Callimachi v. Fed. Bureau of Investigation

• Citation: 583 F.Supp.3d 70
• Decision Date: 28 January 2022
• Docket Number: Case No. 20-cv-1362 (TNM)
• Parties: Rukmini CALLIMACHI, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
• Court: U.S. District Court — District of Columbia

583 F.Supp.3d 70

Rukmini CALLIMACHI, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

Case No. 20-cv-1362 (TNM)

United States District Court, District of Columbia.

Signed January 28, 2022

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Matthew Topic, Loevy & Loevy, Chicago, IL, for Plaintiff.

Marsha Wellknown Yee, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

This case concerns government records about the death of Mihail Botez, a former

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Romanian ambassador to the United States. Botez's stepdaughter, Rukmini Callimachi, filed a Freedom of Information Act request with the Federal Bureau of Investigation for records about him. Disappointed with the FBI's response, Callimachi filed five more requests for records on other Romanian politicians and institutions. The FBI refused to even confirm or deny the existence of records responsive to those requests.

Callimachi then sued under FOIA. Although the FBI released more information relating to her original request, it still refused to confirm or deny the existence of other records. The parties have cross-moved for summary judgment. Because the Bureau has properly justified its responses, the Court will grant its motion and deny Callimachi's.

I.

Botez died in July 1995 in Bucharest.¹ He had been a "leading dissident" against Nicolae Ceaucescu, the longtime Communist ruler of Romania. Compl., Ex. A at 2, ECF No. 1-1.² After Ceaucescu's fall in 1989, Romania's new democratic government named Botez the ambassador to the United States. See id. He held that position until his death.

Callimachi is an "international investigative reporter for the New York Times. " Compl. ¶ 2. In 2019, she submitted a FOIA request (the Botez Request) to the FBI and the State Department for all records "mentioning or referring to" Botez. Compl., Ex. A at 2. The FBI released 51 pages of responsive records to Callimachi, but she administratively appealed, arguing that the Bureau had conducted an inadequate search and that all records should be fully disclosed. See Compl. ¶¶ 9–10. Callimachi's request for records on Botez comprises Count I of her Complaint. See id. ¶¶ 50–53.

One month after Callimachi appealed the FBI's first response, she filed five more FOIA requests. Those requests comprise the other counts in her Complaint. She requested records about Virgil Magureanu, the former head of the Romanian domestic intelligence service, see id. ¶¶ 14, 54–57 (Count II); Iulian Buga, the Romanian ambassador to the United States in the mid-2010s, see id. ¶¶ 21, 58–61 (Count III); and Ioan Talpes, the former head of the Romanian foreign intelligence service, see id. ¶¶ 28, 62–65 (Count IV). In her two final requests, Callimachi sought records on UM 0215 (Count V) and UM 0544 (Count VI), Romanian intelligence agencies from the country's Communist period. See id. ¶¶ 35, 43, 66–69, 70–73.

For those five requests, the FBI responded with what are known as "Glomar responses": refusals to confirm or deny the existence of the requested records. See Seidel Decl. ¶ 4 n.1, ECF No. 19-2. The FBI asserted that FOIA Exemptions 6 and 7(C) justified a Glomar response to the three requests for records on Magureanu, Buga, and Talpes. See Compl. ¶¶ 16, 23, 30. And for the requests about records on the intelligence services, the FBI cited Exemptions 1 and 3 for the Glomar response.

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See Compl. ¶ 37; Seidel Decl. ¶ 129.

After Callimachi filed her Complaint, the FBI identified 171 pages of records responsive to her Botez Request. See Seidel Decl., Ex. V (Vaughn Index) at 299, ECF No. 19-2. The FBI released 90 pages and completely withheld 81 pages. On many of the released pages, the FBI redacted information under various FOIA exemptions. See id.³ The FBI then filed for summary judgment, arguing that it had properly redacted information in the Botez records and that it had correctly asserted Glomar responses. See Defs.’ Mot., ECF No. 19-1. Callimachi filed her own cross-motion, arguing that the FBI had not properly asserted Glomar responses and challenging various aspects of the agency's actions on her Botez request. See Pl.’s Mot., ECF No. 21-1. Both motions are now ripe.⁴

II.

To prevail on a motion for summary judgment, a party must show that "there is no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a). FOIA generally requires "disclosure of documents held by a federal agency unless the documents fall within one of nine enumerated exemptions, which are listed at 5 U.S.C. § 552(b)." U.S. Fish and Wildlife Serv. v. Sierra Club, Inc. , ––– U.S. ––––, 141 S. Ct. 777, 785, 209 L.Ed.2d 78 (2021). An agency claiming an exemption bears the burden to show its applicability to the withheld information. See ACLU v. DOD , 628 F.3d 612, 619 (D.C. Cir. 2011). Courts review those determinations de novo. See King v. Dep't of Justice , 830 F.2d 210, 217 (D.C. Cir. 1987).

Sometimes, "the fact of the existence or nonexistence of agency records" itself falls within a FOIA exemption. Wolf v. CIA , 473 F.3d 370, 374 (D.C. Cir. 2007). When presented with that scenario, the agency may "refuse to confirm or deny the existence of records," id. , when admitting their existence "would itself cause harm cognizable" under FOIA, Roth v. DOJ , 642 F.3d 1161, 1178 (D.C. Cir. 2011) (cleaned up). This is known as a "Glomar response" after the CIA refused to divulge whether it had records about a ship called the Glomar Explorer. See Phillippi v. CIA , 546 F.2d 1009 (D.C. Cir. 1976). Agencies commonly make Glomar responses when "admission or denial could itself compromise national security." Mil. Audit Project v. Casey , 656 F.2d 724, 730 (D.C. Cir. 1981).

When reviewing a Glomar response, courts "apply the general exemption review standards established in non-Glomar cases." Knight First Amdt. Inst. at Columbia Univ. v. CIA , 11 F.4th 810, 813 (D.C. Cir. 2021). The agency thus bears the burden to justify a Glomar response. 5 U.S.C. § 552(a)(4)(B).

To meet both its Glomar burden and its burden on exemptions, an agency may rely on affidavits. See Shapiro v. Dep't of Justice , 893 F.3d 796, 799 (D.C. Cir. 2018). Those affidavits receive "a presumption of good faith." SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991). The Court may grant summary judgment based on the agency's affidavits alone if they are not contradicted by record evidence or by evidence of the agency's bad faith. See Aguiar v. DEA , 865 F.3d 730, 734–35 (D.C. Cir. 2017). Most FOIA cases are decided at this stage.

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AARC v. CIA , 317 F. Supp. 3d 394, 399 (D.D.C. 2018), aff'd , 781 F. Appx. 11 (D.C. Cir. 2019) (per curiam) (unpublished).

III.

The Court first analyzes the FBI's Glomar responses. Callimachi challenges the FBI's Glomar response for records related only to Magureanu (Count II), Talpes (Count IV), and UM 0215 (Count V).

A.

She first argues that those responses are "implausible" because of "the historical context and events surrounding Magureanu, Talpes, and UM 0215" and their "key roles ... in the events leading up to and immediately following the Romanian Revolution of 1989." Pl.’s Reply at 5, ECF No. 25. In fact (she contends) "it would be a scandal" if the FBI lacked any responsive records on those subjects. Pl.’s Mot. at 10.

Callimachi also asserts that other releases show the existence of FBI records. Talpes told a Romanian newspaper in 2011 that as head of the Romanian intelligence service he met the FBI director. See Declaration of Rukmini Callimachi ¶ 9, Pl.’s Mot., Ex. G, ECF No. 21-8. The two discussed Romanian spies remaining in the United States. See id. ¶¶ 9–17. Callimachi extrapolates from this story that the FBI must have records on Talpes. See Pl.’s Mot. at 10. As for Magureanu and UM 0215, she cites a document released through an Illinois state FOIA request. See Pl.’s Mot., Ex. F, ECF No. 21-7. That document is on what appears to be FBI letterhead and mentions Magureanu and UM 0215. See id. at 3. Based on this discussion of Magureanu and UM 0215 "in [the FBI's] own records already in full public view," Callimachi says the FBI's Glomar response "strains credulity." Pl.’s Mot. at 10.

At first blush, Callimachi's arguments appear to assert that the FBI has "already disclosed the fact of the existence (or nonexistence) of responsive records." ACLU v. CIA , 710 F.3d 422, 427 (D.C. Cir. 2013). If those documents establish the existence of records, then the FBI's Glomar responses would fail. See id. "Indeed, when information has been officially acknowledged, its disclosure may be compelled" over a Glomar response. Wolf , 473 F.3d at 378 (cleaned up).

But Callimachi disclaims any "official acknowledgment" argument.⁵ See Pl.’s Reply at 4 ("Plaintiff does not argue that information released by the Chicago Police Department revealing FBI records discussing Magureanu and UM 0215 or statements made by Talpes about his

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meetings with FBI officials constitute official acknowledgement."). Callimachi's argument thus boils down to the following proposition: The FBI must have records on these subjects because it has a "clear" interest, Pl.’s Mot. at 10, in "historical events and foreign intelligence operatives," Pl.’s Reply at 5.

Callimachi cites no precedent supporting this argument. True, she relies on ACLU v. CIA , 710 F.3d 422, 431 (D.C. Cir. 2013), for the proposition that an agency's Glomar response must be "plausible." See Pl.’s Reply at 5. But ACLU is about official acknowledgement, the exact argument Callimachi rejects.

ACLU considered whether the CIA could assert a Glomar response for records about drone strikes against targeted individuals. 710 F.3d at 425–26. The CIA had said that revelation of the existence of those records would reveal the CIA's intelligence interest in drone strikes. See id. at 430. That was the "only reason" given by the agency. Id. On appeal, the ACLU argued only that the CIA had already officially...