Prop. of the People v. U.S. Dep't of Justice
Prop. of the People v. U.S. Dep't of Justice
Opinion of the Court
Plaintiffs want to know more about President Donald Trump's relationship with the Federal Bureau of Investigation. More specifically, they wonder about Trump's interactions with the agency before he became President: "Was he friend or foe? A reliable or unreliable informant? The target of an investigation into serious misconduct? A cooperative or uncooperative witness?" ECF No. 14 (Pl. MSJ) at 14. Or, perhaps, "did he never cross paths with the FBI at all?" Id. In search of answers, Plaintiffs submitted a request under the Freedom of Information Act to Defendant Department of Justice. The Government, as it is wont to do with law-enforcement records, issued a so-called "Glomar" response, meaning that it would neither confirm nor deny whether it maintained any such documents about Trump.
Plaintiffs responded by filing suit in this Court, and both parties have now moved for partial summary judgment. While the Court affirms that the Government may generally refuse to answer Plaintiffs' request, questions remain about whether "there exists a [narrow] category of responsive documents for which a Glomar response would be unwarranted." PETA v. NIH,
I. Background
Plaintiffs are Jason Leopold, an investigative reporter for Buzzfeed News; Ryan Shapiro, a PhD candidate at MIT; and Property of the People, a non-profit "dedicated to governmental transparency," including "for the Administration of Donald J. Trump." Compl., ¶¶ 1-3. Together, they share an interest in whether "Donald Trump's past interactions with the FBI ... [are] prologue to the current tumultuous relationship between the President and the Bureau." Pl. MSJ at 1. To that end, they submitted a FOIA request on March 16, 2017, seeking access to eight categories of records, all ostensibly related to Trump. See ECF No. 12-2 (First Declaration of David M. Hardy, Exh. A). First, they requested records referencing several FBI files: Nos. 194-NK-88595, 166-LV-29911, 137-NY-19967, 137-22152, and 92-PH-99239.
That last catch-all category is the only issue currently before the Court. The FBI has treated this group of records as distinct from Plaintiffs' requests tied to specific *63case numbers, opening a separate case within its FOIPA Document Processing System with its own tracking number (No. 1369375-000). See ECF No. 12-1 (First Hardy Decl.), ¶ 6. On March 23, 2017, the FBI issued a letter refusing to confirm or deny the existence of any law-enforcement records within that category.
II. Legal Standard
Summary judgment may be granted 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). A genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc.,
FOIA cases typically and appropriately are decided on motions for summary judgment. See Defenders of Wildlife v. Border Patrol,
III. Analysis
Generally, FOIA requires an agency to conduct a search and make requested records available unless they fall within one of the statute's nine enumerated exemptions. See
In this case, the FBI has dusted off its Glomar playbook, refusing to "confirm or deny" whether it maintains records mentioning or referring to Trump. For such a (non-)response to be appropriate, the Government must show that revealing the very existence of records would "cause harm cognizable under a[ ] FOIA exception."
*64Wolf v. CIA,
Plaintiffs challenge the Government's Glomar response in "two distinct but related ways." Agility Pub. Warehousing Co. K.S.C. v. NSA,
A. Waiver
Plaintiffs first posit that "[t]he FBI's broad Glomar response is untenable in light of its previous release of responsive records bearing Donald Trump's name." Pl. MSJ at 4 (emphases omitted). It is true that agencies cannot rely on Exemption 7(C)-or any other exemption-to withhold "information that has been 'officially acknowledged' or is in the 'public domain.' " Davis v. DOJ,
• Cover sheets from litigation related to Trump's Mirage Hotel, see First Hardy Decl., Exh. A (Addenda A & B);
• A 1981 FBI report mentioning Trump and his Atlantic City casinos,id. (Addendum C);
• A complaint apparently filed against a Trump employee,id. (Addendum E);
• Several news articles briefly referencing Trump,id. (Addendum F); Pl. MSJ, Exh. 1; Second Hardy Decl., Exh A;
• An FBI report summarizing results from a Lexis Nexis search, apparently relating to the investigation of a Trump Organization affiliate, see First Hardy Decl., Exh. C (Addendum G);
• An investigation made into a person "fired by DONALD TRUMP," ECF No. 21-1 (Second Declaration of David M. Hardy, Exh A); and
• A complaint about harassing calls made to the Trump Organization. See First Hardy Decl., Exh. C.
Given those releases, Plaintiffs are correct that the Bureau cannot flatly refuse to confirm or deny having any records related to Trump. See ACLU v. CIA,
It may, however, still refuse to confirm or deny "the existence of additional records about Mr. Trump" "[o]utside of these limited releases," as it has done here. See Second Hardy Decl., ¶ 12 (emphasis added); see also Gov't Reply at 14. The D.C. Circuit has made clear that while an agency may "waiv[e] its Glomar response as to ... officially acknowledged dispatches," it does "not waiv[e] its Glomar response as to all records about" the same person. Moore,
Plaintiffs, however, want more. They argue that in light of these releases, they "are now entitled to that information which has been previously disclosed, not just those records which have been previously disclosed." Pl. Reply at 2. That is, they believe that the "FBI must now confirm the existence and justify the withholding of all documents which contain the same information as the documents previously released." Pl. MSJ at 7-8. This is a bridge too far. When a court evaluates "the official acknowledgement doctrine in the Glomar context," it must "appl[y] it strictly." Moore,
Plaintiffs rejoin that the "focus of the FOIA is information, not documents." Pl. Reply at 2 (quoting Mead Data Cent., Inc. v. Dep't of Air Force,
B. Exemption 7(C)
Next, Plaintiffs argue that even if not otherwise waived, Defendant has not justified issuing its Glomar response pursuant to Exemption 7(C). "[J]udicial review of an asserted Exemption 7 privilege requires a two-part inquiry." FBI v. Abramson,
Once again, Plaintiffs attack the Government at each step. First, they contend that their request encompasses non-investigative records, which necessarily fall outside Exemption 7's purview. Second, they argue that even as to investigative records, the agency has not shown that Trump's privacy interests outweigh the public's interest in any such documents. Finally, they say that the FBI's Glomar response is invalid at least as to certain categories of investigative records. The Court looks at each, ultimately finding that there are two small subsets of records for which the FBI has not justified its Glomar response.
1. Non-Investigative Records
To refresh, Plaintiffs requested, inter alia , "[a]ny and all records mentioning or referring to the living person Donald John Trump" from June 14, 1946, to June 15, 2015. See Hardy Decl., Exh. A. On its face, this request encompasses both law-enforcement material and records collected for other purposes, such as administrative and personnel files. This latter category of records, of course, would not have been "compiled for law enforcement purposes" and thus could not trigger Exemption 7(C)'s protection. See Jefferson v. DOJ,
The Government does not dispute the point, instead arguing that it was not required to search for non-investigative files at all. See Gov't Reply at 17-18. First, it claims that Plaintiffs "provided no evidence to the FBI that there might be non-law enforcement FBI records on Trump." Id. at 17. That may be so, but for FOIA purposes, it is irrelevant. To craft a proper FOIA request, a person simply must meet two requirements: 1) "reasonably describe such records" and 2) follow "published rules stating the time, place, fees (if any), and procedures to be followed."
Second, the Government offers a declaration from David Hardy, the Section Chief of the FBI's Record/Information Dissemination Section, which takes a different tack. There, Hardy maintains that "the FBI reasonably interpreted Plaintiffs' request" to encompass only "records about a third party related to the performance of the FBI's [law-enforcement] mission." Second Hardy Decl., ¶ 18. Ordinarily, however, the agency is "bound to read [the request] as drafted, not as ... agency officials ... might wish it was drafted." Miller v. Casey,
Hardy retorts that "[h]ad the FBI interpreted Plaintiffs' request as seeking each and every document in the FBI's possession bearing the name of Donald Trump," such a request would have been "overly broad/unduly burdensome." Second Hardy Decl., ¶ 16. The Bureau therefore "interpreted Plaintiffs' request in such a way as to make it possible for the FBI to substantively respond." Id., ¶ 18. Even assuming that the FBI is entitled to apply such a savings construction, however, it has not proven that one was needed here.
Hardy asserts, in conclusory fashion, that the agency could only locate administrative or personnel files by asking "every *67FBI office and the more than 35,000 employees of the FBI to conduct searches for any non-investigative records bearing the name of Donald John Trump." Id., ¶ 16 (emphasis omitted). But it is not clear why this is so. Ordinarily, the FBI conducts searches by querying its Central Record System (CRS), "a comprehensive system of records consisting of applicant investigative, intelligence, personnel, administrative, and general files compiled and maintained by the FBI." First Hardy Decl., ¶ 21. Hardy says that "the vast majority of the FBI records in [its] Central Record System ('CRS') are criminal and national security related." Second Hardy Decl., ¶ 16 (emphasis added) (footnotes omitted). But by his own admission, the CRS also contains "personnel" and "administrative" records, see First Hardy Decl., ¶ 21, and the volume of records would seem irrelevant when the agency is querying a search engine. Perhaps the Government can prove otherwise, but it does not appear "unduly burdensome" to ask the agency to search for Donald Trump's name within the CRS and see whether any personnel or administrative records surface.
Of course, personnel and administrative records may be covered by a different FOIA exception-e.g. , Exemption 6, which protects "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."
2. Investigative Records
Plaintiffs' request for investigative records is a different story. This class, by definition, encompasses materials "compiled for law enforcement purposes,"
a. Privacy Interest
Law-enforcement agencies like the FBI and DOJ routinely issue Glomar responses "when responding to requests for documents regarding alleged government informants, trial witnesses, subjects of investigations, or individuals who may merely be mentioned in a law enforcement record." Department of Justice, Guide to the Freedom of Information Act 597-98 (2009 ed.). Such a response is often appropriate because the very "mention of an individual's name in a law enforcement file will engender *68comment and speculation and carries a stigmatizing connotation." Schrecker v. DOJ,
Indeed, the D.C. Circuit has "h[e]ld 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,
Contrary to Plaintiffs' suggestions, that privacy interest holds regardless of whether the person might be implicated as the target of a law-enforcement investigation or merely a witness. While "[t]here can be no clearer example of an unwarranted invasion of personal privacy than to release to the public that another individual was the subject of an FBI investigation," Fund for Const'l Gov't v. Nat'l Archives and Records Admin.,
Ordinarily, then, this would be an open-and-shut case. Does the result change because Trump is a public figure-indeed the most public of figures? Plaintiffs say yes. They argue, and the Court agrees, that as President of the United States (and, formerly, as a prominent businessman and celebrity), Trump naturally has a diminished expectation of privacy. See Pl. MSJ at 3. "It is well established, however, that government officials do not surrender all rights to personal privacy when they accept a public appointment." Bast v. DOJ,
Take the D.C. Circuit's decision in CREW. There, the Court considered a request for any and all documents related to the FBI's and DOJ's investigation of Tom DeLay, the former Majority Leader of the U.S. House of Representatives, who was allegedly involved in "one of the most significant political corruption scandals in recent memory." CREW,
*69Although DeLay was undoubtedly a "prominent" public official,
b. Public Interest
On the other side of the ledger, it is Plaintiffs' burden to "show the information [requested] is likely to advance" the public interest. Nat'l Archives and Records Admin. v. Favish,
While this may seem counterintuitive given the high-profile fusillades Trump is currently aiming at the FBI, it is critical to remember that "[t]he only relevant public interest" is "the extent to which disclosure of the information sought would she[d] light on an agency's performance of its statutory duties or otherwise let citizens know what their government is up to." CREW,
Once again, CREW is instructive. As explained, the Court of Appeals there considered a request for law-enforcement records related to Tom Delay, the former Majority Leader. In evaluating Exemption 7(C), the Court of Appeals stressed that "the relevant public interest is not to find out what Delay himself was 'up to' but rather how the FBI and the DOJ carried out their respective statutory duties to investigate and prosecute criminal conduct." CREW,
Plaintiffs acknowledge as much, instead trying to cast their interest as focused on governmental operations. They posit first that "the FBI's past interactions with Trump will reveal how the FBI performed its substantive law enforcement obligations." Pl. MSJ at 15. It is important to remember, however, that Plaintiffs are not requesting information about a particular investigation. See, e.g., CREW,
In each of those cases, the requested files might have shed light on agency investigatory procedures-the same interest Plaintiffs assert here. Yet the Court of Appeals has "consistently found that interest, without more, insufficient to justify disclosure when balanced against the substantial privacy interests weighing against revealing the targets of a law enforcement investigation." PETA,
Plaintiffs next speculate that these records might reveal "whether such a prominent and influential public figure was subjected to the same investigative scrutiny as ordinary citizens." Pl. MSJ at 13. The D.C. Circuit has allowed that the public may have an interest in whether the FBI "pulled its punches" when investigating high-profile targets. See CREW,
In this case, Plaintiffs cited one concrete instance of FBI interest in Trump personally (as opposed to interest in his corporation or employees more generally). They appended a 1981 FBI Report (and a 2016 Washington Post article discussing it) to their FOIA request, which together document the agency's conversations with Trump about his plans to open a casino in Atlantic City. See First Hardy Decl., Exh. A. For reasons discussed below, the Court agrees that a Glomar response might be inappropriate as to records related to that report, but such issue falls outside the scope of the instant Partial Motions for Summary Judgment. See infra Section III(B)(3)(b). For now, the Court considers only whether a Glomar response is appropriate as to other hypothetical investigative files about Trump. On this ground, Plaintiffs give no reason to think that the FBI otherwise investigated him, much less that it "pulled its punches" on any occasion. Without such a "meaningful evidentiary showing," the Court therefore sees no public interest on that ground. Favish,
Finally, Plaintiffs maintain that "[d]isclosure would also shed light on the contentious relationship between Donald Trump and the FBI." Pl. MSJ at 13. This rationale, too, fails to pass muster. Again, the only pertinent interest is "shed[ding] light on the agency's performance of its statutory duties" or "what their government is up to."
*71CREW,
3. Alternative Arguments
Although the Court affirms that the FBI may generally issue a Glomar response as to any law-enforcement records, Plaintiffs last argue that such a response would be invalid as to certain classes of investigative files-namely, (a) any documents in which Donald Trump is mentioned "solely in his capacity [as] an official representative of a business entity" or (b) any documents related to an interview Trump gave to The Washington Post.
a. Business Activities
Plaintiffs ask the Court to siphon off records that mention Trump "solely in his capacity as executive of an organization." Pl. MSJ at 16. The Government, it seems, agrees that Exemption 7(C) does not apply when Trump's name is mentioned in their files solely "in the context of his official capacity as chief executive of specific organizations." Second Hardy Decl., ¶ 9. But what exactly does that mean?
Plaintiffs seem to think that the Court should "draw [a] line between Donald Trump's business activities and his personal activities" and hold Exemption 7(C) protects only the latter category. See Pl. Reply at 15 (citing FCC v. AT & T Inc.,
The line between corporations and individuals, of course, can be blurry. See, e.g., Burwell v. Hobby Lobby Stores, Inc., --- U.S. ----,
It is more difficult to discern how to treat any records relating to Trump's actions in his "official capacity" as chief executive of a corporation-if, for example the FBI investigated him for committing wire fraud on behalf of his organization. For purposes of this Motion, however, the Court need not dwell on the distinction because the Government concedes Exemption 7(C) would not apply to such records. Ordinarily, such concession might defeat the agency's Glomar response. For when "there exists a category of responsive documents for which a Glomar response would be unwarranted, [the agency's] assertion of a blanket Glomar response ... cannot be sustained." PETA,
In his declaration, however, Hardy suggests that the agency has already done exactly that. Remember, the Government's Glomar response covers only "the existence of additional records about Mr. Trump" "[o]utside of [its] limited releases" from an earlier FOIA request. See Second Hardy Decl., ¶ 12 (emphasis added). Previously, Plaintiffs submitted a FOIA request seeking records related to "Trump Entertainment Resorts, Donald J. Trump Foundation, Trump University, and Trump Organization." First Hardy Decl., ¶ 19 n. 8 (citing Jason Leopold et al. v. DOJ, No. 16-2182). As just explained, each of those organizations has no protected privacy interest under Exemption 7(C). The FBI was therefore required to search for relevant records and ultimately released a number of responsive documents, including ones in which Trump's name appeared unredacted. It stands to reason that any materials mentioning Trump in his "official capacity" as executive of Trump Entertainment Resorts, Donald J. Trump Foundation, Trump University, and Trump Organization would have surfaced in that search.
The Government, however, never says this expressly, thereby leaving a question of fact as to whether it has processed all such records. It thus has two choices: (1) submit an affidavit averring that it has previously released all documents mentioning Trump "in the context of his official capacity as chief executive of specific organizations"; or (2) conduct a search for that subset of records and narrow its Glomar response accordingly. Until then, the Court cannot grant summary judgment upholding the Government's broad Glomar response.
b. Washington Post article
Finally, and as foreshadowed earlier, Plaintiffs say that Trump has lessened his privacy interest by publicly revealing his interactions with law enforcement during an interview with The Washington Post. See Pl. Reply at 5; Robert O'Harrow Jr., Trump's Ties to an Informant and FBI Agent Reveal His Mode of Operation, Wash. Post (Sept. 17, 2016). In that article, Trump apparently discussed his relationship with Daniel Sullivan, a business associate *73and, as it turns out, FBI informant. He revealed how Sullivan once arrived at his office with two FBI agents in tow, one of whom Trump considered "a very high quality person."
The Court agrees that Trump may have opened the door to records related to these interactions. See CREW,
True, these records may overlap with the request at issue-i.e. , they may include "documents related to Donald John Trump." But "[s]ince these documents are also responsive to other counts of Plaintiffs' request," the FBI has decided to "process and release non-exempt portions of these records to Plaintiffs at a later date and will provide justification for its withholding in a later submission." Second Hardy Decl., ¶ 10. The Court, too, will thus save for another day any dispute over the FBI's treatment of records related to the 1981 report, including those mentioning Trump.
IV. Conclusion
All told, the Government comes close to justifying its Glomar response but ultimately claims no cigar. The Court concludes that it has not yet justified its sweeping Glomar response for two categories of responsive records: (1) non-investigative records related to Donald Trump and (2) records that mention Trump "in the context of his official capacity as chief executive of specific organizations." At the same time, it affirms that Defendant may at least issue a narrow Glomar response as to most law-enforcement records. Until then, the Court will deny both parties' Cross-Motions for Partial Summary Judgment. A separate Order consistent with this Opinion will be issued this day.
Reference
- Full Case Name
- PROPERTY OF the PEOPLE v. UNITED STATES DEPARTMENT OF JUSTICE
- Cited By
- 12 cases
- Status
- Published