Property of the People, Inc. v. Department of Justice

• Court: District Court, District of Columbia
• Decided: September 24, 2019
• Docket: Civil Action No. 2017-1728
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PROPERTY OF THE PEOPLE, INC., et al.

Plaintiffs, No. 17-cv-1728 (EGS) v.

DEPARTMENT OF JUSTICE,

Defendant.

MEMORANDUM OPINION

Plaintiffs Property of the People, Inc., a non-profit

organization, and its founder, Ryan Noah Shapiro, bring this

lawsuit against the United States Department of Justice (“DOJ”)

under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.

Plaintiffs seek records from the Federal Bureau of Investigation

(“FBI”)—a component of DOJ—concerning its investigative and non-

investigative files of a former Congressman who publicly

confirmed that the FBI warned him that Russian spies were

attempting to recruit him. Pending before the Court are the

parties’ cross-motions for summary judgment. Upon careful

consideration of the parties’ submissions, the applicable law,

and the entire record, the Court GRANTS IN PART and DENIES IN

PART Defendant’s Renewed Motion for Summary Judgment and GRANTS

IN PART, DENIES IN PART, and HOLDS IN ABEYANCE IN PART

Plaintiffs’ Cross-Motion for Summary Judgment. The Court DEFERS ruling on the issues of segregability and the applicability of

the “official acknowledgement” doctrine with respect to certain

redactions.

I. Background

On May 19, 2017, the New York Times published an article

stating that, in 2012, the FBI warned former Congressman Dana

Rohrabacher of California that Russian spies were attempting to

recruit him as an “agent of influence.” Pls.’ Ex. 1, ECF No. 26-

3 at 3; see also Pls.’ Statement of Material Facts (“Pls.’

SOMF”), ECF No. 26-1 at 1 ¶ 1. 1 In an interview for the article,

Congressman Rohrabacher confirmed that the FBI met with him and

that “meeting had focused on his contact with one member of the

Russian Foreign Ministry, whom he recalled meeting on a trip to

Moscow.” Pls.’ SOMF, ECF No. 26-1 at 1 ¶ 1. The article includes

a quote from Congressman Rohrabacher, stating that the FBI

agents “were telling [him that] he had something to do with some

kind of Russian intelligence” and one of the agents told him

that “Moscow ‘looked at [him] as someone who could be

influenced.’” Id. 1 ¶ 2; see also Pls.’ Ex. 5, ECF No. 26-3 at

16 (“[Congressman] Rohrabacher has been of value to the Kremlin,

so valuable in recent years that the F.B.I. warned him in 2012

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 2 that Russia regarded him as an intelligence source worthy of a

Kremlin code name.”). 2

On May 20, 2017, Plaintiffs submitted a FOIA request to the

FBI, seeking: “Any and all records constituting, mentioning, or

referring to the living person Dana Tyrone Rohrabacher . . . .

This request is intended to include both investigative and non-

investigative files (e.g. correspondence to or from Rep.

Rohrabacher in his capacity as a member of Congress).” Ex. A,

Decl. of Michael G. Seidel (“Seidel Decl.”), ECF No. 24-1 at 45

2 Congressman Rohrabacher served in Congress from 1989 to 2019, losing his bid for re-election in 2018. See Pls.’ Cross-Mot. for Summ. J. (“Pls.’ Mot.”), ECF No. 26 at 8 n.2; see also Pls.’ Reply, ECF No. 32 at 26. The Court takes judicial notice of the existence of news articles concerning Congressman Rohrabacher. See Sandza v. Barclays Bank PLC, 151 F. Supp. 3d 94, 113 (D.D.C. 2015). News articles have documented Congressman Rohrabacher’s foreign contacts: (1) “[d]uring a trip to Moscow in April 2016, Rohrabacher met Natalia Veselnitskaya, the Russian lawyer who traveled to Trump Tower in New York two months later to meet with Donald Trump Jr.[,]” Pls.’ Ex. 4, ECF No. 26-3 at 10; (2) “[d]uring a trip to London in August 2016, he met with WikiLeaks founder Julian Assange, who controlled the release of hacked emails damaging to Hillary Clinton[,]” id. at 11; and (3) “at a meeting on Capitol Hill in early 2017, he met with Alexander Torshin, the deputy governor of the Russian central bank, a controversial figure who also briefly met Trump Jr. at a May 2016 gun convention[,]” id. It has also been reported that “[i]n July [2018], Mr. Rohrabacher admitted to meeting with Maria Butina, who was charged by federal prosecutors . . . with conspiracy and acting as a foreign agent, during his trip to Russia in 2015.” Adam Nagourney, Dana Rohrabacher Loses, Eroding Republican Foothold in California, N.Y. Times (Nov. 10, 2018), https://www.nytimes.com/2018/11/10/us/politics/dana-rohrabacher- loses-harley-rouda.html; see also J., United States v. Mariia Butina, Criminal Action No. 18-218 (D.D.C. May 1, 2019), ECF No. 123. 3 (emphasis in original). Plaintiffs attached the New York Times

article to their request, and they explained that Congressman

Rohrabacher “is known for his friendship with Vladimir Putin and

defense of Russia.” Id. at 46. Plaintiffs asserted that

Congressman Rohrabacher waived his privacy interests because he

publicly disclosed the 2012 meeting. Id. Upon receipt of the

FOIA request, the FBI declined to confirm or deny the existence

of any investigative records—in FOIA terms, a Glomar response—to

protect the privacy rights of third parties. Def.’s Statement of

Material Facts (“Def.’s SOMF”), ECF No. 24 at 6 ¶¶ 13-15. 3

In its Glomar response, the FBI advised Plaintiffs that it

could not confirm or deny the existence of any other records

pertaining to Congressman Rohrabacher unless one of three

conditions were met: “(1) the requester provides a notarized

authorization (privacy waiver) from the third party, (2) the

requester provides proof of death, or (3) the requestor

demonstrates a public interest in the records sufficient to

3 In FOIA parlance, the Glomar response is a disclaimer that neither confirms nor denies the existence of records. Bartko v. U.S. Dep’t of Justice, 898 F.3d 51, 63 n.1 (D.C. Cir. 2018). “The response is named for the Hughes Glomar Explorer, a ship used in a classified Central Intelligence Agency project ‘to raise a sunken Soviet submarine from the floor of the Pacific Ocean to recover the missiles, codes, and communications equipment onboard for analysis by United States military and intelligence experts.’” Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1171 (D.C. Cir. 2011) (quoting Phillippi v. CIA, 655 F.2d 1325, 1327 (D.C. Cir. 1981)). 4 outweigh the third party’s individual privacy rights.” Id. at 6

¶ 13. Subsequently, the FBI modified its Glomar response,

determined that Congressman Rohrabacher waived his privacy

interests by making public statements about the 2012 meeting,

and conducted a search for responsive records. Seidel Decl., ECF

No. 24-1 at 9-10 ¶ 18.

The FBI used its databases—the Central Records System

(“CRS”), the Universal Index (“UNI”) application of the

Automated Case Support (“ACS”) system, and the next generation

case management system (“Sentinel”)—for the initial search.

Def.’s SOMF, ECF No. 24 at 7-8 ¶¶ 22-23, 8 ¶¶ 24-26. The FBI

crafted search terms, including “Dana Tyrone Rohrabacher,” “Dana

T. Rohrabacher,” and “Dana Rohrabacher,” and the FBI used

Congressman Rohrabacher’s date of birth and other personal

identifying information. Seidel Decl., ECF No. 24-1 at 17-18 ¶

35. The FBI contacted its Office of Congressional Affairs, the

Washington Field Office, and the Office of the Executive

Secretariat to find responsive records. Def.’s SOMF, ECF No. 24

at 8 ¶ 29, 9 ¶ 31; see also Seidel Decl., ECF No. 24-1 at 17 ¶

34. The FBI searched the internal databases of the Office of

Congressional Affairs and the Office of the Executive

Secretariat. See Seidel Decl., ECF No. 24-1 at 21 ¶ 42; see also

Decl. of David M. Hardy (“Hardy Decl.”), ECF No. 30-1 at 10 ¶

17. Unsatisfied, Plaintiffs challenged the adequacy of the

5 searches. Seidel Decl., ECF No. 24-1 at 19 ¶ 38.

Following an administrative appeal of a fee waiver, id. at

4 ¶ 9, Plaintiffs filed this action on August 24, 2017. See

generally Compl., ECF No. 1. The FBI released 230 responsive

pages pertaining to Congressman Rohrabacher between January and

March 2018, and 29 pages in November 2018. See, e.g., Def.’s

SOMF, ECF No. 24 at 5 ¶¶ 6-10; Pls.’ Resp. to Def.’s SOMF, ECF

No. 25-1 at 2-3; Seidel Decl., ECF No. 24-1 at 21 ¶ 43. The FBI

withheld certain documents and redacted information under FOIA

Exemptions 3, 6, 7(C), (7)(D), and (7)(E). 4 Def.’s SOMF, ECF No.

24 at 5 ¶ 7, 6 ¶ 10. As the FBI made its productions, the

parties filed cross-motions for summary judgment in May and June

2018, respectively. See generally Docket of Civil Action No. 17-

1728.

4 Under FOIA, an agency must release all responsive documents unless the information contained within such documents falls within one of nine exemptions. Summers v. U.S. Dep’t of Justice, 517 F. Supp. 2d 231, 236 (D.D.C. 2007) (Sullivan, J.) (citing 5 U.S.C. § 552(a),(b)). Exemption 3 permits an agency to withhold information that is “specifically exempted from disclosure by statute,” provided that the statute either (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[.]” 5 U.S.C. § 552(b)(3). Exemption 6 protects “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]” Id. § 552(b)(6). Exemption 7 protects from disclosure “records or information compiled for law enforcement purposes,” but only to the extent that disclosure of such records would cause an enumerated harm. Id. § 552(b)(7). 6 After litigation had already begun, Plaintiffs learned that

Congressman Rohrabacher, Paul J. Manafort, Jr. (“Mr. Manafort”),

and “a senior Company A lobbyist” attended a March 2013 meeting

about Ukraine in the District of Columbia, and Plaintiffs sought

the FBI’s records regarding the investigation into that meeting. 5

Pls.’ Cross-Mot. for Summ. J., ECF No. 16 at 12; see also

Statement of Offense, United States v. Richard W. Gates III,

Criminal Action No. 17-201-2 (D.D.C. Feb. 23, 2018), ECF No. 206

at 7 ¶ 16 (stating that the “Member of Congress,” who met with

Mr. Manafort and the lobbyist, served “on a subcommittee that

had Ukraine within its purview”). 6 Congressman Rohrabacher’s

5 In February 2018, Richard W. Gates III (“Mr. Gates”) pled guilty to conspiring with Mr. Manafort to defraud the United States and to making false statements to the FBI and the Special Counsel’s Office (“SCO”). Plea Agreement, United States v. Richard W. Gates III, Criminal Action No. 17-201-2 (D.D.C. Feb. 23, 2018), ECF No. 205 at 1 ¶ 1. Mr. Gates “stated falsely that he was told by [Mr.] Manafort and the senior Company A lobbyist that there were no discussions of Ukraine at the meeting.” Pls.’ Cross-Mot. for Summ. J., ECF No. 16 at 12 (citation omitted). 6 From 2017 to 2019, Special Counsel Robert S. Mueller III investigated Russia’s interference in the 2016 presidential election. See, e.g., In re Grand Jury Investigation, No. MC 17- 2336 (BAH), 2017 WL 4898143, at *1 (D.D.C. Oct. 2, 2017); United States v. Stone, No. CR 19-0018 (ABJ), 2019 WL 3502929, at *20 (D.D.C. Aug. 1, 2019). The SCO uncovered evidence that resulted in various indictments. See, e.g., Redacted Indictment, United States v. Paul J. Manafort, Jr. & Richard W. Gates, III, Criminal Action No. 17-201 (D.D.C. Oct. 30, 2017), ECF No. 13; Superseding Indictment, United States v. Konstantin Kilimnik, Criminal Action No. 17-201-3, (D.D.C. June 8, 2018), ECF No. 318; Indictment, United States v. Bijan Rafiekian & Kamil Ekim Alptekin, Criminal Action No. 18-457 (E.D. Va. Dec. 12, 2018), ECF No. 1; Indictment, United States v. Gregory B. Craig, Criminal Action No. 19-125 (D.D.C. Apr. 11, 2019), ECF No. 1; 7 spokesperson confirmed that he was the “Member of Congress”

referenced in the court filing, and that former Congressman Vin

Weber, who was a lobbyist, attended the meeting. Pls.’ SOMF, ECF

No. 26-1 at 4 ¶¶ 12-13; see also Pls.’ Ex. 8, ECF No. 26-3 at

37-38.

In September 2018, the government withdrew its motion for

summary judgment to conduct an additional search after the

initial round of briefing. Def.’s Notice of Withdrawal, ECF No.

19 at 1. The FBI searched for responsive records regarding the

SCO’s investigation, but that search did not yield any

responsive records. Seidel Decl., ECF No. 24-1 at 18 ¶ 36. The

FBI also contacted the SCO, and the SCO confirmed that there

were no records within the scope of Plaintiffs’ FOIA request.

Id. at 19 ¶ 37. The FBI maintained that it could neither confirm

nor deny responsive investigative records concerning Congressman

Rohrabacher outside of his official duties as a member of

Indictment, United States v. Roger Jason Stone, Jr., Criminal Action No. 19-18 (D.D.C. Jan. 24, 2019), ECF No. 1. And the SCO charged certain individuals with making false statements, obstruction of justice, or witness tampering. See, e.g., Information, United States v. George Papadopoulos, Criminal Action No. 17-182 (D.D.C. Oct. 3, 2017), ECF No. 8; Information, United States v. Michael T. Flynn, Criminal Action No. 17-232 (D.D.C. Nov. 30, 2017), ECF No. 1; Information, United States v. Alex van der Zwaan, Criminal Action No. 18-31 (D.D.C. Feb. 16, 2018), ECF No. 1; Information, United States v. W. Samuel Patten, Criminal Action No. 18-260 (D.D.C. Aug. 31, 2018), ECF No. 1; Information, United States v. Michael Cohen, Criminal Action No. 18-850 (S.D.N.Y. Nov. 29, 2018), ECF No. 2. 8 Congress. Id. at 41 ¶ 83. The FBI released records “associated

with Congressman Rohrabacher’s execution of his official duties

as a United States Congressman.” Id. Dissatisfied, Plaintiffs

challenged the search and the scope of the Glomar response. See

Hardy Decl., ECF No. 30-1 at 3 ¶ 6, 5 ¶ 10.

The parties renewed their cross-motions for summary

judgment. In the second round of briefing, DOJ argues that it is

entitled to summary judgment because it properly applied the

Glomar response, it conducted adequate searches, it

appropriately invoked Exemptions 3, 6, 7(C), 7(D), and 7(E), and

it reasonably segregated the non-exempt information from the

exempt information. Def.’s Renewed Mot. for Summ. J. (“Def.’s

Mot.”), ECF No. 24 at 20-30. In support of its motion, DOJ

submits two declarations from the FBI’s Assistant Section Chief

of the Record/Information Dissemination Section (“RIDS”),

Information Management Division (“IMD”), see Seidel Decl., ECF

No. 24-1 at 1 ¶ 1, and the FBI’s Section Chief of RIDS, IMD, see

Hardy Decl., ECF No. 30-1 at 1 ¶ 1. 7 Plaintiffs move for summary

7 Although the Hardy declaration was attached to DOJ’s reply brief, the Court may “rel[y] on supplemental declarations submitted with an agency’s reply memorandum to cure deficiencies in previously submitted declarations where, as here, the ‘[p]laintiff filed no motion for leave to file a surreply challenging [the] defendant’s supplemental declarations.’” DeSilva v. U.S. Dep’t of Hous. & Urban Dev., 36 F. Supp. 3d 65, 72 (D.D.C. 2014) (quoting Judicial Watch, Inc. v. FDA, 514 F. Supp. 2d 84, 89 n. 1 (D.D.C. 2007)). 9 judgment, see Pls.’ Mot., ECF No. 26 at 1, arguing that: (1) the

declarations constitute hearsay and the declarants lack personal

knowledge, id. at 6-8; (2) the Glomar response is unwarranted

because the “FBI has narrowly pierced the Glomar veil by carving

out a category of responsive documents,” id. at 11; (3) the FBI

improperly invokes Exemption 7(C) because Congressman

Rohrabacher has a de minimis privacy interest, id. at 9-12;

(4) the FBI failed to conduct adequate searches of its

investigative records, id. at 16-24, and its records related to

Congressman Rohrabacher in his official capacity as a U.S.

Congressman, id. at 24-26; and (5) the FBI improperly withheld

the names of certain individuals because it has previously

“officially acknowledged” the identities of those persons in the

released documents, see Pls.’ Reply, ECF No. 32 at 27-28. In

DOJ’s memorandum in opposition to Plaintiffs’ cross-motion for

summary judgment and reply memorandum in support of its renewed

motion for summary judgment, Plaintiffs received notice that the

FBI implemented a July 15, 2017 cutoff date for the SCO’s

search. See, e.g., Def.’s Opp’n & Reply Mem. in Supp. of Def.’s

Mot. (“Def.’s Opp’n”), ECF No. 30 at 20; Hardy Decl., ECF No.

30-1 at 8 ¶ 15 n.4. The motions are ripe and ready for the

Court’s adjudication.

II. Legal Standard

The “vast majority” of FOIA cases can be resolved on

10 summary judgment. Brayton v. Office of the U.S. Trade

Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). A court may

grant summary judgment only if “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). Likewise, in ruling on

cross-motions for summary judgment, the court shall grant

summary judgment only if one of the moving parties is entitled

to judgment as a matter of law upon material facts that are not

genuinely disputed. See Citizens for Responsibility & Ethics in

Wash. v. U.S. Dep’t of Justice, 658 F. Supp. 2d 217, 224 (D.D.C.

2009) (citation omitted). Under FOIA, “the underlying facts and

the inferences to be drawn from them are construed in the light

most favorable to the FOIA requester[,]” and summary judgment is

appropriate only after “the agency proves that it has fully

discharged its [FOIA] obligations . . . .” Moore v. Aspin, 916

F. Supp. 32, 35 (D.D.C. 1996) (citations omitted).

When considering a motion for summary judgment under FOIA,

the court must conduct a de novo review of the record. See

5 U.S.C. § 552(a)(4)(B). The court may grant summary judgment

based on information provided in an agency’s affidavits or

declarations when they are “relatively detailed and non-

conclusory,” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200

(D.C. Cir. 1991) (citation omitted), and “not controverted by

either contrary evidence in the record nor by evidence of agency

11 bad faith[,]” Military Audit Project v. Casey, 656 F.2d 724, 738

(D.C. Cir. 1981). Such affidavits or declarations are “accorded

a presumption of good faith, which cannot be rebutted by purely

speculative claims about the existence and discoverability of

other documents.” SafeCard, 926 F.2d 1197 at 1200 (citation and

internal quotation marks omitted).

III. Analysis

The cross-motions for summary judgment raise four main

issues: (1) whether the partial Glomar response was proper;

(2) whether the FBI made a good faith effort to conduct a search

for the requested documents; (3) whether the FBI waived its

claimed exemptions to certain information that the agency has

“officially acknowledged” by previously releasing such

information; and (4) whether the Court should consider the

agency declarations that contain hearsay and purportedly fail to

attest to the declarants’ familiarity with the documents in

question. 8 The Court will address each argument in turn.

A. The FBI’s Partial Glomar Response

DOJ argues that the FBI properly issued a Glomar response,

8 Plaintiffs do not contest the applicability of the withholdings under Exemptions 3, 7(D), and 7(E). See Pls.’ Mot., ECF No. 26 at 1-31; see also Def.’s Mot., ECF No. 24 at 23, 28-30. The Court therefore treats those matters as conceded. See Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a 12 refusing to confirm or deny the existence of certain records

relating to Congressman Rohrabacher. Def.’s Opp’n, ECF No. 30 at

8. After Congressman Rohrabacher publicly acknowledged his

interactions with the FBI, the FBI confirmed that records

existed for three categories: (1) “records reflecting

communications between it and the Congressman in the performance

of his official duties[,]” id.; (2) records relating to

communications between the Congressman and the FBI concerning

the 2012 meeting, id. at 8-9; and (3) “records related to the

statement of offense in the [Mr.] Gates prosecution that [Mr.]

Manafort and a lobbyist for ‘Company A’ had met with a ‘member

of Congress[,]’” id. at 9. Characterizing the FBI’s approach as

“narrowly pierc[ing] the Glomar veil,” Pls.’ Mot., ECF No. 26 at

11, Plaintiffs contend that the FBI “carved out from its Glomar

response records relating to specific, narrow instances” and

that “approach is not consistent with D.C. Circuit precedent[,]”

Pls.’ Reply, ECF No. 32 at 12-13.

A Glomar response is appropriate “only when confirming or

denying the existence of records would itself ‘cause harm

cognizable under a FOIA exception.’” ACLU v. CIA, 710 F.3d 422,

court may treat those arguments that the plaintiff failed to address as conceded.” (citation omitted)), aff’d sub nom. Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries, United Methodist Church, 98 F. App’x 8 (D.C. Cir. 2004). Accordingly, the Court GRANTS Defendant’s motion for summary judgment as to the withholdings under Exemptions 3, 7(D), and 7(E). 13 426 (D.C. Cir. 2013) (quoting Roth, 642 F.3d at 1178). “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)).

The agency must “tether its refusal to respond to one of the

nine FOIA Exemptions.” Montgomery v. IRS, No. CV 17-918 (JEB),

2019 WL 2930038, at *2 (D.D.C. July 8, 2019) (citation omitted).

“Ultimately, an agency’s justification for invoking a FOIA

exemption is sufficient if it appears ‘logical’ or ‘plausible.’”

Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007) (quoting

Gardels, 689 F.2d at 1105).

The parties disagree about whether “there exists a [narrow]

category of responsive documents for which a Glomar response

would be unwarranted[.]” PETA v. Nat’l Inst. of Health, 745 F.3d

535, 545 (D.C. Cir. 2014). The United States Court of Appeals

for the District of Columbia Circuit (“D.C. Circuit”) has

applied the categorical rule—the “SafeCard rule”—“permitting an

agency to withhold information identifying private citizens

mentioned in law enforcement records, unless disclosure is

necessary in order to confirm or refute compelling evidence that

the agency is engaged in illegal activity.” Schrecker v. U.S.

Dep’t of Justice, 349 F.3d 657, 661 (D.C. Cir. 2003) (citation

and internal quotation marks omitted). The D.C. Circuit has

14 clarified this rule as follows:

[W]e do not read SafeCard as permitting an agency to exempt from disclosure all of the material in an investigatory record solely on the grounds that the record includes some information which identifies a private citizen or provides that person’s name and address. Because such a blanket exemption would reach far more broadly than is necessary to protect the identities of individuals mentioned in law enforcement files, it would be contrary to FOIA’s overall purpose of disclosure, and thus is not a permissible reading of Exemption 7(C).

Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d

885, 896 (D.C. Cir. 1995) (emphasis in original). For example,

in Citizens for Responsibility & Ethics in Washington v. U.S.

Department of Justice, 746 F.3d 1082, 1094 (D.C. Cir. 2014)

(“CREW”), the D.C. Circuit determined that the FBI’s Glomar

response was inappropriate where “DOJ [did] not seek to withhold

only the identities of private citizens; it [sought] to withhold

every responsive document in toto.”

In this case, the Court observes that the FBI’s partial

Glomar response does not categorically withhold all responsive

records. See Def.’s Opp’n, ECF No. 30 at 8. The FBI has searched

for responsive records regarding Congressman Rohrabacher’s

public statements, set forth above, and the FBI has invoked

Glomar as to the existence or non-existence of any other

records. See id. at 12-13. Plaintiffs, however, continue to

attack the partial Glomar response. “To overcome a Glomar

15 response, the plaintiff[s] can either challenge the agency’s

position that disclosing the existence of a record will cause

harm under the FOIA exemption asserted by the agency, or the

plaintiff[s] can show that the agency has ‘officially

acknowledged’ the existence of records that are the subject of

the request.” James Madison Project v. Dep’t of Justice, 320 F.

Supp. 3d 143, 148 (D.D.C. 2018). Here, Plaintiffs have selected

the first route to attack the FBI’s partial Glomar response, see

id., arguing that Congressman Rohrabacher has “little privacy

interest in the fact of the existence or nonexistence of [the

investigative] records associating him with an FBI

investigation.” Pls.’ Mot., ECF No. 26 at 11. The FBI concedes

that it was required to search for records that have been

publicly confirmed by Congressman Rohrabacher. Def.’s Opp’n, ECF

No. 30 at 12. Plaintiffs, however, argue that the FBI has failed

to justify its Glomar response.

Here, the FBI justifies its invocation of Glomar under

Exemptions 6 and 7(C). E.g., Def.’s Opp’n, ECF No. 30 at 9;

Hardy Decl., ECF No. 30-1 at 3-4 ¶ 6, 5 ¶ 9. Both exemptions are

foundationally similar. See, e.g., Garza v. U.S. Marshals Serv.,

No. CV 16-0976, 2018 WL 4680205, at *11 (D.D.C. Sept. 28, 2018)

(Sullivan, J.); Am. Ctr. for Law & Justice v. U.S. Dep’t of

Justice, 334 F. Supp. 3d 13, 18 (D.D.C. 2018) (recognizing that

“[c]ourts tasked with evaluating withholdings made pursuant to

16 both statutory exemptions generally look first to the agency’s

justification under Exemption 7(C), because information properly

withheld under Exemption 7(C) would also be covered by Exemption

6”). Plaintiffs focus on Exemption 7(C), see, e.g., Pls.’ Mot.,

ECF No. 26 at 11; Pls.’ Reply, ECF No. 32 at 14, and this Court

will follow suit.

Exemption 7(C) protects from disclosure records compiled

for law enforcement purposes to the extent that their disclosure

“could reasonably be expected to constitute an unwarranted

invasion of personal privacy.” Id. § 552(b)(7)(C). “[J]udicial

review of an asserted Exemption 7 privilege requires a two-part

inquiry.” FBI v. Abramson, 456 U.S. 615, 622 (1982). The

threshold requirement has been met here because it is undisputed

that the FBI’s records were compiled for law enforcement

purposes. See 5 U.S.C. § 552(b)(7); see also Seidel Decl., ECF

No. 24-1 at 7 ¶ 15 (“[T]he records include contacts by

Congressman Rohrabacher to the FBI regarding its duties and

responsibilities as a law enforcement and national security

agency, and the information discussed between the FBI and

Congressman relate to the FBI’s investigative role and obtained

from investigative records.”). Next, the FBI “must show that

release of those records ‘could reasonably be expected to

constitute an unwarranted invasion of personal privacy.’” Prop.

of People v. U.S. Dep’t of Justice, 310 F. Supp. 3d 57, 65-66

17 (D.D.C. 2018) (quoting 5 U.S.C. § 552(b)(7)(C)).

The Court must “balance the privacy interests that would be

compromised by disclosure against the public interest in release

of the requested information.” Davis v. U.S. Dep’t of Justice,

968 F.2d 1276, 1281 (D.C. Cir. 1992). The D.C. Circuit has held

“categorically that, unless access to the names and addresses of

private individuals appearing in files within the ambit of

Exemption 7(C) is necessary in order to confirm or refute

compelling evidence that the agency is engaged in illegal

activity, such information is exempt from disclosure.” SafeCard,

926 F.2d at 1206. Where a FOIA request “is made for FBI

investigative records regarding a particular individual, the

FBI’s mere acknowledgment that it possesses responsive records

associates the individual named in the request with suspected

criminal activity.” CREW, 746 F.3d at 1091. As such, “the

FBI’s Glomar response, absent a countervailing public interest

in disclosure, [is] appropriate under Exemption 7(C).” Roth, 642

F.3d at 1179.

The FBI’s first declaration cites its policy of

categorically withholding investigatory records concerning a

third party unless he consents, there is proof of his death, or

there is a demonstrated overriding public interest. Seidel

Decl., ECF No. 24-1 at 8 ¶ 17. Absent the third party’s consent

and a death certificate, the FBI determined that the privacy

18 interests at stake outweighed the public interest here. See id.

at 12 ¶ 24 (stating that “the mere presence of FBI records

concerning any individual in connection with an FBI

investigation, should they exist, could cast the individual in

an unfavorable or negative light to members of the public”). The

FBI’s second declaration avers that “if [investigative] records,

that may or may not exist, were released, they would only

provide a narrow view of specific FBI counterintelligence

actions, and not a broader understanding of the government’s

operations or activities regarding the countering of Russian

efforts to influence the U.S. political and electoral system.”

Hardy Decl., ECF No. 30-1 at 5 ¶ 8.

Plaintiffs do not challenge the FBI’s policy, but they

dispute the FBI’s determination after weighing the competing

interests. Plaintiffs contend that the public interest in

knowing how the FBI handled the counterintelligence matter

involving Congressman Rohrabacher tips the balance in favor of

disclosure. See Pls.’ Mot., ECF No. 26 at 11-13. Plaintiffs

acknowledge that “in some cases a blanket Glomar response made

pursuant to Exemption 7(C) can be sustained after a carve-out is

made for ‘a category of responsive documents for which a Glomar

response would be unwarranted[.]’” Id. at 11 (quoting PETA, 745

F.3d at 545). Nonetheless, Plaintiffs argue that in this case

“neither the documents to be carved out nor the remaining

19 documents fall into groupings as to which balancing as a

categorical matter would be appropriate.” Id. at 12.

To determine whether DOJ properly balanced the competing

interests when it declined to confirm or deny the existence of

any other investigative records concerning Congressman

Rohrabacher, the Court first addresses the privacy interest,

then turns to the public interest, and concludes with balancing

the competing interests at stake.

1. Privacy Interest

Plaintiffs argue—and the Court disagrees—that Congressman

Rohrabacher has a de minimis privacy interest. See Pls.’ Mot.,

ECF No. 26 at 11. Plaintiffs contend that “[o]nce [Congressman]

Rohrabacher disclosed his association with an FBI investigation

. . ., the sole privacy interest identified by the FBI no longer

applies.” Id. at 12. Plaintiffs point out that Congressman

Rohrabacher’s public statements about his interactions with the

FBI “negate his privacy interest.” Id. at 9. Contrary to

Plaintiffs’ assertion, the FBI’s declarant avers that the

“negative stigma attached to disclosing an individual’s

association with any specific FBI investigation” is not negated

by the fact that Russian intelligence services have targeted a

Congressman. Hardy Decl., ECF No. 30-1 at 4 ¶ 7; see also Def.’s

Opp’n, ECF No. 30 at 14. Based on its review of the records, the

FBI concluded that “[Congressman] Rohrabacher’s privacy

20 interests outweighed [the] public interest in disclosure only

for investigative records, should they exist, not previously

disclosed or discussed [publicly] by [him].” Seidel Decl., ECF

No. 24-1 at 9 ¶ 18. DOJ argues—and the Court agrees—that “[t]he

privacy interests of parties mentioned in law enforcement files

are ‘substantial[.]’” Def.’s Opp’n, ECF No. 30 at 12 (quoting

SafeCard, 926 F.2d at 1205); see also Multi Ag Media LLC v.

Dep’t of Agric., 515 F.3d 1224, 1229-30 (D.C. Cir. 2008) (“A

substantial privacy interest is anything greater than a de

minimis privacy interest.”). Indeed, the D.C. Circuit has

consistently held that “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.” Nation Magazine, 71 F.3d at 894 (collecting

cases).

The D.C. Circuit’s decision in CREW, 746 F.3d at 1087—a

FOIA case involving the FBI’s investigative records of Tom

DeLay, the former Majority Leader of the U.S. House of

Representatives, arising from the activities of a former

lobbyist—is instructive on this point. In that case, Mr. DeLay

publicly announced that he had cooperated with the FBI’s

investigation into the Jack Abramoff scandal, that he had been

under investigation, and that the Justice Department had decided

not to pursue criminal charges against him. Id. at 1087, 1089,

21 1091-92. The D.C. Circuit determined that Mr. DeLay had “two

potential privacy interests at stake”: (1) “avoiding the stigma

of having his name associated with a criminal investigation[,]”

id. at 1091; and (2) “[a]lthough [Mr.] DeLay’s action [i.e. his

public statements] lessened his [privacy] interest in keeping

secret the fact that he was under investigation, he retained a

second, distinct privacy interest in the contents of the

investigative files[,]” id. at 1092 (emphasis in original). In

doing so, the D.C. Circuit found that the FBI’s Glomar response

was improper because of Mr. DeLay’s public statements confirmed

that he had been under investigation. Id. The D.C. Circuit,

however, made clear that “[Mr.] DeLay’s privacy interest in the

contents of the investigative files [was] not insubstantial”

even though he was a public official at the time. Id. For the

same reasons, the Court therefore finds that Congressman

Rohrabacher has a more than a de minimis privacy interest in the

contents of any FBI investigative records. See id.

2. Public Interest

Having determined that Congressman Rohrabacher’s privacy

interest is not insubstantial, the Court next considers the

“other side of the scale”-the public interest. Id. Plaintiffs

bear the burden of establishing that disclosure will advance the

public interest. Nat’l Archives & Records Admin. v. Favish, 541

U.S. 157, 158 (2004) (“[W]hen Exemption 7(C)’s privacy concerns

22 are present, the requester must show 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 that

the information is likely to advance that interest.”). As Judge

Boasberg recognized in a case that resembles the FOIA request

here, “it is critical to remember that ‘[t]he only relevant

public interest’ is ‘the extent to which disclosure of the

information sought would she[d] light on an agency’s performance

of its statutory duties or otherwise let citizens know what

their government is up to.’” Prop. of People, 310 F. Supp. 3d at

69 (quoting CREW, 746 F.3d at 1093) (emphasis in original). “The

inquiry is therefore not focused on any ‘general public interest

in the subject matter of the FOIA request’—i.e., [Congressman

Rohrabacher].” Id. (quoting Schrecker, 349 F.3d at 661).

CREW, again, is instructive. See id. There, the D.C.

Circuit held that there was a “weighty” public interest in

“shining a light on the FBI’s investigation of major political

corruption and the DOJ’s ultimate decision not to prosecute a

prominent member of the Congress for any involvement he may have

had” in the Abramoff scandal. CREW, 746 F.3d at 1092-93. The

D.C. Circuit concluded that “[d]isclosure of the records would

likely reveal much about the diligence of the FBI’s

investigation and the DOJ’s exercise of its prosecutorial

discretion: whether the government had the evidence but

23 nevertheless pulled its punches” where the FBI’s records related

to “a wide-ranging public corruption investigation as part of

[the FBI’s] ongoing efforts to root out systemic corruption

within the highest levels of government.” Id. at 1093 (emphasis

added). The D.C. Circuit made clear that the agency’s

categorical withholding of all responsive records under

Exemption 7(C) was inappropriate given the significant public

interest at stake, and thus remanded the case for the district

court to “weigh what information may be withheld under Exemption

7(C) and whether any information [was] reasonably segregable and

[could] be disclosed.” Id. at 1096.

In some respects, CREW is distinguishable from the present

action because the FBI in this case has not withheld all

responsive records under Exemption 7(C), and Plaintiffs seek

“[a]ny and all” records constituting, mentioning, or referring

to Congressman Rohrabacher in his capacity as a member of

Congress. Seidel Decl., ECF No. 24-1 at 3 ¶ 5. “It is important

to remember, however, that Plaintiffs are not requesting

information [in their FOIA request] about a particular

investigation.” Prop. of People, 310 F. Supp. 3d at 69 (emphasis

in original) (citing CREW, 746 F.3d at 1092-95). “Rather, they

request records related to a particular individual.” Id.

(emphasis in original). Plaintiffs attempt to show that there is

strong public interest through its FOIA request for

24 investigative records concerning Congressman Rohrabacher without

presenting any evidence that Congressman Rohrabacher was under

investigation—unlike in CREW where there was no question that

Mr. DeLay was under investigation. Compare Pls.’ Mot., ECF No.

26 at 13-17, with CREW, 746 F.3d at 1092. In fact, Plaintiffs

make clear that Congressman Rohrabacher’s name is associated

with an investigation. Pls.’ Mot., ECF No. 26 at 12 (stating

“Mr. Rohrabacher disclosed his association with an FBI

investigation”). Nevertheless, the Court cannot ignore the

existence of news articles, of which the Court takes judicial

notice, reporting that the SCO investigated a September 2016

meeting between Congressman Rohrabacher and one of the

President’s former National Security Advisors. See, e.g., Julia

Ainsley, Mueller Probing Pre-Election Flynn Meeting With Pro-

Russia Congressman, NBC News (Nov. 10, 2017, 12:59 PM),

https://www.nbcnews.com/news/us-news/mueller-probing-pre-

election-flynn-meeting-pro-russia-congressman-n819676; Michael

R. Blood, Rouda Claims Historic Victory Over Republican

Rohrabacher, NBC4 (Nov. 10, 2018, 10:17 PM) (stating that

Congressman Rohrabacher’s “name has come up in the investigation

into Russian meddling in the 2016 presidential election”),

https://www.nbclosangeles.com/news/local/Rouda-Declares-Victory-

in-House-Race-Against-Rohrabacher-500204551.html.

Over the course of this litigation, Plaintiffs have shifted

25 their focus to the SCO’s investigation into Russia’s influence

in the 2016 presidential election and the FBI’s

counterintelligence efforts. Compare Compl., ECF No. 1 at 2 ¶¶

9-10 (seeking the FBI’s records referring to Congressman

Rohrabacher and his contacts with the FBI), with Pls.’ Reply,

ECF No. 32 at 17 (asserting that “[t]he requested records may

reveal the extent to which the FBI took seriously the threat of

Russian interference in the United States’ political system”).

Indeed, as part of its search, the FBI contacted the SCO to

locate any records associated with Congressman Rohrabacher’s

2013 meeting with Mr. Manafort and Company A’s lobbyist. Def.’s

Opp’n, ECF No. 30 at 20. Plaintiffs rely on CREW to support

their argument that the public interest is strong in this case

and that the requested records will shed light on the FBI’s

investigation into potential foreign attempts to undermine the

U.S. electoral process because “it is important for the public

to understand not just what may have been said at the 2012

meeting, but also the FBI’s overall diligence in handling what

it perceived to be an attempt by Russian intelligence to

influence a member of Congress.” Pls.’ Mot., ECF No. 26 at 15.

Plaintiffs underscore the “criticisms that have been leveled

against the FBI for not doing enough to stem the influence of

Russian intelligence,” id., but they explain that highlighting

those criticisms is “independent of whether the FBI’s handling

26 [of the issue] was proper or not[,]” id. at 15 n.5. Plaintiffs

remain focused on “how the FBI carried out its statutory duty to

investigate counterintelligence matters.” Pls.’ Reply, ECF No.

32 at 16. And Plaintiffs ask this Court to “require the FBI to

exclude from its Glomar response any records which link

[Congressman] Rohrabacher to Russian counterintelligence

matters[.]” Id. at 17.

DOJ attempts to distinguish CREW from this case. See Def.’s

Opp’n, ECF No. 30 at 13. DOJ argues that the D.C. Circuit in

CREW found “that [Mr.] Delay’s privacy interest was clearly

outweighed by the need to inform the public ‘about the FBI’s and

the DOJ’s investigation of [a] major, wide-ranging public

corruption’ scandal. Here, there is no allegation of corruption

against the FBI or the Department of Justice.” Id. (quoting

CREW, 746 F.3d at 1096). Plaintiffs take issue with this

distinction. See Pls.’ Reply, ECF No. 32 at 16. Plaintiffs

correctly point out that in CREW there were no allegations of

corruption against the FBI or DOJ, and that the allegations of

corruption related to a member of Congress. Id.; see also CREW,

746 F.3d at 1095 (“CREW alleges no impropriety on the part of

the FBI or the DOJ.”).

The D.C. Circuit has made clear that the public has an

interest in knowing how the FBI investigated a sitting member of

Congress. CREW, 746 F.3d at 1094-96. “‘[M]atters of substantive

27 law enforcement policy . . . are properly the subject of public

concern,’ whether or not the policy in question is lawful.” ACLU

v. U.S. Dep’t of Justice, 655 F.3d 1, 14 (D.C. Cir. 2011)

(quoting U.S. Dep’t of Justice v. Reporters Comm. for Freedom of

Press, 489 U.S. 749, 766 n.18 (1989)). In Property of People v.

United States Department of Justice, Judge Boasberg refused to

permit the FOIA requesters there—consisting of two of the same

plaintiffs in this case—to “go on a fishing expedition for FBI

records” because the plaintiffs gave “no reason to think that

the FBI otherwise investigated [President Donald J. Trump], much

less that it ‘pulled its punches’ on any occasion.” 310 F. Supp.

3d at 70 (quoting CREW, 746 F.3d at 1093). Judge Boasberg found

that there was no public interest “[w]ithout such a ‘meaningful

evidentiary showing[.]’” Id. (quoting Favish, 541 U.S. at 175).

When “the public interest being asserted is to show that

responsible officials acted negligently or otherwise improperly

in the performance of their duties, the requester must establish

more than a bare suspicion in order to obtain disclosure.”

Favish, 541 U.S. at 174. And “courts must insist on a meaningful

evidentiary showing.” Id. at 175.

The Favish standard is inapplicable in this case. See ACLU

v. U.S. Dep’t of Justice, 655 F.3d at 14 (FOIA requester not

required to show evidence of misconduct where it did not seek to

show that a government “policy was legally improper, but rather

28 to show what that policy [was] and how effective or intrusive it

[was]”). The Favish evidentiary production is not required when,

as here, a “[p]laintiff does not argue that there was any

negligence or misfeasance on the part of government officials in

investigating or prosecuting [the officials].” Showing Animals

Respect & Kindness v. U.S. Dep’t of Interior, 730 F. Supp. 2d

180, 195 n.17 (D.D.C. 2010).

The Court is persuaded that Plaintiffs have demonstrated

that there is a significant public interest in the requested

records. See Citizens for Responsibility & Ethics in Wash. v.

U.S. Dep’t of Justice, 840 F. Supp. 2d 226, 234 (D.D.C. 2012)

(“[I]n these days of political turmoil, constant accusations and

name calling, and concern about our economic and social future,

there is, if anything, a heightened public interest in learning

what the Government is ‘up to.’” (quoting ACLU v. U.S. Dep’t of

Justice, 655 F.3d at 12)). Plaintiffs have given more than one

“reason to think that the FBI otherwise investigated

[Congressman Rohrabacher],” and that it ‘pulled its punches’[.]”

Prop. of People, 310 F. Supp. 3d at 70 (quoting CREW, 746 F.3d

at 1093). As the briefing makes clear, Plaintiffs seek the FBI’s

records concerning Congressman Rohrabacher to discover “how the

FBI handled the issue of threats posed by Russian intelligence

to the U.S. political system[.]” Pls.’ Mot., ECF No. 26 at 15

n.5. “Clearly, the American public has a right to know about the

29 manner in which its representatives are conducting themselves

and whether the government agency responsible for investigating

and, if warranted, prosecuting those representatives for alleged

illegal conduct is doing its job.” Citizens for Responsibility &

Ethics in Wash. v. U.S. Dep’t of Justice, 840 F. Supp. 2d 226,

234 (D.D.C. 2012).

3. Balancing the Competing Interests

The Court must balance the significant interests on both

sides of the scale. “In some, perhaps many, instances where a

third party asks if an agency has information regarding a named

individual in its law enforcement files, the cognizable public

interest in that information will be negligible; the requester

will be seeking records about a private citizen, not agency

conduct.” Nation Magazine, 71 F.3d at 895. “In this case,

however, [Plaintiffs] have identified a public interest

cognizable under FOIA in disclosure of any information regarding

[Congressman Rohrabacher] that might exist in [the FBI’s]

investigatory files.” Id. Given that the FBI has neither

confirmed nor denied the existence of investigative records

beyond the three categories that have already been publicly

acknowledged, “a more particularized approach is required.” Id.

In Citizens for Responsibility & Ethics in Washington v. U.S.

Dep’t of Justice, 846 F. Supp. 2d 63, 76 (D.D.C. 2012), the

court concluded that it “simply [was] not able to come to a

30 conclusion as to the balance between the privacy and public

interests at [the] level of generality” in that case. There, the

court granted the plaintiff’s partial motion for summary

judgment and ordered the agency to submit a Vaughn index that

identified each document or group of documents that it sought to

withhold and “a relatively detailed justification” for its

withholdings. Id. (quoting Mead Data Central, Inc. v. Dep’t of

the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). 9 The court

made clear that it did “not decide whether the Government need

turn over anything at all in response to [the plaintiff’s FOIA]

request.” Id.

Here, “[t]he Court expresses no view as to whether the FBI

may legitimately assert a partial Glomar response to some

aspects of [Plaintiffs’] request, perhaps even to entire

categories of [Plaintiffs’] request.” Elec. Frontier Found. v.

Dep’t of Justice, 384 F. Supp. 3d 1, 13 (D.D.C. 2019). That

being said, “[o]nce an agency acknowledges that it has some

responsive documents, there are a variety of forms that

subsequent filings in the district court may take. A pure ‘no

number, no list’ response is at one end of that continuum; a

9 “A Vaughn index describes the documents withheld or redacted and the FOIA exemptions invoked, and explains why each exemption applies.” Prison Legal News v. Samuels, 787 F.3d 1142, 1145 n.1 (D.C. Cir. 2015) (citing Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973); Keys v. U.S. Dep’t of Justice, 830 F.2d 337, 349 (D.C. Cir. 1987)). 31 traditional Vaughn index is at the other.” ACLU v. CIA, 710 F.3d

at 433. At this juncture, the Court cannot balance the competing

interests at this level of generality. See Citizens for

Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 846

F. Supp. 2d at 76. The Court therefore directs DOJ to submit a

Vaughn index and prescribes the following format for the Vaughn

index:

[A]ny supplemental Vaughn index [must] include a separate numbered entry for each document, including for each email (or email chain) and for each email attachment (which shall be separately listed in consecutive order after its associated email): (1) a document number; (2) an index identification number (i.e., a Bates stamp number); (3) the document’s subject or title; (4) its date; (5) the author and the author’s job title; (6) the recipient and the recipient’s job title; (7) the total number of pages; (8) the disposition (whether it is entirely or partially withheld); (9) the reason for being withheld; (10) the statutory authority for the withholding; and (11) the number of pages with redacted, withheld information.

Ctr. for Biological Diversity v. EPA, 279 F. Supp. 3d 121, 145

(D.D.C. 2017). The FBI “need not disclose the names and

addresses redacted from the documents[,]” SafeCard, 926 F.2d at

1206, but “documents simply assessing, for example, whether or

not to seek an indictment may not be covered by Exemptions 6 or

7(C)[,]” Citizens for Responsibility & Ethics in Wash. v. U.S.

Dep’t of Justice, 846 F. Supp. 2d at 76. Accordingly, the Court

DENIES IN PART DOJ’s motion for summary judgment and HOLDS IN

32 ABEYANCE Plaintiffs’ motion for summary judgment. 10

B. Adequacy of the Search

The Court next considers whether the FBI conducted an

adequate search. To prevail at the summary judgment stage, “the

agency must show that it made a good faith effort to conduct a

search for the requested records, using methods which can be

reasonably expected to produce the information requested.”

Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir.

1990). “[T]he issue to be resolved is not whether there might

exist any other documents possibly responsive to the request,

but rather whether the search for those documents was adequate.”

Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C.

Cir. 1984) (emphasis in original). “The adequacy of the search,

in turn, is judged by a standard of reasonableness and depends,

not surprisingly, upon the facts of each case.” Id. (citation

omitted). To meet its burden, an agency may provide “a

reasonably detailed affidavit, setting forth the search terms

and the type of search performed, and averring that all files

likely to contain responsive materials . . . were searched.”

Iturralde v. Comptroller of Currency, 315 F.3d 311, 313-14 (D.C.

Cir. 2003) (citation and internal quotation marks omitted). “If,

however, the record leaves substantial doubt as to the

10The Court DEFERS its ruling on segregability until after DOJ submits it supplemental declarations and Vaughn index. 33 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).

To demonstrate the adequacy of the search, DOJ submits two

declarations. The first declarant avers that the FBI searched

its databases—CRS, UNI, and Sentinel—using various search terms

and that those databases contain the records of the FBI’s entire

organization, including the FBI headquarters, field offices, and

the Legal Attaché offices. Seidel Decl., ECF No. 24-1 at 12-19

¶¶ 25-37. As part of the search, the FBI contacted certain

offices to locate records, including the Office of Congressional

Affairs, the Office of the Executive Secretariat, the Washington

Field Office, and the SCO. Id. at 17-19 ¶¶ 34-37. Based on its

“practice to use the date [the FBI] initially conducts searches

for the request as the search cut-off date[,]” the FBI used a

cutoff date of June 15, 2017. Hardy Decl., ECF No. 30-1 at 8

n.4. The FBI did not search any other individuals or offices,

arguing that the its “RIDS is in a better position to know what

custodians are likely to hold potentially responsive records.”

Def.’s Opp’n, ECF No. 30 at 18. DOJ contends that “FOIA does not

require agencies to conduct exhaustive searches of every

database, individual, or office a requestor can name or

suggest.” Id.

34 Plaintiffs challenge the adequacy of the FBI’s search on

numerous grounds. Plaintiffs argue that the FBI failed to

conduct a reasonable search of all offices likely to possess

responsive documents. Pls.’ Mot., ECF No. 26 at 17. Plaintiffs

assert—and DOJ does not dispute—that the FBI did not search for

records within the Counterintelligence Division and the Office

of General Counsel. Id. at 17-18, 26. Neither did the FBI search

for records from certain custodians—the Special Agent in Charge

of Washington Field Office, the Assistant Director of the

Counterintelligence Division, and the Assistant Director of the

Office of Congressional Affairs. Pls.’ Mot., ECF No. 26 at 18-

19, 22. Finally, Plaintiffs take issue with the cutoff date

because the FBI failed to inform Plaintiffs of that date. Pls.’

Reply, ECF No. 32 at 23. The Court will examine each argument.

1. The FBI’s Temporal Limitation Was Unreasonable

An agency’s decision to impose temporal limitations in

responding to a FOIA request “is only valid when the limitation

is consistent with the agency’s duty to take reasonable steps to

ferret out requested documents.” McGehee v. CIA, 697 F.2d 1095,

1101 (D.C. Cir. 1983) (emphasis in original). Indeed, the D.C.

Circuit has cautioned against a “reflexive application of the

cut-off policy to every request regardless of circumstance” and

has “expressly rejected the proposition that under FOIA, the

‘use of a time-of-request cut-off date is always reasonable.’”

35 Public Citizen v. Dep’t of State, 276 F.3d 634, 644 (D.C. Cir.

2002) (quoting McGehee, 697 F.2d at 1102). Even so, “specific

circumstances in some agencies may render an across-the-board

rule reasonable” so long as the agency makes a “showing that

warrants such an approach in its case.” Id. The D.C. Circuit

made clear that “[i]t would be extremely difficult for the [the

agency] to convince us that it may ‘reasonably’ use any cut-off

date without so informing the requester” because “[s]uch

notification would involve an insignificant expenditure of time

and effort on the part of the agency.” McGehee, 697 F.2d at 1105

(emphasis in original). Prior notification of the cut-off date

“would enable the [FOIA] requester to submit supplementary

demands for information if [the requester] felt so inclined.”

Id.

Here, the FBI’s “unpublicized temporal limitation of its

searches” was improper. Id. (emphasis in original). It is

undisputed that the FBI failed notify Plaintiffs of the July 15,

2017 cutoff date until it filed its memorandum in opposition to

Plaintiffs’ cross-motion for summary judgment and reply

memorandum in support of its renewed motion for summary

judgment. See, e.g., Def.’s Opp’n, ECF No. 30 at 20; Hardy

Decl., ECF No. 30-1 at 8 ¶ 15 n.4; Pls.’ Reply, ECF No. 32 at

24. Plaintiffs did not have an opportunity to submit any

supplemental demands for information before submitting their

36 reply brief. The FBI did not communicate the cutoff date during

its negotiations with Plaintiffs, provide a justification to

Plaintiffs, or afford Plaintiffs with an opportunity to object

to the cutoff date at the early stages of the litigation. See

Pls.’ Reply, ECF No. 32 at 24. The Court expresses no view on

the propriety of the FBI’s practice of employing cutoff dates,

see Hardy Decl., ECF No. 30-1 at 8 ¶ 15 n.4, but the FBI’s

failure to give Plaintiffs advance notice of the cutoff date was

inconsistent with D.C. Circuit precedent. See Public Citizen,

276 F.3d at 643-44 (invalidating agency’s cut-off date policy

because it permitted the agency to “withhold, with little or no

justification, a potentially large number of relevant

documents”). The Court therefore finds that the FBI’s temporal

limitation of its searches was improper.

2. The FBI Improperly Limited Its Searches

To allow a district court to determine whether the search

was adequate, the affidavit should include the agency’s

“rationale for searching certain locations and not others.”

Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 92

(D.D.C. 2009). Factual assertions in such an affidavit will be

accepted as true unless the requesting party submits evidence

contradicting those assertions or rebutting the presumption that

the agency’s search was made in good faith. Coffey v. Bureau of

Land Mgmt., 277 F. Supp. 3d 1, 7 (D.D.C. 2017) (Sullivan, J.).

37 i. Counterintelligence Office

Plaintiffs offer a factual basis to support their

contention that there was a reasonable likelihood that other

offices would possess responsive records. According to

Plaintiffs, “[t]he FBI’s Counterintelligence Division is

responsible for, among other things, [c]ounter[ing] the

activities of foreign spies.” Pls.’ SOMF, ECF No. 26-1 at 3 ¶ 8

(citation and internal quotation marks omitted). 11 The

Counterintelligence Division’s counterespionage section

documents interviews of non-subjects. Id. at 3 ¶ 9. Plaintiffs

argue that the FBI should have searched for responsive records

in the Counterintelligence Division because Congressman

Rohrabacher publicly confirmed that the FBI warned him that

Russian spies were trying to recruit him. Pls.’ Mot., ECF No. 26

at 17. DOJ does not explain the legal basis for the FBI’s

decision not to search for records in the Counterintelligence

Division. See Def.’s Opp’n, ECF No. 30 at 17. Rather, DOJ

responds that the FBI “determined the field office responsible

11DOJ concedes Plaintiffs’ Statement of Material Facts by failing to challenge it. See Cruz v. Am. Airlines, 150 F. Supp. 2d 103, 115 n.8 (D.D.C. 2001) (finding that opposing party conceded moving party’s statement of facts by not challenging the statement), aff’d sub nom. Cruz v. Am. Airlines, Inc., 356 F.3d 320 (D.C. Cir. 2004); see also LCvR 7(h)(1) (“[T]he Court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.”). 38 for the region where the meeting would have taken place was the

more likely custodian than the Headquarters (‘HQ’)

Counterintelligence Division.” Id. (citing Hardy Decl., ECF No.

30-1 at 6 ¶ 11). Both declarations provide the same language

without an explanation for why the FBI did not conduct a search

of the Counterintelligence Division. See Seidel Decl., ECF No.

24-1 at 19 ¶ 39; see also Hardy Decl., ECF No. 30-1 at 6 ¶ 11.

While the first declaration identifies the databases and

locations searched, see Seidel Decl., ECF No. 24-1 at 12-19 ¶¶

25-37, it does not provide the required “averment that all

locations likely to contain responsive records were searched,”

Powell v. IRS, 280 F. Supp. 3d 155, 162 (D.D.C. 2017); see also

Oglesby, 920 F.2d at 68. Instead, the first declaration avers

that the agency “contact[ed] the FBI components likely to

maintain or have knowledge as to the location of responsive

records[.]” Seidel Decl., ECF No. 24-1 at 41 ¶ 83 (emphasis

added). The FBI’s averment, however, will not pass muster

because searching the locations “most likely to contain

responsive documents . . . is not the relevant metric.” DiBacco

v. U.S. Army, 795 F.3d 178, 190 (D.C. Cir. 2015) (citation and

internal quotation marks omitted); see also Mobley v. CIA, 806

F.3d 568, 582 (D.C. Cir. 2015) (“Had the FBI only searched the

record systems ‘most likely’ to contain responsive records, its

search would be inadequate.”). The Court therefore finds that

39 the FBI’s declarations fail to provide this Court with

sufficient information to conclude that the FBI’s search was

“reasonably calculated to uncover all relevant documents.”

Truitt, 897 F.2d at 542 (citation omitted).

ii. Office of General Counsel

Plaintiffs argue that the FBI’s search should have covered

the Office of General Counsel because an older version of the

FBI’s policy states that the Office of General Counsel “responds

to Congressional requests for FBI documents.” Pls.’ Mot., ECF

No. 26 at 26 (citation omitted). The first declarant avers that

the FBI contacted the Office of General Counsel and that office

informed the agency that “staff in [the Office of General

Counsel] will review documents prepared to be sent to Congress

prior to their release, but all correspondence between Congress

and the FBI is routed through [the Office of Congressional

Affairs] and records of this correspondence is maintained by

[the Office of the Executive Secretariat].” Seidel Decl., ECF

No. 24-1 at 20 ¶ 41. The second declarant states that “all

correspondence between Congress and the FBI is routed through

[the Office of Congressional Affairs]” and that the FBI’s search

of the Office of Congressional Affairs “would have located any

records handled by [the Office of General Counsel] and the

search is both adequate and reasonable.” Hardy Decl., ECF No.

30-1 at 8 ¶ 16.

40 Although the FBI points out that Plaintiffs rely on an

outdated version of the FBI’s policy regarding the Office of

General Counsel’s involvement in Congressional inquiries, the

current version states that the Office of General Counsel

“assists [the Office of Congressional Affairs] in responding to

Congressional inquiries, including Congressional requests for

FBI documents.” Hardy Decl., ECF No. 30-1 at 9 ¶ 16. DOJ argues

that the Office of Congressional Affairs is the primary office,

and Plaintiffs’ suggestion that the Office of General Counsel

would have responsive documents is speculative. Def.’s Opp’n,

ECF No. 30 at 21. DOJ contends that the FBI did not find any

evidence that the Office of General Counsel created any records

within the released documents. Id.

The FBI’s own policy undercuts DOJ’s arguments. Plaintiffs

correctly point out—and DOJ does not contest—that the older

version of the FBI’s policy clearly states that the Office of

General Counsel responded to Congressional requests for FBI

documents. Pls.’ Reply, ECF No. 32 at 25. Because Congressman

Rohrabacher began his service in the House in 1989, it is

reasonable to expect that the Office of General Counsel would

have responded to requests from Congressman Rohrabacher under

the older version of the FBI’s policy. See id. at 25-26. DOJ

does not argue—and the FBI’s declarations do not aver—that the

41 Office of General Counsel would have no responsive records. See

Def.’s Opp’n, ECF No. 30 at 20-22. The Court therefore finds

that the FBI’s search was not “reasonably calculated to uncover

all relevant documents.” Truitt, 897 F.2d at 542 (citation

omitted).

iii. Remaining Issues

Having found that the FBI’s declarations do not provide a

rationale for the FBI’s failure to search for responsive records

in the Office of General Counsel and Counterintelligence

Division, the Court turns to Plaintiffs’ remaining issues with

the FBI’s search. Plaintiffs argue that the FBI’s refusal to

search the Washington Field Office’s files, including e-mail

accounts, beyond the records located in the CRS is unreasonable.

The FBI’s second declarant avers that the FBI “determined the

individuals likely to possess and/or be cognizant of possible

responsive records would be those actually tasked to investigate

the allegations implicated by the potential records at issue –

the individuals at [the Washington Field Office] assigned to

investigate Russian counterintelligence operations in the

Washington metropolitan area.” Hardy Decl., ECF No. 30-1 at 6 ¶

11. The declarant also states that the FBI contacted individuals

at the Washington Field Office who were “likely to have

knowledge of potentially responsive records,” but the FBI

specified that it was seeking to find records related to

42 Congressman Rohrabacher’s 2012 meeting with the FBI. Id. at 7 ¶

14.

DOJ argues that any investigative files held by those

individuals in the Washington Field Office will be contained in

CRS; thus, additional searches will be duplicative. Def.’s

Opp’n, ECF No. 30 at 19. DOJ’s position fails, however, because

the FBI’s declarations do not explain how the individuals in the

Washington Field Office who were assigned to investigate Russian

counterintelligence operations would not have responsive records

in their e-mail accounts. Cf. McClanahan v. U.S. Dep’t of

Justice, 204 F. Supp. 3d 30, 44-45 (D.D.C. 2016) (finding that

the FBI reasonably set the scope of the search where it searched

CRS and conducted searches of e-mail accounts and located

additional responsive documents), aff’d sub nom. McClanahan v.

Dep’t of Justice, 712 F. App’x 6 (D.C. Cir. 2018).

Next, Plaintiffs argue that the FBI inadequately described

the searches of the SCO and the Office of the Executive

Secretariat. Pls.’ Mot., ECF No. 26 at 22-25; see also Pls.’

Reply, ECF No. 32 at 21, 26. With regard to the Office of the

Executive Secretariat, Plaintiffs challenge the FBI’s

description of that office’s “own internal database.” Pls.’

Reply, ECF No. 32 at 26 (quoting Hardy Decl., ECF No. 30-1 at 10

¶ 17). Plaintiffs contend that the text and index searches

within that database fail to account for variations of

43 Congressman Rohrabacher’s name because both searches of the “To”

and “From” fields included the words “Rohrabacher” and

“Rohrabacher, Dana.” Id. at 26-27. Plaintiffs argue that the

declarant does not provide three pieces of information:

(1) whether the Office of the Executive Secretariat maintains

any other databases; (2) whether “this particular database would

be the only one likely to contain responsive records”; and

(3) whether there are any paper copies of correspondence given

that Congressman Rohrabacher’s service began in 1989. Id. at 26.

Defendants maintain that the searches of the “internal database”

were adequate because those searches located 273 pages of

potentially responsive documents. Def.’s Opp’n, ECF No. 30 at

22.

The Court agrees with Plaintiffs’ arguments that the

declarations do not provide an adequate description of the

Office of the Executive Secretariat’s search. Neither declarant

indicates whether the Office of the Executive Secretariat

searched its paper records. See Armstrong v. Executive Office of

the President, 830 F. Supp. 19, 23-24 (D.D.C. 1993) (holding

that agency’s search was unreasonable because it produced only

electronic documents and withheld paper versions of otherwise

responsive documents). Nor do they confirm whether the internal

database identified was the only one. Unlike the search terms

for the CRS search that provide variations of Congressman

44 Rohrabacher’s name, see Seidel Decl., ECF No. 24-1 at 17-18 ¶

35, the description of the Office of the Executive Secretariat’s

search does not include any variations of Congressman

Rohrabacher’s name, see Hardy Decl., ECF No. 30-1 at 10 ¶ 17.

Because the declarations do not indicate that the FBI

“search[ed] for other permutations of the name, . . . the search

was not reasonably calculated to turn up all responsive files.”

Negley v. FBI, 658 F. Supp. 2d 50, 60–61 (D.D.C. 2009).

As to the SCO’s search, Plaintiffs argue that the

declarations provide inadequate descriptions of the search, and

that the Hardy declaration does not cure the deficiencies in the

Seidel declaration. Pls.’ Reply, ECF No. 32 at 21. The Seidel

declaration avers that it “contacted FBI personnel at SCO to

confirm if any records could be located relating to the meeting

with [Mr.] Manafort disclosed in [Mr.] Gates’ Statement of

Offense, and no records within the scope of Plaintiffs request

were located.” Seidel Decl., ECF No. 24-1 at 19 ¶ 37. The Hardy

declaration avers that certain personnel, known as “subject-

matter-experts,” “within the SCO located the appropriate

investigative case files, and conducted searches of [those]

files. They were unable to locate any responsive records

pertaining to the former Congressman or the meeting in question

in [Mr.] Gates’ Statement of Offense.” Hardy Decl., ECF No. 30-1

at 8 ¶ 15. Plaintiffs challenge those descriptions, arguing:

45 (1) the SCO fails to explain how it determine which files were

“appropriate investigative files”; (2) the SCO does not explain

how it “conducted searches of [those] files”; and (3) whether

the “investigative case files” are the only locations in the SCO

to likely contain responsive records. Pls.’ Reply, ECF No. 32 at

21. Plaintiffs rely on Reporters Committee for Freedom of Press

v. FBI, 877 F.3d 399, 404 (D.C. Cir. 2017), which is

instructive.

In that case, the D.C. Circuit made clear that agency

affidavits must “set[ ] forth the search terms and the type of

search performed with the specificity [this Circuit’s] precedent

requires.” Reporters Comm. for Freedom of Press v. FBI, 877 F.3d

at 403 (citation and internal quotation marks omitted). The D.C.

Circuit recognized that “[t]his [C]ircuit’s precedent has long

made clear that an affidavit containing ‘no information about

the search strategies of the [agency] components charged with

responding to [a] FOIA request’ and providing no ‘indication of

what each [component’s] search specifically yielded’ is

inadequate to carry the government’s summary-judgment burden.”

Id. (quoting Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir.

2007)).

DOJ’s descriptions of the SCO’s search fall short of this

standard. See id. at 403; see also Oglesby, 920 F.2d at 68. To

support its position that the search was adequate, DOJ repeats

46 the statement in the Hardy declaration: “The [subject-matter-

experts] within the SCO located the appropriate investigative

case files, and conducted searches of these files. They were

unable to locate any responsive records pertaining to the former

Congressman or the meeting in question in [Mr.] Gates’ Statement

of Offense.” Def.’s Opp’n, ECF No. 30 at 20 (quoting Hardy

Decl., ECF No. 30-1 at 8 ¶ 15). Neither DOJ nor the FBI explain

how the SCO’s search was conducted. Furthermore, DOJ does not

provide an explanation for the footnote in the Hardy declaration

regarding the June 15, 2017 cutoff date in connection with the

SCO’s search. See id. Instead, DOJ reiterates the statement in

the Hardy declaration: “The SCO was appointed by Deputy Attorney

General Rosenstein on May 17, 2017, leaving less than a month of

overlap between [Plaintiffs’] request and the existence of [the]

SCO.” Id. (quoting Hardy Decl., ECF No. 30-1 at 8 ¶ 15 n.4). The

Court cannot determine whether the SCO’s search was adequate

based on the declarations. “Accordingly, consistent with this

Circuit’s precedent, [the FBI] shall identify the search terms

that the staff members in [the various] offices used to search

their electronic records, as well as the reason for any

differences in the record systems they searched.” Trautman v.

Dep’t of Justice, 317 F. Supp. 3d 405, 413 (D.D.C. 2018) (citing

Reporters Comm. for Freedom of Press v. FBI, 877 F.3d at 403).

The FBI “shall also clarify how staff members searched their

47 desks, file cabinets, file drawers and file rooms for

nonelectronic records.” Id.

* * *

Accordingly, the Court DENIES DOJ’s motion for summary

judgment and HOLDS IN ABEYANCE Plaintiffs’ cross-motion for

summary judgment as to the adequacy of the searches. The FBI

must either: (1) conduct a new search (or searches) for the

requested records to ensure the adequacy of the search

consistent with this Circuit’s precedent; or (2) provide the

Court with declarations from which the Court can find that the

declarants have personal knowledge that the search methodology,

procedures, and searches actually conducted were reasonably

designed to locate documents responsive to Plaintiffs’ request

consistent with this Opinion. McKinley v. FDIC, 756 F. Supp. 2d

105, 113 (D.D.C. 2010) (Sullivan, J.). 12

12“Because the case will proceed, the Court may reserve judgment on [the] remaining issues for another day, in the event they remain disputed.” Bartko v. U.S. Dep’t of Justice, 62 F. Supp. 3d 134, 141 (D.D.C. 2014). Given that the parties may resolve the remaining issues after the FBI conducts searches consistent with this Opinion, the Court therefore reserves judgment on Plaintiffs’ remaining arguments: (1) that the FBI’s search was inadequate for its refusal to contact the Special Agent in Charge, the Assistant Director of Counterintelligence, or the Assistant Director of the Office of Congressional Affairs, see Pls.’ Mot., ECF No. 26 at 19; and (2) that the FBI improperly redacted information on Bates-stamped pages 15, 175, 185, 186, 190, 197, and 221 because the “official acknowledgment” doctrine bars the FBI from withholding such information because it has been previously released in other documents, see id. at 27-30. 48 C. Evidentiary Objections

The Court now turns to Plaintiffs’ evidentiary objections

to the FBI’s declarations. Plaintiffs argue that the

declarations fail to attest to the declarants’ familiarity with

the documents at issue, and that this Court should reject the

declarations because they contain hearsay. Pls.’ Mot., ECF No.

26 at 6; see also Pls.’ Reply, ECF No. 32 at 5-8. For the

reasons explained below, the Court cannot agree with Plaintiffs’

arguments.

Under Rule 56(c)(4), “[a]n affidavit or declaration used to

support or oppose a motion must be made on personal knowledge,

set out facts that would be admissible in evidence, and show

that the affiant or declarant is competent to testify on the

matters stated.” Fed. R. Civ. P. 56(c)(4). “A declarant in a

FOIA case satisfies the personal knowledge requirement in [Rule

56(c)(4)] if in his declaration, [he] attests to his personal

knowledge of the procedures used in handling [a FOIA] request

and his familiarity with the documents in question.” Barnard v.

Dep’t of Homeland Sec., 531 F. Supp. 2d 131, 138 (D.D.C. 2008)

(citation and internal quotation marks omitted). And “[b]ecause

a declarant is deemed to have personal knowledge if he has a

general familiarity with the responsive records and procedures

used to identify those records, the declarant is not required to

independently verify the information contained in each

49 responsive record[.]” Id. at 138-39.

The Seidel declaration provides that “[t]he statements

contained in this declaration are based upon my personal

knowledge, upon information provided to me in my official

capacity, and upon conclusions and determinations reached and

made in accordance therewith.” Seidel Decl., ECF No. 24-1 at 2 ¶

2 (emphasis added). The Hardy declaration contains an identical

statement. Hardy Decl., ECF No. 30-1 at 2 ¶ 3. Both declarants

aver that they are “familiar with the procedures followed by the

FBI in responding to requests for information from its files”

and that they are “aware of the FBI’s response to Plaintiffs’

FOIA request for records relating to Congressman Dana

Rohrabacher.” Seidel Decl., ECF No. 24-1 at 2 ¶ 3 (emphasis

added); see also Hardy Decl., ECF No. 30-1 at 2 ¶ 3. In response

to Plaintiffs’ objections, the Hardy declaration explains:

[A]s part of our daily duties, Mr. Seidel and I supervise all stages of the [FOIA] request process including initial receipt and handling, the search for responsive records, and the processing of those records pursuant to the FOIA . . . . This includes all information submitted in consultation with [other government agencies]. All withholdings submitted by [other government agencies] are reviewed by the FBI staff Mr. Seidel and I supervise. Additionally, beyond supervision, when preparing declarations to justify the FBI’s actions for [FOIA] litigations, Mr. Seidel and I are fully briefed by our staff on the handling of the requests subject to litigation and attest to the actions of our staff.

50 Hardy Decl., ECF No. 30-1 at 3 ¶ 5. According to DOJ, that

statement satisfies the FOIA requirements and accurately

reflects the FBI’s process for the records. Def.’s Opp’n, ECF

No. 30 at 6. As Plaintiffs correctly point out, neither

declarant explicitly uses the phrase “familiarity with the

documents in questions.” Pls.’ Reply, ECF No. 32 at 5. Without

that language, Plaintiffs contend that the declarants have not

attested to being “familiar with the contents of the responsive

documents.” Id. at 6 (emphasis in original). Plaintiffs argue

that “the FBI offers no support for the proposition that an

affiant may testify to the contents of the documents without

having ever looked at them.” Id. at 7. To support their

position, Plaintiffs rely on Harris v. Gonzales, 488 F.3d 442,

446 (D.C. Cir. 2007).

As recognized in Harris, the D.C. Circuit has “expressly

held that affidavits based upon belief are inadequate to support

a motion for summary judgment.” 488 F.3d at 446 (citing

Londrigan v. FBI, 670 F.2d 1164, 1174 (D.C. Cir. 1981)). In

Harris, the D.C. Circuit determined that the statements in two

affidavits—“[t]o the best of [the affiant’s] knowledge and

belief, [the affiant] recall[ed] seeing an EEO poster

displayed”—left the Circuit “wondering whether the affiants

actually saw” the documents at issue there. Id. The D.C. Circuit

51 made clear that affidavits based merely on information and

belief cannot satisfy the requirements under Rule 56. Id. Here,

the declarants do not state that their statements were based on

“information and belief.” See Seidel Decl., ECF No. 24-1 at 2 ¶

2; see also Hardy Decl., ECF No. 30-1 at 2 ¶ 3. Nonetheless,

Plaintiffs argue that “[t]here is no meaningful difference

between statements based on ‘information provided’ to the

affiant . . . and statements based on the ‘information and

belief’ of the affiant.” Pls.’ Reply, ECF No. 32 at 7 (citations

omitted). The Court disagrees.

Faced with the same issue, the court in Wisdom v. United

States Trustee Program, 232 F. Supp. 3d 97, 116 (D.D.C. 2017)

upheld the exact language in the Seidel and Hardy declarations

as to personal knowledge and declined to strike the affidavits

as deficient. There, the affiant attested that he was

responsible for “for agency compliance with [FOIA]” and had

“direct involvement in the processing of responses to requests

for access to [USTP] records and information.” Id. at 115. The

affiant also explained that his statements were “based upon my

personal knowledge, upon information provided to me in my

official capacity, and upon conclusions and determinations

reached and made in accordance therewith.” Id. The court

interpreted those statements that the affiant “based his

conclusions on information provided to him by other agency

52 employees and his own review of agency records.” Id. The court

explained: “While the [affidavit] might have provided this

necessary information in a more direct and clear manner—e.g., by

using the tried-and-true recitation of a ‘familiarity with the

documents in question’—the language he has used nonetheless

presents a sufficient approximation to satisfy Rule 56’s

requirements here.” Id. at 115-16. For the same reasons, the

Court therefore finds that the Seidel and Hardy declarations

meet the requirements under Rule 56. See id.; see also Wisdom v.

U.S. Tr. Program, 266 F. Supp. 3d 93, 103 (D.D.C. 2017)

(rejecting FOIA requester’s argument that agency declaration was

deficient for using “upon information provided” language).

Plaintiffs’ other argument—that this Court should not

consider the declarations because they contain hearsay—is

unavailing. In FOIA cases, courts in this jurisdiction have held

that declarants may rely on “information they have obtained in

the course of their official duties.” Canning v. U.S. Dep’t of

State, 134 F. Supp. 3d 490, 510 (D.D.C. 2015) (citations

omitted). “[T]here is no requirement that the declarant must

have been personally involved in each of the challenged

searches.” Wisdom, 266 F. Supp. 3d at 102; see also Shapiro v.

U.S. Dep’t of Justice, 37 F. Supp. 3d 7, 20 (D.D.C. 2014)

(“[D]eclarations that contain hearsay in recounting searches for

documents are generally acceptable.”). The Court therefore finds

53 that it may consider the FBI’s declarations over Plaintiffs’

objections. Accordingly, the Court DENIES Plaintiffs’ cross-

motion for summary judgment as to the evidentiary objections to

the declarations.

IV. Conclusion

For the reasons set forth above, the Court GRANTS IN PART

and DENIES IN PART Defendant’s Renewed Motion for Summary

Judgment and GRANTS IN PART, DENIES IN PART, and HOLDS IN

ABEYANCE IN PART Plaintiffs’ Cross-Motion for Summary Judgment.

Within thirty days of issuance of this Memorandum Opinion, DOJ

shall submit an amended declaration or declarations as to the

adequacy of the FBI’s searches. Within sixty days of issuance of

this Memorandum Opinion, DOJ shall submit: (1) a Vaughn index

that identifies each document or group of documents for its

withholdings under Exemptions 6 and 7(C); and (2) an amended

declaration that addresses the balance between the privacy and

public interests in light of the FBI’s partial Glomar response.

The Court DEFERS ruling on the issues of segregability and the

applicability of the “official acknowledgement” doctrine with

respect to the redactions in Bates-stamped pages 15, 175, 185,

186, 190, 197, and 221. A separate Order accompanies this

Memorandum Opinion.

54 SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge September 24, 2019