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

394 F.Supp.3d 111

JUDICIAL WATCH, INC., Plaintiff,

v.U.S. DEPARTMENT OF JUSTICE, Defendant.

Case No. 17-cv-0916 (CRC)

United States District Court, District of Columbia.

Signed August 16, 2019

James F. Peterson, Judicial Watch, Inc., Washington, DC, for Plaintiff.

James O. Bickford, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

In March 2017, Plaintiff Judicial Watch, Inc. submitted a Freedom of Information Act ("FOIA") request to the Federal Bureau of Investigation ("FBI"), a component of Defendant Department of Justice ("DOJ"), regarding the FBI's relationship with former British intelligence operative Christopher Steele. When the FBI provided a Glomar response stating that it could "neither confirm nor deny the existence of records responsive to [Judicial Watch's] request," see Declaration of David M. Hardy ("First Hardy Decl."), Ex. C, ECF No. 10-3, Judicial Watch filed suit, see Complaint, ECF No. 1. An initial round of summary judgment briefing followed, focused on whether the FBI's Glomar response was proper. See Mot. for Summ. J., ECF No. 9; Cross Mot. for Summ. J., ECF No. 13. In February 2018, the Court held that it was and granted DOJ's motion. See Order, ECF No. 18.

Less than a month later, Steele's relationship with the FBI was declassified—meaning that records the Bureau had refused to confirm or deny even existed were made public. Shortly thereafter, Judicial Watch asked the Court to reconsider its February 2018 order, see Pl.'s Mot. for Reconsideration, ECF No. 20, the FBI withdrew its Glomar response, see Response re Mot. for Reconsideration, ECF No. 21, and the Court vacated its prior order granting summary judgment to the government, see Minute Order of March 26, 2018.

The FBI has since conducted a search for records responsive to Judicial Watch's request, and now seeks summary judgment for a second time. See Def's Mot. for Summ. J., ECF No. 33. Judicial Watch opposes the Bureau's motion and seeks summary judgment in its favor. See Pl.'s Cross Mot. for Summ. J., ECF No. 38. Although Judicial Watch initially questioned both the adequacy of the Bureau's search and the propriety of its withholdings, developments during the briefing of the competing motions have winnowed the parties' dispute down to a single issue: whether the FBI should have searched for records post-dating Steele's service as an FBI confidential source. On that score, and for the reasons that follow, the Court agrees with Judicial Watch and will grant its cross-motion for summary judgment.

I. Background¹

As reported extensively by the media, during the 2016 election former British intelligence operative Christopher Steele compiled a 35-page dossier on then-candidate Donald Trump. The dossier allegedly included "allegations that the government of Russia possesses compromising personal and financial information about President Trump." Id. The question of who commissioned and paid for the Trump Dossier was a subject of much contention in media and political circles.

On February 28, 2017, the Washington Post reported that the FBI had once intended to pay Steele to continue looking into ties between then-candidate Trump and the Russian government.² The story concluded that the FBI did not pay Steele and noted that the FBI declined to comment on the report. Eight days later, on March 8, 2017, Judicial Watch lodged a FOIA request with the FBI seeking three categories of documents related to the Post story:

1. Any and all records of communication between any official, employee, or representative of the FBI and Steele.

2. Any and all records regarding, concerning, or related to the proposed, planned, or actual payment of any funds to Steele and/or his company Orbis Business Intelligence.

3. Any and all records produced in preparation for, during, or pursuant to any meetings or telephonic conversations between any official, employee, or representative of the FBI and Steele and/or any employee or representative of his company Orbis Business Intelligence.

First Hardy Decl. Ex. A, at 1.

As discussed in the beginning of this opinion, when the FBI failed to respond to this request in a timely fashion, Judicial Watch filed suit under FOIA against the Department of Justice. See Compl. ¶¶ 7, 11. That same day, on May 16, 2017, the FBI issued a letter that asserted a Glomar response to Judicial Watch's request, refusing to confirm or deny the existence of any responsive documents on the basis of six separate FOIA exemptions. First Hardy Decl. Ex. C, at 1. After an initial round of summary judgment briefing concerning the legitimacy of that Glomar response, the Court sided with the government. See Order, ECF No. 18.

Once Steele's relationship with the FBI was declassified, however, the Bureau withdrew its Glomar response, see Response re Mot. for Reconsideration, and the Court vacated its prior order granting summary judgment to the government, see Minute Order of March 26, 2018. The FBI followed up with a search for records responsive to Judicial Watch's three requests. It searched Steele's confidential human source ("CHS") file and made two productions of responsive, non-exempt records, releasing five pages in full and another 85 in part. Second Declaration of David M. Hardy ("Second Hardy Decl."), ECF No. 34, ¶¶ 12, 22–24, 29. For the partial redactions—and the 14 documents it withheld in full—the Bureau claimed cover under FOIA Exemptions 1, 3, 6, 7(A), 7(C), 7(D), and 7(E). See generally Second Hardy Decl.; see also 5 U.S.C. § 552(b)(1)–(7).

When briefing began in this latest round of summary judgment briefing, Judicial Watch found three faults with DOJ's search and another two with its withholdings. See Pl.'s Mem. Pts. and Auth. in Opp. to Def's Mot. Summ. J. and in Supp. of Pl.'s Cross-Mot. for Summ. J. ("Pl.'s Opp."), ECF No. 37, at 2–3. After DOJ conducted a supplemental search (though without admitting any legal obligation to do so) and highlighted its alternative bases for withholding certain records, Judicial Watch concedes that just "[o]ne issue remains"—whether DOJ improperly failed to search for "records of communications with Steele after he was closed as a confidential source in November 2016." Pl.'s Reply in Supp. of Pl.'s Mot. Summ. J. ("Pl.'s Reply"), ECF No. 41, at 1. That question is now ripe for the Court's resolution.

II. Legal Standard

FOIA cases are typically resolved on summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Summary judgment is warranted 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).

Judicial Watch's lone challenge is to the adequacy of the Bureau's search. When faced with such a challenge, the agency must demonstrate "beyond material doubt that its search was reasonably calculated to uncover all relevant documents." Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (internal quotation marks omitted) (quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) ). The adequacy of a search depends on the reasonableness of its methods, not the quantity or quality of documents it reveals. See CREW v. U.S. Gen. Servs. Admin., No. 18-cv-377, 2018 WL 6605862, at *2–3 (D.D.C. Dec. 17, 2018). An agency must show that it made "a good faith effort to conduct a search for requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). That showing can be made through declarations that detail "what records were searched, by whom, and through what process."

Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994). Agency declarations are "accorded a presumption of good faith" and "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) (internal quotation marks omitted).

The Bureau defends its decision not to search for communications with Steele after he ceased being a confidential source by, among other things, claiming that any additional records would be protected by two FOIA exemptions. Agencies bear the burden of justifying any withholdings it has made pursuant to a FOIA exemption. See, e.g., Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009). An agency may justify its withholdings through sufficiently detailed declarations, see, e.g., id., which will often be paired with so-called Vaughn indices that describe a withheld document and the reason the agency believes it qualified for a particular exemption, Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). However, because the primary purpose of FOIA is disclosure, courts construe exemptions narrowly. See, e.g., DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015).

III. Analysis

Judicial Watch contends that the FBI conducted an insufficient search because it failed to capture records post-November 2016, after Steele was no longer serving as a confidential source. Pl.'s Reply at 1. The Bureau responds that, whatever records it may have regarding Steele after his service as a confidential source ended, those records would be protected from disclosure by Exemptions 6 and 7(C). See Def's Opp. to Pl.'s Cross-Mot. for Summ. J and Reply in Supp. of Mot. for Summ. J. ("Def's Reply"), ECF No. 40, at 5. The Court will say a bit about each exemption before examining their applicability to the records Judicial Watch seeks.

Exemption 6 shields from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). "The catchall provision ‘similar files’ includes any ‘[g]overnment records on an individual which can be identified as applying to that individual.’ "...