Project for Privacy & Surveillance Accountability, Inc. v. U.S. Dep't of Justice

633 F.Supp.3d 108

PROJECT FOR PRIVACY AND SURVEILLANCE ACCOUNTABILITY, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 21-2362 (RC)

United States District Court, District of Columbia

Signed September 29, 2022

Brian J. Field, Gene C. Schaerr, Schaerr Jaffe LLP, Washington, DC, for Plaintiff.

Olivia R. Hussey Scott, Alexander V. Sverdlov, Kristin Alyssa Taylor, U.S. Department of Justice, Civil Division, Washington, DC, for Defendant.

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

This case arises out of a Freedom of Information Act ("FOIA") dispute between Plaintiff Project for Privacy and Surveillance Accountability, Inc. ("the Project") and Defendant United States Department of Justice ("DOJ"). The Federal Bureau of Investigation ("FBI") is a component of DOJ and a member of the Intelligence Community. The FBI engages in foreign intelligence surveillance, which may incidentally capture information about U.S. persons in the process. Generally, an intelligence agency must "mask" the names of U.S. persons with a generic term to protect their identity. Under certain circumstances, however, these names may be "unmasked." In this case, the Project wants access to communications between the FBI and Congress concerning the unmasking of members of Congress. The FBI refused to confirm or deny the existence of this information. It claimed FOIA Exemptions 1, 3, 6, 7(C), and 7(E). The FBI is partially right. For the reasons described below, the Court finds that the FBI properly issued a Glomar response for one category of documents but must go back and conduct a search for the other category. Therefore, it grants in part and denies in part the DOJ's motion for summary judgment and denies the Project's cross-motion for summary judgment.

II. BACKGROUND

A. Statutory Background and the Gates Procedures

Understanding the FOIA request at issue requires a brief overview of the procedures that govern unmasking. The Foreign Intelligence Surveillance Act ("FISA") permits the federal government to conduct surveillance on foreign persons, but intelligence agencies cannot intentionally target U.S. persons absent their consent or a court order. See 50 U.S.C. §§ 1881a, 1881b, 1881c. Still, foreign intelligence collection might incidentally capture information about U.S. persons. When that happens, the agency must follow so-called "minimization procedures" to protect the identity of U.S. persons, including masking their identity by substituting their name with a generic phrase such as "U.S. person 1." Seidel Decl. ¶¶ 16-17, ECF No. 9-2. An agency can only disclose the name of a U.S. person "if it itself constitutes foreign intelligence, is necessary for the recipient to understand the foreign intelligence being transmitted, or is evidence of a crime." Id. ¶ 17. In those instances, the agency may unmask the identity of a U.S. person. Id. Only authorized, high-ranking officials can submit an unmasking request "when revealing [a U.S. person's] identity is necessary to the dissemination of needed intelligence to protect national security." Id. Unmasking is subject to "strict limitations." Am. Ctr. for L. & Just. v. NSA, 474 F. Supp. 3d 109, 117 (D.D.C. 2020) (explaining unmasking); Schaerr v. United States Dep't of Just., 435 F. Supp. 3d 99, 105 (D.D.C. 2020) (same).

This case concerns congressional unmasking—that is, the unmasking of the identities of members of Congress. In 1992, then-CIA Director Robert M. Gates notified Congress that he had developed procedures governing "the dissemination of intelligence information referring to Members of Congress or their staff." Pl.'s Response to Def.'s Statement of Material Facts & Pl.'s Counter-Statement of Material Facts ("Pl.'s Statement of Facts") ¶ 1, ECF No. 12; Ex. 1 to Pl.'s Cross-Mot. Summ. J. and Opp'n to Def.'s Mot. Summ. J. ("Pl.'s Cross-Mot."), ECF No. 12-1. These so-called "Gates Procedures" were "re-confirm[ed]" in a 2013 memo by Director of National Intelligence ("DNI") James R. Clapper. Pl.'s Statement of Facts ¶ 6; Ex. 2 to Pl.'s Cross-Mot. at 1, ECF No. 12-2. In 2017, the DNI publicly released the latest version of the Gates Procedures on its social media webpage "in the interest of transparency." Pl.'s Statement of Facts ¶ 13; Ex. 3 to Pl.'s Cross-Mot. ("DNI Release") at 1, ECF No. 12-3; Ex. 4 to Pl.'s Cross-Mot. ("Gates Procedures"), ECF No. 12-4. The Gates Procedures are enshrined in Annex A of Intelligence Community Directive 112. See Gates Procedures at 2; Ex. 5 to Pl.'s Cross-Mot., ECF No. 12-5.

The Gates Procedures "establish[ ] I[ntelligence] C[ommunity] policy for when an IC element seeks to disseminate unmasked or masked congressional identity information within the Executive Branch." Gates Procedures § (B)(2).¹ They explain that when congressional identity is masked, it is replaced with a generic term such as "Member of U.S. Congress." Id. § (B)(4). Generally, an agency must mask congressional identity prior to disseminating foreign intelligence; exceptions include congressional identity that is overtly collected, related to public statements by the member of Congress, involves consent, or is necessary to report violations of federal criminal law. Id. §§ (C)(1), (2). In addition, authorized officials can request congressional unmasking when "necessary to understand and assess the associated intelligence and further a lawful activity of the recipient's agency." Id. § (C)(3)(a)(i). Unmasking requests involving "sensitive matters" must be approved by the DNI, whereas all other requests may be approved by the DNI's Office of General Counsel. Id. § (C)(3)(c). When a dissemination of unmasked congressional identity occurs, the DNI's Office of Legislative Affairs must notify "in writing" the "congressional leadership staff and [ ] the intelligence committee's staff directors," or, in the case of possible violations of the law, "the congressional leadership staff." Id. §§ (D)(1)(a)-(c).

B. Procedural History

The Project is a non-profit that "advocates for greater privacy and civil liberty protections from government surveillance." Compl. ¶ 5, ECF No. 1. On December 13, 2019, the Project submitted a FOIA letter to the FBI with a list of forty-four requests for categories of records. See generally Ex. A to Compl. ("Request Letter") ¶ 35, ECF No. 1-1. Only one request—what the parties call "Item 35"—is at issue in this case. Item 35 sought:

All correspondence between individual Senators or Congressman and any agency, or between an agency and Congressional Leadership and/or either or both Congressional intelligence committees, concerning the unmasking of Congressmen or Senators, including but not limited to correspondence from or to Senator Rand Paul (R-KY), Senator Lindsey Graham (R-SC), Congresswoman Jane Harmon (D-CA), Congressman Dennis Kucinich (D-OH), Congressman Lou Barletta (R-PA), Congresswoman/Senator-elect Marsha Blackburn (R-TN), Congressman Chris Collins (R-NY), Congressman Tom Marino (R-PA), Congressman Devin Nunes (R-CA), Congressman Sean Duffy (R-WI), Congressman Trey Gowdy (R-SC), and Congressman Dennis Ross (R-FL).

Id. ¶ 35. The FBI acknowledged receipt of the Request Letter on February 4, 2020. Ex. B to Seidel Decl., ECF No. 9-2. On July 7, 2020, the FBI notified the Project that it assigned a specific tracking number to Item 35. Ex. B to Compl., ECF No. 1-2. The FBI subsequently issued a blanket Glomar response to Item 35 on October 13, 2020. Ex. C to Compl., ECF No. 1-3. It explained that "FBI can neither confirm nor deny the existence of records responsive to [the] request," and claimed FOIA Exemptions 1, 3, 6, 7(C), and 7(E). Id. at 1. The Project appealed this decision to DOJ's Office of Information Policy ("OIP"), Ex. E to Seidel Decl., ECF No. 9-2, which subsequently affirmed the FBI's decision, Ex. F to Compl., ECF No. 1-6. The Project then brought suit in this Court. DOJ now moves for summary judgment on the FBI's Glomar response. ECF No. 9. In support of its motion, it relies on two declarations from Michael G. Seidel, FBI's Section Chief of the Record/Information Dissemination Section of the Information Management Division. Seidel Decl. ¶ 1; 2d Seidel Decl. ¶ 1, ECF No. 14-2. The Project cross-moves for summary judgment. ECF No. 13. The Court held argument on the parties' cross-motions. See Min. Entry (Sept. 21, 2022). The cross-motions are now ripe for decision.

III. LEGAL STANDARD

The Freedom of Information Act is meant "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." U.S. Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)). It "directs that 'each agency, upon any request for records . . . shall make the records promptly available to any person' unless the requested records fall within one of the statute's nine exemptions." Loving v. Dep't of Def., 550 F.3d 32, 37 (D.C. Cir. 2008) (quoting 5 U.S.C. § 552(a)(3)(a)). "Consistent with the Act's goal of broad disclosure," those exemptions should be "given a narrow compass." U.S. Dep't of Just. v. Tax Analysts, 492 U.S. 136, 151, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). "The agency bears the burden of establishing that a claimed exemption applies." Citizens for Resp. & Ethics in Wash. v. U.S. Dep't of Just. ("CREW"), 746 F.3d 1082, 1088 (D.C. Cir. 2014).

Because FOIA cases do not ordinarily involve disputed facts, they "are typically and appropriately decided on motions for summary judgment." Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009) (citations omitted). Summary judgment is warranted "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....