Poulsen v. Dep't of Def.

• Citation: 373 F.Supp.3d 1249
• Decision Date: 22 March 2019
• Docket Number: Case No. 17-cv-03531-WHO
• Court: U.S. District Court — Northern District of California
• Parties: Kevin POULSEN, Plaintiff, v. DEPARTMENT OF DEFENSE, et al., Defendants.

373 F.Supp.3d 1249

Kevin POULSEN, Plaintiff,

v.DEPARTMENT OF DEFENSE, et al., Defendants.

Case No. 17-cv-03531-WHO

United States District Court, N.D. California.

Signed March 22, 2019

Beth Louise Feinberg, William Gordon Kaupp, Kaupp & Feinberg, LLP, San Francisco, CA, Colleen Flynn, Attorney at Law, Los Angeles, CA, for Plaintiff.

Amy Powell, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER ON PENDING MOTIONS

Re: Dkt. Nos. 48, 50, 66

William H. Orrick, United States District JudgeKevin Poulsen seeks documents regarding electronic surveillance of President Donald J. Trump or any of his advisors during the 2016 election campaign through the Freedom of Information Act (FOIA). Poulsen contends that the government has waived any the right to issue a Glomar response – refusing to confirm or deny the existence of responsive documents – because of a number of statements by members of the government regarding allegations of, and in one limited instance confirmation of, electronic surveillance conducted during that time.

After reviewing the government agencies' justifications for their continued assertion of Glomar in the publicly filed declarations from each agency and two classified submissions, I find that the government has demonstrated substantial grounds to maintain the Glomar responses to everything except the documents necessarily covered by the limited public acknowledgment of the electronic surveillance of Carter Page. Reviewing the justifications for redacting and withholding with respect to that limited set of acknowledged documents, the government has adequately justified its redactions and withholdings. Accordingly, ODNI and NSA's cross-motion for summary judgment is GRANTED, Poulsen's motion for summary judgment as to ODNI and NSA is DENIED, and the motion for summary judgment by NSD, OLC, and the FBI is GRANTED.

BACKGROUND

I. FOIA REQUESTS AND INITIAL RESPONSES

On March 4, 2017, Poulsen submitted a series of similar FOIA requests to various agencies of the federal government ("Requests"), seeking release of records concerning the United States' electronic surveillance of President Donald J. Trump or any of his advisors during the 2016 election campaign. The Requests were submitted to the FOIA offices of: (i) the National Security Agency (NSA, a component of the Department of Defense); (ii) the Office of the Director of National Intelligence (ODNI); (iii) the Federal Bureau of Investigations (FBI, a component of the Department of Justice (DOJ) ); (iv) Office of Legal Counsel (OLC, a component of the DOJ); and (v) the National Security Division (NSD, a component of the DOJ) (collectively "Agencies").

The Requests sought "records concerning the United States' alleged electronic surveillance of Donald J. Trump during the 2016 election campaign," and as background identified a series of comments President Trump made through the social media platform Twitter on March 4, 2017, discussing that purported electronic surveillance. Although Poulsen used slightly different terms for some of the Agency Requests, he generally requested release of the following categories of records:

1. Legal analyses, memorandum, court orders, meeting notes, calendar entries, presentation slides, petitions, applications, motions and appeal briefs held by FBI concerning, planning or seeking authorization for electronic surveillance, by a U.S. government agency or contractor, of the oral, electronic or digital communications of Donald J. Trump or any of his advisors between June 16, 2015 and November 8, 2016

2. Reports, e-mail, affidavits and documents held by FBI concerning or derived from such surveillance or anticipated surveillance

3. Recordings produced from such surveillance, including audio or video recordings and data files

4. Metadata captured from such surveillance, including but not limited to email headers and timestamps

5. Transcripts of such intercepted communications

6. Entries pertaining to such surveillance found in FBI databases, including but not limited to the FBI's ELSUR Data Management System and the FBI's Case Management System

Declaration of W. Gordon Kaupp, Ex. A (Dkt. No. 68-2, FBI), Ex. B. (Dkt. No. 68-3, NSD/OLC); see also Declaration of W. Gordon Kaupp Dec. (Dkt. No. 48-1), Ex. H (NSA), Ex. I (ODNI).¹

In each of his Requests, Poulsen asked for expedited processing under 5 U.S.C. § 552(a)(6)(E)(v)(II) on the grounds of an "an urgency to inform the public concerning an actual or alleged Federal Government activity ... made by a person primarily engaged in disseminating information." Compl. ¶ 19. Poulsen also sought fee waivers (for search, review, and copying) under 5 U.S.C. § 552(a)(4)(A)(ii)(II) and 28 C.F.R. § 16.10(k)(1) on the grounds that he qualifies as a "representative of the news media" and because the records are not sought for commercial use. Id. ¶ 20.

II. AGENCY RESPONSES

The Agencies responded at different times with slightly different responses.

NSA Response

On March 24, 2017, the NSA invoked Exemption 1 under FOIA (protecting classified information) and issued a Glomar response, stating that it would neither confirm nor deny the existence of the records sought. The NSA also invoked Exemption 3 and claimed it was withholding information specifically protected from disclosure by statute citing 18 U.S.C. § 798 ; 50 U.S.C. § 3024 ; 50 U.S.C. § 3605. The NSA admitted that it had not conducted any search and had not made a determination concerning Poulsen's request for fee waiver as a representative of the news media. That same day, Poulsen appealed the NSA's denial of the Request.

On April 25, 2017, the NSA denied Poulsen's appeal. See Declaration of David Sherman (Dkt. No. 31-8), at ECF pgs. 23-25, 29-30.

ODNI Response

On March 15, 2017, the ODNI granted Poulsen's request for a fee waiver and denied his request for expedited processing. On March 27, 2017, Poulsen appealed the ODNI's denial of expedited processing and on April 13, 2017, the ODNI reversed its decision to deny expedited processing of the Request. However, as of June 19, 2017 – the date the Complaint was filed – the ODNI had not made any determination concerning the Request, processed the Request, or produced any records. See Declaration of Patricia Gaviria (Dkt. Nos. 31-6, 31-7), Ex. C. Eventually, ODNI provided a substantive response, invoking Glomar as well as Exemptions 1 and 3, consistent with NSA's response. Gaviria Decl., ¶ 16.

FBI Response

On April 4, 2017, the FBI issued a formal Glomar response, refusing to confirm or deny the existence of any responsive records. On April 28, 2017, the DOJ's Office of Information Privacy (OIP) affirmed the FBI's determination and invocation of Glomar . Declaration of David Hardy (Dkt. No. 31-1), ¶¶ 10, 12 & Exs. D, F.

NSD Response

On March 17, 2017, the NSD issued a formal Glomar response, refusing to confirm or deny the existence of any responsive records. The assertion of Glomar was affirmed by DOJ's OIP on August 2, 2017. Declaration of G. Weinsheimer (Dkt. Nos. 31-2, 31-3), Exs. B, D.

OLC Response

OLC had not made a formal determination by the time this case was filed. But issued its Glomar response on November 17, 2017. Declaration of Paul Colborn (Dkt. Nos. 31-4, 31-5), Ex. C.

III. FILING AND PROCEDUAL POSTURE OF THIS CASE

Poulsen, contending the Agencies' responses were either untimely or legally deficient, filed this suit on June 19, 2017. In November 2017, the government moved for summary judgment to confirm the adequacy of each Agency's response. Dkt. No. 31. In support of that motion, each of the Agencies either affirmed or stated in the first instance that they would rely on Glomar to refuse to confirm or deny the existence of responsive records.

However, due to subsequent disclosures by governmental individuals regarding part of the subject matter covered by Poulsen's Requests, the government moved to withdraw the motion for summary judgment so that each Agency could determine whether the disclosures "impacted" their response and whether documents responsive to the request could be acknowledged or produced. Dkt. No. 42. Poulsen objected, but I granted the government's request due to concerns of efficiency and orderly adjudication. However, NSA and ODNI represented that their FOIA responses were not impacted by the disclosures, and they intended to stick with their full Glomar responses. Therefore, I directed the parties to file cross-motions for summary judgment on the FOIA responses by NSA and ODNI, while the other Agencies were given time to finish their consideration of the impact of the public disclosures. Dkt. No. 46. The cross-motions with respect to NSA and ODNI were filed and have been pending since September 5, 2018.

On November 11, 2018, the remaining agencies – NSD, OLC, and the FBI – filed their motion for summary judgment. Poulsen responded on December 7, 2018. In that motion, the government admits that there were two "public acknowledgements" relevant to Poulsen's FOIA Requests.

The first acknowledgement was in the March 20, 2017 Congressional testimony of then-FBI Director James B. Comey, where Comey confirmed that the FBI had (in July 2016) opened an investigation of "the Russian government's efforts to interfere in the 2016 Presidential election[.]" Third Declaration of David M. Hardy (3^rd Hardy Decl., Dkt. No. 66-1) ¶ 12 & n.2. As part of his testimony, and the "public acknowledgment" that the FBI admits narrowly waived part of its initial Glomar defense, Comey admitted that the FBI had no records of alleged wiretapping of then-candidate Trump in Trump Tower by the Obama Administration prior to the 2016 presidential election (as referenced in President Trump's Twitter post on March 4, 2017). Id. ¶ 8.

The second acknowledgement resulted from the President's declassification of a memorandum prepared by staff of the House Permanent Select Committee on Intelligence ("HPSCI," the "Nunes Memo") and the subsequent release of a different memorandum prepared by certain HPSCI...