Judicial Watch v. U.S. Dep't of Justice
| Decision Date | 25 November 2020 |
| Docket Number | Civil Action No. 18-cv-2107 (TSC) |
| Parties | JUDICIAL WATCH, INC Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant. |
| Court | U.S. District Court — District of Columbia |
In this Freedom of Information Act (FOIA) suit, Plaintiff Judicial Watch, Inc. seeks summaries of interviews the Federal Bureau of Investigation (FBI) conducted with Bruce Ohr, Director of the Department of Justice's (DOJ) Organized Crime Drug Enforcement Task Force. The FBI memorialized the interviews in documents referred to as FD-302s. The FBI initially denied Judicial Watch's requests for twelve FD-302s related to the Ohr interviews, but eventually released redacted versions pursuant to various FOIA exemptions. Judicial Watch challenges three of these exemptions.
Both sides have moved for summary judgment. For the reasons set forth below, the court will GRANT DOJ's Motion for Summary Judgement, (ECF No. 20), and DENY Judicial Watch's Cross-Motion for Summary Judgement. (ECF No. 23.)
Starting on November 22, 2016, the FBI interviewed Ohr as part of its investigation into possible Russian interference in the 2016 election. (ECF No. 20-3, Hardy Decl. ¶¶ 27, 12 n.3.) On August 6, 2018, Judicial Watch submitted a FOIA request to the FBI seeking twelve of the FD-302s associated with Ohr. (Id. Ex. A, at 26.)1
By letter dated March 15, 2019, the FBI informed Judicial Watch that the responsive records were being "withheld in [their] entirety . . . pursuant to subsections (b)(7)(A), (b)(1), (b)(3) [50.U.S.C. §3024 (i)(1)], (b)(5), (b)(6), (b)(7)(C), (b)(7)(D), and (b)(7)(E)" of FOIA. (Id. Ex. C, at 32.)
Following the March 7, 2019 release of the Office of the Special Counsel's "Report on the Investigation into Russian Interference in the 2016 Presidential Election," the FBI informed Judicial Watch on August 8, 2019, that it would produce portions of the records sought in Judicial Watch's FOIA request. (Id. Ex. D, at 35.) The FBI ultimately released all twenty-one pages of the requested FD-302s to Judicial Watch with redactions made pursuant to FOIA Exemptions 1, 3, 6, 7(A), 7(C), 7(D), and 7(E). (Id.)
Judicial Watch challenges the DOJ's invocation of Exemptions 3, 7(D), and 7(E). In support of its motion, the DOJ has submitted a declaration from David M. Hardy, the Section Chief of the Record/Information Dissemination Section in the Information Management Division of the FBI, explaining the FBI's basis for the exemptions. (Hardy Decl. ¶ 1.)
Summary judgment is proper where the record shows there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298F.3d 989, 991 (D.C. Cir. 2002). "A fact is 'material' if a dispute over it might affect the outcome of a suit under governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). "An issue is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Holcomb, 433 F.3d at 895. Courts must view "the evidence in the light most favorable to the non-movant[ ] and draw[ ] all reasonable inferences accordingly," and determine whether a "reasonable jury could reach a verdict" in the non-movant's favor. Lopez v. Council on Am.-Islamic Rel. Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016).
Most FOIA cases are resolved on motions for summary judgment. Brayton v. Off. of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). FOIA "was enacted to facilitate public access to Government documents" and "was designed to 'pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.'" Citizens for Resp. & Ethics in Wash. (CREW) v. Dep't of Just., 746 F.3d 1082, 1088 (D.C. Cir. 2014) (quoting Dep't of State v. Ray, 502 U.S. 164, 173 (1991)). Under FOIA, a government agency, "upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . , shall make the records promptly available to any person." Id. at 1087 (quoting 5 U.S.C. § 552(a)(3)(A)). Federal agencies must comply with requests and make their records available to the public unless such information falls within one of nine statutory exemptions. 5 U.S.C. §§ 552(a)-(b).
"The agency bears the burden of establishing that a claimed exemption applies." CREW, 746 F.3d at 1088 (citing Dep't of Just. v. Reps. Comm. for Freedom of the Press, 489 U.S. 749,755 (1989)). To meet this burden, the agency may rely on supporting declarations that are reasonably detailed and non-conclusory. See King v. Dep't of Just., 830 F.2d 210, 218-19 (D.C. Cir. 1987) (). "If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith," then the court may enter summary judgment on the basis of the affidavit alone. ACLU v. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted).
Relying on FOIA Exemption 3, DOJ made redactions to protect information pertaining to intelligence sources and methods. (Hardy Decl. ¶¶ 17-26.)
Exemption 3 permits agencies to withhold information if disclosure is prohibited by another statute that either "requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue" or "establishes particular criteria from withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3)(A)(i)-(ii). To qualify as a withholding statute for purposes of FOIA Exemption 3, a statute "must, on its face, exempt matters from disclosure." Reps. Comm. for Freedom of Press v. Dep't of Just., 816 F.2d 730, 735 (D.C. Cir. 1987), modified on other grounds, 831 F.2d 1124 (D.C. Cir. 1987), rev'd on other grounds, 489 U.S. 749 (1989).
Here, the FBI relies on Section 102A(i)(1) of the National Security Act of 1947, 50 U.S.C. § 3024(i)(1), to withhold information on each requested FD-302. It is well establishedthat Section 102A(i)(1) of the National Security Act—which expressly protects "intelligence sources and methods from unauthorized disclosure," 50 U.S.C. § 3024(i)(1) "is a withholding statute for purposes of Exemption 3." Brick v. Dep't of Just., 358 F. Supp. 3d 37, 47-48 (D.D.C. 2019) (citing CIA v. Sims, 471 U.S. 159, 167 (1985); DiBacco v. U.S. Army, 795 F.3d 178, 197 (D.C. Cir. 2015)).2 An agency invoking Exemption 3 need only demonstrate that the withheld material "relates to intelligence sources and methods," Larson v. Dep't of State, 565 F.3d 857, 868-69 (D.C. Cir. 2009), or "can reasonably be expected to lead to unauthorized disclosure of" such material. Halperin v. CIA, 629 F.2d 144, 147 (D.C. Cir. 1980) (citation omitted). Accordingly, courts "consistently defer[] to executive affidavits predicting harm to national security, and have found it unwise to undertake searching judicial review." Ctr. for Nat'l Sec. Stud. v. Dep't of Just., 331 F.3d 918, 927 (D.C. Cir. 2003). Whether Exemption 3 applies "depends less on the detailed factual contents of specific documents." Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978). Rather, "the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within that statute's coverage." Id.
In his declaration, Hardy explains that the information redacted pursuant to Exemption 3 discusses targets of foreign intelligence or espionage investigations, human intelligence sources, human intelligence source symbols, detailed intelligence activities, and file numbers. (Hardy Decl. ¶¶ 18-26.)3 It is not difficult to see how releasing such information could endanger national security or the efficacy and safety of intelligence operatives in the field. For instance,Hardy explains that disclosing targets of foreign counterintelligence or detailed intelligence activities would "(a) reveal the actual intelligence activity or method utilized by the FBI against a specific target; (b) disclose the intelligence-gathering capabilities of the method; and (c) provide an assessment of the intelligence source penetration of a specific target during a specific period of time." (Id. ¶¶ 21, 24.) Disclosure would hamper the agency's ability to conduct investigations by "present[ing] a bona fide opportunity for individuals to develop and implement countermeasures, resulting in the loss of significant intelligence information, sources, and methods relied upon by national policymakers." (Id. ¶ 20 n.6.)
These concerns—and the detail provided in the declaration—are sufficient to warrant withholding under Exemption 3. See, e.g., Cable News Network, Inc. v. FBI (CNN), 384 F. Supp. 3d 19, 31 (D.D.C. 2019) (); McGehee v. Dep't of Just., 362 F. Supp. 3d 14, 20 (D.D.C. 2019) (...
To continue reading
Request your trial