Cable News Network, Inc. v. Fed. Bureau of Investigation

• Decision Date: 07 June 2019
• Docket Number: Civil Action No. 17-1167 (JEB)
• Citation: 384 F.Supp.3d 19
• Parties: CABLE NEWS NETWORK, INC., Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.
• Court: U.S. District Court — District of Columbia

384 F.Supp.3d 19

CABLE NEWS NETWORK, INC., Plaintiff,

v.FEDERAL BUREAU OF INVESTIGATION, Defendant.

Civil Action No. 17-1167 (JEB)

United States District Court, District of Columbia.

Signed June 7, 2019

Charles D. Tobin, Ballard Spahr LLP, Bradley Prescott Moss, Mark Steven Zaid, Law Offices of Mark S. Zaid, P.C., Paul J. Orfanedes, Michael Bekesha, Judicial Watch, Inc., Larry E. Klayman, Klayman Law Group, P.A., Washington, DC, for Plaintiff.

Carol Federighi, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

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 for 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 ), 298 F. Supp. 3d 124, 125–27 (D.D.C. 2018) ; Cable News Network, Inc. v. FBI (CNN II ), 293 F. Supp. 3d 59, 65–67, 69–70 (D.D.C. 2018) ; Cable News Network, Inc. v. FBI (CNN I ), 271 F. Supp. 3d 108, 110 (D.D.C. 2017).

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, 293 F. Supp. 3d at 66 (citation omitted). After Trump fired Comey from his post, the existence of these records did not stay secret. Within a week, a New York Times story catapulted the Memos to the forefront of public consciousness, galvanizing CNN and others to seek their release. Id. at 65–66. As a means to get its hands on these written narratives, CNN employed a well-known tool: the Freedom of Information Act, 5 U.S.C. § 552 et seq. Unhappy with the Government's rebuff of its request, Plaintiff filed suit here.

Unmoved, the FBI invoked a slew of FOIA exemptions, including 1, 3, 6, 7(C), and 7(E). See CNN II, 293 F. Supp. 3d at 69. Most notably, however, Defendant relied on the protection of Exemption 7(A), which shields documents whose release "could reasonably be expected to interfere with enforcement proceedings," 5 U.S.C. § 552(b)(7)(A) — namely, the then-nascent Special Counsel's investigation into Russian interference in the 2016 presidential election. To aid the Court in understanding why release could obstruct the investigation, the Government submitted two declarations from FBI Special Agent David W. Archey in camera . See CNN II, 293 F. Supp. 3d at 66–67. It also provided additional explanation in a sealed, on-the-record proceeding. Id. at 67. Digesting this material and thereafter agreeing that the pendency of the investigation shielded the Memos from release, the Court granted Defendant's motion for summary judgment. Id. at 77. "[T]he Comey Memos," the Court said, "at least for now, will remain in the hands of the Special Counsel and not the public." Id. at 65. In making this decision, the Court relied on Exemption 7(A) only, without passing on the merit of the FBI's other claimed exemptions. Id. at 69.

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 front 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, 2018 WL 3868760, at *1 (D.C. Cir. Aug. 8, 2018). With the ball now back in this Court, the facts on the ground stand thus: the vast majority of the Memos have been publicly released, but some minor redactions remain.

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 exemption — 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. Id.

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...