William H. Orrick, United States District Judge
Kevin 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.
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:
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).
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.
The Agencies responded at different times with slightly different responses.
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.
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
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.
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 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.
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
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 members (the "Schiff Memo"). In light of the declassification and release, the government acknowledged the existence of Foreign Intelligence Surveillance Act ("FISA") applications and orders to conduct surveillance of Carter Page. 3
Because of those official acknowledgments, the DOJ does not maintain a Glomar response for the existence of the Carter Page FISA applications or orders. The FBI and NSD admit that they maintain some records related to the acknowledged FISA applications and orders; OLC confirmed that it has located no records related to the acknowledged FISA applications and orders. 3
As a result, the FBI and NSD processed the acknowledged documents under FOIA for a limited production to Poulsen and other FOIA requestors.
As the information sought by Poulsen was broader than just the disclosed-FISA applications and orders, and Poulsen sought other information related to the Carter Page surveillance, the FBI and NSD withheld that additional information under Exemption 7(A). They assert a partial Glomar refusing to "confirm or deny the existence of specific subcategories" of the request as they "relate to Carter Page" because that would disclose the existence or nonexistence of specific types of surveillance results withheld under Exemptions 1, 3, 7(A) and 7(E). 3
Finally, the FBI, NSD, and OLC assert Glomar in regards to confirming or denying the existence of non-Carter Page documents (for any other FISA applications, orders, or other electronic surveillance). They contend that confirmation or denial could cause harms protected by Exemption 1, Exemption 3, Exemptions 7(A) and 7(E), and for the OLC, Exemption 5. Id.; see also 2
Poulsen claims that none of the Agencies can assert a Glomar response due to public disclosures related to the subject matter of his Requests. The "official acknowledgments" identified by Poulsen in his Complaint and in the briefs filed in this case extend beyond the two limited acknowledgments identified by the DOJ above. They include the following:
See, e.g., Poulsen's Opposition to Motion for Summary Judgment (Dkt. No. 68), 2-5, 15, 22 & n4, n5.
In addition, Poulsen attaches significance to the White House's announcement on September 17, 2018, of the President's declassification of "all FBI reports of interviews prepared in connection with all Carter Page FISA applications," disclosing the existence of "interviews" used to obtain FISA authorization. Id. at 13.
Poulsen also relies on the following:
Poulsen's Motion for Partial Summary Judgment (Dkt. No. 48) at 3-6.
Poulsen also relies on the following documents that have been filed in court in conjunction with the Special Counsel's prosecutions:
Poulsen does not identify the significant facts disclosed in these two documents, but instead broadly asserts that the stipulated facts show establish the existence "of responsive records vel non — electronic surveillance (by collection of the content of emails and telephone calls) of Trump campaign advisors." Dkt. No. 68 at 15 (citing Dkt. Nos. 52-3 and 52-4); see also Dkt. No. 52 (Poulsen's Reply) at 8-9.
Orders and Warrants concerning surveillance of Carter Page (Carter Page FISA materials). Poulsen, again, does not identify any specific facts revealed in the released FISA materials that would constitute an additional or broader wavier by the government. Poulsen's Reply at 8-9.
Each Agency relies on declarations to support their assertion of Glomar and, with respect to the partial disclosures by the FBI and NSD, their withholding of information related to the processed Carter Page applications and orders. Two of the submissions, parts of the 3
ODNI relies on the declaration of Patricia Gaviria, the Director of ODNI's Information Management Division (IMD), who manages and gives guidance on information management programs and practices across the Intelligent Community (IC). Dkt. No. 50-1, ¶¶ 1-2.
ODNI did not issue a formal response to Poulsen's FOIA Request before this case was filed. In her declaration, Gaviria explains that ODNI determined that it can neither confirm nor deny the existence of the records sought in the Request because that would "reveal a classified fact and intelligence sources or methods-namely, whether the IC has an intelligence interest in a particular individual, whether the IC is conducting particular intelligence activities, whether the IC utilizes particular intelligence sources or methods, and whether foreign intelligence information was in fact obtained through electronic surveillance efforts." Id. ¶ 16. Providing a substantive response would cause harm that FOIA exemptions (b)(1) (protecting classified information) and (b)(3) (protecting intelligence sources and methods under the National Security Act) protect against. Id. ¶ 17.
Gaviria declares also that the statements relied on by Poulsen "do not constitute official acknowledgments of ODNI-held records" and therefore "do not effect a waiver of ODNI's Glomar response." Id. ¶ 18. With respect to the Nunes Memo, Gaviria notes that while the President declassified the Nunes Memo, he did not "declassify all arguably related information. As it relates to this case, the President did not declassify everything that may or may not exist regarding electronic surveillance that may or may not have occurred between June 16, 2015 and November 8, 2016 that may or may not have been directed by a U.S. government agency or contractor and that may or may not have acquired the oral, electronic, or digital communications of Donald J. Trump or any of his advisors, and records derived from such surveillance (as requested in Poulsen's FOIA Request).... Nor does the Nunes Memo indicate whether or not foreign intelligence was obtained from the electronic surveillance directed at Carter Page or whether any such information was shared with ODNI or the IC." Id. ¶ 21. Gaviria contends the public disclosure does "not match" the specific information sought by Poulsen's FOIA request. Id.
With respect to the tweets, Gaviria likewise characterizes them as "many steps removed" from the subject matter of the FOIA Requests as applied to ODNI records, and ODNI "determined that the cited tweets do not officially acknowledgement the existence of records held by ODNI that are responsive to Poulsen's Request. Nor do the tweets specify which agencies may have conducted `wiretapping' directed at the President or his then-advisors." Id. ¶¶ 22-23.
Addressing Exemption 1, Gaviria declares that "acknowledging the existence or non-existence of records sought in the Request would require ODNI to reveal currently and properly classified facts." Id. ¶ 27. Specifically, "confirming the existence of any classified records on individuals or any associated intelligence activity would reveal the ODNI and the IC's interest in
As to the disclosures, Gaviria asserts that despite declassification of the Nunes Memo, the "harm to national security persists by confirming or denying that ODNI and the IC have an interest in foreign intelligence information derived from electronic surveillance directed at Carter Page within a certain period of time. This is because the DOJ's and FBl's investigative interest in Carter Page's electronic communications is different from the IC's interest in the foreign intelligence value of any such communications (if any). The fact of FBI electronic surveillance of Carter Page does not reveal the existence or non-existence of valuable foreign intelligence obtained as a result of such surveillance." Id. ¶ 31. ODNI, however, has publicly confirmed its interest in activities surrounding Russian interference with the 2016 U.S. election. Id. ¶ 33.
As to Exemption 3, Gaviria declares that Section 102A(i)(1) of the NSA protects disclosure of the sources and methods used by ODNI. She asserts that the other public disclosures relied on by Poulsen to show how ODNI operates and has operated in the past do not "match" the information disclosed in the sources relied on by Poulsen in this case. Id. ¶ 37. Finally, the harms to ODNI are the same ones discussed with respect to Exemption 1. Id. ¶ 38.
NSA relies on the declaration of Steven E. Thompson, the Chief of Policy, Performance, and Exports, who is responsible for the oversight of NSA's FOIA/Privacy Act office. Dkt. No. 50-3 ¶ 1. Thompson reiterates that the NSA cannot acknowledge the existence or nonexistence of the records sought by Poulsen because the existence or nonexistence of those records is a classified matter under Executive Order 13526 and exempt from disclosure under (b)(1) and (b)(3) (under the National Security Agency Act and Intelligence Reform and Prevention Act, as well as under 18 U.S.C. § 798). Id. ¶ 4.
NSA's foreign intelligence mission includes the responsibility to collect, process, analyze and disseminate signals intelligence (SIGINT) information for foreign intelligence and counterintelligence purposes. Id. ¶ 5. NSA "exploits" foreign signals to obtain intelligence through a worldwide collection network and that intelligence is used to counter threats but also to direct foreign policy. Id. ¶¶ 6-7. SIGINT information is distributed to a number of agencies and departments. Id. ¶ 7. Information obtained from intercepted foreign communications is called communications intelligence (COMINT). NSA's COMINT efforts are only part of the functions and activities of NSA. Id. ¶ 9. Disclosure of the identity of targets whose specific communications have been intercepted are kept in "strictest secrecy" because of the fragility of NSA's ability to exploit foreign communications. Id.
In this case, NSA "interpreted" the FOIA request as seeking intelligence records on then-candidate Trump or his advisors during the specified time frame. It asserted that acknowledgment of the existence or non-existence of responsive documents would indicate specific methods NSA uses to obtain foreign intelligence, identify specific intelligence targets NSA has under surveillance, and/or highlight topics of interest to NSA. Id. ¶¶ 12, 19.
Thompson declares that the existence of non-existence of the records sought is protected, classified information exempt under Exemption 1, and that acknowledging the existence of non-existence of the information sought "would disclose information that is currently and properly classified TOP SECRET." Id. ¶¶ 21-24. Disclosure of that information could "reasonably be expected to harm national security because it would reveal NSA capabilities, activities, and intelligence priorities, which in turn could inhibit SIGINT collection and affect NSA's ability to counter threats to the national security of the United States." Id. ¶ 24. Disclosure of whether the NSA has records regarding the specific targets for the specific timeframe would disclose capabilities or gaps in capabilities as well as the agency's scope of interest or disinterest in specific targets. If these sorts of acknowledgments were cumulative, adversaries would examine them together to piece together even more information about NSA's interests, targets, methods, and capabilities. Id. ¶¶ 25-26. Therefore, NSA must use the Glomar defense consistently in all cases. Id. ¶ 27.
As to the public statements by Nunes and President Trump, Thompson declares that those statements did not name the NSA as having been involved in the collection of surveillance. Id. ¶¶ 28-29. Nor did the Nunes Memo and the Democrats' response (Schiff Memo) mention the NSA or its activities. Id. ¶ 30. The general statements regarding NSA's powers and authority, as explained in a Joint Statement for the Record (submitted by ODNI, NSA, DOJ, and the FBI to the Senate Subcommittee in Intelligence in June 2017 to support the reauthorization of FISA Amendments) also did not disclose the existence or non-existence of NSA information related to the surveillance of then-candidate Trump or his campaign advisors. Id. ¶ 32.
Finally, Thompson declares that Exemptions 3 applies because the existence or non-existence of the records at issue reflect intelligence information that is protected from disclosure under Section 6 of the National Security Act (50 U.S.C. § 3605), 18 U.S.C. § 798, and the 2004 Intelligence Reform and Terrorism Prevention Act amendments to the National Security Act (50 U.S.C. § 3024). Id. ¶¶ 38-40.
The FBI relies on three declarations submitted by David M. Hardy. With respect to the FBI's search, Hardy declares that because the official acknowledgment was limited (to the Carter Page FISA applications and orders) and the Agency maintained its Glomar response as to the other documents, only a limited search was required for the responsive FISA materials. As such, the FBI consulted with personnel familiar with the Russia investigation to locate the responsive and acknowledged FISA materials, but the FBI did not search in its databases or other potential sources of responsive records because those other records would be covered by the Glomar response. 3
With respect to the acknowledged Carter Page FISA applications and orders, the FBI located and processed 598 pages from the four applications and orders (the October 2016 original application and the three renewals). The FBI released 5 pages in full, 407 in part, and withheld 186 in full. 3
The FBI justified the redactions under Exemptions (b)(1), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(E). Id. Hardy explains that because the President's declassification of the Nunes Memo declassified only a limited amount of information about the Carter Page surveillance, the unproduced information remains classified and can be withheld under Exemption 1. Moreover, because the information sought pertains to an ongoing investigation, non-disclosure of the withheld information ("none of which exactly matches that disclosed in the Nunes, Schiff, or Grassley/Graham memos") is appropriate under Exemption 7(A). 3
With respect to the "other" documents "related to" Carter Page surveillance (e.g., documents concerning or planning the FISA authorization, reports or emails concerning or derived from the surveillance, FBI database entries corresponding to items 1, 2, and 6 in the FBI Request), Hardy asserts that the partial Glomar is justified because the FBI cannot acknowledge or deny the existence of those records without causing harms FOIA protects against. Id. ¶ 29(A). And with respect to all other documents conceivably covered by the FBI Request (items 3-5, seeking recordings produced from the investigation, metadata captured by the investigation, and transcripts of intercepted communications), Hardy justifies the partial Glomar because there has been no official public disclosure of the types of surveillance authorized by the FISC and even if there was disclosure about the types, there has been no official public disclosure about whether particular techniques were successful. Id. ¶ 29(B).
NSD relies on the declaration of Patrick N. Findlay (Dkt. No. 66-2).
Following the disclosures in the declassified Nunes Memo and the information in the Schiff Memo revealing the existence of the surveillance of Carter Page, NSD provided the Page FISA applications and orders to the FBI for processing under FOIA. Findlay Decl. ¶ 9. Because of the disclosures, NSD no longer asserts a Glomar response concerning the fact that Carter Page was the subject of FISA applications and orders. Id.
NSD does continue to assert a Glomar response to the existence or non-existence of records other than those relevant to the DOJ's 2017 acknowledgment that it has no records responsive to Poulsen's request for records of alleged wiretapping of then-candidate Trump in Trump Tower by the Obama Administration and the public acknowledgments and FOIA releases concerning the Carter Page FISA materials. Id. ¶ 12. Findlay justifies the Glomar response under Exemption 1 and Executive Order 13526 because the existence of FISA applications or the use of FISA applications, as well as the identity any specific individuals or organizations who are subjects of national security investigations are all classified information. Id. ¶ 13.
As to NSD's search for acknowledged records, Findlay declares that NSD's Office of Intelligence (OI) attorneys who were familiar with the Carter Page applications and orders were asked to identify and segregate all responsive documents, including emails, and subject matter experts in OI were asked to confirm the scope of the search and the application of exemptions to the responsive documents. Id. ¶ 21. The responsive FISA application materials were reviewed and processed by the FBI. Id. ¶ 22.
For responsive but withheld records, described by category, Findlay declares that they are exempt under 7(A) because they related to the ongoing Russian Election Interference Investigation. Id. ¶ 23.
OLC relies on the declaration of Paul P. Colborn. 2
OLC maintains its Glomar response to the existence or non-existence of any records outside of the scope of those two limited disclosures. Id. ¶ 16. Colborn maintains that the Glomar response is appropriate because, otherwise, disclosure would indicate whether, when, and under what circumstances OLC provides legal advice in areas of national security and surveillance, revealing information exempt from disclosure under Exemptions 1, 3, and 7 as well as Exemption 5.
The main issue in this case, as in American Civil Liberties Union v. C.I.A., 710 F.3d 422 (D.C. Cir. 2013), concerns the intersection of two lines of FOIA cases. As explained by the court in ACLU:
ACLU, 710 F.3d at 426-427. The two requirements to challenge a Glomar response, therefore, are to show that an "official acknowledgement" of the "specific information" covered by the FOIA request exists and to establish that the Agency has not adequately demonstrated the harm that might flow from an acknowledgement of whether documents do or do not exist. See Agility Pub. Warehousing Co. K.S.C. v. NSA, 113 F.Supp.3d 313, 326 (D.D.C. 2015).
The Agencies argue that the "logical and plausible" language in the ACLU opinion applies only to the second prong — the agency's assertion of harm — and cannot be used to determine waiver. See James Madison Project v. Dept. of J., 302 F.Supp.3d 12, 22 (D.D.C. 2018), reconsideration denied in part, 320 F.Supp.3d 143 (D.D.C. 2018) ("The `logical nor plausible' language of ACLU, by contrast, and which the court discusses further below, is used to evaluate an agency's justification for invoking a FOIA exemption to withhold records or issue a Glomar response."). The government argues that waiver under the first prong only exists upon a showing of "specificity" and "match," as explained by the D.C. Circuit in Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990):
Id. at 765; see James Madison Project, 302 F.Supp.3d at 20 (D.D.C. 2018) (applying Fitzgibbon factors in Glomar context).
Poulsen, on the other hand, contends that: (i) the "logical and plausible" test runs to both Glomar response prongs; (ii) many recent D.C. Circuit cases do not, themselves, strictly adhere to the Fitzgibbon factors and that test does not fully mesh with the Glomar context; (iii) D.C. Circuit cases addressing waiver in the Glomar context ask only whether the existence of the records requested has been publicly acknowledged, in that case there is a "match" between the disclosure and the request and no further analysis of the
I agree with the government that the decision in American Civil Liberties Union v. C.I.A., 710 F.3d 422 (D.C. Cir. 2013) did not fundamentally alter the test to determine whether an "official acknowledgment" precludes the assertion of a Glomar response or the application of the Fitzgibbon factors. Indeed, in cases following ACLU, the D.C. Circuit has continued to apply the Fitzgibbon factors in the Glomar context. See Mobley v. C.I.A., 806 F.3d 568, 584 (D.C. Cir. 2015); James Madison Project, 302 F.Supp.3d at 20. In addition, the most recent authority in the Ninth Circuit — considering when an "official acknowledgment" precluded the use of a Glomar response — applied the Fitzgibbon factors. See Pickard v. Dept. of J., 653 F.3d 782, 786-87 (9th Cir. 2011) (adopting the Fitzgibbon standard for "official acknowledgment" in the Glomar context and requiring a showing that the "information requested must be as specific as the information previously released," that "the information requested must match the information previously disclosed," and that the "intentional, public disclosure [must be] made by or at the request of a government officer acting in an authorized capacity by the agency in control of the information at issue.").
The FOIA calls for "broad disclosure of Government records." CIA v. Sims, 471 U.S. 159, 166, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985). To ensure broad disclosure, the FOIA "gives individuals a judicially-enforceable right of access to government agency documents." Lion Raisins v. Dep't of Agric., 354 F.3d 1072, 1079 (9th Cir. 2004) overruled on other grounds by Animal Leg. Def. Fund v. U.S. Food & Drug Administration, 836 F.3d 987 (9th Cir. 2016); see also 5 U.S.C. § 552. There is a strong presumption in favor of disclosure, U.S. Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991), and the "general philosophy of full agency disclosure [applies] unless information is exempted under clearly delineated statutory language." John Doe Agency v. John Doe Corp., 493 U.S. 146, 151-52, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) (quotation marks and citation omitted). Therefore, FOIA's exemptions "must be narrowly construed." Id. at 154, 110 S.Ct. 471.
The government agency bears the burden to prove a particular document or redaction falls within one of the nine statutory exemptions from disclosure. Ray, 502 U.S. at 173, 112 S.Ct. 541; Lahr v. NTSB, 569 F.3d 964, 973 (9th Cir. 2009). It may rely on affidavits to satisfy its burden of demonstrating that an exemption applies, but the affidavits must contain "reasonably detailed descriptions of the documents and allege facts sufficient
Even if an exemption applies, an agency may only withhold the information to which the exemption applies. FOIA requires that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552(b). "The burden is on the agency to establish that all reasonably segregable portions of a document have been segregated and disclosed." Pacific Fisheries, Inc. v. U.S., 539 F.3d 1143, 1148 (9th Cir. 2008). Nevertheless, the agency is also "entitled to a presumption that [it] complied with the obligation to disclose reasonably segregable material." Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007). Similarly, the court "may rely on an agency's declaration in making its segregability determination. Agency affidavits that are sufficiently detailed are presumed to be made in good faith and may be taken at face value." Hamdan v. U.S. Dept. of Justice, 797 F.3d 759, 779 (9th Cir. 2015). The court "need not conduct a page-by-page review of an agency's work." Id.
Finally, as particularly relevant to this case, "[w]here the government invokes FOIA exemptions in cases involving national security issues, [courts] are required to accord substantial weight to the agency's affidavits." Hamdan, 797 F.3d at 769. A court must be mindful of its "limited institutional expertise on intelligence matters, as compared with the executive branch." Hamdan, 797 F.3d at 770. However, the affidavits still "must describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemptions, and show that the justifications are not controverted by contrary evidence in the record or by evidence of agency bad faith." Id. at 769.
As noted above, NSA and ODNI rely on their full Glomar responses to refuse to confirm or deny the existence of the requested documents. The FBI, NSD, and OLC rely on Glomar to refuse to confirm or deny the existence of any responsive documents other than (1) the nonexistence of alleged wiretapping of then-candidate Donald J. Trump in Trump Tower by the Obama Administration prior to the 2016 presidential election and (2) the existence of documents related to the Carter Page FISA applications and orders.
As discussed above, in order to find "official acknowledgment" precluding agency use of a Glomar response, Poulsen must show that the information requested by his FOIA Requests is "as specific as the information previously released," that the information requested matches the information previously disclosed," and that the "intentional, public disclosure [must be] made by or at the request of a government officer acting in an authorized capacity by the agency in control of the information at issue." Pickard, 653 F.3d at 786-87.
To start, I assume without deciding that tweets and apparently off-handed comments by the President (in other words comments not issued as intentional and express governmental disclosures) can be disclosures constituting "official acknowledgments" sufficient to waive a Glomar response under the third Fitzgibbon. However, other than for the Page FISA materials which have been acknowledged and processed for release under FOIA, none of the President's tweets or comments satisfy the specificity and matching criteria of Fitzgibbon.
ODNI and NSA argue that the President's comments do not "specify a government agency, nor do they mention any targets other than President Trump, the involvement of ODNI or NSA, or the use of any particular legal authority. Moreover, the statements are limited to a particular time, a particular target, and a particular place, in contrast to Poulsen's FOIA request. Thus, the statements do not match the information withheld by ODNI or NSA." NSA/ODNI Oppo. (Dkt. No. 50) at 19. None of the tweets relied on by Poulsen discuss "whether or not ODNI or NSA would possess documents about such surveillance." Id. The FBI, NSD, and OLC point out that the President's tweets and comments contain a "constellation of specific opinions and allegations" regarding wiretapping, they do not mention targets by name (other than himself and with respect to the Carter Page materials), do not mention any Agencies (except the FBI with respect to a "dossier" used in connection with FISA applications), and the tweets appear to be paraphrasing media reporting. Agencies' Reply (Dkt. No. 70) at 20.
As to the Nunes Memo (and the responsive Schiff Memo) and the declassification by the President of the Nunes Memo, the ODNI and NSA argue:
ODNI/NSA Oppo. (Dkt. No. 50) at 20. At most, Poulsen attempts to connect the fact that there was FISA-approved surveillance of Page with the fact that the investigation concerns foreign influence in the 2016 election to mean that — given the authority and roles of ODNI and NSA in coordinating or collecting foreign intelligence — there must be responsive records in those agencies' possession. But as those agencies point out, just because they have the authority to do something does not mean that they did. The Congressional testimony did not disclose anything ODNI and NSA did during the specific timeframe.
The FBI and NSD, because of the acknowledgments and processing of the Carter Page FISA materials, assert they have accounted for the scope of these Congressional disclosures. They argue, and I agree, that neither the contents of the declassified Nunes Memo nor the acknowledged existence of the national security investigation into Russian interference with the 2016 election creates any official acknowledgment or "inescapable inference" that there was electronic surveillance
The Agencies' Glomar responses are not undermined by the Carter Page FISA disclosures. Simply because there was some very limited disclosure and acknowledgment of the use of electronic surveillance on one target — that was responsive to Poulsen's FOIA Requests — does not mean a Glomar response is unavailable to the agencies as to other undisclosed forms of electronic surveillance and undisclosed targets of electronic surveillance.
As to the DOJ's general acknowledgement of the investigation into links between Russia and the Trump campaign through Comey's testimony and the disclosure of the investigation being handled by Special Counsel Mueller, those disclosures do not match the information sought (records of electronic surveillance held by specific agencies, regarding specific targets, created during a limited timeframe) and are not specific enough to cover Poulsen's FOIA Requests.
Finally, Poulsen's reliance on facts the government has alleged or admitted in court filings in connection with the prosecutions of Flynn and Papadopoulos are no more helpful. Poulsen does not identify the significance of specific facts disclosed in those filings other than supporting what is otherwise known, that the Special Counsel has investigated members of the Trump campaign for a link to or coordination with the Russian government. Those general disclosures in no way match the specific information regarding electronic surveillance sought by Poulsen.
Viewed together, the statements and disclosures identified by Poulsen do not create an official acknowledgment (other than for the acknowledged Carter Page FISA materials that have been processed). This conclusion — and a strict adherence to the specificity and matching requirements — is particularly important in this case because the disclosed investigation into Russian interference with the 2016 election is ongoing. The best Poulsen can do is make unsupported assertions that because electronic surveillance was approved for Page under FISA there must be other targets. And because electronic surveillance of Page was approved there must be recordings and metadata produced from that surveillance. Those assertions are based, at best, on assumptions. A party's assumptions cannot be used to preclude a Glomar response.
This conclusion would not change if I consider whether the disclosures identified by Poulsen created an "inescapable inference" that documents other than the Page materials exist. Poulsen's Oppo. at 12-13 (arguing inescapable inference as to responsive records to items 3-5 of the FBI Request). Poulsen repeatedly relies on the ACLU case from the D.C. Circuit to argue that there is an "inescapable inference" that some of these agencies must have some responsive records given what has been disclosed generally (beyond the disclosed Carter Page FISA materials and "related to" but withheld documents). Even if the question of "inescapable inference" is relevant to the "official acknowledgment" prong of the Glomar challenge,
Here, there are no statements — other than the limited one by Comey on behalf of the FBI which the FBI, NSD and OLC have responded to — by the Agencies themselves that touch upon the use of electronic surveillance by these Agencies in connection with the Special Counsel's investigation or otherwise into Russian interference with the 2016 election. The President's comments and Congressional disclosures, including the Presidential declassification of information in the Nunes Memo, have likewise been addressed and responded to by the Agencies. The very specific nature of Poulsen's FOIA Requests for electronic surveillance records for specific targets for specific dates, overlapping with an acknowledged and ongoing investigation by the intelligence community, distinguishes this case from ACLU.
The very general official acknowledgments regarding the ongoing investigation, the one specific acknowledgment of surveillance of Carter Page, and the Special Counsel's prosecutions do not preclude the Agencies from asserting Glomar to protect disclosure of whether and how they are each involved in that investigation, and whether their participation in that investigation has used specific types of surveillance and produced specific types of intelligence. Each Agency has explained the harm that would be caused by those disclosures — required if they could not assert a Glomar response — and those explanations (supplemented by the classified information I have reviewed) are sufficiently detailed, plausible, and evince no bad faith.
In his cross-motion to ODNI and NSA's blanket assertion of Glomar, Poulsen argues that even if there has not been a waiver through official acknowledgment, his motion should nonetheless be granted because NSA and ODNI have not demonstrated that cognizable harm could result under Exemptions 1 or 3. He asserts that President Trump has already declassified some of the information he requested and that the United States has already revealed the intelligence sources and methods (i.e., electronic surveillance) as well as the targets (i.e., candidate-Trump and his advisors).
Poulsen does not make this argument in his Opposition to the FBI, NSD, and OLC's motion for summary judgment. Instead,
I will briefly address the arguments Poulsen raises as to ODNI and NSA and address the substantive responses by the other Agencies below.
FOIA Exemption 1 exempts from disclosure information that is "specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy" and is "in fact properly classified pursuant to such Executive Order." 5 U.S.C. § 552(b)(1). The NSA invoked Executive Order (E.O.) 13,526, which permits an agency to withhold information that an official with original classification authority has determined to be classified because its "unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security[.]" Classified National Security Information, Exec. Order No. 13,526 § 1.4, 75 Fed. Reg. 707, 709 (Dec. 29, 2009). The information must also "pertain[] to" one of the categories of information specified in the Executive Order, including "intelligence activities (including covert action), intelligence sources or methods," and "foreign relations or foreign activities of the United States...." Exec. Order 13,526 §§ 1.4(c), (d). Under E.O. 13526, the government has the burden of establishing that disclosure of the requested information "could reasonably be expected to cause identifiable or describable damage to the national security." 75 Fed. Reg. 707.
Here, with respect to ODNI and NSA, the Gaviria and Thompson declarations provide sufficient detail regarding the withheld information to make the Exemption 1 assertions plausible. See Hamdan, 797 F.3d at 770. Gaviria states that providing any substantive response to Poulsen would "reveal a classified fact and intelligence sources or methods — namely, whether IC has an intelligence interest in a particular individual, whether the IC is conducting particular intelligence activities, whether the IC utilizes particular intelligence sources or methods, and whether foreign intelligence information was in fact obtained through electronic surveillance efforts." Gaviria Decl. ¶¶ 16, 27-33. Thompson declares that giving a substantive response would "reveal the existence or nonexistence of NSA reporting and/or intelligence on specific individuals, from which one could determine whether or not NSA engaged in certain, or any, intelligence activities, and/or did or did not target certain communications for collection." Thompson Decl. ¶¶ 19, 24-27.
Poulsen contends that the ODNI and NSA declarations are fatally deficient because they do not address the Carter Page FISA declassifications and, therefore, do not address what harm could flow from being forced to abandon their Glomar response. However, the Agencies do address the Page FISA material declassifications. See, e.g., Gaviria Decl. ¶ 21; Thompson Decl. ¶¶ 28-30. Poulsen does not identify why, in light of the very limited Carter Page disclosures, it is illogical or implausible as a matter of law for ODNI and NSA to assert Glomar. Poulsen also complains that the ODNI and NSA declarations fail to explain how their admitted interest in electronic surveillance or in targets including Trump's advisors in connection with
Recognizing the court's "limited institutional expertise on intelligence matters," I accord substantial weight to the Gaviria and Thompson declarations. I also note that both declarations are detailed and "describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemptions, and show that the justifications are not controverted by contrary evidence in the record or by evidence of agency bad faith." Id. at 769. My reliance on these detailed and plausible declarations is particularly appropriate here, where there is an acknowledge and ongoing investigation into actual or attempted foreign influence in a Presidential election. See Hamdan, 797 F.3d at 775 (recognizing that in the area of national security, "it is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency.").
Exemption 3 exempts from disclosure records that are "specifically exempted from disclosure by [another] statute" if the relevant statute "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 for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3)(A). "Exemption 3 differs from other FOIA exemptions in that its applicability depends less on the detailed factual contents of specific documents; the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within the statute's coverage." Fitzgibbon v. CIA, 911 F.2d 755, 761-762 (D.C. Cir. 1990) (quotation omitted). The government may withhold more information under Exemption 3 than under Exemption 1, as it does not have to demonstrate that the disclosure will harm national security. See Sims, 471 U.S. at 167, 105 S.Ct. 1881; Gardels, 689 F.2d at 1106-07. However, in the Glomar context, as opposed to the withholding/release context, the government must still demonstrate that disclosure of the existence or non-existence of records would be "reasonably harmful to intelligence sources and methods." Wolf v. CIA, 473 F.3d at 377-78.
ODNI and NSA rely on three specific statutory provisions as a basis for the Exemption 3 withholdings. First, both agencies invoke Section 102A(i)(1) of the National Security Act of 1947, as amended (codified at 50 U.S.C. § 3024(i)(1) ). That provision requires the Director of National Intelligence to "protect intelligence sources and methods from unauthorized disclosure." It is well-established that Section 102A qualifies as a withholding statute for the purposes of FOIA Exemption 3. See, e.g., Berman v. CIA, 501 F.3d 1136, 1140 (9th Cir. 2007); Freedom of the Press Found. v. DOJ, 241 F.Supp.3d 986, 998 (N.D. Cal. 2017).
Second, NSA also invokes the statutory privilege contained in Section 6 of the National Security Agency Act of 1959, 50 U.S.C. § 3605. Section 6 provides that "[n]othing in this chapter or any other law... shall be construed to require the disclosure of the organization or any function of the National Security Agency, or any information with respect to the activities
NSA also invokes Section 798 of Title 18, which prohibits the unauthorized disclosure of classified information (i) concerning the communications intelligence activities of the United States or (ii) obtained by the process of communications intelligence derived from the communications of any foreign government. The term "communications intelligence," as defined by Section 798(b), means the "procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients." See Larson v. Dep't of State, 565 F.3d 857, 868 (D.C. Cir. 2009).
Despite the existence of these statutes, Poulsen argues that in the Glomar waiver context, NSA and ODNI have to show that specific harm would flow from disclosure of the existence or non-existence of the records, which he contends they have not done. He is correct that they must show harm in the Glomar context from disclosure of the existence of non-existence of records, but I find that they have shown that harm. The harms, plausible and detailed by the Gaviria and Thompson declarations, would be the same as those identified with respect to Exemption 1 above.
In sum, with respect to all of the Agencies, Poulsen has not met the test for an official acknowledgment sufficient to waive ODNI and NSA's ability to assert a full Glomar response and the FBI, NSD, and OLC's ability to assert partial Glomar responses to his Requests. The Agencies have shown — particularly in respect to the acknowledged existence of an ongoing investigation — that harms that would result from requiring them to provide any substantive response and that those harms are protected against by both Exemptions 1 and 3. Poulsen's Motion for Partial Summary Judgment against ODNI and NSA (Dkt. No.48) is DENIED and ODNI and NSA's Cross-Motion is GRANTED. Dkt. No. 50.
Poulsen argues that that little or no deference should be given to the declarations in support of the substantive responses of the FBI, NSD, and OLC (the "DOJ Agencies") because they are not sufficiently detailed to justify the scope of their searches or their redactions and withholdings based on asserted harms, and that there is evidence of bad faith on the part of the government. I disagree.
As noted, the FBI, NSD and OLC searches were functionally limited to the two disclosed topics.
Second, Poulsen argues that the search was inadequate because it did not include a search for the names of Trump's campaign advisors and, in addition, the FBI should have searched under the names Flynn and Papadopoulos based on the disclosures made in the court filings by the Special Counsel. Any such documents — if they existed — would fall outside the limited Glomar waiver. There is no duty on an agency to "search" for records about which it properly asserts a Glomar response. For the same reasons, Poulsen's third challenge to the DOJ Agencies' search — that they impermissibly failed to search for documents responsive to Categories 3-5 of his Requests — fails because the Agencies' assertion of Glomar to those categories is, as noted above, proper.
Poulsen's arguments concerning the adequacy of the searches by the responding Agencies fail.
As to the processed and withheld or redacted documents, Poulsen concedes that various categories of information were appropriately withheld. Poulsen's Oppo. at 2 n.1 (listing uncontested categories of withheld information). Poulsen also does not mention or otherwise challenge the Agencies' withholding of information under Exemptions 3, 6, or 7(C).
Instead, as to the categories of withheld information Poulsen continues to seek, he argues that the declarations from the FBI, NSD, and OLC are "deficient" and evidence bad faith, precluding my reliance on them. Poulsen's specific arguments are: the declarations from the three responding Agencies are conclusory and should therefore be rejected outright; because many portions of the 3
As to the specificity of the declarations, I have reviewed each one. Each is adequately detailed and as specific as possible, given the national security and law enforcement operations.
As to bad faith, Poulsen contends there is ample evidence of "bad faith" obviating any deference to the declarants. He points to six facts. First, and primarily, he highlights the President's characterization of the redactions to the released Carter Page materials as "ridiculously heavily redacted." Poulsen's Oppo. at 17 n. 8. Second, in September 2018 the President directed ODNI and DOJ to declassify additional pages of the June 2017 FISA application and FBI reports of interviews prepared in connection with all of the Page FISA applications, yet the FBI never addresses why this information will be declassified yet still withheld from the FOIA response. Third, the declarants do not explain why the Carter Page FISA materials could be declassified and still the FBI can assert that total secrecy must cover all other materials. Fourth, Christopher Steele was disclosed as a confidential source but the government provides no explanation of why it now cannot disclose additional CIs. Fifth, there can be no assertion of 7(E) in Glomar context because the question is not whether something is "well-known" but whether it is known at all and the law enforcement techniques used in these sorts of investigations are known. Sixth, the disclosures as well as the information disclosed in the court filings (as a result of the Special Counsel's investigation) have already "clearly sent the message" to Trump campaign advisors that they are being investigated. Because the targets know this, Hardy's assertion that further disclosure could "tip off" other targets or suspects is made in bad faith.
None of these arguments demonstrate bad faith or otherwise undermine the assertions of harm proffered by the declarants. After a close review of the Hardy Declarations, nothing in the President's unexplained comment about the redactions from the Carter Page materials undermines my conclusions.
Poulsen's final complaints — that Hardy's assertions of harm from disclosure to the ongoing investigation and foreign relations are in bad faith because the present investigation into allegations of foreign interference in a Presidential election is an "extraordinarily unique" set of circumstances and any harm to U.S./Russian relations has already been caused by the prior disclosures of the contours of the investigation — are wholly unpersuasive. Poulsen's speculation does not undermine the detailed and specific justifications provided by Hardy.
The detailed and plausible DOJ Agency justifications are not undermined by bad faith. In this context of an ongoing national security investigation, they adequately support the FBI's redactions and withholdings from the Carter Page materials.
Poulsen also requests that I conduct an in camera review of the 412 pages of redacted Page FISA materials, of the 186 pages of Page materials withheld in full, and of the additional "related to" the Page materials located by the FBI and NSD (of unspecified number). I will not do so.
In camera review is used exceedingly sparingly, and even more rarely used where the withheld materials implicate national security. Lion Raisins Inc. v. USDA, 354 F.3d 1072, 1079 (9th Cir. 2004) (explaining that in camera review is disfavored where "the government sustains its burden of proof by way of its testimony or affidavits"), overruled on other grounds by Animal Legal Def. Fund, 836 F.3d 987 (9th Cir. 2016); see also Freedom of the Press Found. v. U.S. Dept. of J., 241 F.Supp.3d 986, 1004 (N.D. Cal. 2017) (recognizing that in camera inspection is "`particularly a last resort in national security situations like this case—a court should not resort to it routinely on the theory that it can't hurt.'") (quoting ACLU v. Dep't of Def., 628 F.3d 612, 626 (D.C. Cir. 2011)). Where, as here, the Agency declarations are sufficiently detailed and persuasive and there is no evidence of bad faith, and in light of the national security context and the ongoing investigation, in camera review is not justified. Having thoroughly reviewed the publicly filed declarations as well as the classified materials, Poulsen's policy arguments and speculation in an attempt to support a bad faith argument are unfounded.
As noted, the FBI and NSD have also withheld in full documents "related to" the Carter Page materials that were responsive to items 1, 2, and 6 of the FBI Request including: FD-1057 Electronic Communications (FBI internal communications), emails, spreadsheets, memoranda/reports. 3
Poulsen's attempt to challenge these withholdings mirror his challenges to the application of Exemptions, 1, 3, and 7 to the information redacted or otherwise from the Page FISA materials. These "related to" documents are protected from disclosure for the same reasons as those addressed above. Poulsen's speculation about what specific documents exist, the content of those documents, and the lack of harm from their disclosure are unpersuasive. The FBI and NSD have provided ample and specific reasons in their publicly filed declarations (supplemented by the classified information) to justify withholding of these "related to" documents in full.
For the foregoing reasons, NSA and ODNI's motion for summary judgment is GRANTED (Dkt. No. 50), Poulsen's motion for partial summary judgment (Dkt. No. 48) is DENIED, and NSD, OLC and the FBI's motion for summary judgment (Dkt. No. 66) is GRANTED.
