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

• Citation: 298 F.Supp.3d 124
• Decision Date: 23 February 2018
• Docket Number: 17–1175,Civil Action Nos. 17–1167,17–1212,17–1830 (JEB),17–1189
• Parties: CABLE NEWS NETWORK, INC., Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, Defendant. (And Consolidated Cases)
• Court: U.S. District Court — District of Columbia

298 F.Supp.3d 124

CABLE NEWS NETWORK, INC., Plaintiff,

v. FEDERAL BUREAU OF INVESTIGATION, Defendant.(And Consolidated Cases)

Civil Action Nos. 17–1167

17–1175

17–1189

17–1212

17–1830 (JEB)

United States District Court, District of Columbia.

Signed February 23, 2018

Paul J. Orfanedes, Judicial Watch, Inc., Washington, DC, for Plaintiff.

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

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

These five consolidated cases pertain to Freedom of Information Act requests by assorted media and non-profit organizations, mainly seeking any memoranda prepared by former Federal Bureau of Investigation Director James Comey about his conversations with President Donald Trump. On February 2, 2018, this Court granted a partial Motion for Summary Judgment in favor of Defendants FBI and Department of Justice, holding that the Government was not required to disclose the Memos. See Cable News Network, Inc. v. FBI, 293 F.Supp.3d 59, 2018 WL 692921 (D.D.C. Feb. 2, 2018). Defendants now seek to get rid of the little that remains: requests from a group of reporters and organizations (collectively, USA Today) and from Freedom Watch, Inc. for documents related to the memos about Trump and for any memos by Comey (or related documents) about other specific prominent figures. Finding that a valid exemption again shields most of the information from release, the Court will largely grant the Motion.

I. Background

As the prior Opinion provides the full background, id. at 64–67, 2018 WL 692921 at *1–2, the Court only briefly recites some essential facts here. On May 9, 2017, the President fired Comey as Director of the FBI. Id. at 64–65, 2018 WL 692921 at *1. One week later, Acting Attorney General Rod Rosenstein appointed Robert Mueller as Special Counsel to investigate "(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a)." Id. at 69, 2018 WL 692921 at *5 (quoting DOJ Order No. 3915–2017 (May 17, 2017) ).

The day before Mueller was appointed, the New York Times published a report about an earlier meeting between then-Director Comey and the President, claiming to rely on a contemporaneous memo written by Comey. Id. at 69–70, 2018 WL 692921 at *5. Following that story, it soon came out that the former Director had "[c]reat[ed] written records immediately after one-on-one conversations with" Trump. Id. at 66, 2018 WL 692921 at *1 (citation omitted). With that revelation, the "Comey Memos" entered the American lexicon and, subsequently, this Court's docket. Five Plaintiffs submitted FOIA requests to the FBI and/or DOJ seeking the Memos. In addition, USA Today and Freedom Watch sought other records related to the former Director. USA Today requested from both the FBI and DOJ "[a]ny records reflecting discussions" between Comey and FBI or DOJ staff regarding the Comey Memos. Gannett Satellite Info. Network, LLC v. DOJ, No. 17–1175, ECF No. 9 (Amended Complaint), ¶ 27. Freedom Watch asked the FBI for all documents and records that "relate in any way to any memoranda prepared, written and/or issued by former FBI Director James Comey concerning Barack Obama, Hillary Clinton, Bill Clinton, Lieutenant General Michael Flynn, and President Donald Trump." Freedom Watch v. DOJ, No. 17–1212, ECF No. 1, Exh. A at 2. Defendants and the Court have construed that latter request to include (1) the Comey Memos themselves; (2) other records that relate to the Memos; and (3) any Comey-penned memoranda or related documents concerning Obama, the Clintons, or Flynn. The Government denied all of Plaintiffs' requests, claiming that release of any responsive documents would interfere with the Special Counsel's investigation.

Undeterred, Plaintiffs separately brought suit, which the Court consolidated. See Minute Order of July 26, 2017. In October 2017, Defendants moved for partial summary judgment only as to the requests for the actual Comey Memos. See ECF No. 22. In addition to the briefing, the Court reviewed the Memos themselves in camera , conducted a sealed, on-the-record ex parte proffer session with a member of the Special Counsel's Office, and received an ex parte declaration from the Government detailing how the Comey Memos related to the ongoing Russia investigation. CNN, 293 F.Supp.3d at 64–65, 67–68, 2018 WL 692921, at *1, *3. Ultimately, the Court determined that the Government had carried its burden to show that release of the Memos "could reasonably be expected to interfere" with the Special Counsel's investigation, id. at 71, 2018 WL 692921 at *7 (quoting 5 U.S.C. § 552(b) ( (7)(A) ), and "at least for now, [they would] remain in the hands of the Special Counsel and not the public." Id. at 65, 2018 WL 692921 at *1.

The Government now seeks summary judgment on the remaining portion of Plaintiffs' FOIA suits—namely, documents related to the Comey Memos (USA Today) as well as Comey memoranda and related documents concerning other specific individuals (Freedom Watch). In support of their Motion, Defendants each filed two public declarations, and the FBI also sought leave to submit an ex parte declaration, which the Court granted. See ECF Nos. 45, Exhs. A, B; 46; Minute Order of February 13, 2018. Additionally, the Court ordered the Bureau to submit the three withheld pages for in camera review. See Minute Order of February 13, 2018. Briefing on these issues is now complete, though only USA Today responded to the Government's Motion.

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) ; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is "material" if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 ; Holcomb, 433 F.3d at 895. A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 ; Holcomb, 433 F.3d at 895. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion" by "citing to particular parts of materials in the record" or "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

FOIA cases typically are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, the Court may accept an "agency's affidavits, without pre-summary judgment discovery, if the affidavits are made in good faith and provide reasonably specific detail concerning the methods used to produce the information sought." Broaddrick v. Exec. Office of the President, 139 F.Supp.2d 55, 64 (D.D.C. 2001). "Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citation omitted). "Summary judgment may not be appropriate without in camera review," however, "when agency affidavits in support of a claim of exemption are insufficiently detailed." Armstrong v. Exec. Office of the President, 97 F.3d 575, 578 (D.C. Cir. 1996). In such a circumstance, "district court judges [have] broad discretion in determining whether in camera review is appropriate." Id. at 577–78.

III. Analysis

As with most FOIA cases, the Court must answer two central questions: did the Government adequately search for the requested documents, and did the FBI lawfully withhold three pages of responsive material? Although USA Today does not contest that the search was adequate, see Opp. at 1 n.1, because Freedom Watch chose not to respond at all to the Government's Motion, the Court is in the odd position of having to nonetheless consider the search. This is so because the Court of Appeals recently forbade district courts from regarding the failure to even respond as a concession. See Winston & Strawn, LLP v. McLean, 843 F.3d 503, 506 (D.C. Cir. 2016).

A. Adequacy of Search

"An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’ " Valencia–Lucena v. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990) ); see also Steinberg v. DOJ, 23 F.3d 548, 551 (D.C. Cir. 1994). The Government may do so through affidavit. See Oglesby v. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The adequacy of an agency's search for documents under FOIA "is judged by a standard of reasonableness and depends, not surprisingly, upon the facts of each case." Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984).

Here, the FBI's Records Management Division first determined that any responsive records "would likely be found either in hard copy within the collection of former Director Comey's records that were inventoried and stored in FBI Headquarters ... or in his e-mails." MSJ, Exh. A (Third Declaration of David M. Hardy), ¶ 22. The agency used an inventory to search the hard-copy records and found...