James Madison Project v. Dep't of Justice

330 F.Supp.3d 192

JAMES MADISON PROJECT, et al., Plaintiffs,

v.DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 17-1392 (ABJ)

United States District Court, District of Columbia.

Signed September 7, 2018

Bradley Prescott Moss, Mark Steven Zaid, Law Offices of Mark S. Zaid, P.C., Washington, DC, for Plaintiffs.

Anjali Motgi, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiffs Josh Gerstein, a journalist, and The James Madison Project, an organization established "to promote government accountability," Compl. [Dkt. # 1] ¶ 3, brought this suit against the Department of Justice ("DOJ"), and the Federal Bureau of Investigation ("FBI"), under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq. They have requested records related to the question of "whether President Donald J. Trump is or ever was a target of, subject of, or material witness to any investigation." Id. ¶ 6. The government issued what is known as a "Glomar response,"¹ refusing to confirm or deny the existence of responsive records.

DOJ has moved for summary judgment, and plaintiffs opposed the motion and filed their own motion for partial summary judgment. They argue that the President waived the government's right to insist on confidentiality with a Glomar response by making a series of public statements, including tweets, in which plaintiffs contend he officially acknowledged the existence of responsive records. Upon review of the full record, including the agency's affidavits, the parties' supplemental filings, and each of the alleged "official statements," the Court will grant defendant's motion for summary judgment, and it will deny plaintiffs' motion. The government has met its burden of establishing that the information withheld is protected under FOIA Exemption 7(A), and none of the President's statements satisfy the "stringent test required to establish ... a waiver." Pub. Citizen v. Dep't of State , 11 F.3d 198, 199 (D.C. Cir. 1993).

BACKGROUND

On May 12, 2017, plaintiffs submitted a FOIA request to DOJ. Ex. A to Castellano Decl. [Dkt. # 11-2] ("FOIA Request"). They sought the following records "created, received and/or maintained by the Office of Attorney General ("AG"), the Office of the Deputy Attorney General ("DAG"), and/or the Office of the Associate Attorney General ("AAG")":

(1) Any records memorializing discussions between Department of Justice ("DOJ") staff and FBI staff regarding whether President Trump is or ever was a target of, subject of or material witness to any investigation; and

(2) Any records memorializing disclosures to President Trump or any White House staff regarding whether President Trump is or ever was a target of, subject of or material witness to any investigation;(3) Any records memorializing discussion among DOJ staff regarding the appropriateness of informing President Trump if he is or ever was a target of, subject of or material witness to any investigation; and

(4) Any records memorizing [sic] discussion between DOJ staff and FBI staff regarding the appropriateness of informing President Trump if he is or ever was a target of, subject of or material witness to any investigation.

Id.

Plaintiffs asked for records from the period of January 1, 2016, to the date of DOJ's search. Id. They submitted an identical FOIA request to the FBI, a component of DOJ, on May 12, 2017. Ex. A to Hardy Decl. [Dkt. # 11-1] ("FOIA Request"). As part of their request, plaintiffs advised the agencies that the letter in which President Trump terminated then-FBI Director James Comey "stated that Director Comey had informed him on three separate occasions that he (President Trump) was not under investigation." FOIA Request at 1. The requestors also noted that in a subsequent interview with NBC News, the President stated that he asked Comey, "[A]m I under investigation?" and that Comey responded, "You are not under investigation." Id. at 1–2.

On June 20, 2017, the FBI issued its Glomar response asserting that the agency could "neither confirm nor deny the existence of any records" responsive to plaintiffs' request pursuant to FOIA Exemptions 7(A) and 7(E). Ex. C to Hardy Decl. [Dkt. # 11-1]. Plaintiffs administratively appealed this decision, but the agency's final response was affirmed. Ex. D to Hardy Decl. [Dkt. # 11-1]; Ex. C to Hardy Decl. [Dkt. # 11-1]. The DOJ did not issue a separate response to the same FOIA request. Compl. ¶ 22.

On July 14, 2017, plaintiffs filed a two-count complaint against DOJ. See Compl. In count one, plaintiffs challenged DOJ's failure to respond to their request, and in count two they challenged the FBI's response. Id. ¶¶ 23, 32. After the suit was filed, DOJ responded by also issuing a Glomar response, based solely on FOIA Exemption 7(A). Ex. C to Castellano Decl. [Dkt. # 11-2].

Defendant moved for summary judgment, arguing that its Glomar response was justified under FOIA Exemption 7(A) and that the existence of responsive records had not been officially acknowledged. Def.'s Mot. for Summ. J. [Dkt. 11] ("Def.'s Mot."). Plaintiffs then cross-moved for partial summary judgment and identified additional statements from President Trump which they argued waived the DOJ's Glomar response. Pls.' Cross. Mot. for Partial Summ. J. [Dkt. # 13]; Pls.' Mem. in Supp. of Pls.' Mot. [Dkt. # 13-1], (collectively, "Pls.' Cross-Mot."). After the motions were fully briefed, plaintiffs moved to supplement the factual record with more statements, including tweets, from President Trump which they contend constitute additional official disclosures. See Mot. For Leave to Suppl. the Factual Record [Dkt. # 21] ("First Factual Suppl."); Mot. For Leave to Suppl. the Record [Dkt. # 22] ("Second Factual Suppl."); Mot. for Leave to Suppl. the Record [Dkt. # 24] ("Third Factual Suppl."); Mot. for Leave to Suppl. the Record [Dkt. # 25] ("Fourth Factual Suppl.").² Most recently, plaintiffs filed motions to again supplement the record with additional statements from the President and they also requested oral argument. Mot. for Leave to Suppl. the Record and for Oral Argument [Dkt. # 28] ("Fifth Factual Suppl."); Mot. for Leave to File Suppl. the Record [Dkt. # 29] ("Sixth Factual Suppl."). The Court granted the motions to supplement, but it has determined that there is no need for oral argument.

STANDARD OF REVIEW

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted). When the court is presented with cross-motions for summary judgment, it analyzes the underlying facts and inferences in each party's motion in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The mere existence of a factual dispute is insufficient to preclude summary judgment. Id. , at 247–48, 106 S.Ct. 2505. A dispute is "genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is "material" only if it is capable of affecting the outcome of the litigation. Id. at 248, 106 S.Ct. 2505 ; Laningham v. U.S. Navy , 813 F.2d 1236, 1241 (D.C. Cir. 1987).

FOIA cases are typically and appropriately decided on motions for summary judgment. Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In FOIA cases, the agency bears the ultimate burden of proof. See DOJ v. Tax Analysts , 492 U.S. 136, 142 n.3, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). The Court may award summary judgment based solely on information provided in an agency's affidavits or declarations that identify "the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey , 656 F.2d 724, 738 (D.C. Cir. 1981). These 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 Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991), quoting Ground Saucer Watch, Inc. v. CIA , 692 F.2d 770, 771 (D.C. Cir. 1981).

ANALYSIS

FOIA requires government agencies to release records upon request in order to "ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed."

NLRB v. Robbins Tire & Rubber Co. , 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). The statute provides that: "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules ... shall make the records promptly available to any person," 5 U.S.C. § 552(a)(3)(A), unless the records fall within one of nine narrowly construed exemptions. See 5 U.S.C. § 552(b) ; FBI v. Abramson , 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982). This framework "represents a balance struck by Congress between the public's right to know and the government's legitimate interest in keeping certain information...