James Madison Project v. Dep't of Justice

302 F.Supp.3d 12

JAMES MADISON PROJECT, et al., Plaintiffs,

v.DEPARTMENT OF JUSTICE, et al., Defendants.

Case No. 17–cv–00144 (APM)

United States District Court, District of Columbia.

Signed January 4, 2018

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

David Michael Glass, U.S. Department of Justice, Civil Division, Washington, DC, for Defendants.

MEMORANDUM OPINION

Amit P. Mehta, United States District Judge

I. INTRODUCTION

The now infamous "Trump Dossier" is a collection of memoranda prepared by former British intelligence operative Christopher Steele during the 2016 presidential election concerning then-candidate Donald J. Trump. As has been reported extensively in the media, the 35–page Dossier contains, among other things, allegations that the government of Russia possesses compromising personal and financial information about President Trump.

Though the Dossier and its contents animate this case, the case's actual subject matter concerns a related document—a two-page synopsis of the Dossier (the "Synopsis") that certain executive branch officials presented to President-elect Trump in January 2017. After media reports surfaced that President-elect Trump had received the Synopsis, Plaintiffs James Madison Project and Josh Gerstein filed a Freedom of Information Act request with various executive branch agencies seeking a copy of the Synopsis, as well as any documents related to any "final determinations" reached by those agencies regarding the factual accuracy of the allegations in the Synopsis.

Not surprisingly, none of the agencies made any meaningful disclosures. Three agencies—the Office of the Director of National Intelligence ("ODNI"), the Central Intelligence Agency ("CIA"), and the National Security Agency ("NSA")—acknowledged that they possess the Synopsis, but refused to produce it. Additionally, these agencies declined to confirm or deny whether they have any "final determinations" regarding the allegations contained in the Synopsis or related investigative files—an answer known as a "Glomar response." Another agency—the Federal Bureau of Investigation ("FBI")—took a slightly different approach: It issued a blanket Glomar response to the entirety of Plaintiffs' request. That is, the FBI refused to confirm or deny that it has any of the requested records. Plaintiffs contend that these Glomar responses are improper because President Trump and two past executive branch officials—former Director of National Intelligence James Clapper and former Director of the FBI James Comey—have publicly acknowledged, through tweets and other statements, the existence of the Synopsis and related records. The agencies stand by their Glomar responses.

Before the court are the parties' cross-motions for summary judgment. For the reasons set forth below, the court holds that none of the President's statements, whether made by tweet or otherwise, constitute the type of official acknowledgement of the existence of the requested records that is necessary to overcome the agencies' Glomar responses. The same holds true for the statements of the former executive branch officials. Finally, the court finds that ODNI, CIA, and NSA properly withheld the Synopsis, and that neither President Trump nor former FBI Director Comey has officially disclosed its contents. Accordingly, Defendants' Motion for Summary Judgment is granted and Plaintiffs' Cross–Motion for Partial Summary Judgment is denied.

II. BACKGROUND

A. Factual Background

1. The Synopsis

Following the 2016 presidential general election, President Barack Obama assigned Director of National Intelligence James Clapper the task of preparing an intelligence report addressing the activities of the Russian government in connection with the election. Director Clapper delegated this task to the National Intelligence Council ("NIC"), a component of ODNI comprised of senior analysts and national security policy experts. The NIC coordinated with and drew intelligence from the CIA, the NSA, and the FBI to draft a classified analytical assessment.

On January 6, 2017, ODNI released to the public a declassified version of that assessment, entitled "Assessing Russian Activities and Intentions in Recent U.S. Elections." See Defs.' Mot. for Summ. J., ECF No. 14 [hereinafter Defs.' Mot.], Ex. E, ECF No. 14–7. The declassified assessment covers "the motivation and scope of Moscow's intentions regarding US elections and Moscow's use of cyber tools and media campaigns to influence US public opinion." Defs.' Mot., Ex. E, ECF No. 14–7, at i.

At about the same time, intelligence officials shared a classified version of the assessment with President-elect Trump. On January 11, 2017, CNN reported that senior intelligence officials appended to the classified assessment a two-page synopsis of the allegations contained in the Dossier. See Defs.' Mot., Ex. G, ECF No. 14–9.

2. Plaintiffs' FOIA Request

Plaintiff James Madison Project is a non-partisan organization established to promote government accountability and the reduction of secrecy on issues relating to intelligence and national security. Am. Compl., ECF No. 7 [hereinafter Am. Compl.], ¶ 3. Plaintiff Josh Gerstein is the senior White House reporter for Politico and a news media representative. Am. Compl. ¶ 4.

Referring to the above-cited CNN report for context, Plaintiffs submitted a Freedom of Information Act ("FOIA") request by letters dated January 11, 2017, to ODNI, CIA, FBI, and NSA seeking production of the Synopsis and any documents or investigative files related to any final determinations reached regarding the factual accuracy of the allegations contained in the Synopsis. Noting the considerable public interest in shedding light on the degree to which any federal intelligence or law enforcement agency viewed the allegations contained in the Dossier as credible, Plaintiffs specifically requested Defendants produce the following records:

(1) The two-page "synopsis" provided by the U.S. Government to President–Elect Trump with respect to allegations that Russian Government operatives had compromising personal and financial information about President–Elect Trump ("Item One");

(2) Final determinations regarding the accuracy (or lack thereof) of any of the individual factual claims listed in the two page synopsis ("Item Two"); and

(3) Investigative files relied upon in reaching the final determinations referenced in [Item Two] ("Item Three").

See Am. Compl. ¶¶ 14, 20, 24, 28; see, e.g. , Defs.' Mot., Ex. C, ECF No. 16 [hereinafter Hardy Decl.], Ex. A. At the time of the filing of this action, none of the agencies had provided a substantive response to Plaintiffs' FOIA demand. Am. Compl. ¶¶ 32, 35, 38, 41.

B. Procedural History

On January 23, 2017, Plaintiffs brought this action under FOIA, naming as Defendants the Department of Justice, as the parent agency of the FBI; the Department of Defense, as the parent agency of the NSA; the CIA; and the ODNI (collectively, "Defendants"). Compl., ECF No. 1. Before Defendants filed a responsive pleading, Plaintiffs filed an Amended Complaint on February 13, 2017. Am. Compl. Their suit seeks an order compelling Defendants to produce the requested records. Id. at 8.

Defendants now move for summary judgment, although they part ways in their approaches. The FBI relies on a Glomar response to all three items of Plaintiffs' request, thereby refusing to confirm or deny the existence of any responsive records.¹ Citing FOIA Exemption 7(A), 5 U.S.C. § 552(b)(7)(A), the FBI contends that merely acknowledging the existence or non-existence of responsive records in the FBI's files would "require the FBI to confirm or deny whether it has and is investigating the alleged ‘dossier’ and synopsis, either in a separate investigation or as part of its Russian interference investigation," which itself could hamper and interfere with any such investigation. See Hardy Decl. The FBI therefore asserts a blanket Glomar response.

The remaining Defendants—ODNI, CIA, and NSA (the "Intelligence Community Defendants")—also invoke Glomar responses, but their response departs from the FBI's in one important respect: They confirm that they have identified a two-page document responsive to Item One of the Plaintiffs' FOIA request. They contend, however, that the document must be withheld in full pursuant to FOIA Exemption 1, 5 U.S.C. § 552(b)(1), and Exemption 3, 5 U.S.C. § 552(b)(3). See Defs.' Mot., Ex. B, ECF No. 14–4 [hereinafter Gistaro Decl.].² As for Items Two and Three, like the FBI, the Intelligence Community Defendants invoke FOIA Exemptions 1 and 3 to justify their Glomar responses. In their view, the mere act of confirming whether they even have such records would reveal a classified fact—whether the Intelligence Community has verified or attempted to verify the truth of the Dossier's allegations. Gistaro Decl. at 8–10. Specifically, the Intelligence Community Defendants assert that confirming or denying the existence of responsive records as to Items Two and Three would "reveal that the two-page synopsis played some role in the [Intelligence Community's] conclusions [in the classified analytical assessment], which would, in turn, be revealing of the analytic process employed for this intelligence assessment." Id. at 9. So, although the Intelligence Community Defendants concede they have the Synopsis, they refuse to admit the existence of any other responsive records.

Plaintiffs oppose Defendants' Motion largely on one ground. See Pls.' Opp. to Defs.' Mot., ECF No. 17; Pls.' Cross–Mot. for Partial Summ. J., ECF No. 18 [hereinafter Pls.' Cross–Mot.]. Plaintiffs do not challenge Defendants' invocation of any of the FOIA Exemptions upon which their Glomar responses are predicated. Stated differently, they do not contest that the fact of the existence or non-existence of the requested records is subject to FOIA Exemptions 1, 3, and 7(A). Rather, Plaintiffs assert that Defendants' Glomar...