Cable News Network, Inc. v. Fed. Bureau of Investigation
Cable News Network, Inc. v. Fed. Bureau of Investigation
Opinion of the Court
Although the Special Counsel's investigation into Russian election interference may have come to an end, this long-running litigation over the Comey Memos marches on. Since the existence of the Memos first came to light, Plaintiff Cable News Network has steadfastly sought copies of these documents, which were penned by then-Federal Bureau of Investigation Director James Comey to memorialize his meetings with President Trump. Last year, this Court ruled that the ongoing nature of the Special Counsel's investigation barred the records from release under the Freedom of Information Act. Much has changed since. Most notably, Defendant FBI publicly released lightly redacted copies of the Memos, and the Special Counsel's investigation has concluded. Still hoping to see what lies beneath the few remaining redaction boxes, CNN now renews its quest for disclosure. It also asks the Court to release an in camera declaration submitted by the Bureau to justify its withholding in this litigation's last go-round. The FBI resists both requests. Finding that the Government has partially - but not completely - met its burden on the Memos, the Court will grant in part and deny in part both the FBI's Motion *26for Summary Judgment as well as Plaintiff's Cross-Motion. Presented with little meaningful opposition from Defendant to Plaintiff's Motion for Access to Judicial Records, moreover, the Court will also grant CNN's request to see the unredacted declaration.
I. Background
Given the array of prior Opinions and the extensive press coverage on this topic, the background of this case will be familiar to most not lost at sea for the past couple of years. The Court will thus offer only a brief synopsis of the facts that first led to this lawsuit, saving its ink for events that have transpired since its last telling. Readers curious for a more comprehensive treatment are directed to this Court's earlier Opinions. See Cable News Network, Inc. v. FBI (CNN III ),
As Director of the FBI, Comey authored several confidential memoranda immediately following his meetings with President Trump. The purpose of such documentation, Comey later reported, lay in his concern that the President "might lie about the nature of [their] meeting." CNN II,
Unmoved, the FBI invoked a slew of FOIA exemptions, including 1, 3, 6, 7(C), and 7(E). See CNN II,
Understandably disappointed, CNN appealed. But before much could happen in that legal proceeding, outside circumstances intervened. In response to a congressional request, the Department of Justice agreed to turn over copies of the Comey Memos to the Hill - its calculation altered, it appears, by the recent publication of Comey's memoir - but only after redacting what it deemed to be classified information. See ECF No. 69, Attach. 3 (Def. Statement of Facts), ¶ 14; ECF No. 70 (Pl. MSJ & Opp.) at 27 (Pl. Statement of Facts), ¶¶ 3-4. The deletions were fairly minor, and these versions of the Memos soon found themselves splashed across the *27front pages of multiple outlets. See Def. SOF, ¶ 14; Pl. SOF, ¶ 5. The FBI then followed suit. Believing that its tight-handedness could no longer be justified, it published the redacted versions of the Memos on its public site, which is dubbed the Vault. See Def. SOF, ¶ 15. In light of these developments and "subsequent statements by government officials that release of the memoranda would no longer adversely impact any ongoing investigation," the D.C. Circuit remanded the case to this Court for further proceedings without deciding the merits of Plaintiff's appeal. See Cable News Network, Inc. v. FBI, No. 18-5041,
The FBI has again moved for summary judgment. It invokes multiple FOIA exemptions to justify keeping the redacted snippets of the Comey Memos from public view - namely, Exemptions 1, 3, and 7. See ECF No. 69, Attach. 1 (Def. MSJ) at 9, 17, 19. Believing the Government overzealous in its protectiveness, CNN, too, has moved for summary judgment, urging the Court to order release of the information underlying all 24 redactions remaining in the Memos. See Pl. MSJ & Opp. at 6, 17, 18, 20. As in the last iteration of this investigation, the Court ordered the FBI to produce in camera unredacted versions of the Memos to the Court. See Minute Order of Mar. 28, 2019. This has been done.
Plaintiff has also taken another step in its efforts to deliver information withheld by the Government to the public eye. It filed a second motion in this case, this time seeking access to the two in camera Archey Declarations from the last round of briefing and a transcript of the sealed, ex parte proceeding that the Court relied upon in its earlier Opinion. As the legal bases for this relief, it leans on both the First Amendment and common-law rights of access to judicial records. See ECF No. 72 (Pl. Access Mot.) at 1. On this count, the FBI has shown some flexibility. In response to CNN's Motion, Defendant released both Archey Declarations with redactions. See ECF No. 76 (Def. Access Opp.) at 2; see also ECF No. 74, Attach. 1, Exh. A (Redacted Third Archey Declaration) & Exh. B (Redacted First Archey Declaration). Plaintiff, however, is not yet satisfied and maintains its request for access to the unredacted documents. See ECF No. 78 (Pl. Access Reply) at 1-2. In order to provide thorough consideration, here, too, the Court required the Government to provide unredacted copies of the declarations at issue in camera . See Minute Order of Mar. 28, 2019.
Despite this already protracted saga, the tale is not yet over. Demonstrating, again, the ability of real-world events to outpace judicial proceedings, the Special Counsel announced the end of his investigation after the latest round of briefing in this case had been completed. Because the Government's opposition to releasing some of the materials requested by CNN relied, in part, on the ongoing nature of that investigation, the Court ordered the FBI to file a notice indicating whether the investigation's conclusion altered the positions taken in its briefs. See Minute Order of Apr. 1, 2019. In response, the Government agreed to release one of the two Archey Declarations at issue in full and narrowed the redactions of the second. See ECF No. 79 (First Def. Response) at 2. A week later, the FBI filed another copy of this redacted declaration, removing again some of the claimed redactions and explaining its rationale for retaining the remainder. See ECF No. 81 (Def. Notice) at 1. Defendant also withdrew its reliance on one *28exemption - namely, Exemption 7(A), which protects information collected for ongoing law-enforcement proceedings. See First Def. Response at 1. The import of that last concession is narrow, however. The FBI's invocation applied to only one redaction in the Comey Memos, and Defendant maintained that two other exemptions continued to shield this information from public release.
Just a few days after this response from the Government, the Special Counsel's Report was publicly released in redacted form. As this disclosure, too, could affect the FBI's calculation, the Court sought to learn "whether such release alters the Government's position in relation to any withheld portions of the Comey memos, the Archey Declaration, or the ex parte proceeding." Minute Order of Apr. 18, 2019. Once again, this development resulted in a further softening of the Bureau's stance. More specifically, it dropped its objection to release of the transcript of the ex parte proceeding. See ECF No. 84 (Second Def. Response) at 2. The Court thus ordered the Government to turn over that transcript to Plaintiff. See Minute Order of May 7, 2019.
Winnowed down over this lengthy history, what remains disputed are the propriety of 24 redactions to the Comey Memos and a handful of redactions to one Archey Declaration. After setting out the legal standards that govern its analysis, the Court will turn to the merits of these two legal quarrels.
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 Brayton v. Office of the U.S. Trade Representative,
Plaintiff's separate request for access to judicial records under the common law - the only ground ultimately addressed in this Opinion - is governed by a two-part inquiry. The Court will save a rehearsal of that legal framework for the relevant discussion below.
III. Analysis
It begins with Plaintiff's attempt to pry from the Government's clutches the remaining text in the Comey Memos that has not yet seen the light of day. The Court will next consider CNN's request for access to the full Archey Declaration.
A. Comey Memos
FOIA, Plaintiff says, entitles it to view the unredacted Memos. Congress enacted this law "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of the Air Force v. Rose,
The Government need not, however, turn over requested information that falls into one of nine statutorily created exemptions from FOIA's broad directive. See
Plaintiff no longer challenges the adequacy of the Government's search, an issue the Court addressed in its prior Opinion, see CNN II,
Because "the Government may withhold documents or portions thereof as long as [one] privilege applies," Cause of Action Inst. v. U.S. Dep't of Justice,
1. Exemption 3
First up is Exemption 3, which the Bureau invokes to protect redactions 8 through 19. This exemption permits agencies to withhold information "specifically exempted from disclosure by [a] statute" that meets one of two requirements. See
As its statutory basis for withholding here, the FBI rests on Section 102A(i)(1) of the National Security Act of 1947, codified at
CNN does not dispute, "nor could [it]," that this Act "is a valid Exemption 3 statute." DiBacco v. U.S. Army,
The D.C. Circuit has interpreted this provision of the Act broadly, holding that material is properly withheld if it "relates to intelligence sources and methods," Larson,
The Bureau's assessments in this realm must not be lightly brushed off. In enacting the National Security Act, "Congress gave [the intelligence agencies] broad power to control the disclosure of intelligence sources." Sims,
Having reviewed both the Government's rationale and the unredacted Memos, the Court concludes that the FBI has met its minimal burden. At issue here are several redactions whose disclosure - as described in the Bureau's publicly filed affidavit - would reveal whether the FBI used information from "confidential intelligence sources" and the "reliability of that information," as well as the Bureau's possible reliance on particular intelligence methods to gather other material. See Fifth Hardy Decl., ¶ 31 (characterizing redaction blocks 10-19). Other portions of the redactions concern "a statement about information known to the FBI concerning Lieutenant General Flynn as of a particular date" and "non-public details about to whom a defensive intelligence briefing was provided."
If the redacted text were made public, the FBI says, it would reveal Defendant's intelligence practices "at a particular time and in relation to a particular set of circumstances." Id., ¶¶ 32; accord id., ¶ 33. This is knowledge that, the Bureau contends, "[a]dversaries could use ... in conjunction with other information" to "reveal particular, singular details about the FBI's intelligence interests, priorities, activities, and methods." Id., ¶¶ 32-33. For this reason, the Bureau contends that the information properly falls within the statute's coverage. Id., ¶ 44; see also Def. MSJ at 17-18.
Combining the D.C. Circuit's broad interpretation of the statutory language and the deference owed to the FBI's determination, the Court has little trouble concluding that the redacted information "relates" to intelligence sources and methods. See Larson,
Understanding this, Plaintiff attempts a flanking maneuver. The Government, it says, has failed to establish that releasing the information at issue would cause any harm. See Pl. MSJ & Opp. at 17. CNN offers the following building blocks for this argument. It starts by pointing to its contention that Defendant came up short in its attempt to demonstrate the harm necessary to justify a different exemption - namely, Exemption 1's protection for properly classified information.
Here, Plaintiff hits a roadblock. Although a showing of harm to national security is necessary to invoke the protection of Exemption 1, Exemption 3 includes no comparable element. See Associated Press v. FBI,
Because the Government's invocation of Exemption 3 requires no showing of harm, this exemption "presents an easier hurdle for the agency" than Exemption 1. See Associated Press,
Perhaps anticipating this conclusion, CNN suggests in its Reply brief that the FBI has not shown that the redacted information could "reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods." ECF No. 77 (Pl. Reply) at 4. The Court interprets this sentence as an intimation that the redacted information does not fall within the National Security Act's coverage, something CNN did not seem to challenge in its opening brief. But that implication is hard to confidently discern, as Plaintiff offers no elaboration beyond this single sentence. And if that is indeed its intended effect, it falls far short. For the reasons already stated, the FBI has met its burden: the Act's "broad[ ]" coverage, see Leopold v. CIA,
2. Exemption 1
What remains are redactions 1 through 7 and 20 through 24, which the FBI posits are protected by Exemption 1. This exemption protects properly classified material. More precisely, it shields from disclosure matters that are "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and ... are in fact properly classified pursuant to such Executive order."
Like other FOIA exemptions, the invoking agency bears the burden of establishing the applicability of this one. See Larson,
Deference, however, "is not equivalent to acquiescence." Campbell v. U.S. Dep't of Justice,
To justify its redactions of the Comey Memos, the FBI submitted the declaration of David M. Hardy, Section Chief of the Bureau's Records/Information Dissemination Section of the Information Management Division. See Fifth Hardy Decl., ¶ 1. In his declaration, Hardy invokes Executive Order 13526,
CNN's challenge is straightforward. Defendant, it says, has not sustained its burden of demonstrating a logical connection between the withheld information and any adverse effect on national security. See Pl. MSJ & Opp. at 7. Plaintiff does not appear to dispute that the information properly qualifies as "pertain[ing]" to "foreign relations or foreign activities of the United States." EO 13526, § 1.4(d). Like the parties, the Court will proceed through the redactions in blocks, assessing the national-security connection.
a. Redactions 1-7
The first batch of redactions concerns Comey's recounting of a conversation with President Trump concerning former National Security Advisor Michael Flynn. As Comey recounts, Trump
then went on to explain that he has serious reservations about Mike Flynn's judgment and illustrated with a story from that day in which the President apparently discovered during his toast to Teresa [sic ] May that [Redaction 1] had called four days ago. Apparently, as the President was toasting PM May, he was explaining that she had been the first to call him after his inauguration and Flynn interrupted to say that [Redaction 2] had called (first, apparently). It was then that the President learned of [Redaction 3] call and he confronted Flynn about it (not clear whether that was in the moment or after the lunch with PM May). Flynn said the return call was scheduled for Saturday, which prompted a heated reply from the President that six days was not an appropriate period of time to return a call from the [Redaction 4] of a country like [Redaction 5] ("This isn't [Redaction 6] we are talking about."). He said that if he called [Redaction 7] and didn't get a return call for six days he would be very upset.
ECF No. 69, Attach 2, Exh. B (Comey Memos) at 3-4.
The redacted information, the FBI says, contains "[r]eferences to foreign countries or foreign leaders that reflect the relative importance attached by the President to contacts from one over another." Fifth Hardy Decl., ¶ 19. The Bureau contends that its disclosure "could reasonably be expected to ... cause damage to the national security." Id., ¶ 38. The rationale underlying this conclusion, however, is somewhat curt. The Hardy Declaration merely asserts that "[i]n general," the release of any information "concerning foreign relations" can lead to diplomatic tensions and perhaps diminished cooperation from foreign nations. Id., ¶ 37; see also id., ¶ 38 (stating similarly).
It is here that CNN starts its fight. That rationale may very well suffice, it says, when the withheld information contains negative information about foreign countries or dignitaries. But in this case, the released information makes clear that redactions 1 through 5 and 7 reference only positive interactions with the United States' foreign partners. See Pl. MSJ & Opp. at 8-9. The release of this information, CNN contends, cannot possibly cause "damage to the national security" as required *35by the pertinent Executive Order. See EO 13526, § 1.4; see also Pl. MSJ & Opp. at 9. Given that the Executive Order leaves little ambiguity about the effect on national security required - damage is indeed necessary - Plaintiff is off to a strong start.
In its Reply brief, the FBI offers three responses. First, it says that CNN "is not qualified to determine what will or will not affect [foreign] relations." ECF No. 75 (Def. Opp. & Reply) at 6. This misses the point. Plaintiff's qualifications and preferred rationale are irrelevant; it is Defendant who has the burden of demonstrating a connection between the withheld information and harm to national security. If it does not sustain its burden of demonstrating a "logical or plausible" connection to a damaged national-security interest, the fault lies with the Bureau. See Rosenberg,
Second, the FBI posits that "even if release of such positive information does not harm the United States' relations with that particular country, it is logical and plausible that it could hurt our relations with other countries." Def. Opp. & Reply at 6. This isolated sentence does little to advance the ball. As an initial matter, there is only a hint of this rationale in the sworn declaration that typically serves as the basis for the Court's review. See ACLU,
If the Bureau intends to argue more in its Reply brief, it fares no better. A mere assertion that harm is "logical" or "plausible" is exactly the type of "conclusory" statement that falls short of the FBI's minimal burden. See Larson,
Grasping at a final straw, the FBI redirects its fire at the Court, saying that its job is not to "second guess" the Agency's opinion. See Def. Opp. & Reply at 7. Since the Bureau's "classification authority has determined that release of these statements would impact our relations with other countries," it says, that should be the end of the matter.
*36Without submitting a rationale that "afford[s]" the Court "an adequate foundation to review[ ] the soundness of the withholding," the Government cannot prevail. See Campbell,
Two notes are necessary before moving to the next category of redactions. First, the Court does not impose a categorical rule that a statement must be disparaging to fall under the Executive Order's protection under § 1.4(d). Far from it. It only concludes, consistent with other courts in this district and controlling law, that the FBI must set forth a logical connection between disclosure and damage to national security. In this factual circumstance, the Bureau has not articulated the links to forge such a chain.
Second, the deficiency evident in Defendant's declaration does not extend to redaction 6. Given the statement and context, the Court has no trouble following the link offered by the FBI between disclosure and harm to national security. Although Plaintiff points out that "President Trump has insulted any number of foreign countries and leaders using far sharper language," Pl. MSJ & Opp. at 9, that does not diminish the logical likelihood that an additional statement could cause additional harm. The plausible connection is evident. The Court, therefore, will uphold the Bureau's withholding of this redaction, but not the others in this group.
b. Redaction 20
Skipping redactions 8 through 19 - which the Court has already held are properly protected by Exemption 3 - the next stop is redaction 20. In this part of his Memo, Comey states that Trump
then pivoted to the Russians wanting an apology from Bill O'Reilly. I said I had seen that and O'Reilly's reply, which was to "call him in 2023." The President then said that O'Reilly's question about whether he respected Putin had been a hard one. [Redaction 20]. He said he does respect the leader of a major country and thought that was the best answer.
Comey Memos at 7.
According to the FBI, the redacted sentence contains "a reference about the President's observation about responding to a question he was asked about Russian President Putin." Fifth Hardy Decl., ¶ 38. "In the context of other surrounding information," Hardy asserts, the "disclosure of the redacted information could reasonably be expected to impart or adversely impact relations with the referenced countries, and thus, cause harm to national security." Id.; see also id., ¶ 37 (explaining link between foreign relations and national security). Unlike some of the earlier redacted information, which is classified at the "Confidential" level, this information garnered the higher "Secret" classification. Id., ¶ 38. The FBI determined, therefore, that its disclosure could be expected to cause "serious damage" - as opposed to merely "damage" - to national security. Id.
CNN offers a single rebuttal. It says that "President Trump has already offered what is effectively every possible opinion one could have about Putin." Pl. MSJ & Opp. at 15. This "broad array" of statements "renders implausible any argument that releasing this one additional" observation could harm national security. Id.
The Court does not see things the same way. As an initial matter, the FBI has offered a "logical connection" linking disclosure to a consequent harm to national security. It requires little explanation to establish that most confidential observations about a foreign leader - other than those that are patently laudatory, which *37may require additional justification - could plausibly harm relations with that leader's country and thus adversely affect national security. See Rosenberg,
First, even granting CNN's premise that the President may have uttered "effectively every possibly opinion one could have," its conclusion does not necessarily follow. See Pl. MSJ & Opp. at 15. Contrary to Plaintiff's argument, it is by no means "implausible" that a further observation stated by a President could have an additional impact on relations with the subject country. Other courts in this district have endorsed the intuitive proposition that official disclosure of information already in the public realm can nevertheless affect national security. See Edmonds v. FBI,
Second, once the Government has established the logical connection necessary to invoke the exemption, the calculus about the degree of harm is not CNN's - or this Court's, for that matter - to perform. As long as the Bureau has provided a plausible rationale, tailored to this factual circumstance, "the court should not second-guess an agency's 'facially reasonable concerns' regarding the harm disclosure may cause to national security." Coldiron,
The Court will, accordingly, permit the FBI to keep secret the text that lies beneath redaction 20.
c. Redactions 21-24
Finally, the last of the redactions occur in a description of a discussion between the two men concerning foreign leaders. Comey states that Trump
then switched topics and began to talk about Egypt and its leader, saying Obama didn't like the guy [Redaction 21].
*38He mentioned the Coptic church bombings and how horrible they were. He said that three Americans had been killed by an Egyptian soldier and the Egyptian leader had raised it with him. I interrupted to say that I thought he meant [Redaction 22] and an incident in Jordan. He agreed and said [Redaction 23] had told him he wanted to bring the soldier to justice quickly, but that the FBI was in some way asking them to delay. He said [Redaction 24]. I replied that I would dig into it but that I did not believe it to be true that the FBI was delaying a Jordanian prosecution.
Comey Memos at 8.
The redactions, the FBI contends, contain "information reflecting the President's impressions of specific foreign leaders." Fifth Hardy Decl., ¶ 38. For much the same reasons as redaction 20, discussed above, the Bureau thus believes that release of these impressions could harm national security.
As to redactions 22 and 23, the Government has not toed the line. The Court fails to see, quite simply, how the redacted information contains anything about Trump's "impressions of specific foreign leaders."
As for redactions 21 and 24, however, the story is different. The FBI's justification for the possible harm to national security that could result from sharing impressions of foreign leaders applies to this information. The Court finds no fault in this rationale for withholding. CNN's only response is to advocate for the categorical rule the Court rejected earlier. It contends that if the comments are positive, then they cannot possibly damage national security; if they are negative, they are by now too old to have any real impact. See Pl. MSJ & Opp. at 16. The Court is unpersuaded by this position. The complex world of international diplomacy is a poor fit for such categorical statements, and Plaintiff's judgment about the degree of harm that might ensue from release matters little. Having reviewed the redactions in camera , the Court is satisfied that the FBI has met its burden here. Redactions 21 and 24 need not be released.
* * *
The final tally is now in: the FBI has properly justified its invocation of Exemption 3 for redactions 8 through 19 and Exemption 1 for redactions 6, 20, 21, and 24. These may continue to be withheld. The others - namely, redactions 1 through 5, 7, 22, and 23 - must be released, as the FBI has only asserted the protection of Exemption 1 here, which it failed to substantiate.
*39B. Archey Declaration
With this tour of the Comey Memos complete, the Court moves to the last stop on its journey. In the previous iteration of this litigation, the FBI provided material in two in camera declarations and one sealed ex parte proffer to justify its decision to keep the Memos secret. In response to Plaintiff's Motion and this Court's probing, the Bureau has now publicly released both declarations - one in full and a second with redactions - and a transcript of the sealed proceeding. CNN is not satisfied. It wants unfettered access to all the FBI's submissions to this Court. What remains at issue, therefore, are approximately five redactions in a single declaration.
Plaintiff mounts its attack on two fronts. Both the First Amendment and common-law rights of access - two distinct but overlapping doctrines - entitle the public, CNN contends, to know what lies beneath the black boxes. In other words, CNN is not relying on FOIA or its status as a requester here; it acts simply as a member of the public. The Court begins with the common law. As this route gets Plaintiff to its desired destination, the Court need not wade into the parties' constitutional arguments.
"In the courts of this country - including the federal courts - the common law bestows upon the public a right of access to public records and documents." Wash. Legal Found. v. U.S. Sentencing Comm'n,
1. Preemption
Before turning to the applicability of this right, however, the Court appreciates that two antecedent obstacles lie in Plaintiff's path. First, the Government contends that the redacted information contains "non-public information about intelligence methods" that the FBI is "obligated to protect" under the National Security Act. See ECF No. 81, Attach. 1 (Sixth David M. Hardy Declaration), ¶ 6. Although not stated in such explicit terms, what the FBI appears to argue is that this statute's strictures obviate the need to consider the applicability of the public's right to records; simply put, the Act supersedes this common-law right. Second, along similar lines, the Government invokes - although somewhat equivocally - the protection of FOIA Exemption 7(E).
a. National Security Act
Start with the National Security Act. This statute - which the Court discussed at length in the preceding section - provides that the "Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure."
The D.C. Circuit recently addressed a similar question in Metlife. There, Metlife - the party seeking to prevent disclosure - argued that the Dodd-Frank Act's mandate that "[t]he Council, the Office of Financial Research, and the other member agencies" keep certain materials confidential superseded the common-law right of access. Id. at 669. The circuit disagreed. It held that the statute's plain text required only that the agencies keep material confidential, but "imposes no such obligation on - and does not even mention - the courts" and thus did not eclipse the common-law right to judicial records. Id. In doing so, the circuit squarely rejected the argument that "when a statute requires an agency to preserve the confidentiality of administrative materials, the statute supersedes the [common-law] test and requires that agency materials be sealed during litigation." Id. at 673. And although other aspects of the statute "reinforce[d]" the circuit's conclusion, the absence of a textual application appeared sufficient to preclude Dodd-Frank from abrogating the common-law right of access to judicial records. Id. at 669.
So, too, here. In a singular directive, the National Security Act mandates that the "Director of National Intelligence" keep intelligence sources confidential but does not mention the courts. See
b. FOIA
Next up is the Government's argument that an exemption from FOIA protects the redactions from release. More specifically, the FBI contends that "some of these same redactions could, if lifted, expose information that the FBI would typically redact under Exemption [ ]7(E)." Sixth Hardy Decl., ¶ 6. Here, again, the Court must consider whether a statute - this time, FOIA - preempts the common-law right of access.
The Court does not write on a blank slate. In Metlife, the D.C. Circuit recently weighed in on the interaction of these two legal schemes. There, it reasoned that "[i]f FOIA ... preempted the common-law right of access to judicial records," then "there would be little left of that right in litigation involving the federal government."
There may be reason to think, however, that Metlife's holding is less than categorical.
In a traditional FOIA suit, the agency bears the burden of justifying its withholdings, see Reporters Comm.,
This it has not done. The FBI falters right off the bat, since it is not clear to the Court the redactions for which it seeks to invoke Exemption 7(E) or, in fact, whether it truly attempts to invoke it at all. It says only that "some of these redactions could, if lifted, expose information that the FBI would typically redact under Exemption [ ]7(E)." Sixth Hardy Decl., ¶ 6 (emphases added). The Government's statement is hopelessly equivocal. To explain its potential withholding, moreover, the Bureau says only that the information pertains to the "law enforcement technique of utilizing confidential human sources."
2. Common-Law Right of Access to Judicial Records
With that lengthy detour complete, the Court can now turn to Plaintiff's contention that it is owed the unredacted declaration under the common-law right of access to judicial records. A party seeking to invoke this right must clear two hurdles. First, it must demonstrate that the information to which it seeks access does, in fact, qualify as a "judicial record." In re Fort Totten Metrorail Cases,
A court's conclusion that a document constitutes a judicial record triggers a "strong presumption in favor of *42public access." EEOC v. Nat'l Children's Ctr., Inc.,
(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.
Nat'l Children's Ctr.,
a. Judicial Record
Turning to the records at hand, Plaintiff clears the first hurdle without breaking a sweat. The Archey Declaration is clearly a judicial record. In the last go-round, the Government sought leave to file this declaration in camera to bolster is motion for summary judgment. See CNN II,
b. Hubbard Factors
This conclusion creates a presumption in favor of disclosure. See Wash. Legal Found.,
First is "the need for public access to the documents at issue."
The Court next weighs "the extent of previous public access to the documents."
Third, the Court considers "the fact that someone has objected to disclosure, and the identity of that person." Nat'l Children's Ctr.,
The fourth and fifth prongs go hand in hand. They are "the strength of any property and privacy interests asserted" and "the possibility of prejudice to those opposing disclosure." Nat'l Children's Ctr.,
Defendant's brief and subsequent filings articulate no other basis for the Court to conclude that these two prongs favor withholding. Nor is it self-evident from the Court's review of the withheld information why secrecy is important here. Perhaps the redactions constitute "superficially innocuous" material that, in conjunction with other available data, may "enable an observer to discover the identity of an intelligence source [or method]." Sims,
The sixth and final factor is "the purposes for which the documents were introduced during the judicial proceedings." Nat'l Children's Ctr.,
*44spills most of its ink on this prong, CNN still comes out ahead in the end.
The Government introduced the in camera declaration to persuade the Court to rule against CNN, which sought to inform the public about documents that were central to an investigation in the public eye. This Court relied on those declarations and noted their existence in its prior Opinion. See CNN II,
Not so fast, says the FBI. If the redacted information were released, Defendant counters, it would "impair the very ... rights [defendants] seek to vindicate" - namely, the exemptions to FOIA. See Def. Access Opp. at 10 (quoting Hubbard,
All in all, Defendant's showing under the Hubbard factors does not overcome the presumption in favor of disclosure. No factor overwhelmingly favors the Government; some, on the other hand, counsel strongly for disclosure, including the "single most important" one. See Hubbard,
IV. Conclusion
For these reasons, the Court will grant in part and deny in part Defendant's Motion for Summary Judgment and will grant in part and deny in part Plaintiff's Cross-Motion for Summary Judgment. It will also grant Plaintiff's Motion for Access to Judicial Records. A separate Order so stating will issue this day.
Reference
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