried (“Def.’s Stmt.”), ECF No. 20-2; • Second Decl. of David M. Hardy (“Second Hardy Decl.”), ECF No. 20-3; • Notice of In Camera, Ex Parte Submission, ECF No. 21, and the referenced in camera, ex parte submission; • Pl.’s Renewed Mot. for Summ. J. (“Pl.’s Mot.”), ECF No. 22; • Pl.’s Mem. in Opp’n to Def.’s Renewed Mot. for Summ. J., and in Supp. of Pl.’s Renewed Mot. for Summ. J. (“Pl.’s Opp’n and Mem.”), ECF No. 23; • Pl.’s Stmt. of Material Facts to Which There Is No Genuine and Resp. to Def.’s Stmt. of Material Facts Not in Genuine Issue (“Pl.’s Stmt.”), ECF No. 22-1; • Def.’s Opp’n to Pl.’s Cross-Mot. for Summ. J. and Reply in Supp. of Def.’s Mot. for Summ. J. (“Def.’s Opp’n and Reply”), ECF No. 24; • Pl.’s Reply Mem. in Supp. of Pl.’s Renewed Mot. for Summ. J. (“Pl.’s Reply”), ECF No. 27; • Pl.’s Notice of Suppl. Auth. (“Pl.’s Notice”), ECF No. 30; and • Notice to the Ct. (“Def.’s Notice”), ECF No. 31. In an exercise of its discretion, the Court finds that holding oral argument would not be of assistance in rendering a decision. See LCvR 7(f). 2 I. LEGAL STANDARD
Congress passed FOIA to “‘open[] up the workings of government to public scrutiny’
through the disclosure of government records.” Stern v. Fed. Bureau of Investigation, 737 F.2d
84, 88 (D.C. Cir. 1984) (quoting McGehee v. Cent. Intelligence Agency, 697 F.2d 1095, 1108 (D.C.
Cir. 1983)). Congress, however, also recognized “that there are some government records for
which public disclosure would be so intrusive—either to private parties or to certain important
government functions—that FOIA disclosure would be inappropriate.” Id. To that end, FOIA
“mandates that an agency disclose records on request, unless they fall within one of nine
exemptions.” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011). Despite these exemptions,
“disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of Air Force v. Rose,
425 U.S. 352, 361 (1976). The exemptions are therefore “‘explicitly made exclusive’ and must be
‘narrowly construed.’” Milner, 562 U.S. at 565 (citations omitted) (quoting Envtl. Prot. Agency
v. Mink, 410 U.S. 73, 79 (1973); Fed. Bureau of Investigation v. Abramson, 456 U.S. 615, 630
(1982)).
When presented with a motion for summary judgment in this context, the court must
conduct a de novo review of the record. 5 U.S.C. § 552(a)(4)(B). This requires the court to
“ascertain whether the agency has sustained its burden of demonstrating the documents requested
are . . . exempt from disclosure under the FOIA.” Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d
1224, 1227 (D.C. Cir. 2008) (internal quotation marks omitted). “An agency may sustain its
burden by means of affidavits, but only ‘if they contain reasonable specificity of detail rather than
merely conclusory statements, and if they are not called into question by contradictory evidence
in the record or by evidence of agency bad faith.’” Id. (quoting Gallant v. Nat’l Labor Relations
Bd., 26 F.3d 168, 171 (D.C. Cir. 1994)). “If an agency’s affidavit describes the justifications for
3 withholding the information with specific detail, demonstrates that the information withheld
logically falls within the claimed exemption, and is not contradicted by contrary evidence in the
record or by evidence of the agency’s bad faith, then summary judgment is warranted on the basis
of the affidavit alone.” Am. Civil Liberties Union v. U.S. Dep’t of Defense, 628 F.3d 612, 619
(D.C. Cir. 2011). “Uncontradicted, plausible affidavits showing reasonable specificity and a
logical relation to the exemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep’t
of State, 641 F.3d 504, 509 (D.C. Cir. 2011).
Summary judgment is proper when the pleadings, the discovery materials on file, and any
affidavits or declarations “show[] 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).
II. DISCUSSION
There are two sets of disputes between the parties. First is whether Defendant’s second
Glomar response was justified. See Def.’s Mem. at 19–33; Pl.’s Opp’n and Mem. at 10–14. The
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
DAVID AUSTIN LINDSEY,
Plaintiff,
v. Civil Action No. 16-2032 (CKK) FEDERAL BUREAU OF INVESTIGATION,
Defendant.
MEMORANDUM OPINION (September 18, 2020)
This Freedom of Information Act (“FOIA”) matter concerns Plaintiff’s request to
Defendant Federal Bureau of Investigation (“FBI”) for the disclosure of “all FBI records of contact
between Imad Hage and U.S. government officials.” Compl., ECF No. 1, ¶ 1. The Court
previously discussed the background relevant to this case in its September 20, 2017 Memorandum
Opinion and Order, to which it refers the reader. See Lindsey v. Fed. Bureau of Investigation,
271 F. Supp. 3d 1, 3 (D.D.C. 2017).
In short, Plaintiff initially submitted his FOIA request on May 18, 2016, and Defendant
denied that request on June 23, 2016, and issued a privacy Glomar response neither confirming
nor denying the existence of any records responsive to Plaintiff’s response. Id. at 3. The Court
previously found that Defendant’s prior affidavit was insufficient to warrant summary judgment
on the basis of its initial Glomar response and denied without prejudice the parties’ cross-motions
for summary judgment. Id. The Court accordingly provided Defendant an opportunity to
supplement its affidavit or to pierce the Glomar veil and conduct a search for relevant, nonexempt
materials. Id. at 9.
1 Consequently, Defendant processed and released two pages of records related to a certain
incident involving Mr. Hage that took place at the Dulles Airport in January 2003, about which
some information was in the public record. Def.’s Stmt. ¶¶ 5, 8; Pl.’s Stmt. at 1 (admitting these
paragraphs). Defendant further issued a second Glomar response neither confirming nor denying
the existence or non-existence of any other responsive records. Def.’s Stmt. ¶ 9; Pl.’s Stmt. at 1
(admitting relevant sentence of paragraph). Now pending before the Court are the parties’ renewed
cross-motions for summary judgment regarding Defendant’s search, production, and second
Glomar response.
Upon consideration of the pleadings, 1 the relevant authorities, and the record as a whole,
the Court GRANTS Defendant’s Renewed Motion for Summary Judgment, ECF No. 20, and
DENIES Plaintiff’s Renewed Motion for Summary Judgment, ECF No. 22.
1 The Court’s consideration has focused on the following documents: • Def.’s Renewed Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 20; • Mem. of P. & A. in Supp. of Def.’s Renewed Mot. for Summ. J. (“Def.’s Mem.”), ECF No. 20-1; • Def.’s Stmt. of Material Facts as to Which There Is No Genuine Issue to Be Tried (“Def.’s Stmt.”), ECF No. 20-2; • Second Decl. of David M. Hardy (“Second Hardy Decl.”), ECF No. 20-3; • Notice of In Camera, Ex Parte Submission, ECF No. 21, and the referenced in camera, ex parte submission; • Pl.’s Renewed Mot. for Summ. J. (“Pl.’s Mot.”), ECF No. 22; • Pl.’s Mem. in Opp’n to Def.’s Renewed Mot. for Summ. J., and in Supp. of Pl.’s Renewed Mot. for Summ. J. (“Pl.’s Opp’n and Mem.”), ECF No. 23; • Pl.’s Stmt. of Material Facts to Which There Is No Genuine and Resp. to Def.’s Stmt. of Material Facts Not in Genuine Issue (“Pl.’s Stmt.”), ECF No. 22-1; • Def.’s Opp’n to Pl.’s Cross-Mot. for Summ. J. and Reply in Supp. of Def.’s Mot. for Summ. J. (“Def.’s Opp’n and Reply”), ECF No. 24; • Pl.’s Reply Mem. in Supp. of Pl.’s Renewed Mot. for Summ. J. (“Pl.’s Reply”), ECF No. 27; • Pl.’s Notice of Suppl. Auth. (“Pl.’s Notice”), ECF No. 30; and • Notice to the Ct. (“Def.’s Notice”), ECF No. 31. In an exercise of its discretion, the Court finds that holding oral argument would not be of assistance in rendering a decision. See LCvR 7(f). 2 I. LEGAL STANDARD
Congress passed FOIA to “‘open[] up the workings of government to public scrutiny’
through the disclosure of government records.” Stern v. Fed. Bureau of Investigation, 737 F.2d
84, 88 (D.C. Cir. 1984) (quoting McGehee v. Cent. Intelligence Agency, 697 F.2d 1095, 1108 (D.C.
Cir. 1983)). Congress, however, also recognized “that there are some government records for
which public disclosure would be so intrusive—either to private parties or to certain important
government functions—that FOIA disclosure would be inappropriate.” Id. To that end, FOIA
“mandates that an agency disclose records on request, unless they fall within one of nine
exemptions.” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011). Despite these exemptions,
“disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of Air Force v. Rose,
425 U.S. 352, 361 (1976). The exemptions are therefore “‘explicitly made exclusive’ and must be
‘narrowly construed.’” Milner, 562 U.S. at 565 (citations omitted) (quoting Envtl. Prot. Agency
v. Mink, 410 U.S. 73, 79 (1973); Fed. Bureau of Investigation v. Abramson, 456 U.S. 615, 630
(1982)).
When presented with a motion for summary judgment in this context, the court must
conduct a de novo review of the record. 5 U.S.C. § 552(a)(4)(B). This requires the court to
“ascertain whether the agency has sustained its burden of demonstrating the documents requested
are . . . exempt from disclosure under the FOIA.” Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d
1224, 1227 (D.C. Cir. 2008) (internal quotation marks omitted). “An agency may sustain its
burden by means of affidavits, but only ‘if they contain reasonable specificity of detail rather than
merely conclusory statements, and if they are not called into question by contradictory evidence
in the record or by evidence of agency bad faith.’” Id. (quoting Gallant v. Nat’l Labor Relations
Bd., 26 F.3d 168, 171 (D.C. Cir. 1994)). “If an agency’s affidavit describes the justifications for
3 withholding the information with specific detail, demonstrates that the information withheld
logically falls within the claimed exemption, and is not contradicted by contrary evidence in the
record or by evidence of the agency’s bad faith, then summary judgment is warranted on the basis
of the affidavit alone.” Am. Civil Liberties Union v. U.S. Dep’t of Defense, 628 F.3d 612, 619
(D.C. Cir. 2011). “Uncontradicted, plausible affidavits showing reasonable specificity and a
logical relation to the exemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep’t
of State, 641 F.3d 504, 509 (D.C. Cir. 2011).
Summary judgment is proper when the pleadings, the discovery materials on file, and any
affidavits or declarations “show[] 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).
II. DISCUSSION
There are two sets of disputes between the parties. First is whether Defendant’s second
Glomar response was justified. See Def.’s Mem. at 19–33; Pl.’s Opp’n and Mem. at 10–14. The
second set includes three distinct issues: (1) whether the scope of Defendant’s search relating to
the January 2003 Dulles Airport incident was too narrow, (2) whether Defendant’s search itself
was adequate, and (3) whether the Court should examine in camera approximately 400 pages of
acknowledged records that Defendant ultimately did not produce on the basis that they are not
responsive. See Def.’s Mem. at 7–19; Pl.’s Opp’n and Mem. at 6–10. The Court considers each
issue in turn below.
A. Defendant’s Second Glomar Response
In this case, Defendant has issued a second Glomar response, indicating that it could
neither confirm nor deny the existence of any documents responsive to Plaintiff’s FOIA request.
This type of response is appropriate in “certain cases, [where] merely acknowledging the existence
4 of responsive records 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) (internal
quotation marks and original alteration omitted); see Bartko v. United States Dep’t of Justice, 898
F.3d 51, 63 (D.C. Cir. 2018) (“A Glomar response to a FOIA request is permitted in that rare
situation when either confirming or denying the very existence of records responsive to a request
would ‘cause harm cognizable under an FOIA exception.’” (quoting Roth v. Dep’t of Justice,
642 F.3d 1161, 1178 (D.C. Cir. 2011))). “[T]o the extent the circumstances justify a Glomar
response, the agency need not conduct any search for responsive documents or perform any
analysis to identify segregable portions of such documents.” People for the Ethical Treatment of
Animals, 745 F.3d at 540.
A Glomar response “is proper if the fact of the existence or nonexistence of agency records
falls within a FOIA exemption.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007). “When
addressing an agency’s Glomar response, courts must accord ‘substantial weight’ to agency
determinations.” Sea Shepherd Conservation Soc’y v. IRS, 208 F. Supp. 3d 58, 89 (D.D.C. 2016)
(citing Gardels v. CIA, 689 F.2d 1100, 1104 (D.C. Cir. 1982)). Consequently, in such cases,
“courts may grant summary judgment on the basis of agency affidavits that contain reasonable
specificity of detail rather than merely conclusory statements, and if they are not called into
question by contradictory evidence in the record or by evidence of agency bad faith.” Elec. Privacy
Info. Ctr. v. NSA, 678 F.3d 926, 931 (D.C. Cir. 2012) (internal quotation marks omitted). “The
supporting affidavit must justify the Glomar response based on general exemption review
standards established in non-Glomar cases.” Id. (internal quotation marks omitted). Ultimately,
“an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or
‘plausible.’” Id. (citation omitted).
5 Plaintiff argues that Defendant’s second Glomar response was overbroad and that it has
not sustained its burden to demonstrate that it was justified. Defendant’s second Glomar response
was issued with respect to any requested records except the acknowledged records of the January
2003 Dulles Airport incident. Second Hardy Decl. ¶ 9. Defendant has submitted the Second Hardy
Declaration to support its refusal to either confirm or deny the existence or non-existence of any
records responsive to Plaintiff’s request, save for those acknowledged and processed. See id. The
Court also acknowledges that it has received the In Camera, Ex Parte Declaration of David M.
Hardy. See Notice of In Camera, Ex Parte Submission, ECF No. 21. Defendant’s Glomar
response was issued on the basis that acknowledging the existence or non-existence of records
responsive to parts of Plaintiff’s request, other than those acknowledged, “would trigger harms
protected by FOIA Exemptions 1, 3, 6, and 7(C).” Second Hardy Decl. ¶ 9. The Court finds that
Defendant’s second Glomar response was justified under Exemptions 1, 3, and 7(C). 2
1. Exemption 1
FOIA Exemption 1 includes matters that are “specifically authorized under criteria
established by an Executive order to be kept secret in the interest of national defense or foreign
2 In his Reply, Plaintiff also provides a declaration filed by Mr. Hage in a criminal case in the United States District Court for the Eastern District of Virginia (United States v. Imad Hage, Crim. Action No. 04-162). Pl.’s Reply Ex. 1, ECF No. 27-1. Plaintiff’s arguments based on this declaration discuss only FOIA exemptions related to privacy—Exemptions 6 and 7(C)—and the Court therefore addresses this argument in a separate section below. See Pl.’s Reply at 3–4. However, the Court notes here that it does not read Plaintiff’s Reply as arguing that Defendant has waived Exemptions 1 and 3 through official acknowledgement of any records. Even if he did intend to so argue, it is unclear how the declaration could satisfy the official acknowledgement standard, see Moore v. C.I.A., 666 F.3d 1330, 1333 (D.C. Cir. 2011) (explaining official acknowledgement in FOIA context); Mobley v. C.I.A., 806 F.3d 568, 583 (D.C. Cir. 2015) (“The plaintiff bears the burden of identifying specific information that is already in the public domain due to official disclosure.”), especially because “the fact that information exists in some form in the public domain does not necessarily mean that official disclosure will not cause harm cognizable under a FOIA exemption,” Wolf, 473 F.3d at 378. 6 policy” and “are in fact properly classified pursuant to such Executive order.” 5 U.S.C.
§ 552(b)(1). Defendant justifies its Glomar response under Exemption 1 based on the
classification criteria of Executive Order 13526. See Def.’s Mem. at 27; Exec. Order No. 13526,
75 FR 707 (Dec. 29, 2009). Executive Order 13526 allows an original classification authority to
classify information only if the below conditions are satisfied:
(1) an original classification authority is classifying the information; (2) the information is owned by, produced by or for, or is under the control of the United States Government; (3) the information falls within one or more of the categories of information listed in section 1.4 of this order; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.
75 FR at 707, Exec. Order. 13526 § 1.1(a). Section 1.4 of Executive Order 13526 has listed in its
categories of information “intelligence activities (including covert action), intelligence sources or
methods, or cryptology” as well as “foreign relations or foreign activities of the United States,
including confidential sources.” 75 FR at 708, Exec. Order 13526 §§ 1.4(c)–(d). Section 3.6
further provides that “[a]n agency may refuse to confirm or deny the existence or nonexistence of
requested records whenever the fact of their existence or nonexistence is itself classified under this
order or its predecessors.” 75 FR at 718–19, Exec. Order 13526 § 3.6.
“Because courts lack the expertise necessary to second-guess such agency opinions in the
typical national security FOIA case,” the Court “must accord substantial weight to an agency’s
affidavit concerning the details of the classified status of the disputed record.” Am. Civil Liberties
Union v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011) (internal quotation marks and
citations omitted). “Moreover, a reviewing court ‘must take into account . . . that any affidavit or
other agency statement of threatened harm to national security will always be speculative to some
7 extent, in the sense that it describes a potential future harm.’” Id. (quoting Wolf, 473 F3d at 374).
And “the Supreme Court has recognized the broad sweep of ‘intelligence sources’ warranting
protection in the interest of national security.” Wolf, 473 F.3d at 375. “Ultimately, an agency’s
justification for invoking a FOIA exemption is sufficient if it appears logical or plausible.” Larson
v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal quotation marks omitted).
Here, Defendant has submitted two declarations from David M. Hardy. The public Second
Hardy Declaration asserts that Mr. Hardy’s responsibilities include “the review of FBI information
for classification purposes as mandated by Executive Order 13526” and that he has “been
designated by the Attorney General of the United States as an original classification authority and
a declassification authority pursuant to Executive Order 13526.” Second Hardy Decl. ¶ 2. First
and foremost, the Declaration asserts that, “[c]onsistent with Executive Order 13526,” Mr. Hardy
has “determined that the existence or nonexistence of requested records is a properly classified
fact that concerns sections 1.4(c) (‘intelligence sources or methods’) and 1.4(d) (‘foreign relations
or foreign activities of the United States’).” Id. ¶ 22. It also asserts that “[t]his fact constitutes
information that is owned by and under the control of the U.S. Government, the unauthorized
disclosure of which reasonably could be expected to result in damage to national security.” Id.
As to the Glomar response issued here, the Declaration provides that if Defendant had
records responsive to Plaintiff’s request seeking “records regarding a foreign national’s
correspondence with U.S. government officials concerning U.S. foreign policy,” those records
“would be compiled in accordance with the FBI’s law enforcement and/or intelligence gathering
missions,” and as a result, “revealing that records do/not exist would reveal the FBI does/does not
have an investigative interest in the subject matter at issue.” Id. ¶ 18. And “if records did exist,
they would likely implicate FBI efforts to investigate threats to national security and/or gather
8 foreign intelligence.” Id. At bottom, the Declaration explains, “[c]onfirming or denying the
existence or nonexistence of FBI records of this nature,” which are “any records the FBI may or
may not have compiled while carrying out its responsibilities to investigate threats to national
security and gather foreign intelligence,” would in fact “reveal classified intelligence sources and
methods, as well as U.S. foreign relations and foreign activities, the disclosure of which reasonably
could be expected to cause damage to the national security of the” United States. Id. ¶ 17.
The Declaration also addresses specifically the determination that unauthorized disclosure
could be expected to result in damage to national security by revealing intelligence sources and
methods. First, it provides definitions for the relevant terms under Executive Order 13526 § 1.4(c).
It defines intelligence activity as including “any intelligence action or technique utilized by the
FBI against a targeted individual or organization that has determined to be of national security
interest.” Id. ¶ 25. It then defines intelligence methods as indicating “any procedure (human or
non-human) utilized to obtain information concerning such individual or organization.” Id. These
two categories have “two characteristics”: (1) the activity or method, plus the information
generated by it, “is needed by U.S. Intelligence/Counterintelligence agencies to carry out their
missions,” and (2) “confidentiality must be maintained with respect to the activity or method if the
viability, productivity and usefulness of its information is to be preserved.” Id.
In light of “the subject matter of Plaintiff’s request,” which relates to a foreign national,
Defendant has found “that if responsive records exist, at least a portion could pertain to FBI efforts
to investigate threats to national security and/or gather foreign intelligence.” Id. ¶ 28. Denying or
confirming the existence of “these types of records” could “implicat[e] intelligence sources and
methods,” which could “reasonably be expected to cause damage to national security” and/or
9 “harm the effectiveness of intelligence sources and methods.” Id. The Declaration provides an
illustrative example:
For example, if the FBI revealed it had an investigative interest in Mr. Hage’s international dealings, it could be revealing some sort of intelligence gathering initiative to predict and thwart national security threats posed by Mr. Hage himself, his international contacts, or the countries on whom he was providing information. This would likely compromise classified FBI intelligence sources and methods by exposing their existence and purpose, and allowing nefarious foreign entities to predict and thwart their use. On the other hand, a denial of records would reveal to hostile foreign actors associated with these records the FBI has not detected any sort of threat. This would provide hostile enemies assurance the FBI is not alerted to the threats they pose, and allow them to continue to subvert U.S. national security without fear of FBI interference. . . . If the information were to exist, it would be classified and the release of such information would reveal intelligence activities and methods used by the FBI against targets who are the subject of foreign counterintelligence investigations or operations; identify a target of a foreign counterintelligence investigation; or disclose the intelligence gathering capabilities of the activities or methods directed at foreign targets.
Id.
In addition to the damage that could reasonably result regarding intelligence sources and
methods, the Second Hardy Declaration outlines the harm to foreign relations that might
reasonably result from confirming or denying the existence of records in response to Plaintiff’s
request. It first asserts that this information, which includes information relating to confidential
sources, “is sensitive due to the delicate nature of international diplomacy, and must be handled
with care so as not to jeopardize the fragile relationships that exist between the U.S. and certain
foreign governments.” Id. ¶ 29. Because, the Declaration explains, “Mr. Hage is a foreign citizen
who Plaintiff states provided the U.S. government information relevant to U.S. foreign policy,
acknowledging the existence/non-existence of FBI records on this subject could potentially reveal
information” that would harm the United States’ relations with other countries. Id. Like with the
harm to intelligence gathering sources and methods, the Declaration provides further detail in the
form of a hypothetical:
10 For example, revealing records exist would likely reveal FBI investigative interest on a foreign national; or would reveal an FBI investigative interest in the international dealings Mr. Hage was allegedly involved with, possibly implicating FBI interest in the activities of foreign/nations actors. The unauthorized disclosure of such information concerning foreign relations or foreign activities of the U.S. can reasonably be expected to: 1) lead to diplomatic or economic retaliation against the U.S.; 2) identify the target, scope, or time frame of intelligence activities of the U.S. in or about a foreign country, resulting in the curtailment or cessation of these activities; 3) enable hostile entities to assess U.S. intelligence gathering activities in or about a foreign country and devise countermeasures against these activities; or 4) compromise cooperative foreign sources, which may jeopardize their safety and curtail the flow of information from these sources. Conversely, denying the existence of such records could indicate to nefarious foreign state actors the FBI has not detected their activities aimed at harming the national security of the U.S. This could embolden these actors to continue their activities unabated, further degrading U.S. national security.
“In light of the substantial weight accorded agency assertions of potential harm made in
order to invoke the protection of FOIA Exemption 1,” Wolf, 473 F.3d at 376, and “to the extent
possible without revealing classified information,” Larson, 565 F.3d at 684, the Second Hardy
Declaration describes in specific detail the justifications for its Glomar response and demonstrates
that the information withheld (that is, the existence or non-existence of other material responsive
to Plaintiff’s request) logically falls within Exemption 1. See Larson, 565 F.3d 864 (“The agency’s
affidavit also demonstrates that the withheld cables logically fall within the exemption, that is, that
they are properly classified in the interest of national security.”).
It is plausible that either confirming or denying the existence, or non-existence, of any
other records responsive to Plaintiff’s request, which regards a foreign national, could reasonably
be expected to damage intelligence sources and methods by revealing Defendant’s investigative
interests and priorities, which could be used by foreign intelligence actors in employing
counterintelligence measures. See Wolf, 473 F.3d at 376–77 (“It is plausible that either confirming
or denying an Agency interest in a foreign national reasonably could damage sources and methods
11 by revealing CIA priorities, thereby providing foreign intelligence sources with a starting point for
applying countermeasures against the CIA and thus wasting Agency resources.”). “Indeed, ‘[a
court] must take into account that each individual piece of intelligence information, much like a
piece of jigsaw puzzle, may aid in piecing together other bits of information.’” Id. at 377 (quoting
Fitzgibbon v. C.I.A., 911 F.2d 755, 763 (D.C. Cir. 1990)) (alterations omitted). Moreover, it is
plausible that either confirming or denying the existence and/or non-existence of any other records
responsive to Plaintiff’s request could reasonably be expected to harm foreign relations for the
reasons outlined above. To the extent that any further justification is necessary, Defendant’s
Glomar response is “amply justified by the in camera, ex parte declaration submitted by the FBI.”
Mobley v. C.I.A., 806 F.3d 568, 582 (D.C. Cir. 2015).
Nor has Plaintiff provided any “evidence to the contrary or evidence suggesting bad faith
on the part of” Defendant, Larson, 565 F.3d at 864, especially as the Declaration provides that Mr.
Hardy’s determinations were “not made to conceal violations of law, inefficiency, or
administrative error; to prevent embarrassment to a person, organization, or agency; to restrain
competition; or to prevent or delay the release of information that does not require protection in
the interests of national security,” Second Hardy Decl. ¶ 23. Accordingly, the Court finds that
Defendant’s Glomar response here was justified under FOIA Exemption 1.
2. Exemption 3
The Court also considers whether the Glomar response was justified under FOIA
Exemption 3. Exemption 3 applies to matters that are “specifically exempted from disclosure by
statute, if that statute” both “(A)(i) requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding
or refers to particular types of matters to be withheld; and (B) if enacted after the date of enactment
12 of the OPEN FOIA Act of 2009, specifically cites to this paragraph.” 5 U.S.C. § 552(b)(3).
Defendant here relies on the National Security Act of 1947 (“NSA”), as amended by the
Intelligence Reform and Terrorism Prevention Act of 2004 (“IRTPA”), to justify its Glomar
response under Exemption 3. Second Hardy Decl. ¶ 26. Specifically, the NSA exempts
“intelligence sources and methods from unauthorized disclosure.” 50 U.S.C. § 3024(i)(1). It is
undisputed that 50 U.S.C. § 3024(i)(1) is an “exemption statute.” Larson, 565 F.3d at 865; see
also Fitzgibbon, 911 F.2d at 761 (“There is thus no doubt that section 403(d)(3) [which is now
50 U.S.C. § 3024(i)(1)] is a proper exemption statute under exemption 3.”). Indeed, the Supreme
Court has recognized that in enacting this statute, Congress gave the relevant agencies “broad
power to control the disclosure of intelligence sources.” C.I.A. v. Sims, 471 U.S. 159, 173 (1985).
“The Supreme Court has construed the relevant language of the NSA to protect ‘all sources
of intelligence that provide, or are engaged to provide, information the [a]gency needs to perform
its statutory duties with respect to foreign intelligence.’” Shapiro v. United States Dep’t of Justice,
239 F. Supp. 3d 100, 122 (D.D.C. 2017) (quoting Sims, 471 U.S. at 169–70). Moreover,
“Exemption 3 differs from other FOIA exemptions in that its applicability depends less on the
detailed factual contents of specific documents,” as instead “the sole issue for decision is the
existence of a relevant statute and the inclusion of withheld material within that statute’s
coverage.” Goland v. C.I.A., 607 F.2d 339, 350 (D.C. Cir. 1978). Accordingly, the remaining
question is “whether or not the material withheld falls within the exemption claimed—i.e., whether
it relates to intelligence sources and methods.” Fitzgibbon, 911 F.2d at 762; see Larson, 565 F.3d
at 865 (“Thus, our only remaining inquiry is whether the withheld material relates to intelligence
sources and methods.”).
13 Here, the Second Hardy Declaration provides that “[t]he FBI has found that any records
responsive to Plaintiff’s request that relate to FBI efforts to investigate threats to national security
and/or gather foreign intelligence would, by their nature, be related to FBI intelligence sources and
methods.” Second Hardy Decl. ¶ 24. Furthermore, as detailed above, the Declaration provides
additional information regarding the harm that could reasonably be expected to damage
intelligence sources and methods. For the same reasons as discussed above, and according
substantial weight to Defendant’s Second Hardy Declaration and the In Camera, Ex Parte
Declaration of David M. Hardy, the Court finds that Exemption 3 further justifies Defendant’s
second Glomar response here. See Larson, 565 F.3d at 865; Wolf, 473 F.3d 378.
Accordingly, the Court finds that the Second Hardy Declaration and the In Camera, Ex
Parte Declaration of David M. Hardy have carried Defendant’s burden of showing that
Exemptions 1 and 3 justify its Glomar response. See New York Times v. Cent. Intelligence Agency,
No. 18-2112-CV, 2020 WL 3863087, at *3 (2d Cir. July 9, 2020).
3. Exemptions 6 and 7
Lastly, the Court considers the application of Exemptions 6 and 7. Exemption 6 exempts
from disclosure “personnel and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Exemption
7(C) exempts from disclosure “records or information compiled for law enforcement purposes, but
only to the extent that the production of such law enforcement records or information . . . could
reasonably be expected to constitute an unwarranted invasion of personal privacy.” Id.
§ 552(b)(7)(C).
Exemption 6 is not limited to “a narrow class of files containing only a discrete kind of
personal information[,]” but was “intended to cover detailed Government records on an individual
14 which can be identified as applying to that individual.” U.S. Dep’t of State v. Wash. Post Co.,
456 U.S. 595, 602 (1982). Fundamentally, “Exemption 6 is designed to protect personal
information in public records.” Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1228 (D.C.
Cir. 2008) (internal quotation marks omitted). Assuming that the records at issue are of the type
that fall within the ambit of Exemption 6, “the court must then determine whether their disclosure
would constitute a clearly unwarranted invasion of personal privacy, which requires balancing the
privacy interest that would be compromised by disclosure against any public interest in the
requested information.” Wisdom v. U.S. Tr. Program, 266 F. Supp. 3d 93, 108 (D.D.C. 2017)
(internal quotation marks omitted). In order for the exemption to apply, the Court must determine
that the “disclosure of the files would compromise a substantial, as opposed to de minimis, privacy
interest, because if no significant privacy interest is implicated FOIA demands disclosure.” Multi
Ag Media, 515 F.3d at 1229 (internal quotation marks and alterations omitted). On the other side
of the equation, “the only relevant public interest in disclosure to be weighed . . . is the extent to
which disclosure would serve the core purpose of the FOIA, which is contributing significantly to
public understanding of the operations or activities of the government.” U.S. Dep’t of Def. v. Fed.
Labor Relations Auth., 510 U.S. 487, 495 (1994) (internal quotation marks and alterations
omitted).
The same balancing test applies to Exemption 7(C). However, “Exemption 7(C) is more
protective of privacy than Exemption 6 and thus establishes a lower bar for withholding material.”
Prison Legal News v. Samuels, 787 F.3d 1142, 1147 n.5 (D.C. Cir. 2015) (internal quotation marks
omitted). That is because “Exemption 7(C)’s privacy language is broader than the comparable
language in Exemption 6 in two respects.” U.S. Dep’t of Justice v. Reporters Comm. For Freedom
of Press, 489 U.S. 749, 756 (1989). “First, whereas Exemption 6 requires that the invasion of
15 privacy be ‘clearly unwarranted,’ the adverb ‘clearly’ is omitted from Exemption 7(C) . . . Second,
whereas Exemption 6 refers to disclosures that ‘would constitute’ an invasion of privacy,
Exemption 7(C) encompasses any disclosure that ‘could reasonably be expected to constitute’ such
an invasion.” Id. In the context of Exemption 7(C), this circuit has recognized that “individuals
have a strong interest in not being associated unwarrantedly with alleged criminal activity.” Stern
v. FBI, 737 F.2d 84, 91–92 (D.C. Cir. 1984).
Furthermore, to withhold documents pursuant to Exemption 7(C), the agency must make a
threshold showing that the “the records were compiled for a law enforcement purpose.” Pinson v.
U.S. Dep’t of Justice, 245 F. Supp. 3d 225, 249 (D.D.C. 2017) (internal quotation marks omitted).
“A court’s review of this threshold question is ‘necessarily deferential,’ but is ‘not vacuous.’” Id.
(citing Pratt v. Webster, 673 F.2d 408, 421 (D.C. Cir. 1982)). “The law-enforcement-purpose
inquiry focuses on how and under what circumstances the requested files were compiled, and
whether the files sought relate to anything that can fairly be characterized as an enforcement
proceeding.” Bartko v. U.S. Dep’t of Justice, 898 F.3d 51, 64 (D.C. Cir. 2018) (internal quotation
marks omitted). “To establish a law enforcement purpose, [the FBI’s] declarations must establish
(1) a rational nexus between the investigation and one of the agency’s law enforcement duties; and
(2) a connection between an individual or incident and a possible security risk or violation of
federal law.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 926 (D.C. Cir.
2003) (internal quotation marks omitted). While not every document compiled by a law
enforcement agency, such as the FBI, is compiled for a law enforcement purpose, see Vymetalik
v. FBI, 785 F.2d 1090, 1095 (D.C. Cir. 1986) (“FBI records are not law enforcement records
simply by virtue of the function that the FBI serves.”), “[c]ourts generally afford some deference
16 to agencies ‘specializing in law enforcement’ that claim their records are eligible for Exemption
7(C) protection.’” Bartko, 898 F.3d at 64.
Because Exemption 6 and Exemption 7(C) have different threshold requirements, the Court
will consider Defendant’s Glomar response with respect to Exemption 7(C). See Roth, 642 F.3d
at 1173 (“If the information withheld here was ‘compiled for law enforcement purposes,’ thus
implicating Exemption 7(C), then we would have no need to consider Exemption 6 separately
because all information that would fall within the scope of Exemption 6 would also be immune
from disclosure under Exemption 7(C).”).
i. Threshold Inquiry—Law Enforcement Purpose
The Court first considers whether any records, should such records exist, would have been
compiled for a law enforcement purpose. The Second Hardy Declaration provides that “any FBI
records of contact between Mr. Hage and U.S. government officials, should such records exist,
would logically be investigative in nature.” Second Hardy Decl. ¶ 10; see also id. ¶ 14 (“Any
records responsive to Plaintiff’s request would implicate an investigative interest by the FBI in
Mr. Hage or some facet of his activities.”). This assertion is deserving of deference. See Bartko,
898 F.3d at 64.
ii. Balancing of Privacy and Public Interests
Next, the Court considers whether disclosure regarding the existence or non-existence of
records “could reasonably be expected to constitute an unwarranted invasion of personal privacy,”
5 U.S.C. § 552(b)(7)(C), which, as noted above, involves balancing the public interest in
disclosure against the privacy interest that would be compromised, see Roth, 642 F.3d at 1174.
17 First are the privacy interests of Mr. Hage. 3 In this circuit, courts have “long recognized”
that “mention of an individual’s name in a law enforcement file will engender comment and
speculation and carries a stigmatizing connotation.” Id. “Individuals have an obvious privacy
interest cognizable under Exemption 7(C) in keeping secret the fact that they were subjects of a
law enforcement investigation.” Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t
of Justice, 746 F.3d 1082, 1091 (D.C. Cir. 2014) (internal quotation marks and alteration omitted).
When a FOIA request is made for FBI records regarding a particular person, “the FBI’s mere
acknowledgment that it possesses responsive records associates the individual named in the
request with suspected criminal activity and therefore a Glomar response may be appropriate.” Id.
In this vein, the Second Hardy Declaration outlines at length the “serious privacy implications”
that may arise from “revealing FBI interest in individuals” such as Mr. Hage, if any such interest
were to exist. Second Hardy Decl. ¶¶ 15–16. The Court agrees with Defendant that Mr. Hage has
a strong privacy interest here in not being associated with any FBI investigative records, if any
such records were to exist.
Second is the public interest at stake. As previously explained, “[t]he only relevant public
interest in the FOIA balancing analysis [is] the extent to which disclosure of the information sought
would shed light on an agency’s performance of its statutory duties’ or otherwise let citizens know
what their government is up to.” Citizens for Responsibility & Ethics in Washington, 746 F.3d at
1093 (internal quotation marks and alteration omitted). “It is a FOIA requester’s obligation to
articulate a public interest sufficient to outweigh an individual’s privacy interest, and the public
interest must be significant.” Petrucelli v. Dep’t Of Justice, 51 F. Supp. 3d 142, 164 (D.D.C.
3 Here, Defendant asserts, and Plaintiff does not dispute, that Plaintiff has not produced a privacy waiver form or proof of death for Mr. Hage. See Second Hardy Decl. ¶ 14. 18 2014). Plaintiff may satisfy his burden by “showing (1) that ‘the public interest sought to be
advanced is a significant one, an interest more specific than having the information for its own
sake,’ and (2) that the information he seeks ‘is likely to advance that interest.’” Roth, 642 F.3d at
1175.
Here, Plaintiff suggests that there is a “significant public interest favoring disclosure of
these records.” 4 Pl.’s Opp’n and Mem. at 13. He incorporates by reference the declaration that he
submitted in support of his first motion for summary judgment, in which he indicated that:
The general purpose of my May 18, 2016 FOIA request to the FBI described above was to obtain additional information for my ongoing research as to international diplomacy and the Iraq military conflict. In particular, the primary purpose for this FOIA request was (and is) to follow-up on information that was reported in several national news articles, reporting that a Lebanese national, identified as Mr. Imad Hage, had attempted to serve as a diplomatic intermediary in between the United States and Iraq. These news reports indicate that the FBI conducted an investigation of Mr. Hage, following a January 28, 2004 incident at Dulles Airport, and that this FBI investigation included FBI contacts with U.S. officials involved with Mr. Hage’s diplomatic efforts.
Decl. of David Austin Lindsey (“Lindsey Decl.”), ECF No. 12-2, at ¶ 4 (citation omitted). While
this explains Plaintiff’s reasoning behind his FOIA request, it is not clear what exactly the public
interest to be served is. By citing to this, Plaintiff seems to suggest that disclosure here would
provide information to citizens regarding the government’s actions related to “international
diplomacy and the Iraq military conflict.” 5 Id.; see Pl.’s Opp’n and Mem. at 13. Although the
Court agrees that there is a public interest in having such information, it is far from clear that
4 Again, despite Plaintiff’s language here, Defendant has neither confirmed nor denied that there are any records other than those acknowledged and processed relating to the January 2003 Dulles Airport incident. 5 Defendant notes in its briefing that Plaintiff may have at one time argued that there was misconduct at issue here. See Def.’s Mem. at 25. However, Plaintiff has not asserted that or provide evidence related to it here, nor does it appear that he has referenced any earlier submission of his that argued this is part of the public interest at stake. The Court therefore does not consider this argument here. 19 Plaintiff has satisfied his burden here, as he barely touches on the public interest in either his brief
or the incorporated declaration. In other words, Plaintiff has not really explained how public
disclosure here would “contribute significantly to public understanding of the operations or
activities of the government.” Reporters Comm. For Freedom of Press, 489 U.S. at 775 (internal
quotation marks omitted). Even if Plaintiff had done so, however, based upon the representations
in the declarations submitted by Defendant, the Court finds that the public interest identified by
Plaintiff is outweighed here by the particularly strong privacy interests outlined above.
Plaintiff argues that the privacy interests of Mr. Hage have been diminished here due to
Mr. Hage’s statements to the media, Lindsey Decl. ¶ 4; id. Ex. B–F, and based on a declaration of
Mr. Hage’s filed in a criminal case in the United States District Court for the Eastern District of
Virginia, United States v. Imad Hage, Crim. Action No. 04-162. Pl.’s Reply Ex. 1 (“Hage Decl.”),
ECF No. 27-1. Neither, however, persuades the Court that the balance here weighs in favor of
public disclosure and that Defendant’s second Glomar response was not justified.
As for Plaintiff’s first argument, Mr. Hage made several statements to the media. For
example, he seemingly asserted that he had a “go-between” role “for senior Iraqi officials who
were trying to approach the United States with a last-minute offer to avert the U.S.-led invasion
that began March 20.” Lindsey Decl. Ex. B (March 4, 2004 AP News Article) at 1; see also id.
Ex. B at 1 (stating this was his role); id. Ex. C (Dec. 11, 2003 AP News Article) at 1 (describing
his role as “intermediary between Baghdad and Washington before the war in Iraq”); id. Ex. C at
2 (providing additional details from Mr. Hage regarding his role); id. Ex. D (explaining that Mr.
Hage “acted as an intermediary between Baghdad and Washington before the war in Iraq”) at 1;
id. Ex. E (Nov. 5, 2003 Newsweek Article) at 1 (describing Mr. Hage as “wealthy Lebanese–
American businessman who was trying to set up back-channel talks with senior aides to Saddam
20 Hussein to avert a war in Iraq”); id. Ex. F (Nov. 5, 2003 Knight Ridder Article) at 1 (discussing
Mr. Hage’s role as intermediary). The articles submitted by Plaintiff also note that Mr. Hage was
“stopped at Dulles International Airport outside Washington.” Id. Ex. B at 1; see id. Ex. C at 1;
id. Ex. D at 1–3; id. Ex. E at 1; Ex. F at 2. One article claims that he was “questioned by FBI
agents,” id. Ex. E at 1, although the Second Hardy Declaration clarifies that while Mr. Hage was
detained, “he was not arrested by the FBI or Customs and Border Patrol,” Second Hardy Decl. at
4 n.2.
While Mr. Hage’s statements diminish his privacy interest in some respects, his statements
do not diminish his privacy interests in the broad manner that Plaintiff asserts. Indeed, any
diminishment is narrow: Assuming that he made these statements to media sources, he stated that
he played a role as an intermediary, potentially provided details regarding that role, and that he
was detained at the airport and questioned by some law enforcement officials there. He does not
necessarily, however, admit that he was a subject of investigative interest to the FBI following his
detention at the airport or regarding his alleged role as an intermediary. Furthermore, Defendant
recognizes that in light of these statements, some of Mr. Hage’s privacy interests relating to his
detainment were diminished, and for that reason did search and produce documents related to the
January 2003 Dulles Airport Incident. See Def.’s Reply at 5. In other words, Defendant has
already taken this diminishment into account and issued a second Glomar response neither
confirming nor denying any other records responsive to Plaintiff’s request outside of those
documents already searched and produced relating to the January 2003 Dulles Airport Incident.
The Court therefore agrees that any diminishment of his privacy interests does not change the
balance analysis above as to any other records, if such records were to exist.
21 The same is true of Mr. Hage’s Declaration. He states in the Declaration that he was
“detained, locked up and interrogated at length.” Hage Decl. ¶ 4. He also states at another point
that he was “forcibly detained and questioned by numerous Government agents; handcuffed and
taken from the terminal to a separate building with a security facility and locked up; then freed to
continue” to his flight. Id. ¶ 9. He claims that he was questioned by FBI agents at the airport as
well as “possibly” other law enforcement agents. Id. ¶ 23. Moreover, Mr. Hage describes his role
as an intermediary. See id. ¶¶ 6, 15–18, 25.
Although Mr. Hage provided more detail in this Declaration than contained in some of the
news articles, all the information concerns the same incident, and thus does not constitute a broad
diminishment of Mr. Hage’s privacy interests. While Mr. Hage states that he was questioned by
the FBI (which, again, is disputed by Defendant here), he does not claim that he was further
investigated by the FBI or that he was of investigative interest to the FBI prior to or following his
detainment. If anything, his statements may constitute a diminishment of his privacy interests
specifically with respect to the January 2003 Dulles Airport Incident. But, as noted above,
Defendant admits this and has taken it into account by searching and producing documents related
to that incident based on this narrow diminishment. See Def.’s Reply at 5. Defendant’s second
Glomar response at issue here did not encompass those documents. Second Hardy Decl. ¶ 9. The
Court agrees that any diminishment is narrow and that otherwise his privacy interests are not
diminished. In that case, his strong privacy interests still outweigh the public interest identified
by Plaintiff here. Alternatively, even if his privacy interests were more broadly diminished, the
Court found above that Defendant’s Glomar response was also justified under Exemptions 1 and
3.
22 iii. Plaintiff’s Other Arguments
Plaintiff further challenges Defendant’s response on the basis that it issued the Glomar
response without asserting that it “locat[ed] and review[ed] any of the responsive records, to
determine if in fact a Glomar response should apply in the particular instance to all portions of
each responsive record.” Pl.’s Opp’n and Mem. at 13; see also Pl.’s Opp’n and Mem. at 7 (arguing
that Defendant’s follow-up search was too narrow). First, this argument misses the mark: in light
of its Glomar response, Defendant has not confirmed or denied whether there are, or are not,
“responsive record[s]” as Plaintiff claims, other than those acknowledged records pertaining to the
January 2003 Dulles Airport incident. Regardless, despite Plaintiff’s assertions, “to the extent the
circumstances justify a Glomar response, the agency need not conduct any search for responsive
documents or perform any analysis to identify segregable portions of such documents.” PETA,
745 F.3d at 540; see also Elec. Privacy Info. Ctr., 678 F.3d at 934 (explaining that because the
court found a submitted declaration “sufficient to support” Glomar response, requiring the agency
“to conduct a search and segregability analysis would be a meaningless—not to mention costly—
exercise”); Wheeler v. C.I.A., 271 F. Supp. 2d 132, 141 (D.D.C. 2003) (“‘When the Agency’s
position is that it can neither confirm nor deny the existence of the requested records, there are no
relevant documents for the court to examine other than the affidavits which explain the Agency’s
refusal.’” (quoting Phillippi v. C.I.A., 546 F.2d 1009, 1013 (D.C. Cir. 1976)). The Court
accordingly rejects Plaintiff’s argument as to this point.
Lastly, Plaintiff argues that the balancing analysis cannot be performed categorically but
“must be performed on a document by document basis.” Pl.’s Opp’n and Mem. at 13. For starters,
in light of Defendant’s second Glomar response, it has not identified whether there are—or are
not—any other responsive documents. Nor does Defendant need to conduct any search when its
23 Glomar response is justified, as explained above. In addition, in making this argument, Plaintiff
overlooks one of the primary purposes of a Glomar response. As Defendant’s declaration explains,
for a Glomar response “[t]o be credible and effective, the FBI must use a Glomar response in all
similar cases, regardless of whether responsive records actually exist.” Second Hardy Decl. ¶ 9.
If Defendant were to only issue Glomar responses “when it actually possessed responsive records,
the Glomar response would be interpreted as an admission that responsive records exist.” Id. This
may ultimately result in the very harms that a Glomar response is aimed at protecting. The Court
has reviewed both Defendant’s public declaration as well as its in camera, ex parte declaration
submitted by Defendant, which indicate that Defendant has made a sufficiently “particularized
showing” regarding the interests at stake. Citizens for Responsibility & Ethics in Washington, 746
F.3d at 1096.
At bottom, even if any additional showing was required to justify the second Glomar
response under Exemption 7(C) as to any of the above requirements or arguments, the in camera,
ex parte declaration submitted by Defendant would provide it. BuzzFeed, Inc. v. Dep’t of Justice,
344 F. Supp. 3d 396, 405, 407 (D.D.C. 2018) (finding that Glomar response was justified under
Exemptions 7(A) and 7(E) based on court’s review of “both the public and the classified
declarations”). Accordingly, upon consideration of the Second Hardy Declaration and
Defendant’s in camera, ex parte declaration, the Court finds that Defendant’s second Glomar
response was justified by Exemption 7(C) in addition to Exemptions 1 and 3.
24 B. Scope and Adequacy of the Search Pertaining to January 2003 Dulles Airport Incident
and Request for In Camera Review
In addition to taking issue with Defendant’s second Glomar response, Plaintiff questions
the scope and adequacy of Defendant’s search relating to the January 2003 Dulles Airport incident
and asks that this Court review certain documents in camera.
1. Scope of the Search
First, Plaintiff argues that the scope of Defendant’s search was too narrow. See Pl.’s Opp’n
and Mem. at 7–8. However, Defendant issued a second Glomar response as to all records except
the acknowledged records recording the January 2003 Dulles Airport incident, Second Hardy Decl.
¶¶ 8–9, and the Court found above that response was justified under FOIA Exemptions 1, 3, and
7(C). Therefore, to the extent that Plaintiff’s argument is aimed at Defendant’s tailoring of its
search in light of the second Glomar response, the above analysis also applies. See supra Section
II.A.3 (discussing Defendant’s search obligations in light of Glomar response).
In making this argument, moreover, Plaintiff relies upon this Court’s prior September 20,
2017 Memorandum Opinion and Order, ECF No. 16, in this case, which Plaintiff asserts found
that Defendant “had a duty to conduct a search to locate all responsive records within the full scope
of Plaintiff’s FOIA request” and that Defendant “could not limit its search actions to limited
portions of the record request that are of heightened interest over others.” Pl.’s Opp’n and Mem.
at 7; see also id. at 2 (emphasizing “this Court’s express discussion of the broader scope of
Plaintiff’s FOIA Request in the September 20, 2017 Memorandum Opinion and Order”).
However, there is nothing to indicate that Defendant has limited its follow-up search other than
25 any tailoring it may have implemented in light of the second Glomar response. 6 For instance, the
Second Hardy Declaration explains the adequacy of the search as related specifically “to those
portions of Plaintiff’s request concerning Mr. Hage’s detainment at Dulles International Airport in
January 2003.” Second Hardy Decl. ¶ 37, n.13. Unlike discussed with respect to its last motion
for summary judgment, Defendant’s narrowed search was not the result of discussions with
Plaintiff or a questionable interpretation of Plaintiff’s request, see Sept. 20, 2017 Mem. Op. and
Order, ECF No. 16, at 8–9, but instead a natural outgrowth of its second Glomar response.
Accordingly, in light of Defendant’s justified second Glomar response, this was not too narrow of
a search.
2. Adequacy of the Search
Second, Plaintiff argues that Defendant’s search specifically as related to the January 2003
Dulles Airport incident was inadequate. 7 Before analyzing the adequacy of Defendant’s narrowed
search, the Court will explain the steps taken in conducting the search relating to the January 2003
Dulles Airport incident. 8 In response to this Court’s prior Order in this case, the
6 Plaintiff points to Defendant’s determination that 398 pages of the approximately 400 pages of material initially identified as potentially responsive to Plaintiff’s request were in fact non- responsive as evidence that its search was too narrow. See, e.g., Pl.’s Mem. at 8. However, Defendant made clear in its reply that those 400 documents “were not subject to the FOIA exemptions and the Glomar response.” Def.’s Reply at 4. In other words, it appears that the initial search returned results that Defendant ultimately determined were not responsive to Plaintiff’s request, which Defendant narrowed to encompass solely the January 2003 Dulles Airport incident in light of its Glomar response. See Second Hardy Decl. ¶ 38. Consequently, these pages, according to Defendant, were not excluded because Defendant narrowed its search in the manner that Plaintiff seems to suggest. See, e.g., Pl.’s Mem. at 3 n.2. 7 Defendant produced two pages of responsive material with redactions, which were implemented pursuant to FOIA Exemptions 3 and 7. Second Hardy Decl. ¶¶ 40–49; id. Ex. I. As Plaintiff does not dispute that these specific redactions were justified under Exemptions 3 and 7, the Court does not consider the exemptions here. 8 Again, Defendant has neither confirmed nor denied the existence of any other records concerning Mr. Hage or otherwise responsive to Plaintiff’s request. The search that Defendant describes 26 Record/Information Dissemination Section (“RIDS”) conducted an index search in the Central
Records System. Second Hardy Decl. ¶¶ 37–38. Defendant searched for Plaintiff’s name, “Imad
Hage,” and “Imad E. Hage.” Id. This included a “three-way phonetic breakdown of” his name.
Id.; id. at 20 n.14; Def.’s Reply at 4.
The Central Records System (“CRS”) “is an extensive system of records” that includes
numerous types of files, including investigative and personnel files, “compiled and maintained by
the FBI.” Second Hardy Decl. ¶ 30. These documents span the entire FBI organization. Id.
Because there is an “enormous amount of information contained in the CRS,” it is indexed “in a
manner which meets the FBI’s investigative needs and priorities” and that “allows FBI personnel
to reasonably and adequately locate pertinent files.” Id. ¶ 32. There are two types of entries in the
general indices, which “comprise an index on a variety of subject matters” including “individuals,
organizations, events, or other subjects of investigative interest”—main entries and reference
entries. Id. Main entries “pertain[ ] to records indexed to the main subject(s) of a file,” while
reference entries are records that “merely mention or reference an individual, organization, or other
subject matter” that is contained in a main entry. Id. The search conducted here included “records
maintained in FBIHQ as well as all” field offices. Id. ¶ 38.
In conducting a search of the CRS, RIDS employed a specific application: the Universal
Index (“UNI”), which is “the automated index of the CRS and provides all offices of the FBI a
centralized, electronic means of indexing pertinent investigative information to FBI files for future
retrieval via index searching.” Id. ¶ 35. UNI also searches prior automated indices, so that a search
employing it encompasses data that was indexed into prior automated systems before 1995, which
“relates only to those portions of Plaintiff’s request concerning Mr. Hage’s detainment at Dulles International Airport in January 2003.” Second Hardy Decl. ¶ 37, n.13. 27 it when UNI was implemented. Id. As of the date of the Second Hardy Declaration, UNI consisted
of approximately 118.5 million searchable records. Id. Moreover, the search conducted by RIDS
was “a Sentinel index search.” Id. ¶ 38. Defendant’s declaration explains that “Sentinel is the
FBI’s next generation case management system” as of mid-2012. Id. ¶ 36. Information from
Sentinel is replicated into ACS and thus builds on ACS. Id. It simply “provides another portal to
locate information within the vast CRS for FBI records generated on or after July 1, 2012.” Id.
Since the Dulles Airport incident occurred in January 2003, Defendant expected that any related
records would be found in CRS. Id. ¶ 39.
After the search was run, Defendant used information from Plaintiff’s request letter and
the attached news articles, including “the subject’s age and other identifying information,” to
identify potentially responsive records. Id. ¶ 38. Defendant therefore initially identified
“approximately 400 pages of potentially responsive material.” Id. But additional review revealed
that “only two (2) pages were responsive to Plaintiff’s request,” which, as explained above,
Defendant had narrowed in light of its second Glomar response. Id.
Based on Defendant’s submitted declarations, the Court finds that the search conducted
was sufficient. “The Court applies a ‘reasonableness’ test to determine the ‘adequacy’ of search
methodology . . . consistent with the congressional intent tilting the scale in favor of disclosure.”
Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998) (internal citation omitted). An
agency “fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its
search was reasonably calculated to uncover all relevant documents.” Ancient Coin Collectors
Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (internal quotation marks omitted).
The agency may submit affidavits or declarations to explain the method and scope of its search
and such affidavits or declarations are “accorded a presumption of good faith, which cannot be
28 rebutted by purely speculative claims about the existence and discoverability of other documents.”
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks
omitted). However, if the record “leaves substantial doubt as to the sufficiency of the search,
summary judgment for the agency is not proper.” Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C.
Cir. 1990).
Here, Defendant searched its most comprehensive records systems using search terms
related to Mr. Hage, and in particular numerous variations on his name. It then used additional
information from Plaintiff’s submissions to determine whether records were responsive to
Plaintiff’s request. Its declaration asserts that it “conducted a search reasonably calculated to
locate records responsive to Imad Hage’s detainment at Dulles International Airport in January
2003.” Second Hardy Decl. ¶ 39. There is nothing to indicate that the declarations submitted by
Defendant were submitted in bad faith, and the Court therefore affords them the presumption of
good faith. See SafeCard Servs., 926 F.2d at 1200 (explaining that agency declarations are
accorded a presumption of good faith in relation to the adequacy of a search). Plaintiff’s primary
argument on why the search was inadequate is that Defendant improperly narrowed its search to
the January 2003 Dulles Airport incident. However, as explained above, see supra Section II.B.1,
the Court has found that the narrowing of the search was appropriate in light of Defendant’s second
Plaintiff’s secondary argument is that Defendant had a “duty to perform necessary follow-
up search actions” based on statements in the Newsweek article submitted by Plaintiff as evidence
in the last round of summary judgment briefing. See Pl.’s Opp’n and Mem. at 8. Even if the
statements were made as Plaintiff alleges, however, he has failed to explain how Defendant’s
search as outlined in the Second Hardy Declaration would not include any documents related to
29 these statements. 9 The Declaration indicates that Defendant used information from this news
article to conduct the search. Second Hardy Decl. ¶ 38; see Def.’s Reply at 4. Although Plaintiff
cites to Kleinert v. Bureau of Land Management, 132 F. Supp. 3d 79 (D.D.C. 2015) in support of
his argument, that case is inapposite. The court there required additional information from the
defendant because it provided insufficient information to determine whether the search was
adequately conducted but it did not require additional follow-up on any “leads,” like Plaintiff
claims. See id. at 88. Even so, the declarations submitted here provide sufficient information to
determine that Defendant’s search was adequate. Furthermore, to the extent Plaintiff is again
challenging Defendant’s narrowing of the search in light of its second Glomar response, his
argument is again futile. The Court is therefore unpersuaded that there was bad faith or that
Defendant’s search was inadequate.
3. In Camera Review Is Not Warranted
Third, Plaintiff questions Defendant’s determination that 398 pages of the approximately
400 pages initially identified as responsive to Plaintiff’s request were actually nonresponsive. See
Pl.’s Opp’n and Mem. at 3 n.2; id. at 9. Plaintiff requests that the Court review these pages in
camera to determine “if any of these additional records (beyond the two pages that were provided)
may also contain non-exempt information that is responsive to Plaintiff’s FOIA Request.” Pl.’s
Opp’n and Mem. at 9; Pl.’s Reply at 4.
“FOIA provides district courts the option to conduct in camera review, but ‘it by no means
compels the exercise of that option.’” Larson, 565 F.3d at 869 (internal citations omitted) (quoting
Juarez v. Dep’t of Justice, 518 F.3d 54, 60 (D.C. Cir. 2008)); see 5 U.S.C. § 552(a)(4)(B). In
9 Plaintiff does not claim that these statements constitute official acknowledgement of any records. See Pl.’s Opp’n and Mem. at 8–9. The Court therefore does not consider that argument here. 30 camera review is appropriate when such review is necessary for a district court “to make a
responsible de novo determination on the claims of exemption.” Juarez, 518 F.3d at 60 (internal
quotation marks omitted). “When the agency meets its burden by means of affidavits, in camera
review is neither necessary nor appropriate.” Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv.,
608 F.2d 1381, 1387 (D.C. Cir. 1979). But “affidavits will not suffice if the agency’s claims are
conclusory, merely reciting statutory standards, or if they are too vague or sweeping.” Id. “In
camera inspection is particularly a last resort in national security situations like this case—a court
should not resort to it routinely on the theory that it can’t hurt.” Larson, 565 F.3d at 870 (internal
quotation marks and citations omitted). Review “may be particularly appropriate when either the
agency affidavits are insufficiently detailed to permit meaningful review of exemption claims or
there is evidence of bad faith on the part of the agency, when the number of withheld documents
is relatively small, and when the dispute turns on the contents of the withheld documents, and not
the parties’ interpretations of those documents.” Spirko v. U.S. Postal Serv., 147 F.3d 992, 996
(D.C. Cir. 1998) (internal quotation marks omitted).
In camera review is not warranted here. Plaintiff “points to no record evidence of bad
faith.” Mobley, 806 F.3d at 588. Plaintiff suggests that the FBI’s ultimate production of two pages
“is extremely questionable and suspect.” Pl.’s Reply at 4. That is not so, however, in light of
Defendant’s initial broad searching procedures outlined above, see supra Section II.B.2; Second
Hardy Decl. ¶¶ 30–39, and considering its justified second Glomar response. Moreover, Plaintiff
does not even question here Defendant’s exemptions—it questions Defendant’s determination that
records were not responsive based on the news articles and information that Plaintiff himself
provided. See Second Hardy Decl. ¶ 38. And though Plaintiff claims otherwise, 398 pages of
material is not a “relatively small” amount. Spirko, 147 F.3d at 996. Lastly, as the Court has
31 explained above that the agency declarations here described with sufficient detail the justifications
for its search methodology, the Court finds that in camera review would be inappropriate here.
See Boyd v. Criminal Div. of U.S. Dep’t of Justice, 475 F.3d 381, 391 (D.C. Cir. 2007) (affirming
district court’s decision not to view documents in camera because party had not “demonstrated
that the agencies failed to provide sufficiently detailed affidavits, nor offered evidence of bad
faith”). Accordingly, the Court will not grant Plaintiff’s request to review the material found to
be non-responsive in camera.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s Renewed Motion for
Summary Judgment, ECF No. 20, and DENIES Plaintiff’s Renewed Motion for Summary
Judgment, ECF No. 22. In particular, the Court finds that based on both of Defendant’s submitted
declarations, Defendant met its adequate search obligations and that Defendant’s second Glomar
response was justified under FOIA Exemptions 1, 3, and 7(C).
An appropriate Order accompanies this Memorandum Opinion.
Date: September 18, 2020 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge
Related
Cite This Page — Counsel Stack
Lindsey v. Federal Bureau of Investigation, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lindsey-v-federal-bureau-of-investigation-dcd-2020.