Prop. of the People, Inc. v. Dep't of Justice

• Decision Date: 24 September 2019
• Docket Number: No. 17-cv-1728 (EGS),17-cv-1728 (EGS)
• Citation: 405 F.Supp.3d 99
• Parties: PROPERTY OF THE PEOPLE, INC., et al., Plaintiffs, v. DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — District of Columbia

405 F.Supp.3d 99

PROPERTY OF THE PEOPLE, INC., et al., Plaintiffs,

v.DEPARTMENT OF JUSTICE, Defendant.

No. 17-cv-1728 (EGS)

United States District Court, District of Columbia.

Signed September 24, 2019

Jeffrey Louis Light, Law Offices of Jeffrey Light, Washington, DC, for Plaintiffs.

Kenneth A. Adebonojo, Fred Elmore Haynes, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge Plaintiffs Property of the People, Inc., a non-profit organization, and its founder, Ryan Noah Shapiro, bring this lawsuit against the United States Department of Justice ("DOJ") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiffs seek records from the Federal Bureau of Investigation ("FBI")—a component of DOJ—concerning its investigative and non-investigative files of a former Congressman who publicly confirmed that the FBI warned him that Russian spies were attempting to recruit him. Pending before the Court are the parties' cross-motions for summary judgment. Upon careful consideration of the parties' submissions, the applicable law, and the entire record, the Court GRANTS IN PART and DENIES IN PART Defendant's Renewed Motion for Summary Judgment and GRANTS IN PART, DENIES IN PART , and HOLDS IN ABEYANCE IN PART Plaintiffs' Cross-Motion for Summary Judgment. The Court DEFERS ruling on the issues of segregability and the applicability of the "official acknowledgement" doctrine with respect to certain redactions.

I. Background

On May 19, 2017, the New York Times published an article stating that, in 2012, the FBI warned former Congressman Dana Rohrabacher of California that Russian spies were attempting to recruit him as an "agent of influence." Pls.' Ex. 1, ECF No. 26-3 at 3; see also Pls.' Statement of Material Facts ("Pls.' SOMF"), ECF No. 26-1 at 1 ¶ 1.¹ In an interview for the article, Congressman Rohrabacher confirmed that the FBI met with him and that "meeting had focused on his contact with one member of the Russian Foreign Ministry, whom he recalled meeting on a trip to Moscow." Pls.' SOMF, ECF No. 26-1 at 1 ¶ 1. The article includes a quote from Congressman Rohrabacher, stating that the FBI agents "were telling [him that] he had something to do with some kind of Russian intelligence" and one of the agents told him that "Moscow ‘looked at [him] as someone who could be influenced.’ " Id. 1 ¶ 2; see also Pls.' Ex. 5, ECF No. 26-3 at 16 ("[Congressman] Rohrabacher has been of value to the Kremlin, so valuable in recent years that the F.B.I. warned him in 2012 that Russia regarded him as an intelligence source worthy of a Kremlin code name.").²

On May 20, 2017, Plaintiffs submitted a FOIA request to the FBI, seeking: "Any and all records constituting, mentioning, or referring to the living person Dana Tyrone Rohrabacher .... This request is intended to include both investigative and non-investigative files (e.g. correspondence to or from Rep. Rohrabacher in his capacity as a member of Congress)." Ex. A, Decl. of Michael G. Seidel ("Seidel Decl."), ECF No. 24-1 at 45 (emphasis in original). Plaintiffs attached the New York Times article to their request, and they explained that Congressman Rohrabacher "is known for his friendship with Vladimir Putin and defense of Russia." Id. at 46. Plaintiffs asserted that Congressman Rohrabacher waived his privacy interests because he publicly disclosed the 2012 meeting. Id. Upon receipt of the FOIA request, the FBI declined to confirm or deny the existence of any investigative records—in FOIA terms, a Glomar response—to protect the privacy rights of third parties. Def.'s Statement of Material Facts ("Def.'s SOMF"), ECF No. 24 at 6 ¶¶ 13-15.³

In its Glomar response, the FBI advised Plaintiffs that it could not confirm or deny the existence of any other records pertaining to Congressman Rohrabacher unless one of three conditions were met: "(1) the requester provides a notarized authorization (privacy waiver) from the third party, (2) the requester provides proof of death, or (3) the requestor demonstrates a public interest in the records sufficient to outweigh the third party's individual privacy rights." Id. at 6 ¶ 13. Subsequently, the FBI modified its Glomar response, determined that Congressman Rohrabacher waived his privacy interests by making public statements about the 2012 meeting, and conducted a search for responsive records. Seidel Decl., ECF No. 24-1 at 9-10 ¶ 18.

The FBI used its databases—the Central Records System ("CRS"), the Universal Index ("UNI") application of the Automated Case Support ("ACS") system, and the next generation case management system ("Sentinel")—for the initial search. Def.'s SOMF, ECF No. 24 at 7-8 ¶¶ 22-23, 8 ¶¶ 24-26. The FBI crafted search terms, including "Dana Tyrone Rohrabacher," "Dana T. Rohrabacher," and "Dana Rohrabacher," and the FBI used Congressman Rohrabacher's date of birth and other personal identifying information. Seidel Decl., ECF No. 24-1 at 17-18 ¶ 35. The FBI contacted its Office of Congressional Affairs, the Washington Field Office, and the Office of the Executive Secretariat to find responsive records. Def.'s SOMF, ECF No. 24 at 8 ¶ 29, 9 ¶ 31; see also Seidel Decl., ECF No. 24-1 at 17 ¶ 34. The FBI searched the internal databases of the Office of Congressional Affairs and the Office of the Executive Secretariat. See Seidel Decl., ECF No. 24-1 at 21 ¶ 42; see also Decl. of David M. Hardy ("Hardy Decl."), ECF No. 30-1 at 10 ¶ 17. Unsatisfied, Plaintiffs challenged the adequacy of the searches. Seidel Decl., ECF No. 24-1 at 19 ¶ 38.

Following an administrative appeal of a fee waiver, Id. at 4 ¶ 9, Plaintiffs filed this action on August 24, 2017. See generally Compl., ECF No. 1. The FBI released 230 responsive pages pertaining to Congressman Rohrabacher between January and March 2018, and 29 pages in November 2018. See, e.g. , Def.'s SOMF, ECF No. 24 at 5 ¶¶ 6-10; Pls.' Resp. to Def.'s SOMF, ECF No. 25-1 at 2-3; Seidel Decl., ECF No. 24-1 at 21 ¶ 43. The FBI withheld certain documents and redacted information under FOIA Exemptions 3, 6, 7(C), (7)(D), and (7)(E).⁴ Def.'s SOMF, ECF No. 24 at 5 ¶ 7, 6 ¶ 10. As the FBI made its productions, the parties filed cross-motions for summary judgment in May and June 2018, respectively. See generally Docket of Civil Action No. 17-1728.

After litigation had already begun, Plaintiffs learned that Congressman Rohrabacher, Paul J. Manafort, Jr. ("Mr. Manafort"), and "a senior Company A lobbyist" attended a March 2013 meeting about Ukraine in the District of Columbia, and Plaintiffs sought the FBI's records regarding the investigation into that meeting.⁵ Pls.' Cross-Mot. for Summ. J., ECF No. 16 at 12; see also Statement of Offense, United States v. Richard W. Gates III , Criminal Action No. 17-201-2, 2018 WL 1027205 (D.D.C. Feb. 23, 2018), ECF No. 206 at 7 ¶ 16 (stating that the "Member of Congress," who met with Mr. Manafort and the lobbyist, served "on a subcommittee that had Ukraine within its purview").⁶

Congressman Rohrabacher's spokesperson confirmed that he was the "Member of Congress" referenced in the court filing, and that former Congressman Vin Weber, who was a lobbyist, attended the meeting. Pls.' SOMF, ECF No. 26-1 at 4 ¶¶ 12-13; see also Pls.' Ex. 8, ECF No. 26-3 at 37-38.

In September 2018, the government withdrew its motion for summary judgment to conduct an additional search after the initial round of briefing. Def.'s Notice of Withdrawal, ECF No. 19 at 1. The FBI searched for responsive records regarding the SCO's investigation, but that search did not yield any responsive records. Seidel Decl., ECF No. 24-1 at 18 ¶ 36. The FBI also contacted the SCO, and the SCO confirmed that there were no records within the scope of Plaintiffs' FOIA request. Id. at 19 ¶ 37. The FBI maintained that it could neither confirm nor deny responsive investigative records concerning Congressman Rohrabacher outside of his official duties as a member of Congress. Id. at 41 ¶ 83. The FBI released records "associated with Congressman Rohrabacher's execution of his official duties as a United States Congressman." Id. Dissatisfied, Plaintiffs challenged the search and the scope of the Glomar response. See Hardy Decl., ECF No. 30-1 at 3 ¶ 6, 5 ¶ 10.

The parties renewed their cross-motions for summary judgment. In the second round of briefing, DOJ argues that it is entitled to summary judgment because it properly applied the Glomar response, it conducted adequate searches, it appropriately invoked Exemptions 3, 6, 7(C), 7(D), and 7(E), and it reasonably segregated the non-exempt information from the exempt information. Def.'s Renewed Mot. for Summ. J. ("Def.'s Mot."), ECF No. 24 at 20-30. In support of its motion, DOJ submits two declarations from the FBI's Assistant Section Chief of the Record/Information Dissemination Section ("RIDS"), Information Management Division ("IMD"), see Seidel Decl., ECF No. 24-1 at 1 ¶ 1, and the FBI's Section Chief of RIDS, IMD, see Hardy Decl., ECF No. 30-1 at 1 ¶ 1.⁷ Plaintiffs move for summary judgment, see Pls.' Mot., ECF No. 26 at 1, arguing that: (1) the declarations constitute hearsay and the declarants lack personal knowledge, id. at 6-8; (2) the Glomar response is unwarranted because the "FBI has narrowly pierced the Glomar veil by carving out a category of responsive documents," id. at 11; (3) the FBI improperly invokes Exemption 7(C) because Congressman Rohrabacher has a de minimis privacy interest, id. at 9-12; (4) the FBI failed to conduct adequate searches of its investigative records, Id. at 16-24, and its records related to Congressman Rohrabacher in his official capacity as a U.S. Congressman, Id. at 24-26; and (5) the FBI improperly withheld the names of certain individuals because it has previously "officially acknowledged" the identities of those persons in the released documents, see Pls.' Reply, ECF No. 32 at 27-28. In DOJ's memorandum in opposition...