James Madison Project v. Cent. Intelligence Agency
James Madison Project v. Cent. Intelligence Agency
Opinion of the Court
The James Madison Project, an organization concerned with promoting government accountability and reducing secrecy, and Noah Shachtman and Spencer Ackerman, an editor and reporter for the Daily Beast, have brought this suit against the Department of State, the Central Intelligence Agency ("CIA"), the Department of Defense (on behalf of the National Security Agency ("NSA") and Defense Intelligence Agency ("DIA") ), and the Department of Justice (on behalf of the Federal Bureau of Investigation ("FBI") ) under the Freedom of Information Act ("FOIA"),
*385refusing to do so much as confirm or deny the existence of responsive records in the agencies' possession on the grounds that even that information would be covered by a FOIA exemption.
The parties agreed to litigate the propriety of the three Glomar responses before addressing, if necessary, the substantive responses issued by the State Department and DIA.
BACKGROUND
On May 22, 2017, plaintiffs filed identical FOIA requests to the CIA, NSA, DIA, FBI, and Department of State. Ex. 1 to Pls.' Mot. [Dkt. # 8-3] ("FOIA Requests"). The requests sought information related to a May 10, 2017 meeting in which President Trump allegedly shared "sensitive classified information" concerning a terrorist threat with the Russian Foreign Minister and the Russian Ambassador to the United States.
1) Any documentation - including, but not limited to, transcripts or notes memorializing the contents of the discussion between President Trump and the two Russian Government officials in the Oval Office on May 10, 2017;
2) Any documentation relied upon for the purpose of briefing President Trump on the intelligence information that falls within the scope of information referenced in category #1, including, but not limited to, documentation that identified the country that had originally gathered the information; and
3) Any documentation - including documentation reflecting verbal statements - memorializing the briefing in which President Trump was informed of the intelligence information that falls within the scope of information referenced in category #1, including, but not limited to, documentation that identified the country that had originally gathered the information.
None of the defendant agencies provided substantive responses to the FOIA requests, so plaintiffs filed this suit on June 22, 2017 seeking to compel each agency to respond. See Compl. Subsequently, the CIA, NSA, and FBI issued Glomar responses, informing plaintiffs that "they can neither confirm nor deny whether they possess responsive materials without revealing information that is exempt from disclosure by FOIA." Status Report [Dkt. # 7] ¶ 2. The DIA completed its search and informed plaintiffs that it did not identify responsive materials, and the Department of State explained that it needed more time to complete its search.
On September 18, 2017, plaintiffs filed a motion for partial summary judgment, identifying five statements made by President Trump, McMaster, and then-Secretary of State Rex Tillerson, which they argued waived the agencies' right to rely upon Glomar responses. Pls.' Mot. at 5-13. Defendants opposed that motion and cross-moved for partial summary judgment asserting that all three agencies properly invoked Glomar responses under FOIA Exemptions 1 and 3 and that the FBI response was also justified under FOIA Exemption 7. Defs.' Cross-Mot. at 7-25. The three agencies also argued that none of the statements plaintiffs identified constituted an official acknowledgment of the information sought in plaintiffs' requests.
STANDARD OF REVIEW
Summary judgment is appropriate "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). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett ,
The mere existence of a factual dispute is insufficient to preclude summary judgment.
*387FOIA cases are typically and appropriately decided on motions for summary judgment. Brayton v. Office of the U.S. Trade Rep.,
ANALYSIS
FOIA requires government agencies to release records upon request in order to "ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co. ,
In some instances, however, the government may refuse to even confirm or deny the existence of responsive records. Wolf v. CIA ,
To justify a Glomar response, the agency must supply the court with a detailed affidavit that explains why it cannot provide a substantive response pursuant to a FOIA exemption. Elec. Privacy Info. Ctr. v. NSA ,
I. Defendants' Glomar responses are justified under FOIA Exemptions 1 and 3.
The FOIA requests at issue here deal *388with whether the President received certain "sensitive classified information," and whether he shared it with foreign officials. Under those circumstances, plaintiffs do not challenge the applicability of FOIA Exemptions 1 and 3, which authorize government agencies to withhold information that is classified to protect national security and information that may not be disclosed under another federal law. But since an agency bears the burden of proving that a FOIA exemption applies, Tax Analysts ,
FOIA Exemption 1 provides that matters that are "specifically authorized under criteria established by an Executive [O]rder to be kept secret in the interest of national defense or foreign policy and ... are in fact properly classified pursuant to such Executive [O]rder" are exempt from production under FOIA.
Here, the three agencies' declarants aver that the question of whether or not these agencies have responsive records is itself a classified fact that is protected by Executive Order and that disclosure of this fact could pose a risk to national security. The agencies all rely on Executive Order 13,526 which protects from disclosure classified information concerning "intelligence activities (including covert action), intelligence sources or methods, or cryptology." See Decl. of David M. Hardy [Dkt. # 10-2] ("FBI Decl.") ¶ 20, quoting Exec. Order No. 13,526 ("E.O. 13,526"),
As to whether the requested information could reasonably be expected to damage national security, the FBI declarant avers:
Specifically, an official FBI acknowledgment that confirms or denies the existence or nonexistence of responsive FBI records would indicate the FBI's involvement in collecting, analyzing, and/or disseminating intelligence regarding the terror plot described in Plaintiffs' FOIA request. It would also reveal the existence or nonexistence of an FBI intelligence interest in the May 10th meeting, as well as intelligence sources and methods related to the collection of intelligence from diplomatic meetings generally. This would reveal *389classified and statutorily-protected information.
FBI Decl. ¶ 20; see also id. ¶¶ 26, 28.
The NSA declarant similarly avers that confirming whether responsive records exist within the agency's files is a classified fact because disclosure "would permit the public at large to determine information concerning the focus and direction of the NSA's intelligence efforts, as well as its capabilities, sources, and methods," and it "would disclose at minimum, that [signal intelligence]," was or was not involved in the discussions that took place at the May 10th meeting. NSA Decl. ¶ 9; see also id. ¶¶ 18, 26.
Finally, the CIA declarant avers that a Glomar response is justified under Exemption 1 because:
It would be alerting and possibly alarming for foreign countries to learn that CIA was somehow involved or interested in specific diplomatic meetings, signaling to both the diplomats and the world that there was something about the diplomatic meeting that warranted CIA involvement. Here, for example, acknowledging the existence of records responsive to [p]laintiffs' FOIA request would tend to reveal that CIA actually participated in the White House meeting with the Russian diplomats; used the meeting to obtain intelligence from or about the Russian officials; had an intelligence interest in, information about, or relationship with the Russian officials; and/or had an intelligence interest in the topic discussed at the meeting, including alleged discussions about intelligence information allegedly provided by Israel about an alleged terrorist threat related to the use of laptop computers on commercial flights.
CIA Decl. ¶ 22. And on the other hand, "if it were disclosed that CIA was not involved or interested in a particular meeting with a foreign diplomat, then it would signal to the diplomat that his or her activities or the topics discussed were not of interest to CIA," which could be "problematic if, for example, the foreign diplomat is clandestinely engaging in intelligence-related activities because it would suggest that his or her activities have gone undetected by CIA activities, as it would indicate." Id.
After examining the declarations submitted by the three agencies in support of their motion, the Court is satisfied that they have put forth a "plausible" and "logical" argument in support of their Glomar responses under FOIA Exemption 1. ACLU I,
Defendants also argue that the information is properly withheld under FOIA Exemption 3. See FBI Decl. ¶¶ 31-32; NSA Decl. ¶¶ 31-36; CIA Decl. ¶¶ 27-28. FOIA Exemption 3 permits an agency to withhold records that are "specifically exempted from disclosure by statute," provided that the statute either "requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or establishes particular criteria for withholding or refers to particular types of matters to be withheld."
II. Defendants have not waived their right to issue Glomar responses.
A. The Official Acknowledgment Doctrine
It is well established that a FOIA plaintiff may compel disclosure of information "even over an agency's otherwise valid exemption claim" if the government previously "officially acknowledged" the information. ACLU I ,
A plaintiff mounting this type of challenge "must bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld." Afshar v. Dep't of State,
The D.C. Circuit has established a "strict test" to be applied to claims of official disclosure. Moore v. CIA ,
In Glomar cases, a plaintiff need not show that that the contents of the requested records have been disclosed; rather, consistent with the nature of the exemption being invoked, the plaintiff must establish that the agency has previously acknowledged the fact of the "existence" of responsive records. Marino v. DEA ,
The D.C. Circuit has articulated the official acknowledgment test in Glomar cases as follows:
[I]f the prior disclosure establishes the existence (or not) of records responsive to the FOIA request, the prior disclosure necessarily matches both the information at issue - the existence of records - and the specific request for that information.
Wolf ,
The D.C. Circuit has repeatedly emphasized the importance of applying this test narrowly, because "the fact that information exists in some form in the public domain does not necessarily mean that official disclosure will not cause harm cognizable under a FOIA exemption." Wolf,
If a court determines that a Glomar response has been waived because the information was previously officially acknowledged, then the government must either: "(1) disclose the record to the requester or (2) establish that its contents are exempt from disclosure and that such exemption has not been waived." Moore ,
B. The Public Statements
To overcome defendants' Glomar responses, plaintiffs point to five public statements made by President Trump, the National Security Advisor at the time, H.R. McMaster, and the then-Secretary of State, Rex Tillerson.
i. May 15, 2017 McMaster Press Statement
Plaintiffs first cite to remarks McMaster made at a press conference on May 15, 2017 following news reports that President Trump had allegedly disclosed sensitive classified information to senior Russian officials at a White House meeting on May 10, 2017. Pls.' Mot. at 7. McMaster stated:
There's nothing that the president takes more seriously than the security of the American people. The story that came out tonight, as reported, is false. The president and the foreign minister reviewed a range of common threats to our two countries, including threats to civil aviation. At no time - at no time - were intelligence sources or methods discussed. And the president did not disclose any military operations that were not already publicly known. Two other senior officials who were present, including the secretary of state, remember it being the same way and have said so. Their on-the-record accounts should outweigh those of anonymous sources. And I was in the room. It didn't happen.
ii. May 15, 2017 Tillerson Press Statement
Next, plaintiffs note that Tillerson issued a press statement that same day, echoing McMaster's remarks regarding the May 10 meeting:
During President Trump's meeting with Foreign Minister Lavrov a broad range of subjects were discussed among which were common efforts and threats regarding counter-terrorism. During that exchange, the nature of specific threats were discussed, but they did not discuss sources, methods or military operations.
Pls.' Mot. at 7.
iii. May 16, 2017 Statements by the President on Twitter
Plaintiffs also rely on a two-part tweet about the May 10 meeting which the President posted on May 16, 2017:
*392As President I wanted to share with Russia (at an openly scheduled W.H. meeting) which I have the absolute right to do, facts pertaining ...
* * *
... to terrorism and airline safety. Humanitarian reasons, plus I want Russia to greatly step up their fight against ISIS & terrorism.
Pls.' Mot. at 7-8.
iv. May 16, 2017 McMaster Press Conference
Plaintiffs point to the statements McMaster made at another press briefing on May 16, 2017 that was reported on by NBC news. Pls.' Mot. at 8.
So what we don't do is discuss what is and isn't classified. What I will tell you, is in the context of that discussion, what the President discussed with the foreign minister was wholly appropriate to that conversation and is consistent with the routine sharing of information between the President and any leaders with whom he's engaged.
When pressed on the same point, McMaster replied, "I'm not going be the one to confirm that sort of information that could jeopardize, that could jeopardize our security."
Aside from the video clip, the news article also attributes the following quotes to McMaster regarding the May 10 meeting:
• "I was in the room, the Secretary of State was in the room, as you know, the deputy adviser for national security, Dina Powell, and none of us felt in any way that conversation was inappropriate."
• "[The President] wasn't aware of where this came from. He wasn't briefed on the source of this information."
The article also reports that McMaster confirmed that President Trump disclosed the city in ISIS-held Syria where the intelligence emanated from and quotes McMaster saying, "It was nothing that you would not know from open-source reporting."
*393v. May 22, 2017 President Trump Press Statement
Finally, plaintiffs point to a May 22, 2017 statement President Trump made while at a press appearance in Israel. Pls.' Mot. at 8. Following news reports that Israel was the intelligence partner that provided the classified information President Trump allegedly shared with the Russians during the May 10 meeting, the President said:
I never mentioned the word or the name Israel. Never mentioned it during our conversation.
C. Plaintiffs have not met the strict official acknowledgment test.
In their FOIA request, plaintiffs sought three categories of records. The first item called for records "memorializing the contents of the discussion between President Trump and the two Russian Government officials in the Oval Office on May 10, 2017." See FOIA Requests at 2. None of the statements made by President Trump, McMaster, or Tillerson explicitly acknowledge that either the CIA, NSA, or FBI has records "memorializing the contents" of the May 10 meeting. Indeed, not a single public statement mentions any record related to the May 10 meeting, much less the "transcripts or notes" plaintiffs specifically requested.
The McMaster and Tillerson statements from May 15, and the President's tweet on May 16, simply describe the meeting with the Russians in very broad terms. At most, they confirm that the meeting took place and that common threats, including issues related to civil aviation and ISIS were discussed. While the President appeared to acknowledge in his May 16 tweet that he communicated with the Russians about "terrorism and airline safety," N.Y. Times Article, and he later denied rumors that he had mentioned "Israel," ABC Article, his statements do not necessarily confirm the existence of records memorializing the May 10 conversation, and they certainly do not reveal or imply that any of the three agencies created or retain such records.
On May 16, McMaster provided another general overview, characterizing the President's disclosures as "wholly appropriate." See NBC Article. The press report from that date reflects that he added a little more detail, as he disclosed that his Deputy Advisor for National Security, Dina Powell, as well as then-Secretary of State, Rex Tillerson, were in the room.
The only specific reference to any of the agencies advancing the Glomar response was made when McMaster reportedly confirmed in the May 16, 2017 press conference that Homeland Security Adviser Tom Bossert had reached out to the CIA and NSA following the May 10 meeting out of a "an overabundance of caution." NBC Article. McMaster added that he did not know why Bossert contacted the agencies. This vague acknowledgment of some type of post-meeting communication between Bossert and the CIA and NSA does not expressly mention any particular record, nor does it reveal - explicitly or implicitly - that either of the agencies retains records memorializing the May 10 meeting.
*394So the claimed official acknowledgments do not match the first item of plaintiffs' FOIA requests. See Wolf ,
Plaintiffs argue that the individual agencies' Glomar responses are unsustainable because "the U.S. Government writ large ... has already acknowledged its obvious interest in the May 10, 2017 Oval Office meeting." Pls.' Reply in Supp. of Mot. [Dkt. # 11] ("Pls.' Reply") at 5. They submit - based simply on the fact that the meeting occurred - that surely some documents must exist.
FOIA does not treat the executive branch as a unified entity, and not one of the public statements proffered by the plaintiffs touches upon the FBI in any way. Nor does any statement confirm any relationship between the CIA or the NSA and the meeting. The Court cannot speculate that specific documents exist within individual agencies based on general pronouncements in the public domain, or the fact that "the U.S. Government" had an "interest" in a matter that came up at the meeting. See Wolf ,
With respect to the second and third items in the FOIA requests, both call for records related to information that may have been transmitted, or a briefing that may have occurred, prior to the President's May 10 meeting with the Russian officials. See FOIA Requests at 2. But none of the public statements expressly acknowledge the existence of records concerning a pre-meeting briefing or, more important, any role played by the three agencies advancing the Glomar responses.
While a news account of McMaster's May 16, 2017 press conference reported that the National Security Advisor confirmed that the President had named the city in Syria from which the intelligence he shared emanated, it also noted that McMaster added, "[i]t was nothing that you would not know from open-source reporting." NBC Article. McMaster is quoted as saying that the President "wasn't aware of where this came from. He wasn't briefed on the source of this information."
Plaintiffs infer from this statement that a briefing must have taken place: "[i]t borders on axiomatic that Mr. McMaster's statements that President Trump had not been briefed on the identity of the intelligence-gathering partner also stands for the idea that President Trump had been briefed (in some manner) in advance of the May 10, 2017, meeting." Pls.' Mot. at 11. (emphasis in original). Maybe so. But that is not the point. Even if one were to draw an inference from this isolated statement that that the President was "briefed" about something , McMaster's description of the limits of the President's knowledge does not open the door to a fishing expedition into which, if any, of the three defendant agencies that has raised undisputed *395national security concerns participated in a briefing, or created or retained materials related to its subject matter. That is precisely the information the agencies have plausibly argued is exempt, and McMaster's denial has not in any way exposed it to public view.
Because none of the public statements expressly acknowledge the existence of a pre-meeting briefing, much less that these agencies may possess specific documents that were relied upon or were generated as a part of it, the Court finds that the public statements do not "match" the second and third items of the FOIA request either. See Wolf,
In an effort to forestall the entry of judgment in the defendants' favor, plaintiffs argue that the D.C. Circuit's ruling in ACLU v. CIA,
In ACLU II, the plaintiffs sought the release of records from the CIA regarding the operation of drones by the CIA and the Armed Forces.
The Court placed particular emphasis on public statements made by the CIA itself. It found that contrary to the agency's assertions, the CIA had already disclosed its "interest" in drones:
[T]he Director spoke directly about the precision of targeted drone strikes, the level of collateral damage they cause, and their usefulness in comparison to other weapons and tactics. Given those statements, it is implausible that the CIA does not possess a single document on the subject of drone strikes. Unless we are to believe that the Director was able to "assure" his audience that drone strikes are "very precise and ... very limited in terms of collateral damage" without having examined a single document in his agency's possession, those statements are tantamount to an acknowledgment that the CIA has documents on the subject.
*396Here, by contrast, the FBI, NSA, and CIA have not issued public statements related to the May 10 meeting. Nor do any of the public statements listed by the plaintiffs reveal their involvement in the meeting, or in preparing for the meeting. Therefore, the Court finds that it is entirely plausible that either confirming or denying whether the NSA, FBI, or CIA have an interest or involvement in the May 10 meeting could reasonably damage national security notwithstanding the general accounts of the meeting made by other public officials. See Fitzgibbon,
Moreover, since ACLU II, the D.C. Circuit has reaffirmed the need to satisfy both the specificity and matching requirements in the Glomar context. In Mobley , a Glomar case, the D.C. Circuit re-stated that a "three-part test determines whether an item is 'officially acknowledged,' " and it went on to quote the matching and specificity requirements articulated in Fitzgibbon .
CONCLUSION
The Court will grant defendants' motion for partial summary judgment because the agencies supported their Glomar responses under FOIA Exemption 1 and 3 with uncontroverted declarations, and significant deference is given to agencies when the information requested implicates national security. See Elec. Privacy Info. Ctr. ,
A separate order will issue.
The term "Glomar response" originates from the CIA's refusal to confirm or deny the existence of records in response to a FOIA request relating to "the Hughes Glomar Explorer , a ship used in a classified [CIA] 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 ,
Plaintiffs asserted in their requests that President Trump's and McMaster's statements disclosed at least three facts: "1) President Trump shared classified information in the May 10, 2017, meeting; 2) President Trump did not mention during the May 10, 2017, meeting that Israel was the original source of the information; and 3) the briefing in which President Trump was informed of the information did not mention the identity of the country that had originally collected the information." See FOIA Requests at 3.
The FBI also invoked FOIA Exemption 7(A) and 7(E). Decl. of David M. Hardy [Dkt. # 10-2] ("FBI Decl.") ¶¶ 33-45. Because the Court has found that its Glomar response was proper under FOIA Exemptions 1 and 3 it need not analyze whether it was also proper under Exemption 7.
The NSA points to the National Security Agency Act,
Citing, Aaron Blake, The White House isn't denying that Trump gave Russia classified information - not really , Wash. Post (May 15, 2017), https://www.washingtonpost.com/news/the-fix/wp/2017/05/15/the-white-house-isnt-denying-that-trump-gave-russia-classified-information-not-really/?utm_term=.42063524b636.
Citing, Michelle Kosinski & Nicole Gaouette, State Dept. left in the dark about Tillerson statement on Post's Trump report , CNN (May 15, 2017, 9:05 PM), https://www.cnn.com/2017/05/15/politics/tillerson-statement-trump/index.html.
Citing, Peter Baker & Julie Hirschfeld Davis, Trump Defends Sharing Information on ISIS Threat With Russia , N.Y. Times (May 16, 2017), https://www.nytimes.com/2017/05/16/us/politics/trump-intelligence-russia-classified.html?_r=0 (featuring the President's two-part tweet) ("N.Y. Times Article").
Citing, Ali Vitali & Ken Dilanian, National Security Advisor McMaster: Trump's Revelations to Russians 'Wholly Appropriate' , NBC News (May 16, 2017, 3:54 PM), https://www.nbcnews.com/politics/white-house/national-security-adviser-mcmaster-trump-s-revelations-russians-wholly-appropriate-n760136 ("NBC Article").
Citing, Katherine Faulders et al., Trump: 'I never mentioned' Israel to Russian officials in Oval Office Meeting , ABC News (May 22, 2017, 2:12 PM), https://abcnews.go.com/Politics/trumpmeet-israeli-palestinian-leaders-separately/story?id=47545023 ("ABC Article").
The CIA also issued the Glomar response to avoid disclosing whether it had an "involvement" in drone strikes. ACLU II ,
Reference
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- JAMES MADISON PROJECT v. CENTRAL INTELLIGENCE AGENCY
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