Am. Civil Liberties Union of Mass. v. Cent. Intelligence Agency

• Decision Date: 11 May 2023
• Docket Number: Civil Action 22-cv-11532-DJC
• Parties: AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, INC., Plaintiff, v. THE CENTRAL INTELLIGENCE AGENCY, THE OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, THE UNITED STATES DEPARTMENT OF DEFENSE, and THE NATIONAL SECURITY AGENCY, Defendants.
• Court: U.S. District Court — District of Massachusetts

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AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, INC., Plaintiff, v. THE CENTRAL INTELLIGENCE AGENCY, THE OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, THE UNITED STATES DEPARTMENT OF DEFENSE, and THE NATIONAL SECURITY AGENCY, Defendants.

Civil Action No. 22-cv-11532-DJC

United States District Court, D. Massachusetts

May 11, 2023

MEMORANDUM AND ORDER

CASPER, J.

I. Introduction

The American Civil Liberties Union of Massachusetts, Inc. (“ACLUM”) filed this lawsuit pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C § 552 et seq., against the Central Intelligence Agency (“CIA”), the Office of the Director of National Intelligence (“ODNI”), the United States Department of Defense (“DoD”), and the National Security Agency (“NSA”) (collectively, “Defendants”), relating to an alleged standing order issued by former President Donald J. Trump (“Trump”) regarding the declassification of documents (“Alleged Declassification Standing Order”). D. 1. Presently before the Court is Defendants' motion for summary judgment, D. 24, and the ACLUM's cross-motion for summary judgment, D. 27. For the reasons explained below, the Court DENIES Defendants' motion for summary judgment, D. 24, and ALLOWS the ACLUM's cross-motion for summary judgment to the extent that it seeks to have Defendants confirm or deny the existence of records responsive to its FOIA requests, D. 27.

II. Standard of Review

The Court grants summary judgment where “there is no genuine dispute as to any material fact” and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (citation and internal quotation marks omitted). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000) (citations omitted). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in its pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but must come forward with specific admissible facts showing that there is a genuine issue for trial, Borges v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010) (citing cases). The Court “view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009) (citation omitted).

“FOIA cases are typically decided on motions for summary judgment.” Am. C.L. Union of Mass., Inc. v. U.S. Immigr. & Customs Enf't, 448 F.Supp.3d 27, 35 (D. Mass. 2020) (citation and internal quotation marks omitted). Summary judgment is warranted for a defendant in a FOIA case “when the agency proves that it has fully discharged its obligations under the FOIA after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.” Crooker v. Tax Div. of U.S. Dep't of Just., No. 94-30129 MAP, 1995 WL 783236, at *7 (D. Mass. Nov. 17, 1995) (citation and internal quotation marks omitted). An agency discharges its burden when it “proves that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the [FOIA's] inspection requirements.” Gillin v. IRS, 980 F.2d 819, 821 (1st Cir. 1992) (alteration in original) (citations omitted). “This burden does not shift even when the requester files a cross-motion for summary judgment because the Government ultimately [has] the onus of proving that the [documents] are exempt from disclosure, while the burden upon the requester is merely to establish the absence of material factual issues before a summary disposition of the case could permissibly occur.” Leopold v. Dep't of Just., 301 F.Supp.3d 13, 21 (D.D.C. 2018) (alterations in original) (quoting Pub. Citizen Health Res. Grp. v. FDA, 185 F.3d 898, 904-05 (D.C. Cir. 1999)) (internal quotation marks omitted).

III. Factual Background

Unless otherwise noted, the following facts are undisputed. These facts are primarily drawn from Defendants' statement of undisputed material facts, D. 24-3, the ACLUM's response to same and statement of additional facts, D. 27-2, Defendants' response to the ACLUM's statement of additional facts, D. 30-2, and supporting documentation.

A. The Investigation and Alleged Declassification Standing Order

Throughout 2021, the United States National Archives and Records Administration (“NARA”) had ongoing communications with Trump representatives, in which it sought alleged missing records from his administration. D. 27-2 at 23, 29. After this series of communications, Trump provided the NARA with fifteen boxes on January 18, 2022. Id. at 16-17, 23, 29, 32. According to the NARA, its initial review of these boxes revealed highly classified documents intermingled with other records. Id. at 16. As such, the NARA sent a referral (“the NARA Referral”) to the United States Department of Justice (“DOJ”) on February 9, 2022. D. 30-2 ¶ 33. The NARA Referral stated that a preliminary review of the boxes indicated that they contained “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and post-presidential records, and a lot of classified records. Of most significant concern was that highly classified records were unfoldered, intermixed with other records, and otherwise [im]properly . . . identified.” D. 27-2 at 23 (internal quotation marks omitted).

Following receipt of the NARA Referral, the Federal Bureau of Investigations (“FBI”) began a criminal investigation into the Trump administration regarding the potential improper removal and storage of classified information in unauthorized spaces, as well as the potential unlawful concealment or removal of government records. Id. at 3; D. 30-2 ¶ 33. Between May 16-18, 2022, the FBI conducted a preliminary review of the documents and identified documents with classification markings in fourteen of the boxes. D. 27-2 at 32. This preliminary review revealed 184 unique documents bearing the following classification markings: 67 documents marked as CONFIDENTIAL, 92 documents marked as SECRET, and 25 documents marked as TOP SECRET. Id. Further, the FBI observed markings reflecting that the documents were subject to sensitive compartments and dissemination controls used to restrict access to material in the interest of national security. Id.

On August 8, 2022, FBI agents searched “Mar-a-Lago”-Trump's residence and club- and seized classified documents. Id. ¶ 3. Four days later, on August 12, 2022, John Solomon (“Solomon”), one of Trump's designated representatives for access to Presidential records of his administration pursuant to the Presidential Records Act, read a statement from Trump on television. D. 30-2 ¶¶ 34-35. The statement asserted that while Trump “often took documents, including classified documents, to the residence,” he “had a standing order that documents removed from the Oval Office and taken to the residence were deemed to be declassified the moment he removed them.” Id. ¶ 35. Later, Trump reiterated his statement as to the alleged declassification on social media, stating, “Number one, it was all declassified.” Id. ¶ 37. A few weeks later, on August 31, 2022, Trump stated on social media, “Terrible the way the FBI, during the Raid of Mar-a-Lago, threw documents haphazardly all over the floor (perhaps pretending it was me that did it!), and then started taking pictures of them for the public to see. Thought they wanted them kept Secret? Lucky I Declassified!” Id. Soon thereafter, several former Trump administration officials, including former National Security Advisor John Bolton, former United States Attorney General William Barr, and former White House Chiefs of Staff John Kelly and Mick Mulvaney, denied the existence of the Alleged Declassification Standing Order. Id. ¶ 38.

The FBI's criminal investigation is ongoing. D. 27-2 ¶ 5. On November 18, 2022, Attorney General Merrick Garland announced the appointment of Special Counsel Jack Smith (“Smith”) to oversee the investigation. D. 24-2, Declaration of Michael G. Seidel (“Seidel Decl.”) ¶ 5 n.1.

B. ACLUM's FOIA Requests

On August 15 and 16, 2022, the ACLUM submitted FOIA requests to the Department of Homeland Security (“DHS”), the National Geospatial-Intelligence Agency (“NGA”), and the National Reconnaissance Office (“NRO”), in addition to Defendants. D. 30-2 ¶ 16. These requests sought the production of:

1. The Alleged Declassification Standing Order.

2. Any written transmittal of the Alleged Declassification Standing Order from the Executive Office of the President of the United States to [the respective department or agency], including by letter, memoranda, or email.

3. All records created by [the respective department or agency] that were declassified pursuant to the Alleged Declassification Standing Order.

D. 27-2 ¶ 1.

In response to the FOIA request, in a letter dated September 8 2022, the NGA stated that an “extensive search of [NGA] records failed to identify any documents in our files that are responsive to your request.” D. 30-2 ¶ 17. On September 12, 2022, the DHS responded that, after a “comprehensive search of files with The Office of the Executive Secretary (ESEC) and the Office of the Chief Information Officer (OCIO),” it was “unable to locate or identify any responsive records.” Id. ¶ 18. On February 24, 2023, the NRO stated that “[after a thorough search” of its record and databases, it ...