Schaerr v. U.S. Dep't of Justice

• Decision Date: 28 January 2020
• Docket Number: Civil Action No. 18-0575 (ABJ)
• Parties: Gene C. SCHAERR, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

435 F.Supp.3d 99

Gene C. SCHAERR, Plaintiff,

v.UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.

Civil Action No. 18-0575 (ABJ)

United States District Court, District of Columbia.

Signed January 28, 2020

Gene C. Schaerr, Washington, DC, pro se.

Laura Ann Hunt, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

On March 14, 2018, plaintiff Gene C. Shaerr, a Washington D.C. attorney, brought this suit against the U.S. Department of Justice ("DOJ"), including the Federal Bureau of Investigation ("FBI") and the National Security Division ("NSD"); the Office of the Director of National Intelligence ("ODNI"); the National Security Agency ("NSA"); the Central Intelligence Agency ("CIA"); and the Department of State ("State") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq (2012). Plaintiff submitted a FOIA request to each of the six agencies, each with three of four parts, requesting documents concerning two procedures that intelligence agencies must follow regarding the collection, retention, and dissemination of information concerning "unconsenting United States persons," called "unmasking" and "upstreaming." Compl. [Dkt. # 1] ¶ 18; see id. ¶¶ 26–66. In response, each agency issued what is known as a "Glomar response," to parts 2 and 3 of the FOIA request, refusing to confirm or deny the existence of responsive records in the agencies' possession because that information would be covered by a FOIA exemption. Pl.'s Statement of Material Undisputed Facts [Dkt. # 25-7] ("Pl.'s SUMF") ¶¶ 38–39, 42–46.¹ As to the other parts of the FOIA requests, the agencies conducted searches and released some documents in full or in part while withholding some documents in full pursuant to Exemptions 1, 3, 6, 7(E) and 7(C). Id. ¶¶ 50, 52, 53, 54, 55, 60–64. Defendants moved for summary judgment, arguing that they had complied with their FOIA obligations. Defs.' Mot. for Summ. J. [Dkt. # 20] ("Defs.' Mot.") at 5–7. Plaintiff opposed the motion and filed his own motion for summary judgment. Pl.'s Opp. and Cross-Mot. for Summ. J. [Dkt. # 25] ("Pl.'s Cross-Mot.").

Upon review of the full record, the Court will grant defendants' motion for summary judgment in part and deny it in part, and plaintiff's motion for summary judgment will be granted in part and denied in part.

BACKGROUND

I. Plaintiff's FOIA Requests

In July and August of 2017,² plaintiff submitted FOIA requests to each of the six defendant agencies. Compl. ¶¶ 26–61. The requests dealt with "unmasking" and "upstreaming of classified information" gathered under the Foreign Intelligence Surveillance Act ("FISA"), 50 U.S.C. §§ 1801 – 1885c. Id. ¶¶ 20–21. Agencies may only disseminate information obtained through FISA to authorized recipients. Decl. of David M. Hardy [Dkt. # 20-3] ("Hardy Decl.") ¶¶ 10–11. Generally, for non-public information concerning an unconsenting United States person, agencies may only include the identity of the person in such a disclosure if it constitutes foreign intelligence, is necessary for the recipient to understand the foreign intelligence being transmitted, or is evidence of a crime. Id. ¶ 11. Otherwise, agency procedures require the agency to "mask" the identity of the unconsenting person by substituting it with a generic phrase, such as "U.S. person 1." Id. If revealing the unconsenting person's name is necessary to the dissemination of needed intelligence to protect national security, a U.S. government official may request that the masked information be revealed in a process known as "unmasking." Id.

"Upstreaming" refers to a methodology for collecting intelligence information from internet communications pursuant to section 702 of FISA. Hardy Decl. ¶ 12. In "downstream" collection, agencies "collect [a] target's communications directly from the U.S. company that services the account." Id. With upstream collection, the NSA "collects [a] target's communications as they cross the backbone of the internet with the compelled assistance of companies that maintain those networks." Id. This includes information acquired about the targets, such as when the target is neither the sender nor the recipient of the collected information. Id. Upstream collection, therefore, may obtain information sent to or from the targets of the surveillance, as well as non-consenting U.S. persons who are not targets of the surveillance. Defs.' Mot. at 5.

Specifically, the FOIA requests called for:

1. All policies, procedures, and reports involving the process for unmasking, or requesting unmasking, including reports on any incidents of policy violations, from January 1, 2015 to February 1, 2017.

2. All documents concerning the unmasking, or any request for unmasking, of any person listed below, from January 1, 2015 to February 1, 2017:

a. Steve Bannon

b. Rep. Lou Barletta

c. Rep. Marsha Blackburn

d. Florida Attorney General Pam Bondi

e. Rep. Chris Collins

f. Rep. Tom Marino

g. Rebekah Mercer

h. Steven Mnuchin

i. Rep. Devin Nunes

j. Reince Priebus

k. Anthony Scaramucci

l. Peter Thiel

m. Donald Trump, Jr.

n. Eric Trump

o. Ivanka Trump

p. Jared Kushner

q. Rep. Sean Duffy

r. Rep. Trey Gowdy

s. Rep. Dennis Ross

t. Pastor Darrell C. Scott

u. Kiron Skinner

3. All documents concerning the upstreaming of the names of any individual listed in Question 2 above, from January 1, 2015 to February 1, 2017.

FBI FOIA Request; CIA FOIA Request; State FOIA Request; NSD FOIA Request; ODNI FOIA Request; NSA FOIA Request.

Plaintiff also requested a fourth category of documents from ODNI and NSD: "Copies of any materials sent in response to any inquiry from the House Intelligence Committee or other congressional committees regarding unmasking from January 1, 2017 to August 11, 2017." NSD FOIA Request; ODNI FOIA Request. Finally, plaintiff also asked NSA to produce "[a]ll reports made to S12 and SV regarding improper dissemination of any individual listed in Question 2, above." NSA FOIA Request.³

II. Agency Responses to Plaintiff's FOIA Requests

On August 24, 2017, FBI asserted Glomar responses to parts 2 and 3 of the FOIA request pursuant to FOIA Exemptions 6, and 7(C). Hardy Decl. ¶¶ 15–16. On December 21, 2017, plaintiff asked FBI to re-open parts 2 and 3 of his FOIA request, because he had obtained a privacy waiver for one of the individuals named in the request. Id. ¶ 19. The FBI reopened the request with respect to this individual on December 29, 2017, but on January 23, 2018, the FBI informed plaintiff that it could not confirm or deny the existence of documents pursuant to FOIA Exemptions 1 and 3. Id. ¶¶ 20, 23. The FBI did conduct a search in response to part 1 of the request, and it produced eight pages of a responsive record which were redacted pursuant to Exemptions 1, 3, 6, 7(C) and 7(E). Id. ¶ 82.

On October 10, 2017, NSA issued Glomar responses to parts 2, 3, and 4 of plaintiff's request pursuant to FOIA Exemptions 1 and 3. Decl. of Steven E. Thompson [Dkt. # 20-6] ("Thompson Decl.") ¶ 15. As to part 1 of plaintiff's FOIA request, NSA conducted a search and identified six publicly available responsive records and told plaintiff where he could find them. Id. After this lawsuit was filed, NSA released seven documents with redactions pursuant to Exemptions 1 and 3. Id. ¶¶ 21–22. It withheld in full fourteen documents pursuant to Exemptions 1, 3, and 5. Id. ¶¶ 21–23. Four of those fully withheld documents were later deemed nonresponsive. Id. ¶ 23.

On June 12, 2018, CIA informed plaintiff that it could neither confirm nor deny the existence of documents responsive to items 2 and 3 of plaintiff's request, pursuant to FOIA Exemptions 1 and 3. Decl. of Antoinette B. Shiner, Information Review Officer for the Litigation Information Review Office Central Intelligence Agency [Dkt. # 20-1] ("Shiner Decl.") ¶ 10. The CIA conducted a search for records responsive to the first part of the request and identified three responsive records, one of which was publicly available and contained redactions pursuant to Exemptions 1 and 3. Id. ¶ 17. The second document was released in part and the third document was fully withheld pursuant to Exemptions 1 and 3. Id. ¶¶ 10, 17.

On June 28, 2018, State issued Glomar responses to parts 2 and 3 of plaintiff's request under FOIA Exemptions 1 and 3. Decl. of Eric F. Stein [Dkt. # 20-12] ("Stein Decl.") ¶ 7. The agency conducted a search for records responsive to item 1 of plaintiff's request but found no records. Id.

On June 29, 2018, NSD issued Glomar responses to parts 2 and 3 of plaintiff's request pursuant to FOIA Exemption 1. Declaration of Patrick N. Findlay [Dkt. # 20-8] ("Findlay Decl.") ¶ 9. NSD conducted a search for records responsive to items 1 and 4 but found no records. Id.

On August 13, 2018, ODNI issued Glomar responses to parts 2 and 3 of plaintiff's request in accordance with FOIA Exemptions 1 and 3. Decl. of Patrick Gaviria, Director, Information Management Division, Office of the Director of National Intelligence [Dkt. # 20-10] ("Gaviria Decl.") ¶ 13. ODNI conducted a search for documents responsive to part 1 and identified fifteen publicly available documents, the links of which were provided to plaintiff. Id. ODNI also conducted a search for part 4 of plaintiff's request and identified two responsive documents, which it withheld in part pursuant to FOIA Exemption 6. Id.

STANDARD OF REVIEW

Summary judgment is appropriate "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). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317,...