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, filed suit

against the U.S. Department of Justice (“DOJ”) under the Freedom

of Information Act (“FOIA”),

, seeking records

from the Federal Bureau of Investigation (“FBI”) 1 concerning its

investigative and non-investigative files of a former

congressperson, Dana Rohrabacher of California. See Am. Compl.,

ECF No. 5. 2 In response to the FOIA request, the FBI issued a

partial Glomar response, refusing to confirm or deny the

1 The FBI is a component of the United States Department of Justice (“DOJ”). See Prop. of the People, Inc. v. Dep’t of Justice,

, 106 (D.D.C. 2019). 2 When citing electronic filings throughout this Opinion, the

Court cites to the ECF page number, not the page number of the filed document.

1 existence of certain records, 3 but confirming that records

existed for three categories: (1) “records reflecting

communications between it and the Congressman in the performance

of his official duties,” Def.’s Opp’n, ECF No. 30 at 8; (2)

records relating to communications between the congressperson

and the FBI concerning a 2012 meeting,

; and (3)

“records related to the statement of offense in the [Richard W.]

Gates prosecution that [Paul J.] Manafort[, Jr.] and a lobbyist

for ‘Company A’ had met with a ‘member of Congress,’”

;

see also Prop. of the People, Inc. v. Dep’t of Justice,

, 109 (D.D.C. 2019).

The parties filed cross-motions for summary judgment

raising, among other issues, whether the partial Glomar response

was proper. Prop. of the People, Inc., 405 F. Supp. 3d at 110.

On September 24, 2019, the Court ruled on the parties’ cross-

motions for summary judgment. As is relevant here, with regard

to the partial Glomar response, the Court determined that it

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,

, 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,

(D.C. Cir. 2011) (quoting Phillippi v. CIA,

(D.C. Cir. 1981)). 2 could not come to a conclusion on the issue due to the record’s

“level of generality,” and therefore denied in part DOJ’s motion

for summary judgment and held in abeyance Plaintiffs’ cross-

motion for summary judgment. Id. at 118. The Court then directed

DOJ to submit a Vaughn index and an amended declaration that

addressed the balance between the privacy and public interests

in light of the FBI’s partial Glomar response. Following the

Court’s decision, the parties filed a joint motion for a ruling

on the Glomar issue on the present record, which the Court

granted. See Min. Order (Jan. 30, 2020).

Now pending before the Court is the portion of Plaintiffs’

motion for summary judgment that the Court had held in abeyance.

Upon careful consideration of the parties’ submissions, the

applicable law, and the entire record, the Court DENIES

Plaintiffs’ motion for summary judgment regarding the Glomar

issue.

I. Background

The full background of this case is set out in Property of

the People, Inc. v. Department of Justice,

(D.D.C. 2019); therefore, the Court provides a brief summary of

the relevant facts below.

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

stating that, in 2012, the FBI warned former Congressman

Rohrabacher that Russian spies were attempting to recruit him as

3 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. In an interview for the article, Congressman

Rohrabacher confirmed that the FBI met with him and that the

“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.’”

at 1 ¶ 2.

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

FBI, seeking “[a]ny 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

(emphasis omitted). Plaintiffs claimed that Congressman

Rohrabacher “is known for his friendship with Vladimir Putin and

defense of Russia” and asserted that he waived his privacy

interests because he had publicly disclosed the 2012 meeting

with the FBI. Pls.’ SOMF, ECF No. 26-1 at 1 ¶ 1; see also Seidel

4 Decl., ECF No. 24-1 at 46. 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. 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 outweigh the third party's individual

privacy rights.”

at 6 ¶ 13. Subsequently, the FBI modified

its Glomar response after determining 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.

Plaintiffs challenged the adequacy of the FBI’s searches.

at

19 ¶ 38.

Plaintiffs filed this action on August 24, 2017. See

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

5 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.

After litigation had already begun, Plaintiffs learned that

Congressman Rohrabacher, 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. Pls.’ Cross-Mot.

Summ. J., ECF No. 16 at 12; see also Statement of Offense,

United States v. Richard W. Gates III, No. 17-201-2 (D.D.C. Feb.

23, 2018), ECF No. 206 at 7 ¶ 16 (stating that the “Member of

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,

(D.D.C. 2007) (Sullivan, J.) (citing

(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[.]”

(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[.]”

§ 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 Congress,” who met with Mr. Manafort and the lobbyist, served

“on a subcommittee that had Ukraine within its purview”).

Congressman Rohrabacher’s spokesperson confirmed that

Congressman Rohrabacher 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.

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,” Def.’s Opp’n, ECF No. 30 at 8; (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.

The parties renewed their cross-motions for summary

judgment in December 2018 and January 2019. In the second round

of briefing, DOJ argued that it was 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

7 Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 24 at 20-30.

Plaintiffs also moved for summary judgment, see Pls.’ Mot., ECF

No. 26 at 1, arguing that: (1) the Defendant’s declarations

constituted hearsay and the declarants lack personal knowledge,

id. at 6-8; (2) the Glomar response was 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 invoked 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 had previously “officially

acknowledged” the identities of those persons in the released

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

On September 24, 2019, the Court ruled on the parties’

motions for summary judgment. The Court denied in part DOJ’s

motion for summary judgment and held in abeyance Plaintiffs’

cross-motion with regard to the issue of whether the partial

Glomar response was proper. Prop. of the People, 405 F. Supp. 3d

at 118. The Court determined that it could not come to a

conclusion on the issue “at this level of generality” and

directed Defendant to submit a Vaughn index and an amended

8 declaration that addressed the balance between the privacy and

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

Id. at 118. The Court also ruled that the FBI’s temporal

limitation of its searches was improper and that the FBI

improperly limited its searches, but rejected Plaintiffs’

evidentiary objections. Id. at 120, 125. Finally, the Court

deferred ruling on the issues of segregability and the

applicability of the “official acknowledgment” doctrine with

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

186, 190, 197, and 221. Id. at 127.

Defendant filed an amended declaration on November 25,

2019. See Notice Filing Third Decl. Hardy (“Hardy Decl.”), ECF

No. 37. On January 29, 2020, the parties filed a joint motion

requesting that the Court rule on the portion of Plaintiffs’

cross-motion regarding the Glomar issue prior to Defendant

submitting a Vaughn index. See Joint Mot., ECF No. 41. The Court

granted the motion, see Min. Order (Jan. 30, 2020), and

addresses the issue below.

II. Legal Standard

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,

(D.C. Cir. 2013) (quoting Roth v. U.S. Dep’t of Justice,

(D.C. Cir. 2011)). “When addressing an agency’s

9 Glomar response, courts must accord ‘substantial weight’ to

agency determinations.” Sea Shepherd Conservation Soc’y v. IRS,

(D.D.C. 2016) (citing Gardels v. CIA,

(D.C. Cir. 1982)). The agency must “tether its

refusal to respond to one of the nine FOIA Exemptions.”

Montgomery v. IRS, No. 17-918,

, 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,

(D.C. Cir. 2007) (quoting Gardels,

).

“To overcome a Glomar 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,

(D.D.C. 2018). Here,

Plaintiffs selected the first route to attack the FBI’s partial

Glomar response. 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.

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.,

10 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. 16-0976,

, at *11 (D.D.C. Sept. 28, 2018)

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

Justice,

(D.D.C. 2018) (recognizing that

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

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 focused on Exemption 7(C), see, e.g., Pls.’

Mot., ECF No. 26 at 11; Pls.’ Reply, ECF No. 32 at 14, and the

Court shall do the same.

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.”

(b)(7)(C).

“[J]udicial review of an asserted Exemption 7 privilege requires

a two-part inquiry.” FBI v. Abramson,

(1982).

The threshold requirement has been met here because it is

undisputed that the FBI’s records were compiled for law

enforcement purposes. See

(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

11 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 the People v. U.S. Dep’t of Justice,

, 65-

66 (D.D.C. 2018) (quoting

(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,

(D.C. Cir. 1992). The Court of Appeals for

the District of Columbia Circuit (“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

Servs., Inc. v. SEC,

(D.C. Cir. 1991). 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.” Citizens for

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

(D.C. Cir. 2014). As such, “the FBI’s Glomar

12 response, absent a countervailing public interest in disclosure,

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

.

III. Analysis

A. There Are Interests on Both Sides of the Scale

The Court in its September 24, 2019 memorandum opinion

addressed both the privacy interest and the public interest at

stake in this case. See Prop. of the People, 405 F. Supp. 3d at

114-17.

The Court first turned to Congressman Rohrabacher’s privacy

interest and found that he has “more than a de minimis privacy

interest in the contents of any FBI investigative records.” Id.

at 113-14. The Court found instructive the D.C. Circuit’s

decision in the FOIA case Citizens for Responsibility and Ethics

in Washington (“CREW”) v. Dep’t of Justice. In CREW, Tom DeLay—

the former Majority Leader of the U.S. House of Representatives—

publicly announced that he had cooperated with the FBI’s

investigation into a public corruption scandal, that he had been

under investigation, and that the Justice Department had decided

not to pursue criminal charges against him.

. 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[,]”

; and (2) “[a]lthough [Mr.] DeLay’s

action [i.e. his public statements] lessened his [privacy]

13 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[,]”

(emphasis in original). The D.C. Circuit ultimately found 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.

In view of the D.C. Circuit’s

reasoning in CREW, this Court determined Congressman

Rohrabacher’s privacy interest in the records to be “not

insubstantial.” Prop. of the People, 405 F. Supp. 3d at 114.

The Court next turned to whether disclosure would advance

the public interest, and found that the public interest in the

case was “significant.” Id. at 115 (quoting Prop. of the People,

). The Court again found the D.C. Circuit’s

decision in CREW instructive. There, the D.C. Circuit determined

that there was a “weighty” public interest at stake because

“[d]isclosure of the records would likely reveal much about the

diligence of the FBI’s investigation and DOJ’s exercise of its

prosecutorial discretion: whether the government had the

evidence but 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.”

CREW,

. While noting that CREW was

14 distinguishable, the Court nonetheless acknowledged that

Plaintiffs had, during the course of the litigation, “shifted

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

in the 2016 presidential election and the FBI’s

counterintelligence efforts” and had asked the Court to “require

the FBI to exclude from its Glomar response any records which

link [Congressman] Rohrabacher to Russian counterintelligence

matters.” Prop. of the People, 405 F. Supp. 3d at 115-16. In

view of this shift, the Court stated that Plaintiffs had

demonstrated that there is a public interest in “how the FBI

handled the issue of threats posed by Russian intelligence to

the U.S. political system.” Id. (quoting Pls.’ Mot., ECF No. 26

at 15 n.5). The Court concluded that “[c]learly, the American

public has a right to know about the 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.” Id. (quoting Citizens for

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

(D.D.C. 2012)).

The next step in the Court’s inquiry was to balance the

significant interests on both sides of the scale. However, the

Court declined to weigh the balance due to the “level of

generality,” and instead directed DOJ to submit a Vaughn index.

15 Id. at 118. The Court therefore denied in part DOJ’s motion for

summary judgment and held in abeyance Plaintiffs’ motion for

summary judgment. Id. In view of the Court’s Minute Order

granting the parties’ joint motion to resolve the Glomar issue

on the current record, the Court addresses the balance of the

competing interests below.

B. The Balance of the Competing Interests Weighs in Favor of Non-Disclosure

The Court shall now consider anew the merits of the

parties’ arguments regarding the balance of the competing

interests. The Court must consider whether disclosure regarding

the existence or non-existence of records “could reasonably be

expected to constitute an unwarranted invasion of personal

privacy,”

(b)(7)(C); which, as noted above,

involves balancing the public interest in disclosure against the

privacy interest that would be compromised, see Roth,

. In balancing the competing interests, “[i]t is

important to remember that, at this stage, the Court is

considering only whether [Congressman Rohrabacher] has a privacy

interest in the very existence of the requested records.”

Judicial Watch, Inc. v. Dep’t of Justice,

, 75

(D.D.C. 2019) (quoting Wolf,

). “That is, while

he may have a privacy interest in the content of any such

records, the question in evaluating a Glomar response is whether

16 disclosure of their existence would ‘cause harm cognizable under

a[] FOIA exception.’”

Here, the Court is not persuaded that

the balance weighs in favor of public disclosure.

First, it is significant to this analysis that Congressman

Rohrabacher has not publicly confirmed that he was the subject

of an investigation outside of the two meetings. The D.C.

Circuit has “consistently held that Exemption 7(C) authorizes

Glomar responses to comparable FOIA requests seeking information

about particular individuals” when the subject of an

investigation has not acknowledged that the investigation

occurred. PETA, 745 F.3d at 543; see also Beck v. U.S. Dep’t of

Justice,

, 1493–94 (D.C. Cir. 1993) (upholding

Glomar response as to any complaints or other investigatory

files concerning two named DEA agents); Dunkelberger v. U.S.

Dep’t of Justice,

(D.C. Cir. 1990) (upholding

Glomar response as to a specific FBI agent’s disciplinary

records).

Plaintiffs argue, however, that the privacy interests of

Congressman Rohrabacher are “negate[d]” due to his statements to

the media. Pls.’ Mot., ECF No. 26 at 9. According to Plaintiffs,

Congressman Rohrabacher acknowledged through statements to the

media that: (1) the 2012 meeting occurred; (2) the 2012 meeting

“had focused on his contact with one member of the Russian

Foreign Ministry” who was in fact “an intelligence officer” he

17 had met during a congressional delegation to Moscow; (3) the FBI

had informed him during the meeting that Russia had “targeted

[him] to be recruited as an agent” and that Moscow “looked at

[him] as someone who could be influenced”; and (4) he felt that

“Russian intelligence” had been “after [him] since [he] was a

teenager.” Id. at 10-11. In addition, Congressman Rohrabacher’s

spokesperson confirmed that he was the member of Congress who

had attended a March 2013 meeting about Ukraine. Prop. of the

People, 405 F. Supp. 3d at 109. These statements, however, do

not diminish Congressman Rohrabacher’s privacy interests in the

broad manner that Plaintiffs assert. While his privacy interest

in the 2012 and 2013 meetings “evaporated” once he publicly

acknowledged his involvement, Judicial Watch, 415 F. Supp. 3d at

75; his statements do not disclose that he was ever the target

of an FBI investigation outside of his association with the two

events. Despite his statements to the media, Mr. Rohrabacher

therefore has more than a de minimis privacy interest in the

existence of any FBI investigative records outside of the two

meetings he has publicly acknowledged. See Prop. of the People,

405 F. Supp. 3d at 114; see also U.S. Dep’t of Justice v.

Reporters Comm. for Freedom of the Press,

(1989) (recognizing the distinction between “scattered

disclosure of the bits of information contained in a rap sheet

and revelation of the rap sheet as a whole”); Judicial Watch,

18 Inc. v. U.S. Dep’t of Justice,

(D.D.C.

2012) (rejecting plaintiff’s argument that “would have the Court

waive Ahmad’s relevant privacy interests in toto based solely on

the fact that he has, at one time, been associated with criminal

activity”). And, as this Court has explained, this privacy

interest remains despite Congressman Rohrabacher’s status as a

former public official. See Prop. of the People, 405 F. Supp. 3d

at 114; see also CREW,

.

Second, although the Court has previously concluded that

there existed a public interest in any records because

disclosure could shed light on “how the FBI handled the issue of

threats posed by Russian intelligence to the U.S. political

system,” Prop. of the People, 405 F. Supp. 3d at 117; this

finding also was not based upon the public acknowledgment of an

investigation by the FBI or Congressman Rohrabacher. Rather,

critical to that determination was “the existence of news

articles, of which the Court [took] judicial notice, reporting

that the SCO investigated a September 2016 meeting between

Congressman Rohrabacher and one of the President’s former

National Security Advisors.” Id. at 115. But the news articles

regarding the 2016 meeting were based on anonymous sources. See

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-

19 election-flynn-meeting-pro-russia-congressman-n819676 (citing

“two sources with knowledge of the investigation”); Michael R.

Blood, Rouda Claims Historic Victory Over Republican

Rohrabacher, NBC4 (Nov. 10, 2018),

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

in-House-Race-Against-Rohrabacher-500204551.html (reporting that

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

into Russian meddling in the 2016 presidential election” but

that he had “denied any wrongdoing”). Thus, despite the accounts

provided by the articles, the FBI’s “own official acknowledgment

that it had investigated [Congressman Rohrabacher] would [still]

carry an added and material stigma” notwithstanding other

entities’ acknowledgment of investigations. People for the

Ethical Treatment of Animals v. Nat’l Inst. of Health (“PETA”),

(D.C. Cir. 2014). In other words, “the fact

that an event is not wholly private does not mean that an

individual has no interest in limiting disclosure or

dissemination of the information.” Id.; cf. Alfred A. Knopf,

Inc. v. Colby,

(4th Cir. 1975) (“It is one

thing for a reporter or author to speculate or guess that a

thing may be so or even, quoting undisclosed sources, to say

that it is so; it is quite another thing for one in a position

to know of it officially to say that it is so.”).

20 It is true that “[o]ver the course of this litigation,

Plaintiffs have shifted their focus to the SCO’s investigation

into Russia’s influence in the 2016 presidential election and

the FBI’s counterintelligence efforts.” Prop. of the People, 504

F.3d at 115. But without a public acknowledgment of an

investigation by Congressman Rohrabacher or the FBI, this case

is also easily distinguishable from CREW. As this Court

recognized in its September 24, 2019 opinion, unlike in CREW,

Plaintiffs here request records related to a particular

individual, not a particular investigation. Prop. of the People,

405 F. Supp. 3d at 115. And “[f]or such requests, ‘the public

interest in understanding the agency’s investigatory processes’

ordinarily ‘fails to outweigh the [subject’s] substantial

interest in nondisclosure.’” Prop. of the People,

(quoting PETA,

). In addition, unlike

Mr. DeLay’s public announcement in CREW, neither Congressman

Rohrabacher nor the FBI has conceded that he was under

investigation.

Thus, despite the public interest in understanding an

agency’s investigatory process into Russia’s influence in the

2016 presidential election and the FBI’s counterintelligence

efforts, the Court concludes that the public interest fails to

outweigh Congressman Rohrabacher’s privacy interest in

nondisclosure. “[W]ithout more,” the “[public] interest [is]

21 insufficient to justify disclosure when balanced against the

substantial privacy interests weighing against revealing the

targets of a law enforcement investigation.” PETA,

.

IV. Conclusion

For the reasons set forth above, the Court DENIES

Plaintiffs’ motion for summary judgment regarding the Glomar

issue. An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge December 23, 2021

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