U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17-cv-00597-APM

JAMES MADISON PROJECT et al v. DEPARTMENT Date Filed: 04/04/2017

OF JUSTICE

Date Terminated: 07/31/2020

Assigned to: Judge Amit P. Mehta

Jury Demand: None

Cause: 05:552 Freedom of Information Act

Nature of Suit: 895 Freedom of

Information Act

Jurisdiction: U.S. Government

Defendant

Plaintiff JAMES MADISON PROJECT

represented by Bradley Prescott Moss LAW OFFICES OF MARK S. ZAID, P.C. 1250 Connecticut Avenue, NW Suite 700 Washington, DC 20036 (202) 454-2809 Fax: (202) 330-5610 Email: brad@markzaid.com ATTORNEY TO BE NOTICED

Plaintiff
BRAD HEATH Gannett Satellite Information Network, LLC doing business as USA TODAY

represented by Bradley Prescott Moss (See above for address) ATTORNEY TO BE NOTICED

V. Defendant DEPARTMENT OF JUSTICE

represented by Amy E. Powell U.S. DEPARTMENT OFJ USTICE Civil Division 150 Fayetteville St Ste 2100 Raleigh, NC 27601 919-856-4013 Email: amy.powell@usdoj.gov

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/04/2017
04/04/2017 04/06/2017 04/06/2017 04/06/2017 04/15/2017 04/19/2017 04/24/2017
04/24/2017
04/24/2017

# Docket Text

COMPLAINT against DEPARTMENT OF JUSTICE ( Filing fee $

1

400 receipt number 0090-4899620) filed by JAMES MADISON

PROJECT, BRAD HEATH. (Attachments: # 1 Civil Cover Sheet,

# 2 Exhibit Rule 7.1 certification, # 3 Summons DOJ, # 4 Summons

USADC, # 5 Summons USAG)(Moss, Bradley) (Entered:

04/04/2017)

Case Assigned to Judge Colleen Kollar-Kotelly. (md) (Entered: 04/06/2017)

2 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JAMES MADISON PROJECT (md) (Entered: 04/06/2017)

3 SUMMONS (3) Issued Electronically as to DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 04/06/2017)

4 ORDER Establishing Procedures for Cases Assigned to Judge Colleen Kollar-Kotelly. Signed by Judge Colleen Kollar-Kotelly on April 6, 2017. (NS) (Entered: 04/06/2017)

5 AMENDED COMPLAINT against DEPARTMENT OF JUSTICE filed by JAMES MADISON PROJECT, BRAD HEATH.(Moss, Bradley) (Entered: 04/15/2017)

6 NOTICE of Appearance by Amy E. Powell on behalf of All Defendants (Powell, Amy) (Entered: 04/19/2017)

7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF JUSTICE served on 4/10/2017 (Attachments: # 1 Exhibit DOJ receipt)(Moss, Bradley) (Entered: 04/24/2017)

8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 4-10-2017. (Attachments: # 1 Exhibit USAG receipt)(Moss, Bradley) (Entered: 04/24/2017)

9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon

United States Attorney on 4/10/2017. Answer due for ALL FEDERAL DEFENDANTS by 5/10/2017. (Attachments: # 1 Exhibit USADC receipt)(Moss, Bradley) (Entered: 04/24/2017)

05/10/2017

10 ANSWER to 5 Amended Complaint by DEPARTMENT OF JUSTICE. Related document: 5 Amended Complaint filed by BRAD HEATH, JAMES MADISON PROJECT.(Powell, Amy) (Entered: 05/10/2017)

05/10/2017

11 ORDER. The parties shall MEET AND CONFER and file a Joint Status Report proposing a schedule for proceeding in this matter by no later than MAY 24, 2017. Signed by Judge Colleen KollarKotelly on 5/10/2017. (lcckk3) (Entered: 05/10/2017)

05/11/2017

Set/Reset Deadlines: Joint Status Report due by 5/24/2017. (kt) (Entered: 05/11/2017)

05/23/2017

12 Joint STATUS REPORT by DEPARTMENT OF JUSTICE. (Powell, Amy) (Entered: 05/23/2017)

05/23/2017

MINUTE ORDER. The Court is in receipt of the parties' 12 Joint Status Report, wherein the parties propose a briefing schedule for this matter. The parties shall adhere to the following schedule: Defendant shall file its motion for summary judgment no later than JULY 14, 2017. Plaintiffs shall file their opposition to Defendant's motion, and their own cross-motion for summary judgment, no later than AUGUST 14, 2017. Defendant shall file its reply and its opposition to Plaintiffs' cross-motion no later than AUGUST 31, 2017. Plaintiffs shall file their reply no later than SEPTEMBER 14, 2017. Signed by Judge Colleen Kollar-Kotelly on 5/23/2017. (lcckk3) (Entered: 05/23/2017)

07/14/2017 13

MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Declaration of G. Bradley Weinsheimer, # 2 Exhibits to Weinsheimer Declaration, # 3 Declaration of David Hardy, # 4 Exhibits to Hardy Declaration, # 5 Text of Proposed Order)(Powell, Amy) (Entered: 07/14/2017)

07/14/2017

14 ERRATA to Document 13-4 - Exhibits to the Hardy Declaration by

DEPARTMENT OF JUSTICE 13 MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Powell, Amy) (Entered: 07/14/2017)

08/09/2017

15 Consent MOTION for Extension of Time to File Response/Reply to Defendant's Motion for Summary Judgment by BRAD HEATH,

08/09/2017 08/09/2017 08/18/2017
08/18/2017 09/07/2017 09/08/2017 09/11/2017

JAMES MADISON PROJECT (Attachments: # 1 Text of Proposed Order)(Moss, Bradley) (Entered: 08/09/2017)
16 ORDER GRANTING 15 Consent Motion for Extension of Time to File Response/Reply to Defendant's Motion for Summary Judgment. Signed by Judge Colleen Kollar-Kotelly on 8/9/2017. (lcckk3) (Entered: 08/09/2017)
Set/Reset Deadlines: Plaintiffs' Response to 13 due by 8/18/2017. Defendant's Reply due by 9/12/2017. Plaintiffs' Reply due by 9/28/17. (dot) (Entered: 08/09/2017)
17 Memorandum in opposition to re 13 MOTION for Summary Judgment filed by BRAD HEATH, JAMES MADISON PROJECT. (Attachments: # 1 Statement of Facts (Response), # 2 Text of Proposed Order)(Moss, Bradley) (Entered: 08/18/2017)
18 Cross MOTION for Summary Judgment by BRAD HEATH, JAMES MADISON PROJECT (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Moss, Bradley) (Entered: 08/18/2017)
19 NOTICE of Change of Address by Amy E. Powell (Powell, Amy) (Entered: 09/07/2017)
20 Consent MOTION for Extension of Time to File Response/Reply by DEPARTMENT OF JUSTICE (Powell, Amy) (Entered: 09/08/2017)
MINUTE ORDER. The Court is in receipt of Defendant's 20 Unopposed Motion for Extension of Time to File Summary Judgment Opposition and Reply. Defendant requests an additional three days to file its pleading because defense counsel is busy with other matters. This is Defendant's first request to extend this particular deadline and Plaintiff does not oppose. Defendant acknowledges that its motion is untimely, but represents that any future motions for extensions will be filed on time. Defendant's motion is GRANTED. Defendant shall file its Summary Judgment Opposition and Reply by no later than SEPTEMBER 15, 2017. Plaintiff shall file its Reply by no later than SEPTEMBER 29, 2017. Signed by Judge Colleen Kollar-Kotelly on 9/11/2017. (lcckk3) (Entered: 09/11/2017)

09/11/2017
09/15/2017 09/15/2017 09/18/2017 09/29/2017 11/02/2017 11/03/2017 11/29/2017 12/18/2017 01/05/2018

Set/Reset Deadlines: Defendant's Response to 18 Cross Motions
due by 9/15/2017. Defendant's Reply to 13 Motion for Summary Judgment due by 9/15/2017. Plaintiffs' Reply to 18 Cross Motions due by 9/29/2017. (dot) (Entered: 09/11/2017)
21 REPLY to opposition to motion re 13 MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Powell, Amy) (Entered: 09/15/2017)
22 Memorandum in opposition to re 18 Cross MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Response to Pls Statement of Facts, # 2 Text of Proposed Order)(Powell, Amy) (Entered: 09/15/2017)
Case directly reassigned to Judge Timothy J. Kelly. Judge Colleen Kollar-Kotelly is no longer assigned to the case. (ztnr) (Entered: 09/18/2017)
23 REPLY to opposition to motion re 18 Cross MOTION for Summary Judgment filed by BRAD HEATH, JAMES MADISON PROJECT. (Moss, Bradley) (Entered: 09/29/2017)
24 Case randomly reassigned to Judge Amit P. Mehta. Judge Timothy J. Kelly is no longer assigned to the case. (ztnr) (Entered: 11/03/2017)
25 NOTICE of Supplemental Information by BRAD HEATH, JAMES MADISON PROJECT (Moss, Bradley) (Entered: 11/03/2017)
26 NOTICE of Supplemental Information by BRAD HEATH, JAMES MADISON PROJECT (Moss, Bradley) (Entered: 11/29/2017)
27 NOTICE of Supplemental Information by BRAD HEATH, JAMES MADISON PROJECT (Attachments: # 1 Exhibit 1 (Gizmodo litigation declaration), # 2 Exhibit 2 (American Oversight litigation declaration))(Moss, Bradley) (Entered: 12/18/2017)
MINUTE ORDER. On January 4, 2018, the court issued a Memorandum Opinion, ECF No. 36, in James Madison Project v. Dep't of Justice, 17-cv-144 (APM), which directly addresses many of the issues raised in this case concerning the official acknowledgment doctrine. In light of the court's decision in James Madison, 17-cv-144, the court invites the parties, if they wish, to supplement their briefing in this case to take account of the court's decision in James Madison, 17-cv-144, and apply it to the facts of

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02/02/2018 31
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02/14/2018 32
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02/16/2018 33

this case. The parties' supplemental briefs shall be due no later than January 17, 2018, and shall be limited to five pages. Signed by Judge Amit P. Mehta on 01/05/2018. (lcapm3) (Entered: 01/05/2018)
RESPONSE TO ORDER OF THE COURT re Order,, filed by BRAD HEATH, JAMES MADISON PROJECT. (Moss, Bradley) (Entered: 01/17/2018)
SUPPLEMENTAL MEMORANDUM to Respond to Order of the Court filed by DEPARTMENT OF JUSTICE. (Powell, Amy) (Entered: 01/17/2018)
NOTICE of Supplemental Information by BRAD HEATH, JAMES MADISON PROJECT (Moss, Bradley) (Entered: 01/22/2018)
NOTICE of Supplemental Information by BRAD HEATH, JAMES
MADISON PROJECT (Attachments: # 1 Exhibit 1 - Nunes Memo)(Moss, Bradley) (Entered: 02/02/2018)
MINUTE ORDER. No later than February 14, 2018, Defendant shall notify the court whether the release of the "Nunes Memo"
referenced in Plaintiffs' 31 Notice of Supplemental Information affects Defendant's blanket Glomar response to Plaintiffs' FOIA request. If Defendant maintains that the Nunes Memo's release does not in any way change the agency's Glomar response, it shall set forth its justification for that position. Signed by Judge Amit P. Mehta on 02/02/2018. (lcapm3) (Entered: 02/02/2018)
RESPONSE TO ORDER OF THE COURT Response to Court Order by DEPARTMENT OF JUSTICE (Powell, Amy) Modified event title on 2/20/2018 (znmw). (Entered: 02/14/2018)
MINUTE ORDER. In light of Defendant's 32 Notice, Plaintiffs shall file, no later than Friday, February 16, 2018, their response to Defendant's proposal for further proceedings in this matter. Signed by Judge Amit P. Mehta on 02/14/2018. (lcapm3) (Entered: 02/14/2018)
RESPONSE re 32 to Defendant's Response to Order filed by BRAD HEATH, JAMES MADISON PROJECT. (Moss, Bradley) Modified to add link on 2/20/2018 (znmw). (Entered: 02/16/2018)

02/16/2018
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34 03/19/2018
05/18/2018 35
05/21/2018
05/21/2018 07/24/2018
36 08/08/2018

MINUTE ORDER. In light of the parties' 32 33 recent
submissions, Defendant's 13 Motion for Summary Judgment and Plaintiffs' 18 Cross-Motion for Summary Judgment are denied without prejudice as moot. The parties shall appear for a status conference on March 19, 2018, at 10:00 am in Courtroom 10. Signed by Judge Amit P. Mehta on 02/16/2018. (lcapm3) (Entered: 02/16/2018)
Set/Reset Deadlines/Hearings: Status Conference set for 3/19/2018 at 10:00 AM in Courtroom 10 before Judge Amit P. Mehta. (zcdw) (Entered: 02/20/2018)
Joint STATUS REPORT by DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration of David M. Hardy)(Powell, Amy) (Entered: 03/16/2018)
Minute Entry: Status Conference held on 3/19/2018 before Judge Amit P. Mehta: Discovery due by 7/20/2018. Status Report due by 5/18/2018. (Court Reporter Jan Dickman) (tb) (Entered: 03/19/2018)
STATUS REPORT by DEPARTMENT OF JUSTICE. (Powell, Amy) (Entered: 05/18/2018)
MINUTE ORDER. The parties shall file a Joint Status Report on or before July 24, 2018, updating the court on the status of processing and production and, if necessary, proposing a summary judgment briefing schedule. Signed by Judge Amit P. Mehta on 05/21/2018. (lcapm3) (Entered: 05/21/2018)
Set/Reset Deadlines: Joint Status Report due by 7/24/2018. (zjd) (Entered: 05/24/2018)
Joint STATUS REPORT by BRAD HEATH, JAMES MADISON PROJECT. (Moss, Bradley) (Entered: 07/24/2018)
MINUTE ORDER. The court has considered the parties' respective
positions set forth in the July 24, 2018 36 Joint Status Report, and does not agree with Plaintiff that separate briefing is required to determine the relevance of the President's tweets concerning the redactions made to the Carter Page FISA applications. The parties shall meet and confer about the exemptions claimed to support the redactions and, no later than August 17, 2018, file an additional status report with the court that sets forth how the parties wish to

08/08/2018 08/15/2018
37 08/22/2018
38
08/22/2018
10/19/2018 39
10/19/2018 40
11/09/2018 41
11/09/2018 42

proceed and, if necessary, proposes a summary judgment briefing schedule. Signed by Judge Amit P. Mehta on 08/08/2018. (lcapm3) (Entered: 08/08/2018)
Set/Reset Deadlines: Joint Status Report due by 8/17/2018. (zjd) (Entered: 08/08/2018)
Joint STATUS REPORT by DEPARTMENT OF JUSTICE. (Powell, Amy) (Entered: 08/15/2018)
ORDER entering the briefing schedule proposed in the parties' 37
Joint Status Report. The schedule for further proceedings in this matter is as follows: (1) Defendant's Motion for Summary Judgment shall be filed on or before October 19, 2018; (2) Plaintiffs' Cross-Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment shall be filed on or before November 9, 2018; (3) Defendant's Reply and Opposition to Plaintiffs' Motion for Summary Judgment shall be filed on or before November 30, 2018; and (4) Plaintiffs' Reply shall be filed on or before December 21, 2018. Signed by Judge Amit P. Mehta on 08/22/2018. (lcapm3) (Entered: 08/22/2018)
Set/Reset Deadlines: Defendant's Motion for Summary Judgment due by 10/19/2018. Plaintiff's Cross-Motion for Summary Judgment and Opposition due by 11/9/2018. Defendant's Reply and Opposition due by 11/30/2018. Plaintiff's Reply due by 12/21/2018. (zjd) (Entered: 08/22/2018)
NOTICE of Lodging Classified Material by DEPARTMENT OF JUSTICE (Powell, Amy) (Entered: 10/19/2018)
MOTION for Summary Judgment by DEPARTMENT OF JUSTICE (Attachments: # 1 Declaration Of David Hardy (3rd) (Redacted), # 2 Combined Exhibits to 3rd Hardy Declaration, # 3 Declaration of Patrick Findlay and Exhibits)(Powell, Amy) (Entered: 10/19/2018)
Cross MOTION for Partial Summary Judgment ) by BRAD HEATH, JAMES MADISON PROJECT (Attachments: # 1 Exhibit 1 - Moss Declaration, # 2 Statement of Facts, # 3 Text of Proposed Order)(Moss, Bradley) (Entered: 11/09/2018)
Memorandum in opposition to re 40 MOTION for Summary Judgment filed by BRAD HEATH, JAMES MADISON PROJECT. (Attachments: # 1 Exhibit 1 - Moss Declaration, # 2 Statement of

11/30/2018 43
11/30/2018 44
12/20/2018 45
04/17/2019 46
04/29/2019 47
05/17/2019 48
05/17/2019
05/17/2019
06/28/2019 49
07/03/2019 50

Facts Response, # 3 Text of Proposed Order)(Moss, Bradley) (Entered: 11/09/2018)
Memorandum in opposition to re 41 Cross MOTION for Partial Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Response to Plaintiffs' Statement of Material Facts, # 2 Declaration of Michael G. Seidel)(Powell, Amy) (Entered: 11/30/2018)
REPLY to opposition to motion re 40 MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration of Michael G. Seidel)(Powell, Amy) (Entered: 11/30/2018)
REPLY to opposition to motion re 41 Cross MOTION for Partial Summary Judgment filed by BRAD HEATH, JAMES MADISON PROJECT. (Moss, Bradley) (Entered: 12/20/2018)
NOTICE OF SUPPLEMENTAL AUTHORITY by DEPARTMENT OF JUSTICE (Powell, Amy) (Entered: 04/17/2019)
NOTICE of Clarification by BRAD HEATH, JAMES MADISON PROJECT (Moss, Bradley) (Entered: 04/29/2019)
STATUS REPORT by DEPARTMENT OF JUSTICE. (Powell, Amy) (Entered: 05/17/2019)
MINUTE ORDER. The Defendant shall file any necessary supplement to Defendant's summary judgment record on or before June 28, 2019. Signed by Judge Amit P. Mehta on 05/17/2019. (lcapm1) (Entered: 05/17/2019)
Set/Reset Deadlines: Defendant's Supplemental Memorandum due by 6/28/2019. (zjd) (Entered: 05/20/2019)
SUPPLEMENTAL MEMORANDUM to re 40 MOTION for Summary Judgment filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration of David M. Hardy (4th))(Powell, Amy) (Entered: 06/28/2019)
NOTICE of Change of Address by Amy E. Powell (Powell, Amy) (Entered: 07/03/2019)

07/30/2019 51
07/30/2019
08/30/2019 52
09/13/2019 53
09/16/2019 54
09/17/2019
09/17/2019 09/27/2019
55
12/10/2019 56

MEMORANDUM OPINION AND ORDER denying the parties' 40
and 41 Motions for Summary Judgment. See the attached Memorandum Opinion and Order for additional details. Signed by Judge Amit P. Mehta on 07/30/2019. (lcapm3) (Entered: 07/30/2019)
Set/Reset Deadlines: Defendant's Supplemental Declaration and Renewed Motion for Summary Judgment due by 8/30/2019. (zjd) (Entered: 07/31/2019)
MOTION for Summary Judgment , Renewed by DEPARTMENT OF JUSTICE (Attachments: # 1 Declaration of G. Bradley Weinsheimer, # 2 Text of Proposed Order)(Powell, Amy) (Entered: 08/30/2019)
Memorandum in opposition to re 52 MOTION for Summary Judgment , Renewed filed by BRAD HEATH, JAMES MADISON PROJECT. (Attachments: # 1 Exhibit 1 - Moss Declaration, # 2 Statement of Facts Response, # 3 Text of Proposed Order)(Moss, Bradley) (Entered: 09/13/2019)
Unopposed MOTION for Extension of Time to File Response/Reply in Support of Defendant's Renewed Motion for Summary Judgment by DEPARTMENT OF JUSTICE (Powell, Amy) (Entered: 09/16/2019)
MINUTE ORDER granting 54 Defendant's Unopposed Motion for an Extension. Defendant's Reply in Support of Defendant's Renewed Motion for Summary Judgment shall be filed on or before September 27, 2019. Signed by Judge Amit P. Mehta on 09/17/2019. (lcapm1) Modified document type on 9/17/2019 (zjd). (Entered: 09/17/2019)
Set/Reset Deadlines: Defendant's Reply due by 9/27/2019. (zjd) (Entered: 09/17/2019)
REPLY to opposition to motion re 52 MOTION for Summary Judgment , Renewed filed by DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration of Amy Powell with Exhibit)(Powell, Amy) (Entered: 09/27/2019)
NOTICE of Supplemental Information by BRAD HEATH, JAMES MADISON PROJECT (Moss, Bradley) (Entered: 12/10/2019)

12/12/2019

MINUTE ORDER. By December 20, 2019, Defendant shall advise the court whether release of the Department of Justice's Inspector General's "Review of Four FISA Applications and Other Aspects of the FBI's Crossfire Hurricane Investigation" affects Defendant's withholding of information from the 412 released pages regarding the FISA applications pertaining to Carter Page. Additionally, Defendant shall indicate whether any information withheld from the 21 pages that are the subject of the court's Memorandum Opinion and Order of July 30. 2019, are impacted by the report's release. Signed by Judge Amit P. Mehta on 12/12/2019. (lcapm3) (Entered: 12/12/2019)

12/12/2019

Set/Reset Deadlines: Status Report due by 12/20/2019. (zjd) (Entered: 12/12/2019)

12/20/2019 57

STATUS REPORT with 5th Declaration of David Hardy by DEPARTMENT OF JUSTICE. (Powell, Amy) (Entered: 12/20/2019)

12/21/2019

58 Unopposed MOTION for Leave to File Response/Replyto Defendant's Status Report by BRAD HEATH, JAMES MADISON PROJECT (Attachments: # 1 Text of Proposed Order)(Moss, Bradley) (Entered: 12/21/2019)

12/21/2019

59 ERRATA by BRAD HEATH, JAMES MADISON PROJECT. (Moss, Bradley) (Entered: 12/21/2019)

12/23/2019

MINUTE ORDER granting Plaintiffs' 58 Motion for Leave to File Response/Reply. Plaintiffs may file a response to Defendant's 57

Status Report by January 9, 2020. Signed by Judge Amit P. Mehta on 12/23/2019. (lcapm1) (Entered: 12/23/2019)

12/23/2019

Set/Reset Deadlines: Response due by 1/9/2020. (zjd) (Entered: 12/26/2019)

01/03/2020

60 RESPONSE re 57 to Defendant's Status Report filed by BRAD HEATH, JAMES MADISON PROJECT. (Attachments: # 1 Exhibit 1 - Leopold Status Conference Transcript)(Moss, Bradley) Modified to add link on 1/7/2020 (znmw). (Entered: 01/03/2020)

01/23/2020 61

NOTICE of Supplemental Information by BRAD HEATH, JAMES MADISON PROJECT (Attachments: # 1 Exhibit 1 - FISC Order)(Moss, Bradley) (Entered: 01/23/2020)

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MEMORANDUM OPINION re: 52 Defendant's Renewed Motion for Summary Judgment. See the attached Memorandum Opinion for additional details. Signed by Judge Amit P. Mehta on 03/03/2020. (lcapm3) (Entered: 03/03/2020)
ORDER. For the reasons set forth in the 62 Memorandum
Opinion, the court grants 52 Defendant's Renewed Motion for Summary Judgment. See the attached Order for further details. Signed by Judge Amit P. Mehta on 03/03/2020. (lcapm3) (Entered: 03/03/2020)
Partial MOTION for Reconsideration by BRAD HEATH, JAMES MADISON PROJECT (Attachments: # 1 Text of Proposed Order)(Moss, Bradley) (Entered: 03/13/2020)
Memorandum in opposition to re 64 Partial MOTION for Reconsideration filed by DEPARTMENT OF JUSTICE. (Powell, Amy) (Entered: 03/26/2020)
REPLY to opposition to motion re 64 Partial MOTION for Reconsideration filed by BRAD HEATH, JAMES MADISON PROJECT. (Moss, Bradley) (Entered: 03/30/2020)
ORDER granting Plaintiffs' Motion for Reconsideration, ECF No. 64, and granting Defendant's Motions for Summary Judgment, ECF Nos. 40, 52, as to the remaining 391 pages of the Carter Page FISA application. See the attached Order for additional details. Signed by Judge Amit P. Mehta on 5/4/2020. (lcapm1) (Entered: 05/04/2020)
Consent MOTION for Extension of Time to File Motion for Attorney's Fees and Costs by BRAD HEATH, JAMES MADISON PROJECT (Attachments: # 1 Text of Proposed Order)(Moss, Bradley) (Entered: 05/15/2020)
ORDER granting 68 Motion for Extension of Time to File. Plaintiffs' deadline to file their Motion for Attorney's Fees and Costs or, alternatively, to file a status report regarding settlement negotiations is set for no later than July 31, 2020. See the attached Order for additional details. Signed by Judge Amit P. Mehta on 5/15/2020. (lcapm1) (Entered: 05/15/2020)

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Set/Reset Deadlines: Plaintiffs' Motion for Attorney's Fees and Costs or Status Report due by 7/31/2020. (zjd) (Entered: 05/18/2020)
NOTICE of Dismissal by BRAD HEATH, JAMES MADISON PROJECT (Moss, Bradley) (Entered: 07/31/2020)

 
 Case 1:17-cv-00597-APM Document 13 Filed 07/14/17 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF JUSTICE, )

)

Defendant.

)

)

Case No. 17-597-CKK

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Defendant United States Department of Justice (“DOJ”) hereby moves for summary

judgment pursuant to Fed. R. Civ. P. 56(b) and Local Rule 7(h) for the reasons stated in the

attached memorandum of points and authorities, statement of material facts, and supporting

declarations and exhibits.

Dated: July 14, 2017

Respectfully Submitted,

CHAD READLER Acting Assistant Attorney General

MARCIA BERMAN Assistant Director, Federal Programs Branch

/s/Amy E. Powell AMY E. POWELL Trial Attorney U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W., Room 5377 Washington, D.C. 20530 Tel.: (202) 514-9836 Fax.: (202) 616-8470 Email: amy.powell@usdoj.gov

Case 1:17-cv-00597-APM Document 13 Filed 07/14/17 Page 2 of 33

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF JUSTICE, )

)

Defendant.

)

)

Case No. 17-597-CKK

STATEMENT OF MATERIAL FACTS IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

As required by Local Civil Rule 7(h)(1), and in support of the Motion for Summary

Judgment, Defendants hereby make the following statement of material facts as to which there is

no genuine issue.

1. This action arises from FOIA requests submitted by the Plaintiffs to the Federal

Bureau of Investigation (“FBI”) and DOJ National Security Division (“NSD”). By letter dated

March 6, 2017, Plaintiffs sought:

1) Any orders by the FISC authorizing surveillance of and/or collection of information concerning the Trump Organization, President Trump, President Trump’s campaign for presidency, or people associated with President Trump. 2) Any applications to the FISC seeking authorization for surveillance of and/or collection of information concerning the Trump Organization, President Trump, President Trump’s campaign for presidency, or people associated with President Trump. 3) Any minimization procedures issued by the FISC and that applied to any orders issued that fall within the scope of #1 or #2.

See Declaration of David Hardy, dated July 14, 2017, ¶ 5 & Exhibit A (FOIA Request);

Declaration of G. Bradley Weinsheimer, dated July 13, 2017, ¶ 4 & Exhibit A (FOIA Request).

1

Case 1:17-cv-00597-APM Document 13 Filed 07/14/17 Page 3 of 33
2. By email dated March 17, 2017, NSD refused to confirm or deny the existence of responsive records pursuant to Exemption 1, explaining that to confirm or deny the existence of responsive records would reveal information that is properly classified under Executive Order 13526. See Weinsheimer Decl. ¶ 5 & Ex. B (NSD Response).
3. On the same day, Plaintiffs appealed the determination to the DOJ Office of Information Policy (“OIP”). On April 12, 2017, OIP affirmed the determination of NSD – that the existence or non-existence of responsive records is a properly classified fact. See Weinsheimer Decl. ¶ 5 & Ex. C (NSD Appeal Determination).
4. By letter dated March 16, 2017, the FBI acknowledged receipt of Plaintiffs’ request, and on April 4, 2017, the FBI also issued a Glomar response. The FBI’s Glomar response was based on FOIA Exemptions (b)(1), (b)(3), (b)(7)(A), and (b)(7)(E). See Hardy Decl. ¶ 11 & Ex. D.
5. G. Bradley Weinsheimer is an original classification authority. Weinsheimer Decl. ¶ 2. He determined that the information withheld by NSD is protected by Exemption 1. Id. ¶¶ 7-12.
6. David Hardy is an original classification authority. Hardy Decl. ¶ 2. He determined that the information withheld by FBI is protected by Exemption 1. Id. ¶¶ 24-33.
7. The information withheld pursuant to Exemption 1 is under control of the United States Government, and contains information pertaining to intelligence activities, sources or methods. See Executive Order 13526 §§ 1.4(c); Hardy Decl. ¶¶ 26-29; Weinsheimer Decl. ¶ 8.
8. The information withheld pursuant to Exemption 1 also pertains to foreign relations. Hardy Decl. ¶¶ 30-33.
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9. Mr. Weinsheimer and Mr. Hardy both determined that disclosure of the existence or non-existence of responsive records would cause harm to national security, and have articulated the harm that could be expected to occur. Hardy Decl. ¶¶ 26-33; Weinsheimer Decl. ¶¶ 9-12.
10. Mr. Hardy further determined that disclosure of the existence or non-existence of responsive records risks disclosure of intelligence sources and methods and is therefore protected by the National Security Act and Exemption 3. See Hardy Decl. at ¶¶ 34-36.
11. Mr. Hardy further determined that FISA applications and FISC orders – when they exist – are records compiled for law enforcement purposes within the meaning of Exemption 7. See Hardy Decl. ¶¶ 37-39.
12. Mr. Hardy further determined that disclosure of the existence or non-existence of responsive records could reasonably be expected to interfere with enforcement proceedings that are pending or reasonably anticipated, and that the information is therefore properly withheld under Exemption 7A. Hardy Decl. ¶¶ 40-45.
13. Mr. Hardy further determined that disclosure of the existence or non-existence of responsive records would disclose techniques and procedures for law enforcement investigations and that such disclosure could reasonably be expected to risk circumvention of the law, and that the information is therefore properly withheld under Exemption 7E. Hardy Decl. ¶¶ 47-48.
14. No authorized Executive Branch official has disclosed the information withheld in this matter. Hardy Decl. ¶¶ 14-20; Weinsheimer Decl. ¶ 13.
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Dated: July 14, 2017

Respectfully Submitted,
CHAD READLER Acting Assistant Attorney General
MARCIA BERMAN Assistant Director, Federal Programs Branch
/s/Amy E. Powell AMY E. POWELL Trial Attorney U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W., Room 5377 Washington, D.C. 20530 Tel.: (202) 514-9836 Fax.: (202) 616-8470 Email: amy.powell@usdoj.gov

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF JUSTICE, )

)

Defendant.

)

)

Case No. 17-597-CKK

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
CHAD A. READLER Acting Assistant Attorney General
MARCIA BERMAN Assistant Director, Federal Programs Branch
AMY E. POWELL Trial Attorney U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W., Room 5377 Washington, D.C. 20530 Tel.: (202) 514-9836 Fax.: (202) 616-8470 Email: amy.powell@usdoj.gov

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Table of Contents
INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 1 ARGUMENT.................................................................................................................................. 3
I. STATUTORY STANDARDS............................................................................................. 3 A. The Freedom of Information Act ................................................................................ 3 B. Special Considerations in National Security Cases..................................................... 4 C. The Glomar Response. ................................................................................................ 6
II. NSD AND FBI PROPERLY REFUSED TO CONFIRM OR DENY THE EXISTENCE OF RESPONSIVE RECORDS PURSUANT TO EXEMPTION ONE. ............................ 7
III. THE GLOMAR RESPONSE WAS PROPER UNDER EXEMPTION THREE AND THE NATIONAL SECURITY ACT................................................................................ 10
IV. THE GLOMAR RESPONSE WAS PROPER UNDER EXEMPTION 7(A) .................. 12 V. THE GLOMAR RESPONSE WAS PROPER UNDER EXEMPTION 7(E) ................... 15 VI. DEFENDANTS HAVE NOT OFFICIALLY ACKNOWLEDGED THE EXISTENCE
OR NON-EXISTENCE OF RESPONSIVE RECORDS ................................................. 17 CONCLUSION............................................................................................................................. 21

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Table of Authorities
Cases
ACLU v. Dep’t of Def., 628 F.3d 612 (D.C. Cir. 2011)......................................................................................... 5, 11, 18
Afshar v. Dep’t of State, 702 F.2d 1125 (D.C. Cir. 1983)............................................................................................. 6, 18
Agility Pub. Warehousing Co. K.S.C. v. NSA, 113 F. Supp. 3d 313 (D.D.C. 2015)............................................................................... 10, 11, 18
Am. Civil Liberties Union v. CIA, 710 F.3d 422 (D.C. Cir. 2013)................................................................................................... 17
Ass’n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd., 830 F.2d 331 (D.C. Cir. 1987)..................................................................................................... 5
Blackwell v. FBI, 646 F.3d 37 (D.C. Cir. 2011)..................................................................................................... 16
CIA v. Sims, 471 U.S. 159 (1985) .............................................................................................................. 3, 11
Citizens for Responsibility and Ethics in Wash. v. Dep’t of Justice, 746 F.3d 1082 (D.C. Cir. 2014)..................................................................................... 12, 13, 15
Clapper v. Amnesty Int'l USA, 568 U.S. 398 (2013) .................................................................................................................... 8
Competitive Enter. Inst. v. NSA, 78 F. Supp. 3d 45 (D.D.C. 2015)................................................................................... 10, 17, 18
Cozen O’Connor v. Dep’t of Treasury, 570 F. Supp. 2d 749 (E.D. Pa. 2008)......................................................................................... 15
Ctr. for Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003)............................................................................................. 3, 4, 5
DiBacco v. U.S. Army, 795 F.3d 178 (D.C. Cir. 2015) .................................................................................................... 4
Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990)..................................................................................... 5, 7, 17, 18
Frugone v. CIA, 169 F.3d 772 (D.C. Cir. 1999)................................................................................................. 5, 6

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Gardels v. CIA, 689 F.2d 1100 (D.C. Cir. 1982)............................................................................................. 6, 11
Gosen v. USCIS, 75 F. Supp. 3d 279 (D.D.C. 2014)............................................................................................. 16
Gov’t Accountability Project v. Food & Drug Admin., 206 F. Supp. 3d 420 (D.D.C. 2016)............................................................................................. 4
Halperin v. CIA, 629 F.2d 144 (D.C. Cir. 1980)................................................................................................... 11
James Madison Project v. Dep’t of Justice, 208 F. Supp. 3d 265 (D.D.C. 2016)............................................................................................. 6
John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989) ................................................................................................................ 3, 4
Juarez v. Dep’t of Justice, 518 F.3d 54 (D.C. Cir. 2008)..................................................................................................... 13
Judicial Watch, Inc. v. Dep’t of Defense, 715 F.3d 937 (D.C. Cir. 2013)..................................................................................................... 7
Judicial Watch, Inc. v. Dep't of the Navy, 25 F. Supp. 3d 131 (D.D.C. 2014)............................................................................................... 4
King v. Dep’t of Justice, 830 F.2d 210 (D.C. Cir. 1987)............................................................................................. 4, 5, 7
Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) .................................................................................................................... 4
Larson v. Dep’t of State, 565 F.3d 857 (D.C. Cir. 2009)........................................................................................... 5, 7, 11
Mapother v. Dep’t of Justice, 3 F.3d 1533 (D.C. Cir. 1993)..................................................................................................... 13
Marrera v. Dep’t of Justice, 622 F. Supp. 51 (D.D.C. 1985).................................................................................................. 10
Mayer Brown LLP v. IRS, 562 F.3d 1190 (D.C. Cir. 2009)................................................................................................. 15
Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981)............................................................................................... 4, 18

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Minier v. CIA, 88 F.3d 796 (9th Cir. 1996) ......................................................................................................... 3
Moore v. CIA, 666 F.3d 1330 (D.C. Cir. 2011)................................................................................................. 18
Morley v. CIA, 508 F.3d 1108 (D.C. Cir. 2007)................................................................................................. 11
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978) ............................................................................................................ 13, 15
Parker v. EOUSA, 852 F. Supp. 2d 1 (D.D.C. 2012)................................................................................................. 6
People for the Ethical Treatment of Animals v. NIH, 745 F.3d 535 (D.C. Cir. 2014)................................................................................................... 14
PHE, Inc. v. Dep’t of Justice, 983 F.2d 248 (D.C. Cir. 1993)................................................................................................... 15
Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976)............................................................................................... 2, 6
Pub. Citizen v. Dep’t of State, 11 F.3d 198 (D.C. Cir. 1993)..................................................................................................... 17
Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.Mexico, 740 F.3d 195 (D.C. Cir. 2014)............................................................................................. 12, 16
Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978)................................................................................................... 5
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991)................................................................................................... 4
Schwarz v. Dep’t of Treasury, 131 F. Supp. 2d 142 (D.D.C. 2000)........................................................................................... 10
Talbot v. CIA, 578 F. Supp. 2d 24 (D.D.C. 2008)............................................................................................. 11
Unrow Human Rights Litig. Clinic v. Dep’t of State, 134 F. Supp. 3d 263 (D.D.C. 2015)......................................................................................... 5, 8
Wheeler v. CIA, 271 F. Supp. 2d 132 (D.D.C. 2003)............................................................................................. 7

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Wilner v. NSA, 592 F.3d 60 (2d Cir. 2009) .................................................................................................... 6, 10
Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007)......................................................................................... 6, 17, 18
Statutes 5 U.S.C. § 552(a)(4)(B) .................................................................................................................. 4 5 U.S.C. § 552(b) ............................................................................................................................ 3 5 U.S.C. § 552(b)(1) ...................................................................................................................... 7 5 U.S.C. § 552(b)(3)(A)................................................................................................................ 10 5 U.S.C. § 552(b)(7) ..................................................................................................................... 12 5 U.S.C. § 552(b)(7)(A)................................................................................................................ 13 5 U.S.C. § 552(b)(7)(E) ................................................................................................................ 15 50 U.S.C. § 3024(i)(1) .................................................................................................................. 11 Other Authorities
Exec. Order 13,526 75 Fed. Reg. 707 (Dec. 29, 2009)............................................................................................ 7, 8
H.R. Rep. No. 89-1497 (1966), reprinted in 1966 U.S.C.C.A.N. 2418………………………………………………………….3

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INTRODUCTION Using the Freedom of Information Act, Plaintiffs seek information about specific types of surveillance activity allegedly related to an ongoing investigation. More specifically, they seek applications to the Foreign Intelligence Surveillance Court (“FISC”) regarding the Trump Organization, President Donald Trump, or the Trump campaign, as well as related FISC orders and minimization procedures. Two components of the Defendant United States Department of Justice have properly refused to confirm or deny the existence of responsive records, and no authorized Executive Branch official has disclosed the specific information at issue – namely, the existence of non-existence of Foreign Intelligence Surveillance Act warrants and orders with respect to these specific individuals or organizations. The Government’s supporting declarations establish that providing a substantive response would reveal classified information protected by Freedom Information Act (“FOIA”) Exemption 1, the disclosure of which would cause harm to national security. The FBI’s declaration further establishes that disclosure of the existence or non-existence of responsive records would reveal intelligence sources and methods protected by Exemption 3 and the National Security Act, as well as law enforcement information protected by Exemptions 7(A) and 7(E). The Court should defer to Defendant’s determination in this regard and grant the Government summary judgment.
BACKGROUND This matter arises from nearly identical FOIA requests submitted to the Federal Bureau of Investigation (“FBI”) and DOJ National Security Division (“NSD”) on March 6, 2017, in which Plaintiffs sought records related to specific individuals and organizations allegedly subject to surveillance under the Foreign Intelligence Surveillance Act (“FISA”). Specifically, Plaintiffs sought:
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1) Any orders by the FISC authorizing surveillance of and/or collection of information concerning the Trump Organization, President Trump, President Trump’s campaign for presidency, or people associated with President Trump. 2) Any applications to the FISC seeking authorization for surveillance of and/or collection of information concerning the Trump Organization, President Trump, President Trump’s campaign for presidency, or people associated with President Trump. 3) Any minimization procedures issued by the FISC and that applied to any orders issued that fall within the scope of #1 or #2. See Declaration of David Hardy, dated July 14, 2017, ¶ 5 & Exhibit A (FOIA Request); Declaration of G. Bradley Weinsheimer, dated July 13, 2017, ¶ 4 & Exhibit A (FOIA Request). JMP quoted certain public statements by President Trump and asserted that the requesters “are pre-emptively asserting that President Trump’s public comments constitute prior official disclosure of the existence of at least one, if not more, FISA warrants.” Id. By email dated March 17, 2017, NSD refused to confirm or deny the existence of responsive records pursuant to Exemption 1, explaining that to confirm or deny the existence of responsive records would reveal information that is properly classified under Executive Order 13526. See Weinsheimer Decl. ¶ 5 & Ex. B (NSD Response). This is known as a “Glomar” response, and is proper if the fact of the existence or non-existence of agency records falls within a FOIA exemption. See Phillippi v. CIA, 546 F.2d 1009, 1011 (D.C. Cir. 1976) (acknowledging CIA refusal to confirm or deny existence of records regarding activities of a ship named Hughes Glomar Explorer). On the same day, Plaintiffs appealed the determination to the DOJ Office of Information Policy (“OIP”). On April 12, 2017, OIP affirmed the determination of NSD – that the existence or non-existence of responsive records is a properly classified fact. See Weinsheimer Decl. ¶ 5 & Ex. C (OIP Determination).
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By letter dated March 16, 2017, the FBI acknowledged receipt of Plaintiffs’ request, and on April 4, 2017, the FBI also issued a Glomar response. The FBI’s Glomar response was based on FOIA Exemptions (b)(1), (b)(3), (b)(7)(A), and (b)(7)(E). See Hardy Decl. ¶ 11 & Ex. D.
Plaintiffs filed a Complaint on April 4, 2017 and an Amended Complaint was filed on April 15, 2017. See Compl., ECF No. 1; Am. Compl. ECF No. 5.
ARGUMENT I. STATUTORY STANDARDS
A. The Freedom of Information Act The “basic purpose” of FOIA reflects a “general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). “Congress recognized, however, that public disclosure is not always in the public interest.” CIA v. Sims, 471 U.S. 159, 166–67 (1985). Accordingly, in passing FOIA, “Congress sought ‘to reach a workable balance between the right of the public to know and the need of the Government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy.’” John Doe Agency, 493 U.S. at 152 (quoting H.R. Rep. No. 89-1497, at 6 (1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2423). As the D.C. Circuit has recognized, “FOIA represents a balance struck by Congress between the public’s right to know and the [G]overnment’s legitimate interest in keeping certain information confidential.” Ctr. for Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003) (citing John Doe Agency, 493 U.S. at 152). FOIA mandates disclosure of government records unless the requested information falls within one of nine enumerated exemptions. See 5 U.S.C. § 552(b). “A district court only has jurisdiction to compel an agency to disclose improperly withheld agency records,” i.e. records that do “not fall within an exemption.” Minier v. CIA, 88 F.3d 796, 803 (9th Cir. 1996); see also
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5 U.S.C. § 552(a)(4)(B) (providing the district court with jurisdiction only “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant”); Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980) (“Under 5 U.S.C. § 552(a)(4)(B)[,] federal jurisdiction is dependent upon a showing that an agency has (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records.’”). While narrowly construed, FOIA’s statutory exemptions “are intended to have meaningful reach and application.” John Doe Agency, 493 U.S. at 152; accord DiBacco v.U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015).
The courts resolve most FOIA actions on summary judgment. See Judicial Watch, Inc. v. Dep't of the Navy, 25 F. Supp. 3d 131, 136 (D.D.C. 2014). The Government bears the burden of proving that the withheld information falls within the exemptions it invokes. See 5 U.S.C. § 552(a)(4)(B); King v. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). A court may grant summary judgment to the Government based entirely on an agency’s declarations, provided they articulate “the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); accord Gov’t Accountability Project v. Food & Drug Admin., 206 F. Supp. 3d 420, 430 (D.D.C. 2016). Such declarations are accorded “a presumption of good faith, which cannot be rebutted by purely speculative claims[.]” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991).
B. Special Considerations in National Security Cases The issues presented in this case directly “implicat[e] national security, a uniquely executive purview.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 926–27. While courts review de
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novo an agency’s withholding of information pursuant to a FOIA request, “de novo review in FOIA cases is not everywhere alike.” Ass’n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd., 830 F.2d 331, 336 (D.C. Cir. 1987). Indeed, the courts have specifically recognized the “propriety of deference to the executive in the context of FOIA claims which implicate national security.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 927–28; see Ray v. Turner, 587 F.2d 1187, 1193 (D.C. Cir. 1978) (“[T]he executive ha[s] unique insights into what adverse [e]ffects might occur as a result of public disclosure of a particular classified record.”). “[A]ccordingly, the government’s ‘arguments needs only be both “plausible” and “logical” to justify the invocation of a FOIA exemption in the national security context.’” Unrow Human Rights Litig. Clinic v. Dep’t of State, 134 F. Supp. 3d 263, 272 (D.D.C. 2015) (quoting ACLU v. Dep’t of Def., 628 F.3d 612, 624 (D.C. Cir. 2011)).
For these reasons, the courts have “consistently deferred to executive affidavits predicting harm to the national security, and have found it unwise to undertake searching judicial review.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 927; see Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009) (“Today we reaffirm our deferential posture in FOIA cases regarding the ‘uniquely executive purview’ of national security.”); accord Unrow Human Rights Impact Litig. Clinic, 134 F. Supp. 3d at 272. Consequently, a reviewing court must afford “substantial weight” to agency declarations “in the national security context.” King, 830 F.2d at 217; see Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990) (holding that the district court erred in “perform[ing] its own calculus as to whether or not harm to the national security or to intelligence sources and methods would result from disclosure . . . .”); Frugone v. CIA, 169 F.3d 772, 775 (D.C. Cir. 1999) (because “courts have little expertise in either international diplomacy or counterintelligence operations, we are in no position to dismiss the CIA’s facially reasonable
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concerns” about the harm that disclosure could cause to national security). FOIA “bars the courts from prying loose from the government even the smallest bit of information that is properly classified or would disclose intelligence sources or methods.” Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983).
C. The Glomar Response. A Glomar response allows the Government to “refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under an FOIA exception.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)); accord Wilner v. NSA, 592 F.3d 60, 68 (2d Cir. 2009) (“The Glomar doctrine is well settled as a proper response to a FOIA request because it is the only way in which an agency may assert that a particular FOIA statutory exemption covers the ‘existence or non-existence of the requested records[.]’” (quoting Phillippi v. CIA, 546 F.2d 1009, 1012 (D.C. Cir. 1976)). In support of a Glomar response, the asserting agency “must explain why it can neither confirm nor deny the existence of responsive records.” James Madison Project v. Dep’t of Justice, 208 F. Supp. 3d 265, 283 (D.D.C. 2016) (quoting Parker v. EOUSA, 852 F. Supp. 2d 1, 10 (D.D.C. 2012)). The agency can satisfy this obligation by providing “public affidavit[s] explaining in as much detail as is possible the basis for its claim that it can be required neither to confirm nor to deny the existence of the requested records.” Phillippi, 546 F.2d at 1013. The courts in this Circuit have consistently upheld Glomar responses where, as here, confirming or denying the existence of records would reveal classified information protected by FOIA Exemption 1 or disclose information protected by statute in contravention of FOIA Exemption 3. See, e.g., Frugone, 169 F.3d at 774–75 (finding that CIA properly refused to
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confirm or deny the existence of records concerning the plaintiff’s alleged employment relationship with CIA pursuant to Exemptions 1 and 3); Larson, 565 F.3d at 861–62 (upholding the National Security Agency’s use of the Glomar response to the plaintiffs’ FOIA requests regarding past violence in Guatemala pursuant to Exemptions 1 and 3); Wheeler v. CIA, 271 F. Supp. 2d 132, 140 (D.D.C. 2003) (ruling that CIA properly invoked a Glomar response to a request for records concerning the plaintiff’s activities as a journalist in Cuba during the 1960s pursuant to Exemption 1). II. NSD AND FBI PROPERLY REFUSED TO CONFIRM OR DENY THE
EXISTENCE OF RESPONSIVE RECORDS PURSUANT TO EXEMPTION ONE. 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 “are in fact properly classified pursuant to such Executive Order.” 5 U.S.C. § 552(b)(1). Under Executive Order 13,526, an agency may 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[.]” 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); see also Judicial Watch, Inc. v. Dep’t of Defense, 715 F.3d 937, 941 (D.C. Cir. 2013) (“[P]ertains is not a very demanding verb.”). As addressed above, when it comes to matters affecting national security, the courts afford “substantial weight” to an agency’s declarations addressing classified information, King, 830 F.2d at 217, and defer to the expertise of agencies involved in national security and foreign relations. See
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Fitzgibbon, 911 F.2d at 766; see also Unrow Human Rights Impact Litig. Clinic, 134 F. Supp. 3d at 272.
Defendants invoked their Glomar responses in order to safeguard currently and properly classified information involving categories of information set forth in Section 1.4 of Executive Order 13,526. See Hardy Decl. at ¶ 24; Weinsheimer Decl. at ¶ 8. First, the existence or nonexistence of responsive records implicates “intelligence activities (including covert action), intelligence sources or methods, or cryptology.” Exec. Order 13,526 §1.4(c). The supporting declarations establish that disclosing whether or not the defendant agencies possessed responsive records would disclose the existence or non-existence of FISA records related to a particular individual or organization. See Hardy Decl. at ¶¶ 26-29; Weinsheimer Decl. at ¶ 8. Surveillance authorized by the FISC under any of its authorities is itself an intelligence method, and thus its use in any particular matter thus “pertains to” an intelligence source or method. Cf. Clapper v. Amnesty Int'l USA, 568 U.S. 398 (2013) (describing FISA authorities).
Second, the Hardy Declaration confirms that presence or non-presence of responsive records implicates “foreign relations or foreign activities of the United States, including confidential sources.” Exec. Order 13,526 § 1.4(d). Verifying whether or not the defendant agencies possessed responsive records would tend to reveal a specific type of counterintelligence activity with respect to one or more foreign governments. Hardy Decl. ¶¶ 30-33.
The supporting declarations demonstrate that confirming whether or not Defendants possessed responsive records reasonably could be expected to cause damage to the national security of the United States by disclosing the existence or non-existence of intelligence sources and methods. See Hardy Decl. at ¶¶ 26-29; Weinsheimer Decl. at ¶¶ 9-12. As explained in the Hardy Declaration, “acknowledging the existence or non-existence of records responsive to
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Plaintiffs’ request would be tantamount to confirming whether or not the FBI has relied on a particular intelligence activity or method targeted at particular individuals or organizations” and “would reveal otherwise non-public information regarding the nature of the FBI’s intelligence interests, priorities, activities, and methods—information that is highly desired by hostile actors who seek to thwart the FBI’s intelligence-gathering mission.” Id. ¶ 29. “Once an intelligence activity or method – or the fact of its use or non-use in a certain situation – is discovered, its continued successful use is seriously jeopardized.” Hardy Decl. ¶ 27; see Weinsheimer Decl. ¶ 9. Moreover, U.S. adversaries review publicly available information to deduce intelligence methods, catalogue information, and take countermeasures, and disclosure of the existence or non-existence of responsive records would reasonably be expected to harm national security. See id.
Further, the Hardy Declaration establishes that confirming the existence or non-existence of responsive documents would reveal information about the United States Government’s foreign relations, the disclosure of which could cause damage to national security. Hardy Decl. ¶¶ 30-33. Such disclosure could “weaken, or even sever, the relationship between the United States and its foreign partners (present and future), thus degrading the Government’s ability to combat hostile threats abroad,” and “any confirmation of records could be interpreted by some to mean that certain foreign liaison partners were involved in espionage against the United States, which could have political implications in those and other countries and also make them less willing to cooperate with the U.S. Government in the future.” Id.1
1 To the extent possible on the public record, the declarations explain the harm to national security that would result from disclosure of the properly classified information at issue here. If the Court finds that explanation inadequate, Defendants could offer further explanation ex parte and in camera.
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The Government routinely makes a Glomar response to similar requests for information about particular FISA or surveillance subjects, and Courts routinely uphold such responses. See, e.g., Marrera v. Dep’t of Justice, 622 F. Supp. 51, 53–54 (D.D.C. 1985) (this Court finds that OIPR’s refusal to confirm or deny the existence of FISA records pertaining to this particular plaintiff to be justified in the interests of national security as part of an overall policy of [the Executive Order] with respect to all FISA FOIA requests.”); Schwarz v. Dep’t of Treasury, 131 F. Supp. 2d 142, 149 (D.D.C. 2000) (“The Office properly refused to confirm or deny that it had any responsive records maintained under the Foreign Intelligence Surveillance Act of 1978 (FISA) and in non-FISA files relating to various intelligence techniques.”), aff'd, No. 00-5453, 2001 WL 674636 (D.C. Cir. May 10, 2001); Competitive Enter. Inst. v. NSA, 78 F. Supp. 3d 45, 60 (D.D.C. 2015) (upholding NSA Glomar response to request for metadata records with respect to two particular individuals); Agility Pub. Warehousing Co. K.S.C. v. NSA, 113 F. Supp. 3d 313, 329 (D.D.C. 2015) (upholding NSA Glomar in response to request for particular surveillance records); see also Wilner, 592 F.3d at 65 (“Glomar responses are available, when appropriate, to agencies when responding to FOIA requests for information obtained under a publicly acknowledged intelligence program, such as the TSP, at least when the existence of such information has not already been publicly disclosed.”).
Accordingly, the Glomar response was proper under Exemption One. III. THE GLOMAR RESPONSE WAS PROPER UNDER EXEMPTION THREE AND
THE NATIONAL SECURITY ACT FOIA 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. §
10

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552(b)(3)(A). The Government’s mandate to withhold information under FOIA Exemption 3 is broader than its authority under FOIA Exemption 1, as it does not have to demonstrate that the disclosure will harm national security. See Sims, 471 U.S. at 167; Gardels, 689 F.2d at 1106–07. Instead, “the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within the statute’s coverage. It is particularly important to protect intelligence sources and methods from public disclosure.” Morley v. CIA, 508 F.3d 1108, 1126 (D.C. Cir. 2007). In analyzing the propriety of a withholding made pursuant to FOIA Exemption 3, the Court need not examine “the detailed factual contents of specific documents[.]” Id.
Defendants invoke Section 102A(i)(1) of the National Security Act of 1947, as amended (now codified at 50 U.S.C. § 3024(i)(1)) (“NSA”), which requires the Director of National Intelligence to “protect intelligence sources and methods from unauthorized disclosure.”2 It is well-established that Section 102A qualifies as a withholding statute for the purposes of FOIA Exemption 3. See, e.g., ACLU v. DOD, 628 F.3d at 619. In fact, the Supreme Court has recognized the “wide-ranging authority” provided by the NSA to protect intelligence sources and methods. See Sims, 471 U.S. at 169–70, 177, 180; see Halperin v. CIA, 629 F.2d 144, 147 (D.C. Cir. 1980) (explaining that the only question for the court is whether the agency has shown that responding to a FOIA request “could reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods”). The NSA has been properly invoked to withhold information about FISA and other surveillance techniques. See, e.g., Agility Pub. Warehousing Co. K.S.C., 113 F. Supp. 3d at 329
2 The courts have recognized that not just the Director of National Intelligence, but also other agencies may rely upon the amended NSA to withhold records under FOIA. See, e.g., Larson, 565 F.3d at 862–63, 865; Talbot v. CIA, 578 F. Supp. 2d 24, 28–29 n.3 (D.D.C. 2008).
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The Hardy Declaration attests that Defendants have properly invoked the Glomar response to protect classified information under the NSA and FOIA Exemption 3. See Hardy Decl. at ¶¶ 34-36. For the reasons discussed above with regard to Exemption 1, confirming the existence or non-existence of responsive records could divulge information about the existence or non-existence of intelligence sources and methods protected from disclosure under the NSA. Id. Indeed, the declaration explains that a substantive response to Plaintiffs’ request could reveal whether or not the United States Government has intelligence sharing relationships with foreign liaison partners. See id. Accordingly, the FBI has demonstrated the appropriateness of the Glomar response under FOIA Exemption 3. IV. THE GLOMAR RESPONSE WAS PROPER UNDER EXEMPTION 7(A)
FOIA Exemption 7 protects from disclosure all “records or information compiled for law enforcement purposes” that could reasonably be expected to cause one of the six harms outlined in the Exemption’s subparts. 5 U.S.C. § 552(b)(7). “To fall within any of the exemptions under the umbrella of Exemption 7, a record must have been ‘compiled for law enforcement purposes.’” Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195, 202 (D.C. Cir. 2014) (quoting 5 U.S.C. § 552(b)(7)). “According to the Supreme Court, the term ‘compiled’ in Exemption 7 requires that information be created, gathered, or used by an agency for law enforcement purposes at some time before the agency invokes the exemption.” Id. at 203.
Exemption 7(A) “exempts from disclosure ‘records or information compiled for law enforcement purposes . . . to the extent that the production of [the] records or information . . . could reasonably be expected to interfere with enforcement proceedings.’” Citizens for Responsibility & Ethics in Wash. v. Dep’t of Justice, 746 F.3d 1082, 1096 (D.C. Cir. 2014)
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(hereinafter “CREW”) (quoting 5 U.S.C. § 552(b)(7)(A)). “Exemption 7(A) reflects the Congress’s recognition that ‘law enforcement agencies ha[ve] legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it [comes] time to present their case.’” Id. (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978)). “To justify withholding, [an agency] must therefore demonstrate that ‘disclosure (1) could reasonably be expected to interfere with (2) enforcement proceedings that are (3) pending or reasonably anticipated.’” Id. (quoting Mapother v. Dep’t of Justice, 3 F.3d 1533, 1540 (D.C. Cir. 1993)).
An ongoing investigation typically triggers Exemption 7(A). See CREW, 746 F.3d at 1098 (quoting Juarez v. Dep’t of Justice, 518 F.3d 54, 59 (D.C. Cir. 2008)). “In the typical case,” therefore, “the requested records relate to a specific individual or entity that is the subject of the ongoing investigation, making the likelihood of interference readily apparent.” Id.
Here, the Hardy Declaration justifies the FBI’s use of Exemption 7(A) to protect the currently undisclosed fact of the existence or non-existence of any investigative records that would be responsive to Plaintiffs’ requests. As an initial matter, FBI records related to FISA records are plainly compiled for law enforcement purposes. As the Hardy Declaration establishes, the “only circumstance under which the FBI can request – and the Department of Justice can and would seek on the FBI’s behalf – a Foreign Intelligence Surveillance Act (FISA) order is when the FBI is conducting an authorized, predicated national security investigation within the scope of its law enforcement and foreign intelligence responsibilities.” Hardy Decl. ¶ 39. Accordingly, FISA applications and FISC orders – when they exist – are records compiled for law enforcement purposes.
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Additionally, the information requested purportedly relates to an ongoing investigation.
Plaintiffs describe their request as relating to the FBI’s investigation into the Russian
government’s efforts to interfere in the 2016 presidential election. Hardy Decl. ¶¶ 19, 42; Am.
Compl. ¶ 8 (discussing FBI’s acknowledgement of investigation into Russian interference in the
election, including any attempts to coordinate with President Trump’s campaign). Any sort of
investigation involving such FISA records would be the sort of active investigation protected by
Exemption 7(A). See, e.g., People for the Ethical Treatment of Animals v. NIH, 745 F.3d 535,
541 (D.C. Cir. 2014) (Exemption 7’s threshold requirement satisfied in a Glomar response case
because FOIA requester did not dispute that “any responsive documents,” if they existed, “would
constitute records or information compiled for law enforcement purposes”).
The Hardy Declaration further describes the harm to an investigation that may result:
Confirming or denying the existence or non-existence of responsive records would reveal non-public information about the focus, scope, and conduct of that investigation. Specifically, it would reveal whether or not specific investigative techniques have been used; when and to what extent they were used, if they were; their relative value or benefit if they were used; and the targets they were used against, if any. None of this information about the Russian interference investigation has been publicly disclosed and prematurely disclosing it here would give targets and others intent on interfering with the FBI’s investigative efforts the information necessary to: take defensive actions to conceal criminal activities; develop and implement countermeasures to elude detection; suppress, destroy, or fabricate evidence; and identify potential witnesses or sources, exposing them to harassment, intimidation, coercion, and/or physical threats. Accordingly, to the extent that Plaintiffs’ request seeks records in relation to this investigation, confirming or denying the existence or non-existence of responsive records could reasonably be expected to adversely affect it.
Hardy Decl. ¶¶ 43-44. Moreover, to the extent the request implicates some investigation other
than that alleged by Plaintiffs, revealing such an investigation prematurely would cause the same
type of harm. Id. ¶ 44. Accordingly, a Glomar response is available under these circumstances
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to protect the integrity of confidential law-enforcement investigations, and to therefore prevent harm cognizable by FOIA Exemption 7(A). See, e.g., Cozen O’Connor v. Dep’t of Treasury, 570 F. Supp. 2d 749, 788 (E.D. Pa. 2008); see also CREW, 746 F.3d at 1096 (“Exemption 7(A) reflects the Congress’s recognition that ‘law enforcement agencies ha[ve] legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it [comes] time to present their case.’” (quoting Robbins Tire, 437 U.S. at 224)).
For these reasons, the FBI’s Glomar response is justified by Exemption 7(A). V. THE GLOMAR RESPONSE WAS PROPER UNDER EXEMPTION 7(E)
Exemption 7(E) authorizes withholding of information compiled for law enforcement purposes if release of the information “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). Congress intended that Exemption 7(E) protect law enforcement techniques and procedures from disclosure, as well as techniques and procedures used in all manner of investigations after crimes or other incidents have occurred. See, e.g., PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 250–51 (D.C. Cir. 1993). “[T]he exemption is written in broad and general terms” to avoid assisting lawbreakers. Mayer Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009).
The terms of the statute provide that, to withhold records that would reveal law enforcement “guidelines,” an agency must show that “disclosure could reasonably be expected to risk circumvention of the law.” It is not clear whether this requirement also applies to withholding of records that would reveal “techniques and procedures.” See CREW, 746 F.3d at
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1102 n.8. However, the D.C. Circuit has stressed that the risk-of-circumvention requirement sets a “low bar.” Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011); accord Gosen v. USCIS, 75 F. Supp. 3d 279, 291 (D.D.C. 2014) (describing the risk-of-circumvention requirement as a “low bar”). Given the low threshold for meeting the risk-of-circumvention requirement, and given that disclosure of law enforcement techniques and procedures usually has obvious potential to create a risk of circumvention, it generally makes little practical difference whether the risk-ofcircumvention requirement applies to all of Exemption 7(E) or only the part dealing with “guidelines.” See Pub. Emps. for Envtl. Responsibility, 740 F.3d at 204 n.4. In any event, FBI’s Glomar response under Exemption 7(E) meets the requirement if it applies.
Here, the Hardy Declaration establishes that disclosure of existence or non-existence of responsive records would reveal a law enforcement technique or procedure. “How the FBI applies its investigative resources (or not) against a particular allegation, report of criminal activity, or perceived threat is itself a law enforcement technique or procedure that the FBI protects.” Hardy Decl. ¶¶ 47-48. Such an acknowledgment of the existence or non-existence of responsive records “would reveal when and under what circumstances the FBI relies upon FISAauthorized techniques in an investigation,” and “provide pieces of information that adversaries could use to ascertain at what point, and against whom we might use particular techniques.” Hardy Decl. ¶ 48. “Armed with this information, adversaries could glean significant insight into the activities likely to attract – or not attract – the FBI’s law enforcement attention. These individuals would then be able alter their behavior to avoid attention by law enforcement, making it more difficult for the FBI to be proactive in assessing threats and investigating crimes.” Id. Accordingly, the FBI properly invoked Exemption 7(E).
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VI. DEFENDANTS HAVE NOT OFFICIALLY ACKNOWLEDGED THE EXISTENCE OR NON-EXISTENCE OF RESPONSIVE RECORDS As a general matter, under FOIA, “when an agency has officially acknowledged
otherwise exempt information through prior disclosure, the agency has waived its right to claim an exemption with respect to that information.” Am. Civil Liberties Union v. CIA, 710 F.3d 422, 426 (D.C. Cir. 2013). This “official acknowledgement” principle applies to the Glomar context, so a requester “can overcome a Glomar response by showing that the agency has already disclosed the fact of the existence (or non-existence) of responsive records, since that is the purportedly exempt information that a Glomar response is designed to protect.” Id. at 427. But the plaintiff “must bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld.” Id. (quoting Wolf, 473 F.3d at 378). The D.C. Circuit has narrowly construed the “official acknowledgment” doctrine, however, and to bring such a challenge plaintiff must satisfy three stringent criteria, none of which are satisfied here.
“First, the information requested must be as specific as the information previously released.” Wolf, 473 F.3d at 378 (quoting Fitzgibbon, 911 F.2d at 765). “Prior disclosure of similar information does not suffice; instead, the specific information sought by the plaintiff must already be in the public domain by official disclosure. This insistence on exactitude by the D.C. Circuit recognizes ‘the Government’s vital interest in information relating to national security and foreign affairs.” Id. (quoting Pub. Citizen v. Dep’t of State, 11 F.3d 198, 203 (D.C. Cir. 1993); Competitive Enter. Inst., 78 F. Supp. 3d at 54 (“Plaintiffs in this case must therefore point to specific information in the public domain establishing that the NSA has [the claimed information.]”). The information already released must also be of the same level of generality as the information sought—broadly crafted disclosures, even on the same general topic, do not
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waive the Glomar response. See, e.g., Afshar, 702 F.2d at 1133 (previous disclosure that plaintiff had “‘created a problem’ in U.S.-Iranian relations” was too general to justify releasing documents detailing the nature of that problem).
“Second, the information requested must match the information previously disclosed.” Wolf, 473 F.3d at 378 (quoting Fitzgibbon, 911 F.2d at 765). If there are “substantive differences” between the two, an official-acknowledgment claim must fail. ACLU v. DOD, 628 F.3d at 621. That is true even if the previous disclosures are on the same topic. See, e.g., Competitive Enter. Inst., 78 F. Supp. 3d at 57 (a Presidential statement that “the intelligence community . . . is looking at phone numbers and durations of calls,” was not adequately congruent with a request seeking the companies that had provided that data to U.S. intelligence agencies); Wolf, 473 F.3d at 379 (holding that CIA could not claim Glomar protection when it had previously read excerpts from materials sought into the record during congressional hearing).
“Third, . . . the information requested must already have been made public through an official and documented disclosure.” Id. at 378 (quoting Fitzgibbon, 911 F.2d at 765). Key to this element is that the source must be official; non-governmental releases, or anonymous leaks by government officials or former government officials do not qualify. See, e.g., ACLU v. DOD, 628 F.3d at 621-22; Agility Public Warehousing Co. K.S.C., 113 F. Supp. 3d at 330 n.8; Competitive Enter. Inst., 78 F. Supp. 3d at 55. In other words, “mere public speculation, no matter how widespread,” cannot undermine the agency’s Glomar prerogative. Wolf, 473 F.3d at 378. And Congressional statements also cannot waive Executive Branch classification or other Exemptions. See Military Audit Project v. Casey, 656 F.2d 724, 742-745 (D.C. Cir. 1981); see also Moore v. CIA, 666 F.3d 1330, 1333 n.4 (D.C. Cir. 2011) (“[W]e do not deem ‘official’ a
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disclosure made by someone other than the agency from which the information is being sought.”)
Plaintiffs cannot meet their burden of pointing to an official disclosure of the information they seek. The Hardy Declaration and the Weinsheimer Declaration establish that no authorized government official has disclosed the precise information withheld. See Hardy Decl. ¶ 17; Weinsheimer Decl. ¶ 13.
The Amended Complaint cites a number of public statements that Plaintiffs allege constitute official acknowledgement of properly classified facts. See Am. Compl. ¶ 11 (“The comments of President Trump and Press Secretary Sean Spicer constitute prior official disclosure of the existence of surveillance orders issued by the FISC and that authorized collection of information that, at a minimum, incidentally implicated President Trump and/or his associates. This lawsuit ultimately will seek to determine the circumstances in which specific surveillance/collection orders were issued by the FISC.”). But these cited public statements about an investigation and alleged surveillance do not come close to meeting the standard for official acknowledgement of the information sought by Plaintiffs.
Primarily, Plaintiffs appear to rely on President Trump’s four-part post on Twitter on March 4, 2017:
• “Terrible! Just found out that Obama had my "wires tapped" in Trump Tower just before the victory. Nothing found. This is McCarthyism!”
• “Is it legal for a sitting President to be "wire tapping" a race for president prior to an election? Turned down by court earlier. A NEW LOW!”
• “I'd bet a good lawyer could make a great case out of the fact that President Obama was tapping my phones in October, just prior to Election!”
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• “How low has President Obama gone to tapp [sic] my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!”
Available at https://twitter.com/realDonaldTrump; see also Am. Compl. ¶ 7. This series of tweets contains a constellation of specific opinions and allegations regarding wiretapping, including that (1) his phones were tapped; (2) at Trump Tower; (3) in October just prior to the election; (4) on the orders of President Obama; and (5) that such actions were comparable to “Nixon/Watergate.” Even assuming these tweets are official statements, nowhere do these tweets mention FISA, the FISC, any targets other than President Trump, or the involvement of DOJ or FBI. Moreover, the statements are limited to a particular time, a particular target, and a particular place, in contrast to plaintiff’s FOIA request. Thus, the statements are not as specific and do not match the information sought in this FOIA request.3 The follow-up statements to the media by the President or his Press Secretary as cited in the complaint also do not match the specific information sought by Plaintiffs here. Am. Compl. ¶¶ 7-11.
As explained above, and as plaintiff notes, the FBI has also publicly disclosed generally the existence of an investigation into Russian meddling in the 2016 presidential election and the nature of any links between individuals associated with the Trump campaign and the Russian government. Hardy Decl. ¶ 19. This ongoing investigation is overseen by Special Counsel Robert Mueller. The Government has not confirmed or denied the use of FISA in connection with that investigation, much less the use of FISA pertaining to any particular individual or organization. See id.
3 Moreover, FBI Director James Comey later denied the existence of any information to support the President’s tweets, stating that “With respect to the president's tweets about alleged wiretapping directed at him by the prior administration, I have no information that supports those tweets and we have looked carefully inside the FBI. The Department of Justice has asked me to share with you that the answer is the same for the Department of Justice and all its components.” Hardy Decl. ¶ 15. Had plaintiff more specifically tied his FOIA request to the information in the tweets, he likely would have received a no-records response from the FBI and DOJ.
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CONCLUSION For the foregoing reasons, the Court should grant the Defendants’ Motion for Summary Judgment.

Dated: July 14, 2017

Respectfully Submitted,
CHAD READLER Acting Assistant Attorney General
MARCIA BERMAN Assistant Director, Federal Programs Branch
/s/Amy E. Powell AMY E. POWELL Trial Attorney U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W., Room 5377 Washington, D.C. 20530 Tel.: (202) 514-9836 Fax.: (202) 616-8470 Email: amy.powell@usdoj.gov

21

Case 1:17-cv-00597-APM Document 13 Filed 07/14/17 Page 33 of 33 CERTIFICATION OF SERVICE
I hereby certify that the foregoing document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants by First Class Mail or Federal Express, on the 14th of July, 2017.
/s/Amy E. Powell AMY POWELL July 14, 2017
22

 
 Case 1:17-cv-00597-APM Document 18-1 Filed 08/18/17 Page 1 of 25
TABLE OF CONTENTS FACTUAL BACKGROUND............................................................................................. 2 ARGUMENT...................................................................................................................... 2
STANDARD OF REVIEW ............................................................................................ 2 THE PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT WITH RESPECT TO THE APPROPRIATENESS OF DOJ’S GLOMAR RESPONSES AS A MATTER OF LAW ........................................................................................................ 3
The Information That Has Been Disclosed................................................................. 5 Disclosures made by President Trump and the White House................................. 5 Disclosures made by Director Comey and Admiral Rogers ................................. 13 Other disclosures made ......................................................................................... 14
There Is More Than Sufficient Evidence Of Public, Official Disclosures Of Information To Conclude That A Glomar Response Is Not Permissible As A Matter Of Law ...................................................................................................................... 18 CONCLUSION................................................................................................................. 22

Case 1:17-cv-00597-APM Document 18-1 Filed 08/18/17 Page 2 of 25

Cases

TABLE OF AUTHORITIES

ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013) ............................................................. 4, 19

Afshar v. Dep’t of State, 702 F.2d 1125 (D.C. Cir. 1983)................................................ 17

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .................................................. 2, 3

Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990)............................................................. 3

Frugone v. CIA, 169 F.3d 772 (D.C. Cir. 1999)............................................................... 17

Holcomb v. Powell, 433 F.3d 889 (D.C. Cir. 2006) ....................................................... 2, 3

Hudson River Sloop Clearwater, Inc. v. Dep’t of Navy, 891 F.2d 414 (2d. Cir. 1989) ... 17

Marino v. DEA, 685 F.3d 1076 (D.C. Cir. 2012) ......................................................... 4, 19

Pub. Citizen Health Research Group v. FDA, 185 F.3d 898 (D.C. Cir. 1999)................... 3

Public Citizen v. Dep’t of State, 11 F.3d 198 (D.C. Cir. 1993)........................................ 17

Roth v. Dep’t of Justice, 642 F.3d 1161 (D.C. Cir. 2011) .................................................. 3

Smith v. CIA, 2017 U.S. Dist. LEXIS 47230 (D.D.C. Mar. 30, 2017) ............................ 19

Wilson v. CIA, 586 F.3d 171 (2d Cir. 2009) .................................................................... 17

Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) ............................................................ 3, 4, 19

Other Authorities
http://www.ajc.com/news/national/read-transcripts-rep-devin-nunes-news-conferencesabout-trump-surveillance/NdZ4qQv7uBnjcH9E3HSRPJ/ (last accessed August 15, 2017) ............................................................................................................................. 16
http://www.foxnews.com/politics/2017/03/15/trump-calls-tax-return-leak-illegal-thinksmsnbc-report-is-disgrace.html (last accessed August 15, 2017) .................................... 8
http://www.nbcnews.com/meet-the-press/meet-press-03-05-17-n729271 (last accessed August 15, 2017)........................................................................................................... 16
http://www.nbcnews.com/news/us-news/trump-reveals-he-asked-comey-whether-he-wasunder-investigation-n757821 (last accessed August 2, 2017) ........................................ 6

Case 1:17-cv-00597-APM Document 18-1 Filed 08/18/17 Page 3 of 25
https://factba.se/transcript/donald-trump-interview-fox-march-15-2017 (last accessed August 15, 2017)............................................................................................................. 8
https://www.nytimes.com/2017/01/19/us/politics/trump-russia-associatesinvestigation.html (last accessed August 16, 2017) ...................................................... 12
https://www.nytimes.com/2017/07/19/us/politics/trump-interview-sessionsrussia.html?action=Click&contentCollection=BreakingNews &contentID=65596145 &pgtype=article&_r=0 (last accessed July 27, 2017) ................................................... 6
https://www.usatoday.com/story/news/politics/onpolitics/2017/05/09/full-text-trumpletter-comey-firing/101491982/ (last accessed August 2, 2017) .................................... 6
https://www.washingtonpost.com/news/fact-checker/wp/2017/03/05/trumps-evidence-forobama-wiretap-claims-relies-on-sketchy-anonymously-sourced-reports/?utm_term= .22e347c0e0c0 (last accessed August 16, 2017)........................................................... 12
https://www.washingtonpost.com/news/post-politics /wp/2017/03/20/full-transcript-fbidirector-james-comey-testifies-on-russian-interference-in-2016election/?utm_term=.77a224733add (last accessed August 15, 2017) .................. 13, 14
https://www.whitehouse.gov/the-press-office/2017/03/06/press-gaggle-press-secretarysean-spicer (last accessed August 15, 2017) .................................................................. 7
https://www.whitehouse.gov/the-press-office/2017/03/13/press-briefing-press-secretarysean-spicer-3132017-22 (last accessed August 14, 2017).............................................. 7
https://www.whitehouse.gov/the-press-office/2017/03/16/press-briefing-press-secretarysean-spicer-3162017-25 (last accessed August 15, 2017)...................................... 11, 12
https://www.youtube.com/watch?v=WpyidroM9XA (last accessed August 16, 2017) ..... 12
Rules FRCP 56.............................................................................................................................. 2
ii

Case 1:17-cv-00597-APM Document 18-1 Filed 08/18/17 Page 4 of 25

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

*

THE JAMES MADISON PROJECT, *

et al.,

*

*

Plaintiffs,

*

*

v.

*

Civil Action No. 17-597 (CKK)

*

DEPARTMENT OF JUSTICE,

*

*

Defendant.

*

*

* * * * * * * * * * * * **

MEMORANDUM IN OPPOSITION TO

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF

PLAINTIFFS’ CROSS-MOTION FOR SUMMARY JUDGMENT

The Plaintiffs, The James Madison Project (“JMP”) and Brad Heath (“Heath”)

(hereinafter referred to jointly as “Plaintiffs”), brought this action under the Freedom of

Information Act (“FOIA”) to secure the lawful disclosure of records held by the

defendant Department of Justice (“DOJ”). The underlying FOIA requests specifically

sought copies of any orders issued by the Foreign Intelligence Surveillance Court

(“FISC”) authorizing surveillance of President Donald J. Trump (“President Trump”), his

presidential campaign, his private company, or his associates, as well as any relevant

applications for orders submitted to the FISC and minimization procedures issued by the

FISC.

Presently before this Court for consideration is a Motion for Summary Judgment

(“Motion”) filed by the DOJ, as well as the Plaintiffs’ Cross-Motion for Summary

Judgment (“Cross-Motion”).

Case 1:17-cv-00597-APM Document 18-1 Filed 08/18/17 Page 5 of 25
For the reasons set forth in detail below, this Court should grant the Plaintiffs’ Cross-Motion and deny the DOJ’s Motion in its entirety.
FACTUAL BACKGROUND The factual and procedural background of this proceeding was largely set forth in two documents: the First Amended Complaint, see Dkt. #5 at ¶¶7-32 (filed April 15, 2017), and the Statement of Material Facts in Support of Defendant’s Motion for Summary Judgment, see Dkt. #13 (filed July 14, 2017)(“Statement of Material Facts”). In the interest of not repeating information already set forth before this Court in DOJ’s Statement of Material Facts, the Plaintiffs incorporate that document herein by reference. However, the Plaintiffs are only incorporating the factual statements in relation to paragraphs 1-4, and only to the extent that they do not constitute legal characterizations and conclusions regarding the appropriateness of DOJ’s invocations of particular FOIA exemptions.
ARGUMENT I. STANDARD OF REVIEW
Summary judgment pursuant to FRCP 56 should be awarded to a movant if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In evaluating the appropriateness of summary judgment, the Court must view the evidence in the light most favorable to the non-moving party, Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006), accepting the non-moving party’s evidence as true and drawing “all justifiable inferences” in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
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However, the Court need not rely on any “conclusory allegations unsupported by factual data,” Pub. Citizen Health Research Group v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (internal quotation marks and citations omitted), and should only find that “there is a genuine issue for trial” where “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson, 477 U.S. at 249 (citation omitted).
The mere existence of some alleged factual dispute between the parties will not defeat summary judgment; the requirement is that there is no genuine issue of material fact. See Holcomb, 433 F.3d at 895 (internal quotation marks and citations omitted). 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. Anderson, 477 U.S. at 248. An issue is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. II. THE PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT WITH
RESPECT TO THE APPROPRIATENESS OF DOJ’S GLOMAR RESPONSES AS A MATTER OF LAW Agencies can, in limited circumstances, refuse to confirm or deny the existence or non-existence of records, better known as a “Glomar response”. See Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007); see also Roth v. Dep’t of Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011)(Glomar response permitted only when confirming or denying would itself cause harm cognizable under a FOIA exemption). When an agency has officially acknowledged otherwise exempt information through prior disclosure, the disclosure of the information may be compelled notwithstanding the agency’s otherwise valid exemption claim. See Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990).
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In the context of a Glomar response, the evidentiary burden that falls upon a plaintiff
to establish official acknowledgment is merely to demonstrate that agency has already
disclosed the fact of the existence or non-existence of responsive records. See Wolf,
473 F.3d at 379-380. It is not required, at least in terms of countering a Glomar response,
for the plaintiff to demonstrate that the contents of particular records have actually been
officially disclosed. See Marino v. DEA, 685 F.3d 1076, 1082 (D.C. Cir. 2012).
The D.C. Circuit’s analysis and reasoning in ACLU v. CIA, 710 F.3d 422
(D.C. Cir. 2013), is particularly instructive and informative. In ACLU, the Circuit
rejected a Glomar response invoked by CIA with respect to whether it had any records
reflecting involvement or interest in drone strikes. Id. at 432. In explaining its’ reasoning,
the Circuit stated the following:
Although these statements do not acknowledge that the CIA itself operates drones, they leave no doubt that some U.S. agency does. The CIA does not dispute that these statements qualify as official acknowledgments of at least that much. To the contrary, it concedes that ‘Mr. Brennan officially acknowledged that the United States conducts drone strikes,’ albeit without ‘reveal[ing] whether the CIA (as opposed to another federal entity such as the Department of Defense) is involved in these drone strikes.’
Given these official acknowledgments that the United States has participated in drone strikes, it is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain to say that the Agency at least has an intelligence interest in such strikes. The defendant is, after all, the Central Intelligence Agency. And it strains credulity to suggest that an agency charged with gathering intelligence affecting the national security does not have an ‘intelligence interest’ in drone strikes, even if that agency does not operate the drones itself.
Id. at 429-30 (emphasis added)(internal citations omitted).
In its Motion, DOJ devoted ten pages to outlining the various arguments why
Glomar responses relying upon FOIA Exemptions 1, 3, 7(A) and 7(E) were appropriate.
See Memorandum of Points and Authorities in Support of Defendant’s Motion for
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Summary Judgment at *7-*16 (Dkt. #13)(filed July 14, 2017)(“Def’s Memo”). The crux of the present dispute, however, concerns whether there have been public, official disclosures of information that render those Glomar responses inappropriate as a matter of law. DOJ’s Motion spent only four pages addressing this issue, two of which involved merely citing the relevant case law. See id. at *17-*20. DOJ’s Motion too cavalierly glosses over the public, official disclosures of information that are relevant to the present case. Indeed, absent those public, official disclosures of information, it borders on axiomatic that the Plaintiffs would not have brought this lawsuit.
In this Cross-Motion, the Plaintiffs outline in extensive, clarifying detail the factual bases upon which this Court can rely in concluding there is no genuine issue of material fact in dispute that public, official disclosures of information have rendered DOJ’s invocation of Glomar responses improper as a matter of law. This Court should further order DOJ to conduct searches for records responsive to the Plaintiffs’ requests. Whether applicable FOIA exemptions will apply to justify DOJ’s substantive withholdings is an issue to be addressed later.
A. The Information That Has Been Disclosed 1. Disclosures made by President Trump and the White House
President Trump, as well as former White House Press Secretary Sean Spicer (“Mr. Spicer”), made several official disclosures of information that are relevant to this Court’s analysis. The President, in particular, has publicly and officially disclosed on several occasions that he is not under investigation, including that he has been officially informed he is not under investigation:
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(1) In a letter, dated May 9, 2017, terminating the employment of Director Comey, President Trump stated that former FBI Director James Comey (“Director Comey”) had informed him on three separate occasions that he (President Trump) was not under investigation, see https://www.usatoday.com/story/ news/politics/onpolitics/2017/ 05/09/full-text-trump-letter-comey-firing/101491982/ (last accessed August 2, 2017);
(2) On May 11, 2017, in an interview with NBC News, President Trump disclosed that he spoke with Director Comey once over dinner, and twice by phone, and that Director Comey informed President Trump that he (President Trump) was not under investigation, see http://www.nbcnews.com/news/us-news/trump-reveals-he-askedcomey-whether-he-was-under-investigation-n757821 (last accessed August 2, 2017); and,
(3) On July 19, 2017, in an interview with The New York Times, President Trump denied that he is under investigation, see https://www.nytimes.com/2017/07/19/us/politics/trump-interviewsessions-russia.html?action=Click&contentCollection=BreakingNews &contentID=65596145 &pgtype=article&_r=0 (last accessed July 27, 2017).
More specific to the possibility of the existence of orders issued by the FISC,
President Trump made public, official disclosures on March 4, 2017, in which he claimed
that former President Barack Obama (“President Obama”) had President Trump’s “wires
tapped” in Trump Tower, that President Obama’s “wire tapping” of President Trump had
been “turned down by court earlier”, and particularly that President Obama had been
“tapping” President Trump’s phones in October 2016. See Def’s Memo at *19-*20.
On March 6, 2017, Mr. Spicer answered the initial set of questions that
understandably arose in the aftermath of President Trump’s March 4, 2017, tweets.
Q: And does he believe it’s a FISA warrant. Is it some other -- of surveillance?
MR. SPICER: It could be FISA. It could be surveillance. There’s no cameras, slow it down.
Q: So he doesn’t know?
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MR. SPICER: Look, I think he has made it clear that there are continued reports that have been out there. I’m not going to continue to -- I think the President made it clear yesterday that he wants Congress to go in and look at this. I think there is substantial reporting out there from individuals and from sources. Q: But what sources -MR. SPICER: Okay. Sara, you’re not on camera. You don’t need to jump in. We’ll get to your question in turn. Hold on. The answer is, is that the President has made it clear he wants Congress to look into this. And we’re encouraging the House and Senate intelligence committees to use their oversight capabilities and look into this. John Gizzi. Q: Sean, does he not know whether -- what kind of surveillance it was? MR. SPICER: Well, I think that there’s no question that something happened. The question is, is it surveillance, is it a wiretap, or whatever. But there’s been enough reporting that strongly suggests that something occurred. And I think that that’s why what he has said yesterday is that he wants Congress to look into this. And I think that there is enough out there now that makes one wonder how some of this happened without the existence of surveillance https://www.whitehouse.gov/the-press-office/2017/03/06/press-gaggle-press-secretarysean-spicer (last accessed August 15, 2017)(emphasis added). On March 13, 2017, Mr. Spicer clarified that President Trump’s comments were made in the context of media reports circulating at the time concerning possible surveillance authorized by the Obama Administration that implicated President Trump and/or his associates. https://www.whitehouse.gov/the-press-office/2017/03/13/pressbriefing-press-secretary-sean-spicer-3132017-22 (last accessed August 14, 2017) (“He said they were in quotes, [President Trump] was referring to surveillance overall. It’s something that had been referred to in other reports.”).
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On March 15, 2017, in an interview with Fox News’ Tucker Carlson,
President Trump specifically explained that he wrote the March 4, 2017, tweets in the
context of having read an article in The New York Times and watching a Fox News
segment concerning allegations of “wiretapping” and surveillance. http://www.foxnews.
com/politics/2017/03/15/trump-calls-tax-return-leak-illegal-thinks-msnbc-report-is-
disgrace.html (last accessed August 15, 2017); https://factba.se/transcript/donald-trump-
interview-fox-march-15-2017 (last accessed August 15, 2017).
On March 16, 2017, Mr. Spicer elaborated in detail on the various media reports that
had addressed the alleged surveillance regarding which President Trump had referenced
in his March 15, 2017, interview, and that provided context for President Trump’s
original claims in the March 4, 2017, tweets. The Plaintiffs beg this Court’s indulgence in
providing such a lengthy quote, but it is necessary in order to provide a comprehensive
description of the information regarding which Mr. Spicer stated was being considered by
President Trump.
If you look at what The New York Times reported on January 12th, 2017, they said, “In its final days, the Obama administration has expanded the power of the National Security Agency to share globally intercepted personal communications with the government’s 16 other intelligence agencies before applying privacy protections. The new rules significantly relax longstanding limits on what the NSA may do with the information gathered by its most powerful surveillance operation, which are largely unregulated by wiretapping laws.”
When Sara Carter reported that “by the start of the new year, it brought with it unexpected politicizing of the intelligence gathered in secret. Separately, the Obama administration amended a longstanding executive order, allowing information intercepted through FISA warrants or by the National Security Agency to be shared by a wider audience and 16 government agencies as Obama was leave office, intelligence normally reserved for just a handful of intelligence leaders was spread throughout briefings to scores of workers, and soon leaks began appearing in news
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media office organizations, often in stories lacking context of how national security investigations are actually concluded.”
On March 3rd, Fox News chief anchor Bret Baier said that the following: “There was a report in June 2016 -- a FISA request by the Obama administration -- Foreign Intelligence Surveillance Court -- to monitor communications involving Donald Trump and several other campaign officials. Then they got turned down. Then in October, then they renewed it and did a startup wiretap at Trump Tower with some computer and Russian banks.” Baier continues, “A June FISA request that foreign intelligence surveillance courts gets shot down. A judge says” -- hold -Jonathan, I’m going to -- you can ask -- you can follow up -- “A judge says no-go to monitoring Trump Tower. They go back in October. They do get a FISA granted. This is wiretap going on and a monitoring of computers that have some ties, they believe, to Russian accounts. By all accounts, they don’t come up with anything in the investigation, but the investigation continues and we don’t know it.
On November 11th, 2016, days after the election, Heat Street reported, “Two separate sources with links to the counter-intelligence community had confirmed to Heat Street that the FBI sought and was granted a FISA warrant in October, giving counter-surveillance intelligence permission to examine the activities of U.S. persons in Donald Trump’s campaign with ties to Russia. The first request, which sources say named Trump, was denied back in June. But the second was drawn more narrowly and granted in October after evidence was presented of a server, possibly related to the Trump campaign and its alleged links to two banks -- SVB bank and Russia’s Alfa-Bank. Sources suggest that a FISA warrant was granted to look at the full context of related documents that concern U.S. persons. Two separate sources with links to the counter-intelligence community have confirmed that the FBI sought and was granted a FISA warrant in October giving counter-intelligence permission to examine the activity of U.S. persons in Donald Trump’s campaign with ties to Russia.”
They go on: “The FISA warrant was granted in connection with investigation of suspected activities between the server and two banks. However, it is thought that the intelligence community that the warrant covers any U.S. person connected to this U.N. investigation, and thus covers Donald Trump and at least three further men who have either formed part of his campaign or acted as media surrogates.”
On January 19th, the New York Times reported the following: “American law enforcement and intelligence agencies are examining intercepted communication and financial transactions as part of a broad investigation of possible links between Russian officials and associates of Presidentelect Donald J. Trump. One official said intelligence reports based on
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some of the wiretapped communications have been provided to the White House. It is unclear which Russian officials under investigation or what particular conversations caught the attention of American eavesdroppers. The legal standard for opening these investigations is low.
Andy McCarthy, writing in National Review, suggested: “From three reports, from the Guardian, Heat Street and the New York Times, it appears the FBI has concerns about a private server in Trump Tower that was connected to one or two Russian banks. Heat Street describes these concerns as centering on “possible financial and banking offenses.” This is his quote -- “I italicized the word “offenses” because it denotes crimes. Ordinarily, when crimes are suspected, there is a criminal investigation, not a national security investigation.”
We go on. Sara Carter from Circa, reporting, “Intelligence professionals tell Circa News they were concerned that some of the Russian intelligence was spread through group briefings to a much-larger-than-usual audience back in January. This would have happened during the final days of the Obama administration when it expanded executive order 12333, which allows employees with a “need to know” have further unfettered access to raw data stowed by the NSA. The new rules allowed the NSA to share “raw signals intelligence information, including the names of those involved in phone conversations and emails. The expansion of the order makes it difficult to narrow in on the leaks and, frankly, it allows too many people access to the raw data, which only used to be available to a select few, said a U.S. official who spoke on the condition of anonymity and was not granted to speak on the authority. Numerous outlets, including the New York Times, have reported on the FBI investigation into Mr. Trump’s advisors; BBC, and then McClatchy revealed the existence of a multi-agency working group to coordinate investigations across the thing.
On February 14th, the New York Times again refers to phone record and intercepted calls -- let me quote them -- “American law enforcement intelligence agency intercepted the communications around the same times they were discovering the evidence that Russia was trying to disrupt the presidential election by hacking into the Democratic National Committee, three officials said.
The intelligence agencies then thought to learn whether the Trump campaign was colluding with the Russians on hacking or other efforts to influence the election. The officials interviewed in recent weeks said that so far they have seen no evidence of such cooperation. The official said that the intercepted communications are not limited to Trump campaign officials and other associates of Mr. Trump. The call logs and intercepted communications are part of a larger trove of information that the FBI is sifting through.
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Days later, the New York Times then reports, “In the Obama administration’s last days, some White House officials scrambled to spread information about Russian efforts to undermine the presidential election of Donald Trump, connections between the President-elect and Russians across the government. But the increasingly hard-to-escape conclusion that in our government -- that individuals in our government were instead trying to undermine the new President by saying, quote -this is the New York Times again -- “At intelligence agencies, there was a push to process as much raw intelligence in a possible analysis to keep the report at relatively low classification levels to ensure a widespread readership across the government. And in some cases, “among them, European allies.” This allowed the upload of as much information -intelligence as possible to Intellipedia, a secret Wiki used by American analysts to share information.
Sean Hannity went on Fox to say, “But protections which are known as minimization procedures have been put in place to protect Americans that are not under warrant, American citizens that are caught up in their surveillance.” And, “By the way, their identities are protected. Their constitutional rights are protected. Now, of course, this was not the case with Lieutenant General Flynn, because a transcript of his call was created and then given to intelligence officials who then leaked this information, which is a felony, to the press that printed it.”
Last, on Fox News on March 14th, Judge Andrew Napolitano made the following statement. “Three intelligence sources have informed Fox News that President Obama went outside the chain of command. He didn’t use the NSA, he didn’t use the CIA, he didn’t use the FBI, and he didn’t use the Department of Justice. He used GCHQ, what is that? It’s the initials for the British Intelligence Spying Agency. So simply, by having two people saying to them, ‘the President needs transcripts of conversations involved in candidate Trump’s conversations involving President-elect Trump,’ he was able to get it and there’s no American fingerprints on this.”
Putting the published accounts and common sense together, this leads to a lot.
https://www.whitehouse.gov/the-press-office/2017/03/16/press-briefing-press-secretary-
sean-spicer-3162017-25 (last accessed August 15, 2017); see also id. (“I think that there
has been a vast amount of reporting, which I just detailed, about activity that was going
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on in the 2016 election. There’s no question that there was surveillance techniques used
throughout this I think by a variety of outlets that have reported this activity concluded.”)
In this lengthy recitation provided by Mr. Spicer, he references media reports in
which the following claims were made and upon which Mr. Spicer was relying to justify
the evidentiary basis for President Trump’s March 4, 2017, and March 15, 2017,
statements:
(a) The Obama Administration submitted an application to the FISC for an order authorizing surveillance of President Trump and some of his campaign associates, but the FISC denied the application in June 2016, see https://www.youtube.com /watch?v=WpyidroM9XA (last accessed August 16, 2017)(Bret Baier interview); https://www.washingtonpost.com/news/ fact-checker/wp/2017/03/05/trumps-evidence-for-obama-wiretap-claimsrelies-on-sketchy-anonymously-sourced-reports/?utm_term= .22e347c0e0c0 (last accessed August 16, 2017)(referencing the details of the original Heat Street article, which is no longer publicly accessible);
(b) The FISC later approved in October 2016, a separate application submitted by the Obama Administration and authorized surveillance of information between Russian bank servers and a server at Trump Tower, including communications involving associates of President Trump, see https://www.youtube.com/watch ?v=WpyidroM9XA (last accessed August 16, 2017)(Bret Baier interview); https://www.washingtonpost.com/news /fact-checker/wp/2017/03/05/trumps-evidence-for-obama-wiretap-claimsrelies-on-sketchy-anonymously-sourced-reports/?utm_term= .22e347c0e0c0 (last accessed August 16, 2017)(referencing the details of the original Heat Street article, which is no longer publicly accessible); and,
(c) The intercepted communications authorized by the FISC in October 2016 concern financial transactions of investigative interest in the broader inquiry into possible collusion between the Trump campaign and Russian officials, and the intelligence reports drafted in reliance upon those intercepted communications were provided to the White House, see https://www.nytimes.com/2017/01/19/us/politics/trump-russia-associatesinvestigation.html (last accessed August 16, 2017).
Although these media reports ordinarily would not, on their own, qualify as official
disclosures of information, President Trump and Mr. Spicer’s specific reliance upon the
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information in the media reports – particularly in terms of forming the basis for President Trump’s specific claims in his March 4, 2017, tweets – constitute “official acknowledgement” of at least those portions of the media reports that overlap with President Trump’s claims.
2. Disclosures made by Director Comey and Admiral Rogers In the aftermath of President Trump’s March 4, 2017, tweets, there was understandable interest in securing answers from relevant U.S. Government agencies regarding the truth or falsity of the claims. On March 20, 2017, in a hearing before the House Permanent Select Committee on Intelligence, then-Director of the Federal Bureau of Investigation, James Comey (“Director Comey”) and Director of the National Security Agency, Admiral Mike Rogers (“Admiral Rogers”) were specifically asked about the President’s claims. https://www.washingtonpost.com/news/post-politics /wp/2017/03/20/full-transcript-fbi-director-james-comey-testifies-on-russianinterference-in-2016-election/?utm_term=.77a224733add (last accessed August 15, 2017). Director Comey stated the following:
With respect to the president’s tweets about alleged wiretapping directed at him by the prior administration, I have no information that supports those tweets and we have looked carefully inside the FBI. The Department of Justice has asked me to share with you that the answer is the same for the Department of Justice and all its components. The department has no information that supports those tweets. Id. Admiral Rogers was asked to specifically address Mr. Spicer’s reference to the media report that President Obama had relied upon the GCHQ to “tapp” President Trump and/or Trump Tower. Admiral Rogers categorically denied that he had ever requested GCHQ
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wiretap President Trump, and stated that he had not seen any evidence that anyone at the NSA had engaged in any such activity. Id.
3. Other disclosures made There have been separate, non-official disclosures of information that we believe not only are informative but that sufficiently overlap with official disclosures of information so as to render them relevant as a matter of law. On March 5, 2017, former Director of National Intelligence James Clapper (“Director Clapper”) spoke on the matter of President Trump’s March 4, 2017, tweets with NBC News’ Chuck Todd.
CHUCK TODD: Let me start with the President's tweets yesterday, this idea that maybe President Obama ordered an illegal wiretap of his offices. If something like that happened, would this be something you would be aware of? JAMES CLAPPER: I would certainly hope so. I can’t say-- obviously, I’m not, I can’t speak officially anymore. But I will say that, for the part of the national security apparatus that I oversaw as DNI, there was no such wiretap activity mounted against-- the president elect at the time, or as a candidate, or against his campaign. I can’t speak for other Title Three authorized entities in the government or a state or local entity. CHUCK TODD: Yeah, I was just going to say, if the F.B.I., for instance, had a FISA court order of some sort for a surveillance, would that be information you would know or not know? JAMES CLAPPER: Yes. CHUCK TODD: You would be told this?
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JAMES CLAPPER: I would know that. CHUCK TODD: If there was a FISA court order-JAMES CLAPPER: Yes. CHUCK TODD: --on something like this. JAMES CLAPPER: Something like this, absolutely. CHUCK TODD: And at this point, you can't confirm or deny whether that exists? JAMES CLAPPER: I can deny it. CHUCK TODD: There is no FISA court order? JAMES CLAPPER: Not-- not to know my knowledge. CHUCK TODD: Of anything at Trump Tower? JAMES CLAPPER: No.
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http://www.nbcnews.com/meet-the-press/meet-press-03-05-17-n729271 (last accessed August 15, 2017).
On March 23, 2017, Congressman Devon Nunes (“Congressman Nunes”), the Chairman of the HPSCI, held two press conferences to discuss intelligence information that had been shared with him regarding the collection of information implicating President Trump and/or his associates. In the first press conference, held prior to Congressman Nunes briefing President Trump at the White House, Congressman Nunes stated that he had confirmed “that on numerous occasions, the intelligence community incidentally collected information about U.S. citizens involves in the Trump transition.” http://www.ajc.com/news/national/read-transcripts-rep-devin-nunes-news-conferencesabout-trump-surveillance/NdZ4qQv7uBnjcH9E3HSRPJ/ (last accessed August 15, 2017).
In a second press conference, held in front of the White House, Congressman Nunes elaborated further on the context of the information collection:
Nunes: Because what I saw has nothing to do with Russia and nothing to do with the Russia investigation. It has everything to do with surveillance activities, and the President needs to know that these intelligence reports are out there, and I have a duty to tell him that. Reporter: Is it appropriate to be drawing conclusions before it was completed? Nunes: I’m not drawing any conclusions, I’m just telling the President what exists in intelligence reports. Reporter: Are the subjects of surveillance under FISA orders? Nunes: It appears so. Id. (emphasis added).
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The legal question of whether these disclosures by Director Clapper and Congressman Nunes qualify as “official disclosures” is a murky one. The D.C. Circuit has concluded that, for example, disclosures in books written by former government officials do not qualify as “official disclosures” for purposes of FOIA. See Public Citizen v. Dep’t of State, 11 F.3d 198, 201-02 (D.C. Cir. 1993); see also Afshar v. Dep’t of State, 702 F.2d 1125, 1133-34 (D.C. Cir. 1983)(books published by former CIA officials were not tantamount to official executive acknowledgments). The Plaintiffs further concede that statements by former officials, even in Congressional testimony, do not, on their own, constitute an official disclosure of information. See Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999); see also Wilson v. CIA, 586 F.3d 171, 186-86 (2d. Cir. 2009) (“[T]he law will not infer official disclosure of information classified by the CIA from … [s]tatements made by a person not authorized to speak for the Agency.”); Hudson River Sloop Clearwater, Inc. v. Dep’t of Navy, 891 F.2d 414, 421-22 (2d. Cir. 1989)(sworn affidavit submitted by former Navy Admiral did not qualify as official disclosure).
Absent official corroborating disclosures of information, the existing case law with respect to “official disclosures” arguably might be viewed as precluding consideration of the disclosures by Director Clapper and Congressman Nunes. However, separate but related official disclosures of information constitute sufficient corroboration and warrant the conclusion that the remarks by Director Clapper and Congressman Nunes can be considered by this Court in the context of evaluating the propriety of DOJ’s Glomar responses.
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Director Comey and Admiral Rogers both publicly and officially denied knowledge of any information that indicated President Trump’s claim that his “wires” had been tapped was accurate. Supra at 13-14. Those official, public statements directly overlap with the public disclosure by Director Clapper during his March 5, 2017, interview, in which he denied knowledge of any wiretap or surveillance activity mounted against President Trump and/or his associates, including with respect to a possible FISA warrant(s). The overlap is more than sufficient for the purpose of rendering Director Clapper’s comments relevant as a matter of law in the context of countering a Glomar response.
Those same public, official disclosures of information by Director Comey and Admiral Rogers are separately but similarly relevant in evaluating Congressman Nunes’ remarks during his March 23, 2017, press conferences. Although Congressman Nunes’ statements contradict Director Comey and Admiral Rogers on substance – Congressman Nunes stated that the information he saw indicated the existence of a possible FISA warrant in particular, and surveillance of the Trump transition team in general – it nonetheless sufficiently overlaps for the purpose of addressing the appropriateness of a Glomar response.
B. There Is More Than Sufficient Evidence Of Public, Official Disclosures Of Information To Conclude That A Glomar Response Is Not Permissible As A Matter Of Law
With due respect to the essence of DOJ’s argument that a Glomar response is appropriate, see Def’s Memo at *17-*20, the Government relies upon a misapplication of existing case law. DOJ claims that the Plaintiffs are required to demonstrate the existence of public, official disclosures of information that is as specific as the information sought.
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See id. at *17-*18. In taking that position, however, DOJ has erroneously applied to a challenge to a
Glomar response the standard of specificity required only in the context of substantive withholdings and/or redactions of actual responsive records. The D.C. Circuit clarified in rulings such as ACLU and Marino that the more exacting standard set forth in Wolf for demonstrating an “official acknowledgment” of specific information within documents need not be met when countering a Glomar response. The Circuit explained in ACLU and Marino that it is not necessary for a plaintiff to demonstrate that the specific content of the records have been officially disclosed, but rather only that the existence or nonexistence of the records has been officially acknowledged. See supra at 4; see also Smith v. CIA, 2017 U.S. Dist. LEXIS 47230, *10 (D.D.C. Mar. 30, 2017)(“The match between Plaintiff’s request and President Obama’s statement, although the statement did not consist of the specific words ‘CIA’ of ‘budget line items’, is as close as the match in ACLU v. CIA.”).
The following from ACLU is prescient: The Glomar doctrine is in large measure a judicial construct, an interpretation of FOIA exemptions that flows from their purpose rather than their express language. In this case, the CIA asked the courts to stretch that doctrine too far -- to give their imprimatur to a fiction of deniability that no reasonable person would regard as plausible. “There comes a point where . . . Court[s] should not be ignorant as judges of what [they] know as men" and women. Watts v. Indiana, 338 U.S. 49, 52, 69 S. Ct. 1347, 93 L. Ed. 1801 (1949)(opinion of Frankfurter, J.).
ACLU, 710 F.3d at 431. As in ACLU, permitting the fiction of deniability with respect to the existence or non-
existence of records responsive to Plaintiffs’ requests simply stretches the feasibility of a Glomar response beyond acceptable limits. It is neither logical nor plausible that
19

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disclosure of the existence or non-existence of FISA orders, applications for FISA orders,
and/or applicable minimization procedures would reveal anything not already placed in
the public domain by way of official disclosures (due in no small part to the calculated
disclosures of President Trump and Mr. Spicer).
To summarize, the following points have been officially disclosed:
a) President Trump is not and has not been personally under investigation, supra at 5-6;
b) President Trump stated on March 4, 2017, that he “just found out” President Obama had his “wires tapped”, that President Obama specifically was tapping his phones in October 2016, and that President Obama had been “turned down by court earlier” in getting authorization to “tapp” President Trump’s “wires” or phones, supra at 6;
c) Mr. Spicer later incorporated by reference during press briefings on March 6, 2017, March 13, 2017, and March 16, 2017, , and President Trump incorporated by reference during his March 15, 2017, interview, media reports indicating that an application for a FISA warrant had been denied in June 2016, that a separate application had been approved in October 2016, and that intelligence reports derived from the information intercepted as part of the latter FISA warrant had been provided to the White House, supra at 6-12;
d) Director Comey and Admiral Rogers denied any knowledge of any authorization to “wiretap” Trump Tower or President Trump’s phones, and those denials overlap with Director Clapper’s unofficial disclosure of the fact that he was not aware of the issuance of any FISA warrants targeting President Trump or his associates, supra at 13-16; and
e) The denials by Director Comey and Admiral Rogers appear to conflict with the unofficial disclosure by Congressman Nunes that he had been shown classified documentation indicating that at least one FISA warrant had been issued that, at a minimum, had permitted incidental collection of information implicating President Trump’s associates, supra at 16.
The conflicting official disclosures candidly make a mockery of DOJ’s Glomar
response invocation. The denials made by Director Comey and Admiral Rogers have
been contradicted by none other than the President of the United States and the
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White House Press Secretary, both of whom made official statements incorporating media reports as the evidentiary bases for their claims. Coupled with the overlapping (albeit contradictory) public disclosures by Director Clapper and Congressman Nunes, it simply defies credulity to conclude that there have been insufficient official disclosures of the existence or non-existence of responsive records.
If anything, the conflicting official claims that underlie this matter render a substantive response by DOJ as a practical necessity as a matter of policy, to say nothing of law. The President of the United States has made allegations that at least one FISA warrant seeking authorization to surveil him and/or his associates was denied, and both he and the White House Press Secretary incorporated media claims that a separate warrant was issued that did authorize surveillance implicating the president’s associates. Those claims have been at least partially (if not entirely) contradicted by the NSA and FBI. This is exactly the type of scenario that FOIA alone can resolve to the benefit of the public, as it would clarify a public dispute between portions of the Executive Branch regarding what the “government was up to” (or, as it may be, what it was not up to).
It bears noting that denying DOJ’s Motion and granting the Plaintiffs’ Cross-Motion does not necessarily mandate that documents will ultimately be produced to the Plaintiffs. It is certainly plausible (although the Plaintiffs are not conceding anything) that this Court would ultimately conclude in later briefing that any actual responsive records are exempt from production, likely for many of the same substantive reasons outlined by DOJ in its current Motion. However, that legal issue is not currently before this Court and it cannot be addressed one way or the other until this Court first adjudicates the appropriateness of DOJ’s Glomar response.
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CONCLUSION For the foregoing reasons, DOJ’s Motion for Summary Judgment should be denied and the Plaintiffs’ Cross-Motion for Summary Judgment should be granted. Date: August 18, 2017
Respectfully submitted, /s/
________________________ Bradley P. Moss, Esq. D.C. Bar #975905 Mark S. Zaid, Esq. D.C. Bar #440532 Mark S. Zaid, P.C. 1250 Connecticut Avenue, N.W. Suite 200 Washington, D.C. 20036 (202) 454-2809 (202) 330-5610 fax Brad@MarkZaid.com Mark@MarkZaid.com Attorneys for the Plaintiffs
22

 
 Case 1:17-cv-00597-APM Document 22 Filed 09/15/17 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF JUSTICE, )

)

Defendant.

)

)

Case No. 17-597-CKK

DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND REPLY MEMORANDUM IN SUPPORT OF DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

CHAD READLER Acting Assistant Attorney General
MARCIA BERMAN Assistant Director, Federal Programs Branch
AMY E. POWELL Trial Attorney, Federal Programs Branch Civil Division, Department of Justice 310 New Bern Avenue, Suite 800 Federal Building Raleigh, NC 27601-1461 Phone: 919-856-4013 Email: amy.powell@usdoj.gov

Case 1:17-cv-00597-APM Document 22 Filed 09/15/17 Page 2 of 16 Table of Contents
INTRODUCTION .......................................................................................................................... 1 ARGUMENT .................................................................................................................................. 1
I. The Standard for Official Acknowledgment. .................................................................... 1 II. The Cited White House Statements Do Not Foreclose the Glomar Response.................. 2 III. Other Official Statements Do Not Foreclose the Glomar Response. ................................ 5 IV. Unofficial Statements Do Not Foreclose the Glomar Response. ...................................... 6 V. Plaintiffs’ Speculation Does Not Waive the Glomar Response. ....................................... 8 CONCLUSION............................................................................................................................... 9
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Table of Authorities
Cases
ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013)................................................................................................. 1, 2
Afshar v. Dep’t of State, 702 F.2d 1125 (D.C. Cir. 1983).......................................................................................... passim
Dep’t of the Navy v. Egan, 484 U.S. 518 (1988) .................................................................................................................... 8
Earth Pledge Found. v. CIA, 988 F. Supp. 623 (S.D.N.Y. 1996) .............................................................................................. 7
Fitzgibbon v. C.I.A., 911 F.2d 755 (D.C .Cir. 1990)................................................................................................. 5, 7
Frugone v. CIA, 169 F.3d 772 (D.C. Cir. 1999)................................................................................................. 6, 7
McKinley v. Bd. of Governors of the Fed. Reserve Sys., 849 F. Supp. 2d 47 (D.D.C. 2012)............................................................................................... 8
Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981)................................................................................................. 7, 9
Moore v. CIA, 666 F.3d 1330 (D.C. Cir. 2011)................................................................................................... 7
Murphy v. Dep’t of Army, 613 F.2d 1151 (D.C. Cir. 1979)................................................................................................... 7
Phillippi v. CIA, 655 F.2d 1325 (D.C. Cir. 1981)................................................................................................... 9
Pub. Citizen v. Dep’t of State, 11 F.3d 198 (D.C. Cir. 1993)............................................................................................... 3, 5, 6
Riquelme v. CIA, 453 F. Supp. 2d 103 (D.D.C. 2006)............................................................................................. 7
Salisbury v. United States, 690 F.2d 966 (D.C. Cir. 1982)..................................................................................................... 7
Shapiro v. CIA, 170 F. Supp. 3d 147 (D.D.C. 2016)............................................................................................. 3
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Case 1:17-cv-00597-APM Document 22 Filed 09/15/17 Page 4 of 16 Students Against Genocide v. Dep’t of State,
257 F.3d 828 (D.C. Cir. 2001)..................................................................................................... 7 Wilson v. CIA,
586 F.3d 171 (2d Cir. 2009) ........................................................................................................ 7 Wolf v. CIA,
473 F.3d 370 (D.C. Cir. 2007)......................................................................................... 1, 3, 4, 9 Other Authorities Declarations of David Hardy and G. Bradley Weinsheimer,
American Oversight v. DOJ, No.17-718 (September 1, 2017) ................................................... 3 Transcript of the House Permanent Select Committee on Intelligence Hearing on Russian
Interference in the 2016 U.S. Election, March 20, 2017 ......................................................... 3, 6
iii

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INTRODUCTION Plaintiffs concede that their Freedom of Information Act request seeks information which is ordinarily properly classified and otherwise exempt from FOIA – namely, any Foreign Intelligence Surveillance Act (“FISA”) applications and orders pertaining to President Trump, the Trump Organization, President Donald Trump, or the Trump campaign. Defendant United States Department of Justice (“DOJ”) explained that FISA information pertaining to particular individuals and entities is currently and properly classified and subject to FOIA exemptions 1, 3, 7(A) and 7(E). Moreover, Defendant explained that, even considering the information in the public sphere, disclosure of the specific information sought by Plaintiffs is reasonably expected to harm national security and ongoing law enforcement efforts. In response, Plaintiffs maintain only that the applicable exemptions have been waived through various public statements, none of which match the specific information requested here. Plaintiffs attempt to cast vague, irrelevant, unsourced or non-official statements as waivers, apparently believing that a sufficient volume of innuendo and media speculation amounts to official acknowledgement. It does not.
ARGUMENT I. The Standard for Official Acknowledgment.
The standard for finding an official acknowledgement is settled law in this Circuit: the precise information at issue must have been officially and specifically disclosed by an authorized official and be in the public domain as such. See Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007); Mem in Supp. of Def.’s Mot. for Summ. J. (MSJ) at 17-20, ECF No. 13. Not a single statement cited by Plaintiffs meets this standard.
Plaintiffs rely heavily on the D.C. Circuit decision in ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013), but that case does not stand for the proposition that sufficient accumulation of media
1

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attention or innuendo amounts to waiver. Plaintiffs erroneously suppose that the decision in ACLU v. CIA changed the standard for official acknowledgement as applied to Glomar responses, and that the requirement of “specificity” no longer applies. Mem. in Opp’n to Def.’s MSJ and in Supp. of Pls.’ Cross-Mot. for Summ. J. (Pls.’ MSJ) at 19, ECF No. 18-1. That reading of ACLU v. CIA is unsupported by text or logic. Rather, the Court found that several direct statements of authorized officials acknowledged the very fact sought to be protected by the Glomar – that CIA had an intelligence interest in U.S. drone strikes. 710 F.3d at 429. The Court did not require an agency to respond to a request that was both more and less extensive than a public disclosure and thus clearly delineate the scope of ambiguous official statements, revealing the very information previously kept secret.
Here, by contrast to ACLU, the request seeks specific undisclosed details allegedly pertaining to an ongoing and acknowledged investigation. The fact sought to be protected is not the FBI’s general interest in a national security investigation; it is the investigatory details at issue, which have not been confirmed or denied by any authorized source. Indeed, the purpose of the FOIA request appears to be to ferret out the existence or nonexistence of authorized FISA warrants with respect to the acknowledged investigation. There is no official acknowledgement of the precise information at issue here.
II. The Cited White House Statements Do Not Foreclose the Glomar Response. Plaintiffs cite a number of statements from the President or the Press Secretary that do
not constitute acknowledgement of the information sought here. As discussed in Defendants’ Motion for Summary Judgment, the President’s March 4 tweets do not confirm or deny the existence of FISA materials. Def.’s MSJ at 19-20. Nor do they amount to implicit
2

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acknowledgement of the existence or nonexistence of FISA materials. See Pls.’ MSJ at 4.1 The
category of records sought by Plaintiffs, however, is both narrower than that addressed by the
March 4 tweets (because the request is limited to FISA information) and broader than that
addressed by the March 4 tweets (because the request is not limited in time, location, or other specifics.) 2 The Glomar response thus remains appropriate for the category of records sought by
Plaintiff. The Government has not generally confirmed or denied the use of this particular
electronic surveillance technique pertaining to particular individuals or organizations,
particularly those allegedly related to ongoing national security investigations. This information
is currently and properly classified, and otherwise exempt. Plaintiffs fail to respond to those
arguments and instead just repeat portions of the tweets. Pls.’ MSJ at 6.
Plaintiffs also rely on the President’s statements that he was not personally under
investigation at the time. See Pls.’ MSJ at 5-6. Such statements have no arguable bearing on the
precise issue here – whether or not there are any FISA materials pertaining to President Trump,
the Trump Organization, President Donald Trump, or the Trump campaign. “Prior disclosure of
similar information does not suffice; instead, the specific information sought by the plaintiff
must already be in the public domain by official disclosure.” Wolf, 473 F.3d at 378; Pub. Citizen
1 As discussed in the Hardy Declaration, then-FBI Director James Comey stated that DOJ has no information to support the tweets. Def.’s MSJ at 20; Hardy Decl. ¶ 15. In another FOIA matter in this district, in which the requestor sought records more clearly encompassing the matters mentioned by the President, DOJ submitted declarations again confirming that DOJ has no such records. See Declarations of David Hardy and G. Bradley Weinsheimer, American Oversight v. DOJ, No.17-718 (September 1, 2017). Regardless, the nonexistence of a set of records that is in ways both broader and narrower than the requested records does not waive a Glomar as to the cross-cutting request. 2 Former Director Comey also testified about the need for continued secrecy in his March 20th testimony before HPSCI, where he discussed why the FBI does not confirm or refute unsourced media reports. See Transcript of the House Permanent Select Committee on Intelligence Hearing on Russian Interference in the 2016 U.S. Election, March 20, 2017 (question and answer exchanges between former Director Comey and Representative Trey Gowdy).
3

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v. Dep’t of State, 11 F.3d 198, 201 (D.C. Cir. 1993) (explaining that the information officially acknowledged must “duplicate[ ] that being withheld”); Shapiro v. CIA, 170 F. Supp. 3d 147, 159 (D.D.C. 2016). As noted by the D.C. Circuit, “[t]he insistence on exactitude recognizes ‘the Government’s vital interest in information relating to national security and foreign affairs.’” Wolf, 473 F.3d at 378.
Plaintiffs then quote at length certain statements by the then-White House Press Secretary about press reports, in which he does not confirm or deny whether there were FISA materials. For example, Plaintiffs quote a statement from March 6, 2017: Commenting on news reports, Mr. Spicer states that “something happened,” that it “could be FISA,” “that it could be surveillance,” that “the question is, is it surveillance, is it a wiretap, or whatever,” and that the President “wants Congress to look into this.” See Pls.’ MSJ at 6-7. And the lengthy quote from his March 16 statement concludes only that “this leads to a lot.” Id. at 8-11. It recounts certain media reporting, but contains not a single definitive statement from Mr. Spicer that there was in fact surveillance, much less that there was in fact FISA material at issue. Such a vague generality does not waive the right to withhold the far more specific information sought here – whether or not there are specifically FISA documents pertaining to surveillance of particular individuals. See Afshar v. Dep’t of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983) (holding release of information that “provide[s] only the most general outline” of an intelligence effort does not waive right to withhold documents giving “a far more precise idea” of that effort because withheld information must have “already been specifically revealed to the public”).
Plaintiffs argue that “[a]lthough these media reports would not, on their own, qualify as official disclosures of information, President Trump and Mr. Spicer’s specific reliance upon the information in the media reports – particularly in terms of forming the basis for President
4

Case 1:17-cv-00597-APM Document 22 Filed 09/15/17 Page 9 of 16
Trump’s specific claims in his March 4, 2017, tweets – constitute ‘official acknowledgement’ of at least those portions of the media reports that overlap with President Trump’s claims.” Pls.’ MSJ at 12-13, id. at 20-21. This novel theory that consideration of news reports and “incorporation by reference” amounts to official acknowledgement of the details contained in such news reports is unsupported by any citation, and is fundamentally inconsistent with the well-settled criteria for finding official acknowledgement.
Mr. Spicer, in fact, clarifies that neither he nor the President were disclosing any official information but instead commenting on news reports. See Pls.’ MSJ at 6-13. For example, Plaintiffs note that the President stated that the tweets were in the context of having read an article in the New York Times and watched a news report. Pls.’ MSJ at 8. And Mr. Spicer later described in detail the various news reports about alleged surveillance. Pls.’ MSJ at 8-11. It is beyond cavil that media reports quoting unnamed and unofficial sources do not constitute official disclosure. See Fitzgibbon v. C.I.A., 911 F.2d 755, 765 (D.C .Cir. 1990) (“‘[I]t is one thing for a reporter or author to speculate or guess that a thing may be so or even, quoting undisclosed sources, to say that it is so; it is quite another thing for one in a position to know of it officially to say that it is so.’”); Afshar, 702 F.2d at 1130 (rejecting suggestion that public and media speculation about CIA liaison with Iranian government constituted prior disclosure); Public Citizen, 11 F.3d at 201 (“even if a fact has been the subject of media speculation, its official acknowledgment could” cause damage). Mere commenting on them, or even relying on them, without any statement that they are accurate, surely does not either.
III. Other Official Statements Do Not Foreclose the Glomar Response. Plaintiffs cite two official statements that do not confirm or deny the existence of FISA
material pertaining to the specified individuals and entities. First, consistent with the
5

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Defendants’ Motion for Summary Judgement, Plaintiffs quote then-FBI Director Comey’s statement that FBI and DOJ have no records to support the President’s tweets. See Pls.’ MSJ at 13; Def.’s MSJ at 20. As noted above, the President’s tweets do not specify the existence or nonexistence of FISA material but do specify other details. Mr. Comey’s general statement in response does not mean that there is or is not responsive FISC material.
Second, Plaintiffs cite a wholly irrelevant statement by Admiral Mike Rogers, Director of the NSA. In response to a question from Congressman Schiff, “Did you ever request that your counterparts in GCHQ [(Government Communications Headquarters, a British intelligence and security agency)] should wiretap Mr. Trump on behalf of President Obama?”, Admiral Rogers responded directly, “No sir, nor would I, that would be expressly against the construct of the Five Eyes agreement that’s been in place for decades.” See Full Transcript: FBI Director James Comey testifies on Russian interference in 2016 election, WashingtonPost.com (Mar. 20, 2017), https://www.washingtonpost.com/news/post-politics/wp/2017/03/20/full-transcript-fbi-directorjames-comey-testifies-on-russian-interference-in-2016-election/. It is hard to see how this statement regarding British intelligence has any bearing on the existence or nonexistence of FISA materials at DOJ or FBI pertaining to the named individuals or entities. In any event, the NSA Director could not waive a Glomar on behalf of DOJ. See Frugone v. CIA, 169 F.3d 772, 774–75 (D.C. Cir. 1999) (protecting the CIA’s right to make a Glomar response despite official disclosure of the same information by the Office of Personnel Management).
IV. Unofficial Statements Do Not Foreclose the Glomar Response. Plaintiffs also cite a statement from a former Government official and statement from a
Member of Congress as evidence of official acknowledgement. Pls.’ MSJ at 14-18. Although Plaintiffs characterize the caselaw as “murky,” it is in fact quite clear. Former officials do not
6

Case 1:17-cv-00597-APM Document 22 Filed 09/15/17 Page 11 of 16
speak for the Government. See Public Citizen, 11 F.3d at 201; Afshar, 702 F.2d at 1133. The fact that some information related to a certain subject exists in the public domain, however, “does not eliminate the possibility that further disclosures can cause harm to intelligence sources, methods, and operations.” Students Against Genocide v. Dep’t of State, 257 F.3d 828, 835 (D.C. Cir. 2001) (citing Fitzgibbon, 911 F.2d at 766); Afshar, 702 F.2d at 1130; Military Audit Project v. Casey, 656 F.2d 724, 745 (D.C. Cir. 1981); Riquelme v. CIA, 453 F. Supp. 2d 103, 109 (D.D.C. 2006). It would set a dangerous precedent if unauthorized public statements could cause otherwise classified or protected information to become unclassified and that is why this proposition has been resoundingly rejected by the courts.
Moreover, Members of Congress cannot waive FOIA exemptions on behalf of the Executive Branch. The release of information by Congress (and, presumably, an individual Member of Congress) does not constitute official disclosure of classified information by the relevant Executive Branch agency. See Military Audit Project, 656 F.2d at 742-745; see also Moore v. CIA, 666 F.3d 1330, 1333 n.4 (D.C. Cir. 2011) (“[W]e do not deem ‘official’ a disclosure made by someone other than the agency from which the information is being sought.” (quoting Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999)); Earth Pledge Found. v. CIA, 988 F. Supp. 623, 627-628 (S.D.N.Y. 1996), aff ’d, 128 F.3d 788 (2d Cir. 1997) (cited with approval in Wilson v. CIA, 586 F.3d 171, 186-187 (2d Cir. 2009)).
To hold otherwise would permit Members of Congress who might have been provided with classified information in the course of their official duties to override an Executive Branch classification decision without authorization to do so. See Murphy v. Dep’t of Army, 613 F.2d 1151, 1156 & n.13 (D.C. Cir. 1979) (rejecting an interpretation of FOIA that would “effectively transform section [552(d)] into a congressional declassification scheme,” which would pose
7

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“obvious problems, constitutional and otherwise,” with regard to national security information protected under Exemption 1); Salisbury v. United States, 690 F.2d 966, 971 (D.C. Cir. 1982) (“bare discussions by this court and the Congress of NSA’s methods generally cannot be equated with disclosure by the agency itself of its methods of information gathering”); McKinley v. Bd. of Governors of the Fed. Reserve Sys., 849 F. Supp. 2d 47, 60 (D.D.C. 2012) (holding that a congressional committee’s publication of records provided to it in confidence without authorization does not constitute a waiver of the applicable FOIA Exemptions). Indeed, it would pose serious Constitutional questions if, as a result of legislative oversight responsibilities, members of Congress could override the Executive Branch determination that information was currently and properly classified. Cf. Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988). Neither FOIA nor the Executive Order contemplate Congress taking on such a role.
V. Plaintiffs’ Speculation Does Not Waive the Glomar Response. Plaintiffs repeatedly attempt to infer a broad waiver from limited and careful official
statements by the Department. As explained with respect to each statement above, Plaintiffs’ list of “officially disclosed” points is equal parts erroneous, irrelevant, and overstated. This attempt is inconsistent with case law requiring precision in a waiver, and it is inconsistent with the purposes of FOIA. Inferring broad waivers from limited public disclosures, after all, perversely penalizes transparency and discourages Government efforts to make information public to the extent possible consistent with national security and law enforcement interests.
Finally, Plaintiffs opine that “the conflicting official claims that underlie this matter render a substantive response by DOJ as a practical necessity as a matter of policy,” and that disclosure would “clarify a public dispute between portions of the Executive Branch.” Pls.’ MSJ at 21. Plaintiffs’ policy judgments, however, are not at issue. The Executive Branch has
8

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determined that further disclosures at this time would cause harm to national security and to law enforcement interests. Plaintiffs have not met their burden of pointing to official information in the public sphere that precisely matches the information at issue here (the existence or nonexistence of responsive FISA records). There has been no such official confirmation, and Plaintiffs’ inferences about what they believe the White House Press Secretary meant to say do not suffice.3 As this Circuit’s precedent makes clear, the purported intelligence expertise of the FOIA requestor should not be substituted for that of the responsible federal agency. See Phillippi v. CIA, 655 F.2d 1325, 1331 (D.C. Cir. 1981); Military Audit Project, 656 F.2d at 745; Afshar, 702 F.2d at 1130-31.
CONCLUSION For the foregoing reasons, the Court should grant Defendant’s Motion for Summary Judgment and deny Plaintiff’s motion.

Dated: September 15, 2017

Respectfully Submitted,
CHAD READLER Acting Assistant Attorney General
MARCIA BERMAN Assistant Director, Federal Programs Branch
/s/Amy E. Powell AMY E. POWELL Trial Attorney, Federal Programs Branch Civil Division, Department of Justice 310 New Bern Avenue, Suite 800

3 Moreover, Plaintiffs’ insistence that their inferences from official statements contradict each other seems to cut against a finding of official acknowledgement. The requirement for official and specific disclosure by an authorized official is even less likely to be met where there are multiple, apparently conflicting, and ambiguous statements on related issues. Cf. Wolf, 473 F.3d at 378.

9

Case 1:17-cv-00597-APM Document 22 Filed 09/15/17 Page 14 of 16 Federal Building Raleigh, NC 27601-1461 Phone: 919-856-4013 Email: amy.powell@usdoj.gov
10

Case 1:17-cv-00597-APM Document 22 Filed 09/15/17 Page 15 of 16 CERTIFICATION OF SERVICE
I hereby certify that the foregoing document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants by First Class Mail or Federal Express, on the 15th of September, 2017.
/s/Amy E. Powell AMY POWELL September 15, 2017
11

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12

 
 Case 1:17-cv-00597-APM Document 23 Filed 09/29/17 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

*

THE JAMES MADISON PROJECT, *

et al.,

*

*

Plaintiffs,

*

*

v.

*

Civil Action No. 17-597 (TJK)

*

DEPARTMENT OF JUSTICE,

*

*

Defendant.

*

*

* * * * * * * * * * * * **

REPLY IN SUPPORT OF

PLAINTIFFS’ CROSS-MOTION FOR SUMMARY JUDGMENT

Case 1:17-cv-00597-APM Document 23 Filed 09/29/17 Page 2 of 14
TABLE OF CONTENTS
INTRODUCTION .............................................................................................................. 1 ARGUMENT ...................................................................................................................... 1
THE OFFICIAL DISCLOSURES OF INFORMATION ARE SUFFICIENT ON THEIR OWN TO CONCLUDE, AS A MATTER OF LAW, THAT THE GLOMAR RESPONSES ARE NOT PERMISSIBLE...................................................................... 1
The Court Can “Incorporate By Reference” Portions Of Media Reports Relied Upon By Government Officials To Justify Their Official Disclosures ................................ 3 DOJ’s Glomar Responses Fail As A Matter Of Law.................................................. 6 IT WOULD CONSTITUTE A REASONABLE EXERCISE OF THIS COURT’S DISCRETION TO INCORPORATE BY REFERENCE THE UNOFFICIAL STATEMENTS MADE BY DIRECTOR CLAPPER AND CONGRESSMAN NUNES ........................................................................................................................... 8 CONCLUSION................................................................................................................. 10

Case 1:17-cv-00597-APM Document 23 Filed 09/29/17 Page 3 of 14
TABLE OF AUTHORITIES
Cases ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013) ............................................................... 6, 7 Afshar v. Dep’t of State, 702 F.2d 1125 (D.C. Cir. 1983).............................................. 5, 8 American Oversight v. DOJ, Civil Action No. 17-718 (D.D.C.)(RCL) ............................. 2 FBI v. Abramson, 456 U.S. 615 (1982) .............................................................................. 6 Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990)............................................................. 5 Hayden v. Nat’l Sec. Agency, 608 F.2d 1381 (D.C. Cir. 1979) ..................................... 8, 9 Mobley v. CIA, 806 F.3d 568 (D.C. Cir. 2015).................................................................. 8 Public Citizen v. Dep’t of State, 11 F.3d 198 (D.C. Cir. 1993).......................................... 5 Smith v. CIA, 2017 U.S. Dist. LEXIS 47230 (D.D.C. Mar. 30, 2017) .......................... 6, 7 Stillman v. CIA, 319 F.3d 546 (D.C. Cir. 2003)................................................................. 9
Other Authorities https://www.infowars.com/deep-state-drugging-trump-ahead-of-coup-sources-say/ (last
accessed September 27, 2017) ........................................................................................ 4

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INTRODUCTION This FOIA action has been brought by the Plaintiffs, The James Madison Project (“JMP”) and USA TODAY reporter Brad Heath (“Heath”)(hereinafter referred to jointly as “Plaintiffs”), to secure the lawful disclosure of records held by the defendant Department of Justice (“DOJ”) with respect to whether the Foreign Intelligence Surveillance Court (“FISC”) authorized surveillance of President Donald J. Trump (“President Trump”), his presidential campaign, his private company, or his associates, as well as any relevant applications for orders submitted to the FISC and minimization procedures issued by the FISC. The DOJ filed its Motion for Summary Judgment (“Motion”) on July 14, 2017. Dkt. #13. The Plaintiffs simultaneously filed an Opposition to DOJ’s Motion, as well as their own Cross-Motion for Summary Judgment (“Cross-Motion”), on August 18, 2017. Dkt. #17; Dkt. #18. The DOJ filed its Reply in support of its Motion, as well as its Opposition to the Plaintiffs’ Cross-Motion, on September 15, 2017. Dkt. #21; Dkt. #22. For the reasons set forth in detail below, this Court should grant the Plaintiffs’ Cross-Motion with respect to DOJ’s invocation of Glomar responses.
ARGUMENT I. THE OFFICIAL DISCLOSURES OF INFORMATION ARE SUFFICIENT ON
THEIR OWN TO CONCLUDE, AS A MATTER OF LAW, THAT THE GLOMAR RESPONSES ARE NOT PERMISSIBLE In their Cross-Motion, the Plaintiffs outlined the material information that had already been officially disclosed that was relevant to this Court’s assessment of DOJ’s Glomar responses. Dkt. #18-1 at 5-14.

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Possibly most importantly, the Plaintiffs noted that President Donald Trump has officially disclosed – once in writing, and verbally during two media interviews – that former FBI Director James Comey (“Director Comey”) informed him on three separate occasions that he (President Trump) was not under investigation. Id. at 6. That disclosure, on its own, sets the broad parameters for any inquiry into the reasonableness of the DOJ’s Glomar response; if President Trump is not and has not been under investigation it is axiomatic that he cannot have been the subject of any type of surveillance order.
It also bears noting that DOJ continues to invoke a Glomar response with respect to at least parts of President Trump’s now-infamous tweets on March 4, 2017. See Dkt. #18-1 at 6. The DOJ’s contention in their response notwithstanding, see Dkt. #21 at 3, the declarations filed in American Oversight v. DOJ, Civil Action No. 17-718 (D.D.C.) (RCL), do not constitute “no responsive records” determinations with respect to the entirety of the March 4, 2017, tweets. Rather, a review of the declarations filed in that case by the DOJ National Security Division and the Federal Bureau of Investigation reflect that the DOJ components were only stating they did not locate any “records of alleged wiretapping of Trump Tower by President Obama prior to the election.” See American Oversight, Dkt. #12-1 at ¶8 (filed September 1, 2017), Dkt. #12-3 at ¶15 (filed September 1, 2017).
Neither declaration indicated in a clear or direct manner that the “no records responsive” determination concerned the separate assertions in President Trump’s tweets that a court had turned down a request to conduct “wiretapping” or that there had been specific “tapping” authorized in October 2016. Nor did Director Comey’s testimony,
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see Dkt. #13-3 at ¶15, clearly address those portions of the President’s official statements from his March 4, 2017, tweets.
A. The Court Can “Incorporate By Reference” Portions Of Media Reports Relied Upon By Government Officials To Justify Their Official Disclosures
The Plaintiffs outlined in detail in their Cross-Motion how President Trump and then-White House Press Secretary Sean Spicer (“Mr. Spicer”) made official disclosures in the aftermath of the March 4, 2017, tweets. Those official disclosures cited to information contained in media reports, the substance of which President Trump and Mr. Spicer asserted they were relying upon as the factual justification for President Trump’s original March 4, 2017, tweets. Dkt. #18-1 at 6-13. DOJ contends that the incorporation of media reports by Government officials to validate official statements is of no consequence in terms of whether that incorporation renders the portions of the media reports officially acknowledged. See Dkt. #21 at 4-5; see also id. at 5 (“Mere commenting on them, or even relying on them, without any statement they are accurate, surely does not either.”)(emphasis added).
The policy implications of DOJ’s position are startling. DOJ is effectively arguing that when Government officials – including the President of the United States – make official statements and subsequently cite to unofficial information in media reports as the factual basis for their official statements, the Government officials are not actually vouching for the accuracy of those portions of the media reports, to say nothing of the accuracy of their official statements themselves. In effect, unless Government officials include the magic words “I am confirming the accuracy of these media reports”, DOJ is asserting they can make official statements to their heart’s content based upon what they
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read in the newspaper that morning and yet the statements will have no legal value nor factual legitimacy.
To adhere to DOJ’s position would decimate the “official acknowledgment” exception. Consider the following hypothetical:
a) the President posts on Twitter tomorrow morning that he just learned there is a plot by “the Deep State” to poison him;
b) at a White House press briefing, White House Press Secretary Sarah HuckabeeSanders (“Mrs. Sanders”) explains that the President had just read an article on the InfoWars website in which anonymous sources claim “Deep State operatives” are putting sedatives in the President’s food and drink, see https://www.infowars. com/deep-state-drugging-trump-ahead-of-coup-sources-say/ (last accessed September 27, 2017), and that he issued his tweet in response to the claims in that story;
c) the President subsequently gives a media interview in which he confirms he issued his tweet after reviewing the InfoWars story and says he wants Congress to investigate the matter; and
d) Neither President Trump nor Mrs. Sanders ever specifically state that the accusations in the InfoWars story are accurate.
Under DOJ’s view of the case law, neither President Trump nor Mrs. Sanders made official disclosures about the accuracy of the claims in the InfoWars article. Any argument subsequently made in a FOIA request that President Trump had officially acknowledged the existence of records reflecting such poisoning would have to fail. However, at the same time, the President would have been able to make an official statement indicating that he was in fact being poisoned.
With due respect, this simply cannot nor should it be the law. This appears to be a matter of first impression. The undersigned has not been able to identify – nor, apparently, has the Government – any case law on-point that address the novel factual dilemma posed by President Trump’s unconventional communication methods. DOJ’s
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citations to case law regarding unofficial disclosures and media speculation, see Dkt. #21 at 5, are inapposite, as none of those cases involved a factual scenario similar to the present case. See Public Citizen v. Dep’t of State, 11 F.3d 198, 201 (D.C. Cir. 1993) (official disclosures did not encompass broader information sought); Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990)(agency disclosure of station location in congressional report for particular years does not apply to other years not tied to the specific disclosure); Afshar v. Dep’t of State, 702 F.2d 1125, 1133-34 (D.C. Cir. 1983) (books published by former officials cannot create an official disclosure on their own).
In contrast, here it was the President of the United States making unprompted official disclosures, and then subsequent official statements by both the President and the White House Press Secretary specifically relied upon media reports to factually justify the context of the President’s unprompted official disclosures. This was not something as banal as Mr. Spicer merely commenting on media reports in a vacuum. Both President Trump and Mr. Spicer unequivocally cited to the media reports to validate the truth of President Trump’s claims in his March 4, 2017, tweets. Mr. Spicer in particular was unambiguously clear in stating that some manner of surveillance had occurred. See Dkt. #18-1 at 7 (“Well, I think that there’s no question that something happened. The question is, it is surveillance, is it a wiretap, or whatever.”); see also id. at 12 (“There’s no question that there was surveillance techniques used throughout this I think by a variety of outlets that have reported this activity concluded.”).
The interests of public policy support the conclusion that when Government officials incorporate by reference into their official statements otherwise-unofficial disclosures in media reports they render that information “officially acknowledged” for purposes of
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evaluating a Glomar response. Cf. FBI v. Abramson, 456 U.S. 615, 630 (1982)(finding FOIA Exemption 5 protection for predecisional communications no longer applied when those communications were incorporated into a final agency decision).
B. DOJ’s Glomar Responses Fail As A Matter Of Law The Plaintiffs have more than sufficiently outlined how official disclosures by President Trump and Mr. Spicer have already placed into the public domain the existence of records responsive to the underlying FOIA requests. Dkt. #18-1 at 5-14. DOJ responded by arguing that the Plaintiffs have misconstrued and misapplied the precedent set forth in ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013). See Dkt. #21 at 1-5. DOJ, however, has overplayed its hand in construing the ACLU ruling in such a cramped manner. Not a single one of the official disclosures in the ACLU case specifically stated that the CIA conducted or was involved in drone strikes; rather, the official disclosures only stated that the United States in general conducts drone strikes. Id. at 429-31. The D.C. Circuit nonetheless found CIA’s Glomar response to be illogical and implausible, concluding that the idea that the Nation’s most famous intelligence agency would not have some interest in otherwise-officially acknowledged drone strikes would perpetuate a “fiction of deniability that no reasonable person would regard as plausible.” Id. at 431. The ACLU precedent for Glomar responses was further clarified just six months ago by one of this Court’s brethren. In Smith v. CIA, 2017 U.S. Dist. LEXIS 47230 (D.D.C. Mar. 30, 2017), U.S. District Court Judge Tanya Chutkan concluded that it was permissible to interpret an official statement by then-President Barack Obama about providing “military and intelligence assistance” to Israel as sufficiently similar enough to
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the plaintiff’s FOIA request seeking a copy of intelligence budget line items concerning Israel so as to justify rejecting CIA’s Glomar response. Id. at *6-*10.
The official disclosures made by President Trump and Mr. Spicer, whether done deliberately or recklessly, are more than sufficient to fall within the ambit of ACLU and Smith. No less an authoritative source than President Trump has stated on multiple occasions that he was informed by Director Comey that he is not the subject of an investigation. President Trump further stated that a “wire tapping” request had been “turned down by court earlier”, and that there had been surveillance implicating him in October 2016. Dkt. #18-1 at 5-6. Mr. Spicer reiterated on two separate occasions that there had been some means of “surveillance” that had occurred, supra at 5, and both President Trump and Mr. Spicer deliberately incorporated by reference information in media reports concerning FISA warrants (including an allegedly declined FISA warrant application) in order to justify the veracity of President Trump’s original March 4, 2017, tweets. Dkt. #18-1 at 6-13. In short, President Trump and Mr. Spicer both officially acknowledged that there was surveillance that was conducted of President Trump during the previous administration, and President Trump specifically cited to at least one failed application for surveillance.
To adhere to DOJ’s cramped interpretation of the ACLU standard, however, would perpetuate a fiction in which it is plausible that President Trump (per his own statements) is not the subject of an investigation despite the fact that he might be the subject of a FISA warrant. It beggars belief to view such a circumstance as plausible or logical in any factual sense of the word.
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II. IT WOULD CONSTITUTE A REASONABLE EXERCISE OF THIS COURT’S DISCRETION TO INCORPORATE BY REFERENCE THE UNOFFICIAL STATEMENTS MADE BY DIRECTOR CLAPPER AND CONGRESSMAN NUNES The Plaintiffs concede that, ordinarily, the unofficial statements made by
Former Director of National Intelligence James Clapper (“Director Clapper”) and Congressman Devon Nunes (“Congressman Nunes”) would not be admissible here. See Dkt. #18-1 at 14-16. The Plaintiffs argued in their Cross-Motion that this Court would be within its discretion to nonetheless consider those unofficial statements to the extent they overlapped with and/or corroborated separate official statements. Id. at ¶¶1718. The Plaintiffs wish to clarify and revise the argument they put forward in their CrossMotion by noting that they are only seeking to incorporate by reference these unofficial disclosures for the limited purpose of demonstrating the existence of a genuine issue of material fact in dispute warranting the denial of DOJ’s Motion.1
DOJ not surprisingly rejected the Plaintiffs’ argument. See Dkt. #21 at 6-8. However, the Plaintiffs maintain that the relevant case law has not contemplated a set of facts like those that exist in the present case. To the best of the undersigned’s knowledge, the case law has only contemplated a situation where a plaintiff seeks to establish official disclosure primarily (if not exclusively) by way of unofficial statements. See e.g., Mobley v. CIA, 806 F.3d 568, 583-84 (D.C. Cir. 2015)(disclosure of an FBI record by a foreign government did not qualify as an official disclosure); Afshar v. Dep’t of State, 702 F.2d 1125, 1133-34 (D.C. Cir. 1983)(books published by former CIA officials were not tantamount to official executive acknowledgments); Hayden v. Nat’l Sec. Agency,
1 Given this modification of the Plaintiffs’ argument, they do not object to DOJ being permitted by this Court to file a short sur-reply addressing this particular issue.
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608 F.2d 1381, 1388 (D.C. Cir. 1979)(uninformed speculation regarding which foreign communications channels are known to be monitored did not render improper classification of relevant documentation);
That is not the case here. As explained earlier, supra at 2, 6-7, the Plaintiffs contend that the official disclosures by President Trump and Mr. Spicer alone are more than sufficient to render improper DOJ’s Glomar responses as a matter of law. The Plaintiffs seek incorporation of these unofficial disclosures only as supplemental information to be considered, not as the primary basis for evaluating an official acknowledgment argument, and only for the alternative purpose of demonstrating the existence of a genuine issue of material fact in dispute (if necessary).
The Plaintiffs request this Court assess this proposition carefully. The Plaintiffs respectfully submit that the interests of public policy support the conclusion that federal courts can consider supplemental unofficial evidence to the extent the content of those unofficial disclosures substantially overlaps with that of separate official disclosures. Cf. Stillman v. CIA, 319 F.3d 546, 548 (D.C. Cir. 2003)(concluding that trial court should consider pleadings filed by the Government, as well as plaintiff, regarding the appropriateness of classification claims in a First Amendment case before reaching constitutional question of whether the court can compel the Government to grant plaintiff’s private attorney access to the purported classified manuscript).
This would be a narrow exception to the “unofficial statement” rule. In all honesty, absent President Trump’s calculated (albeit somewhat reckless) official disclosures – and Mr. Spicer’s unorthodox attempt to legitimize those disclosures by incorporating claims made in media reports – the Glomar responses issued by DOJ would stand on much
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firmer legal ground. The actions of President Trump and Mr. Spicer have undercut the legal feasibility of DOJ’s legal position. By doing so, they arguably opened the door to discretionary consideration of supplemental evidence that otherwise would ordinarily be precluded.
For example, and as outlined in the Plaintiffs’ Cross-Motion, Dkt. #18-1 at 16, Congressman Nunes provided unofficial disclosures of the existence of at least one FISA warrant authorizing surveillance that implicated President Trump’s associates. The Plaintiffs do not require incorporation of this unofficial disclosure by a Member of Congress to establish official acknowledgment of this information as a matter of law. President Trump and Mr. Spicer already officially acknowledged the existence of some type of surveillance that implicated the President and/or his associates. The context of Congressman Nunes’ unofficial statements merely supplement and clarify the nature of the surveillance to which both President Trump and Mr. Spicer were referring in their remarks. That context would be relevant to this Court’s analysis of the extent to which there is a genuine issue of material fact in dispute warranting denial of DOJ’s Glomar responses.
CONCLUSION For the foregoing reasons, the Plaintiffs’ Cross-Motion for Summary Judgment should be granted.
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Date: September 29, 2017

Respectfully submitted,
/s/ ________________________ Bradley P. Moss, Esq. D.C. Bar #975905 Mark S. Zaid, Esq. D.C. Bar #440532 Mark S. Zaid, P.C. 1250 Connecticut Avenue, N.W. Suite 200 Washington, D.C. 20036 (202) 454-2809 (202) 330-5610 fax Brad@MarkZaid.com Mark@MarkZaid.com
Attorneys for the Plaintiffs

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 Case 1:17-cv-00597-APM Document 40 Filed 10/19/18 Page 1 of 64

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF JUSTICE, )

)

Defendant.

)

)

Case No. 17-597-APM

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Defendant United States Department of Justice (“DOJ”) hereby moves for summary

judgment pursuant to Fed. R. Civ. P. 56(b) and Local Rule 7(h) for the reasons stated in the

attached memorandum of points and authorities, statement of material facts, and supporting

declarations and exhibits, and in the ex parte, in camera submission.

Dated: October 19, 2018

Respectfully Submitted,

CHAD A. READLER Principal Deputy Assistant Attorney General

MARCIA BERMAN Assistant Director, Federal Programs Branch

/s/Amy E. Powell AMY E. POWELL Federal Programs Branch Civil Division, Department of Justice 310 New Bern Avenue, Suite 800 Federal Building Raleigh, NC 27601-1461 Phone: 919-856-4013 Email: amy.powell@usdoj.gov Attorneys for Defendant

Case 1:17-cv-00597-APM Document 40 Filed 10/19/18 Page 2 of 64

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF JUSTICE, )

)

Defendant.

)

)

Case No. 17-597-APM

STATEMENT OF MATERIAL FACTS IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

As required by Local Civil Rule 7(h)(1), and in support of the Motion for Summary

Judgment, Defendants hereby make the following statement of material facts as to which there is

no genuine issue.

Administrative Background

1. This action arises from FOIA requests submitted by the Plaintiffs to the Federal

Bureau of Investigation (“FBI”) and DOJ’s National Security Division (“NSD”). By letter dated

March 6, 2017, Plaintiffs sought:

1) Any orders by the FISC authorizing surveillance of and/or collection of information concerning the Trump Organization, President Trump, President Trump’s campaign for presidency, or people associated with President Trump. 2) Any applications to the FISC seeking authorization for surveillance of and/or collection of information concerning the Trump Organization, President Trump, President Trump’s campaign for presidency, or people associated with President Trump. 3) Any minimization procedures issued by the FISC and that applied to any orders issued that fall within the scope of #1 or #2.

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See Third Declaration of David Hardy, dated October 19, 2018, ¶ 6 (citing 1st Hardy Decl., Dkt. 13-3, ¶ 5 & Exhibit A (FOIA Request));1 Declaration of Patrick N. Findlay, dated October 19, 2018, ¶ 4 & Exhibit A (FOIA Request).
2. By email dated March 17, 2017, NSD refused to confirm or deny the existence of responsive records pursuant to Exemption 1, explaining that to confirm or deny the existence of responsive records would reveal information that is properly classified under Executive Order 13526. See Findlay Decl. ¶ 5 & Ex. B (NSD Response).
3. On the same day, Plaintiffs appealed the determination to the DOJ Office of Information Policy (“OIP”). On April 12, 2017, OIP affirmed the determination of NSD – that the existence or non-existence of responsive records is a properly classified fact. See Findlay Decl. ¶ 6 & Ex. C (OIP Determination).
4. By letter dated March 16, 2017, the FBI acknowledged receipt of Plaintiffs’ request, and on April 4, 2017, the FBI also issued a Glomar response. The FBI’s Glomar response was based on FOIA Exemptions (b)(1), (b)(3), (b)(7)(A), and (b)(7)(E). See 3rd Hardy Decl. ¶ 7 (citing 1st Hardy Decl., Dkt. 13-3, ¶ 11 & Ex. D). Factual Background.
5. DOJ has acknowledged a national security investigation of “the Russian government’s efforts to interfere in the 2016 presidential election[, including] the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts [and] an assessment of whether any crimes were committed.” See The Washington Post, Full transcript:
1 A redacted version of the Third Hardy Declaration is filed herewith on the public record. A classified version of the declaration is being concurrently lodged with the Court ex parte and in camera, in order to more fully explain the basis for the withholding of exempt information.
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FBI Director James Comey testifies on Russian interference in 2016 election (Mar. 20, 2017), https://www.washingtonpost.com/news/post-politics/wp/2017/03/20/full-transcript-fbi-directorjames-comey-testifies-on-russian-interference-in-2016-election/?utm_term=.b9f19a0cf9cf; 3rd Hardy Decl. ¶ 14 & n.3. The investigation of Russian election interference is now under the direction of Special Counsel Robert Mueller. See Office of the Dep. Att’y General, Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17, 2017), https://www.justice.gov/opa/pressrelease/file/967231/download; 3rd Hardy Decl. ¶ 16.
6. On March 4, 2017, President Trump’s Twitter account made a four-part post, complaining that President Obama had Mr. Trump’s “wires tapped in Trump Tower just before the victory.” See https://twitter.com/realDonaldTrump. During sworn testimony before the House Permanent Selection Committee on Intelligence (“HPSCI”) on March 20, 2017, then-FBI Director James B. Comey was asked about this by Congressman Schiff and responded to address this specific statement:
With respect to the President’s tweets about alleged wiretapping directed at him by the prior administration, I have no information that supports those tweets and we have looked carefully inside the FBI. The Department of Justice has asked me to share with you that the answer is the same for the Department of Justice and all its components. The Department has no information that supports those tweets. See Full transcript: FBI Director James Comey testifies on Russian interference in 2016 election (Mar. 20, 2017); 3rd Hardy Decl. ¶ 26. 7. In March 2017, the House Permanent Select Committee on Intelligence (“HPSCI”) announced an investigation into “the Russian active measures campaign targeting the 2016 U.S. election” and later added additional areas of inquiry, including allegations regarding the purported “FISA abuse.” See 3rd Hardy Decl. ¶ 15. HPSCI’s review led to competing
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memoranda authored by the Majority and the Minority members – often referred to by the names of the Chairman and the Ranking Member, i.e., as the “Nunes Memo” and the “Schiff Memo.” Both memoranda were initially classified because, at a minimum, they revealed FISA coverage on an identified target – Carter Page – which was a properly classified fact. Id. ¶ 17.
8. In February 2018, President Trump authorized the declassification of the Nunes Memo, dated January 18, 2018. See 3rd Hardy Decl. ¶ 19; Findlay Decl. ¶ 9; http://intelligence.house.gov/uploadedfiles/memo_and_white_house_letter.pdf. As set forth in a February 2, 2018, letter from the White House Counsel, the Nunes Memo was declassified “in light of the significant public interest in the memorandum,” and “reflects the judgments of its congressional authors.” Id.
9. Approximately three weeks after the public disclosure of the Nunes Memo, an unclassified, redacted version of the Schiff Memo, dated January 29, 2018, addressed to All Members of the House of Representatives, and entitled “Correcting the Record – The Russia Investigations” (“Minority Memo”), was released. See https://intelligence.house.gov/uploadedfiles/ hpsci_redacted_minority_memo.pdf (last visited Sept. 13, 2018). Prior to its release, the FBI reviewed the Schiff Memo and redacted classified information unaffected by the President’s declassification of the Nunes Memo. The FBI did not declassify additional information as part of this review. See 3rd Hardy Decl. ¶¶ 20-22.
10. Neither the Majority nor the Minority asked the FBI or the Department to opine on their judgment or conclusions, and neither the FBI nor the Department did so; rather, both memoranda reflect the judgments of their congressional authors. See 3rd Hardy Decl. ¶¶ 20-22. FOIA Determination
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11. Because the declassification of the Majority Memo and the subsequent release of the redacted Minority Memo both revealed the existence of certain FISA applications and orders to conduct surveillance of Carter Page, the Department reviewed the FISA applications and orders for potential release of segregable information in response to Plaintiffs’ FOIA request. See 3rd Hardy Decl. ¶¶ 24, 31-34, 134; Findlay Decl. ¶ 12. On July 20, 2018, DOJ and the FBI released all responsive, non-exempt and reasonably segregable information subject to FOIA – releasing 412 pages with redactions and withholding 186 pages in full. 3rd Hardy Decl. ¶¶ 4, 134-35; Findlay Decl. ¶¶ 11-12; see also https://vault.fbi.gov/d1-release/d1-release. DOJ is thus no longer asserting a Glomar response with respect to the fact that Page was the subject of these FISA applications and orders. Id. ¶ 4; Findlay Decl. ¶ 13. This FOIA release was unprecedented—prior to the release, there had never been any public disclosure of an application to the FISC or an order from the FISC pertaining to a specific individual surveillance target. 3rd Hardy Decl. ¶ 13.
12. Other than the above-described disclosures, no authorized Government official has confirmed or denied the existence of responsive FISA-related records. 3rd Hardy Decl. ¶¶ 27, 143; Findlay Decl. ¶ 23. Accordingly, DOJ maintains its Glomar response with respect to the remainder of Plaintiffs’ request and refuses to confirm or deny the existence of other responsive records. Search for Documents Related to Acknowledged Carter Page Surveillance
13. NSD and the FBI conducted a reasonable search for records responsive to Plaintiffs’ FOIA request insofar as it relates to the acknowledged Carter Page FISA applications. The official acknowledgement at issue here was limited to four specific FISA applications, submitted for surveillance on Carter Page, starting in October 2016 and continuing through three
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renewals, with accompanying FISA orders. 3rd Hardy Decl. ¶ 28. Given the information pinpointing the specific responsive records, FBI and NSD FOIA personnel consulted with knowledgeable officials in both components familiar with the investigation to locate the four responsive FISA packages, encompassing the acknowledged applications and orders related to Carter Page. Id. ¶¶ 28-30; Findlay Decl. ¶¶ 10-11. As set forth in the Hardy Declaration, the request for minimization procedures did not require a separate search because those procedures are set forth in the packages. 3rd Hardy Decl. ¶ 30. The FBI and NSD compared records and confirmed that they had complete copies of each of the four FISA packages whose existence had been officially acknowledged. Id. ¶ 28.
14. The FBI coordinated the review of these documents, and NSD participated in the process. Accordingly, the FBI is asserting all applicable exemptions over these materials. Findlay Decl. ¶ 12 & n.6; 3rd Hardy Decl. ¶ 31. Exemption One and Carter Page Documents
15. David M. Hardy is an original classification authority. 3rd Hardy Decl. ¶ 2. 16. Mr. Hardy determined that information withheld from the Carter Page documents pursuant to Exemption 1 is under control of the United States Government, and contains information pertaining to intelligence activities, sources or methods. See Executive Order 13526 §§ 1.4(c). 3rd Hardy Decl. ¶¶ 43, 46-63. 17. In particular, Mr. Hardy has determined that the information pertaining to intelligence activities, sources and methods includes the FBI’s intelligence interests, priorities, activities and methods; undisclosed intelligence sources or methods upon which the FBI relied in support of its application for FISA coverage on Carter Page, as well as undisclosed portions of
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intelligence information provided by Source #1; and information about the use and implementation of various intelligence methods. 3rd Hardy Decl. ¶ 49.
18. Mr. Hardy has determined that disclosure of this information pertaining to intelligence sources and methods in these documents would cause harm to national security, and has articulated the harm that could be expected to occur. 3rd Hardy Decl. ¶¶ 49-63.
19. Mr. Hardy has further determined that information in the Carter Page documents pertains to foreign relations, and determined that disclosure of such information would cause harm to national security. Mr. Hardy has articulated the harm that could be expected to occur. 3rd Hardy Decl. ¶¶ 49, 64-67. Exemption Three and Carter Page Documents
20. DOJ also withheld information in the Carter Page documents to protect intelligence sources and methods from disclosure under Exemption 3 and the National Security Act. Mr. Hardy articulated the risk of disclosure of intelligence sources and methods. 3rd Hardy Decl. ¶¶ 68-72.
21. DOJ also redacted information pursuant to another Exemption 3 statute, which cannot be publicly identified without revealing the very information to be protected. Id. ¶ 73. Exemption 7 and the Carter Page Documents
22. The FISA applications and orders are compiled in part for law enforcement purposes. 3rd Hardy Decl. ¶¶ 74-79.
23. DOJ withheld information from these documents pursuant to Exemption 7(A). Mr. Hardy has determined that disclosure of redacted information in the Carter Page FISA documents could reasonably be expected to interfere with the pending investigation into Russian election interference if publicly disclosed at this time, and has articulated the harms that would
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occur. The types of information that could reasonably be expected to harm the investigation if disclosed include: aspects of the investigation not previously made public, what information or activities are or are not of interest to the investigators, areas in which there may be gaps in investigators’ knowledge that could be exploited, and the identities of potential witnesses and the information they provided. 3rd Hardy Decl. ¶¶ 80-91.
24. DOJ withheld information under Exemption 7(D) because certain investigatory information would reveal the identity or information of confidential sources. This includes nonpublic information about and provided by Christopher Steele, as well as information about and provided by other confidential sources, all of whom were provided express assurances of confidentiality. 3rd Hardy Decl. ¶¶ 112-18.
25. DOJ withheld eight categories of information in the Carter Page documents pursuant to Exemption 7(E): information about the investigative focus of these applications; information about collection and analysis of information; information about specific techniques used in the national security investigations; information about specific databases used for law enforcement purposes; information about payments to confidential sources; detailed information about targets, dates and scope of surveillance; information about dates and types of investigations; and investigative strategies for particular evidence. Mr. Hardy determined each of the nine categories encompasses nonpublic information about law enforcement techniques and has articulated how its disclosure risks circumvention of the law. 3rd Hardy Decl. ¶¶ 119-33. Private Information in the Carter Page Documents
26. DOJ withheld four categories of private information in the Carter Page documents pursuant to Exemption 6 and Exemption 7(E): identifying information for FBI agents; personal information about Carter Page; identifying information about a FISC deputy clerk and an NSD
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attorney; and identifying information about a third party source. For each category, the FBI articulated and balanced the person’s substantial privacy interest in nondisclosure and the public interest in the withheld information. 3rd Hardy Decl. ¶¶ 92-111. Withheld in Full Pages from FISA Packages
27. DOJ withheld 186 pages in full from the Carter Page FISA packages pursuant to Exemptions 1, 3, 7(A), and 7(E). Mr. Hardy determined that disclosure would reveal classified intelligence methods and law enforcement techniques. There is no additional information that can be provided on the public record but the justification for withholding is similar to the justification for other redactions under these exemptions. 3rd Hardy Decl. ¶¶ 135-41. Segregability Analysis
28. DOJ released all reasonably segregable, non-exempt information from the Carter Page documents. DOJ conducted a document- by-document and line-by-line review to ensure that all reasonably segregable, non-exempt information was released, taking into account the public disclosures related to this matter. 3rd Hardy Decl. ¶ 134. Partial Glomar
29. DOJ has refused to confirm or deny the existence of FISA applications and orders beyond the four previously acknowledged Carter Page packages. Accordingly, DOJ has refused to confirm or deny whether there are responsive record beyond the limited disclosures outlined above, pursuant to Exemptions 1, 3, 7(A) and 7(E). 3rd Hardy Decl. ¶¶ 142-46; Findlay Decl. ¶¶ 14-15 (asserting Exemption 1).
30. Patrick Findlay is an original classification authority. He determined that the information withheld by NSD – the existence or nonexistence of other responsive records – is protected by Exemption 1. Findlay Decl. ¶¶ 2, 14-22.
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31. David M. Hardy is an original classification authority. 3rd Hardy Decl. ¶ 2. He determined that the information withheld by FBI – the existence or nonexistence of other responsive records – is protected by Exemption 1. Id. ¶¶ 143-44, 152-60.
32. Mr. Hardy has determined that the existence or nonexistence of other responsive records pertains to intelligence activities, sources and methods, and Mr. Hardy has articulated the harm to national security that would result from disclosure of the existence or nonexistence of other responsive records. 3rd Hardy Decl. ¶¶ 147-55.
33. Mr. Findlay has determined that the existence or nonexistence of other responsive records is currently and properly classified and is therefore properly withheld pursuant to Exemption 1. That information pertains to intelligence activities, sources and methods, and Mr. Findlay has articulated the harm to national security that would result from disclosure of the existence or nonexistence of other responsive records. Findlay Decl. ¶¶ 14-22.
34. The information withheld pursuant to Exemption 1 also pertains to foreign relations, and Mr. Hardy has articulated the harm to national security that would result from disclosure of the existence or nonexistence of other responsive records. 3rd Hardy Decl. ¶¶ 15660.
35. Mr. Hardy further determined that disclosure of the existence or non-existence of responsive records risks disclosure of intelligence sources and methods and is therefore protected by the National Security Act and Exemption 3. See 3rd Hardy Decl. at ¶¶ 161-64.
36. Mr. Hardy further determined that FISA applications and FISC orders – when they exist – are records compiled for law enforcement purposes within the meaning of Exemption 7. See 3rd Hardy Decl. ¶¶ 164-65.
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37. Mr. Hardy further determined that disclosure of the existence or non-existence of other responsive records could reasonably be expected to interfere with enforcement proceedings that are pending or reasonably anticipated, and that the information is therefore properly withheld under Exemption 7(A). The withheld information pertains to the pending Russia investigation and that its disclosure could reasonably be expected to interfere with enforcement proceedings. Mr. Hardy has articulated the anticipated harm. 3rd Hardy Decl. ¶¶ 166-69.
38. Mr. Hardy further determined that disclosure of the existence or non-existence of other responsive records would disclose techniques and procedures for law enforcement investigations and that such disclosure could reasonably be expected to risk circumvention of the law, and that the information is therefore properly withheld under Exemption 7(E). Disclosure would reveal nonpublic information about whether the FBI is employing specific investigative techniques against specific targets and would reveal nonpublic information when and under what circumstances the FBI relies upon FISA-authorized techniques. Mr. Hardy has articulated how such disclosure risks circumvention of the law. 3rd Hardy Decl. ¶¶ 170-72. Official Acknowledgement
39. No authorized government official has disclosed the precise information withheld. See 3rd Hardy Decl. ¶¶ 13, 25, 27, 44, 134, 143; Findlay Decl. ¶ 23.

Dated: October 19, 2018

Respectfully Submitted,
CHAD READLER Principal Deputy Assistant Attorney General
MARCIA BERMAN Assistant Director, Federal Programs Branch
/s/Amy E. Powell AMY E. POWELL
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Case 1:17-cv-00597-APM Document 40 Filed 10/19/18 Page 13 of 64 Federal Programs Branch Civil Division, Department of Justice 310 New Bern Avenue, Suite 800 Federal Building Raleigh, NC 27601-1461 Phone: 919-856-4013 Email: amy.powell@usdoj.gov Attorneys for Defendant
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF JUSTICE, )

)

Defendant.

)

)

Case No. 17-597-APM

DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

CHAD A. READLER Principal Deputy Assistant Attorney General Civil Division

MARCIA BERMAN Assistant Director, Federal Programs Branch

AMY E. POWELL Trial Attorney, Federal Programs Branch Civil Division, United States Department of Justice 310 New Bern Avenue, Suite 800 Federal Building Raleigh, NC 27601-1461 Phone: (919) 856-4013 Email: amy.powell@usdoj.gov

Counsel for Defendant

Case 1:17-cv-00597-APM Document 40 Filed 10/19/18 Page 15 of 64
Table of Contents
INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 3
Administrative and Procedural Background................................................................................ 3 Factual Background ..................................................................................................................... 5 ARGUMENT . ................................................................................................................................ 9 I. Statutory Standards. ............................................................................................................ 9
A. The Freedom of Information Act .................................................................................. 9 B. Special Considerations in National Security Cases .................................................... 10 C. The Glomar Response................................................................................................. 11 II. DOJ Conducted a Reasonable Search for Responsive Records Related to Acknowledged Surveillance of Carter Page and Properly Released Redacted Records. .......................... 13 A. DOJ Conducted a Reasonable Search......................................................................... 13 B. DOJ Properly Redacted Classified Information in the Carter Page Documents
Pursuant to Exemption 1............................................................................................. 15 (1) Exemption One Standards. ............................................................................ 15 (2) DOJ Properly Withheld Information Pertaining to Intelligence Activities, Sources and Methods..................................................................................... 16 (3) DOJ Properly Redacted Information Pertaining to Foreign Relations.......... 18
C. DOJ Properly Withheld Information in the Carter Page Documents Pursuant to Exemption 3, Including Information Protected By the National Security Act. .......... 18
D. DOJ Properly Withheld Information in the Carter Page Documents Pursuant to Exemption 7(A). ......................................................................................................... 20 (1) Exemption 7 Threshold. ................................................................................ 20 (2) Exemption 7(A) Standards. ........................................................................... 20 (3) Disclosure of the Withheld Information Could Reasonably Be Expected to Interfere with the Russia Investigation.......................................................... 21
E. DOJ Properly Withheld Information in the Carter Page Documents Pursuant to Exemption 7(D). ......................................................................................................... 22 (1) 7(D) Standards............................................................................................... 22 (2) DOJ Properly Withheld Information Regarding Confidential Sources......... 23
F. DOJ Properly Withheld Information in the Carter Page Documents Pursuant to Exemption 7(E)........................................................................................................... 24
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(1) 7(E) Standards. .............................................................................................. 24 (2) DOJ Properly Withheld Information About Law Enforcement Techniques
that Risks Circumvention of the Law. ........................................................... 25 G. DOJ Properly Withheld Private Information in the Carter Page Documents Pursuant
to Exemptions 6 and/or 7(C)....................................................................................... 28 (1) Applicable Exemptions. ................................................................................ 28 (2) DOJ Properly Withheld Private Information................................................. 29
H. DOJ Properly Withheld in Full Certain Portions of the Carter Page Documents Pursuant to Exemptions 1, 3, 7(A), and 7(E). ............................................................. 30
I. DOJ Released All Reasonably Segregable Information. ............................................ 31 III. DOJ Properly Refused to Confirm or Deny the Existence of Other Responsive
Records. ............................................................................................................................ 32 A. The Partial Glomar is Proper Pursuant to Exemption One Because the Existence or
Non-Existence of Responsive Records is Properly Classified. .................................. 33 B. The FBI Established that the Partial Glomar is Proper Pursuant to Exemption 3 and
the National Security Act............................................................................................ 35 C. The FBI Established that the Partial Glomar is Proper Pursuant to Exemption 7(A). 35 D. The FBI Established that the Partial Glomar Response is Proper Pursuant to
Exemption 7(E)........................................................................................................... 37 IV. The Withheld Information Has Not Been Officially Acknowledged. .............................. 38 CONCLUSION............................................................................................................................. 41
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Table of Authorities Cases ACLU v. CIA,
710 F.3d 422 (D.C. Cir. 2013)................................................................................................... 38 ACLU v. Dep’t of Def.,
628 F.3d 612 (D.C. Cir. 2011)....................................................................................... 11, 19, 39 ACLU v. DOJ,
655 F.3d 1 (D.C. Cir. 2011)....................................................................................................... 29 Afshar v. Dep’t of State,
702 F.2d 1125 (D.C. Cir. 1983)........................................................................................... 11, 38 *Agility Pub. Warehousing Co. K.S.C. v. NSA,
113 F. Supp. 3d 313 (D.D.C. 2015)............................................................................... 19, 33, 39 *Ancient Coin Collectors Guild v. Dep’t of State,
641 F.3d 504 (D.C. Cir. 2011)................................................................................................... 13 Ass’n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd.,
830 F.2d 331 (D.C. Cir. 1987)................................................................................................... 10 Baker & Hostetler LLP v. Dep’t of Commerce,
473 F.3d 312 (D.C. Cir. 2006)................................................................................................... 13 Bigwood v. Dep’t of Defense,
132 F. Supp. 3d 124 (D.D.C. 2015)........................................................................................... 24 Blackwell v. FBI,
646 F.3d 37 (D.C. Cir. 2011)..................................................................................................... 24 Campbell v. DOJ,
164 F.3d 20 (D.C. Cir. 1998)..................................................................................................... 23 Canning v. DOJ,
567 F. Supp. 2d 104 (D.D.C. 2008)........................................................................................... 22 Carter v. NSA,
2014 WL 2178708 (D.C. Cir. Apr. 23, 2014) ........................................................................... 33 Chambers v. Dep’t of Interior,
568 F.3d 998 (D.C. Cir. 2009)................................................................................................... 13
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*CIA v. Sims, 471 U.S. 159 (1985) ........................................................................................................ 9, 18, 19
*Citizens for Responsibility and Ethics in Wash. v. DOJ, 746 F.3d 1082 (D.C. Cir. 2014)..................................................................................... 20, 21, 37
Clemente v. FBI, 867 F.3d 111 (D.C. Cir. 2017)................................................................................................... 13
*Competitive Enter. Inst. v. NSA, 78 F. Supp. 3d 45 (D.D.C. 2015)................................................................................... 33, 38, 39
Cozen O’Connor v. Dep’t of Treasury, 570 F. Supp. 2d 749 (E.D. Pa. 2008)......................................................................................... 36
*Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918 (D.C. Cir. 2003)................................................................................... 9, 10, 11, 24
DOJ v. Landano, 508 U.S. 165 (1993) .................................................................................................................. 22
Dep’t of State v. Wash. Post Co., 456 U.S. 595 (1982) .................................................................................................................. 28
DiBacco v. Army, 795 F.3d 178 (D.C. Cir. 2015)............................................................................................. 10, 13
DOJ v. Reporters Comm. For Freedom of Press, 489 U.S. 749 (1989) ............................................................................................................ 28, 29
Dow Jones & Co. v. DOJ, 917 F.2d 571 (D.C. Cir. 1990)................................................................................................... 22
Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990)....................................................................................... 11, 38, 39
Frugone v. CIA, 169 F.3d 772 (D.C. Cir. 1999)............................................................................................. 11, 12
Gardels v. CIA, 689 F.2d 1100 (D.C. Cir. 1982)........................................................................................... 11, 18
Gov’t Accountability Project v. Food & Drug Admin., 206 F. Supp. 3d 420 (D.D.C. 2016)........................................................................................... 10
Halperin v. CIA, 629 F.2d 144 (D.C. Cir. 1980)................................................................................................... 19
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Hodge v. FBI, 703 F.3d 575 (D.C. Cir. 2013)................................................................................................... 23
Iturralde v. Comptroller of Currency, 315 F.3d 311 (D.C. Cir. 2003)................................................................................................... 13
James Madison Project v. DOJ, 208 F. Supp. 3d 265 (D.D.C. 2016)........................................................................................... 12
James Madison Project v. DOJ, 267 F. Supp. 3d 154 (D.D.C. 2017)........................................................................................... 14
*James Madison Project v. DOJ, 2018 WL 4283562 (D.D.C. Sept. 7, 2018).......................................................................... 38, 39
John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989) .............................................................................................................. 9, 10
Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771 (D.C. Cir. 2002)................................................................................................... 31
Juarez v. DOJ, 518 F.3d 54 (D.C. Cir. 2008)............................................................................................... 20, 31
Judicial Watch, Inc. v. Dep't of the Navy, 25 F. Supp. 3d 131 (D.D.C. 2014)............................................................................................. 10
Judicial Watch, Inc. v. Dep’t of Defense, 715 F.3d 937 (D.C. Cir. 2013)................................................................................................... 15
King v. DOJ, 830 F.2d 210 (D.C. Cir. 1987)............................................................................................. 10, 11
Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) .................................................................................................................... 9
Larson v. Dep’t of State, 565 F.3d 857 (D.C. Cir. 2009)....................................................................................... 11, 12, 15
*Marrera v. DOJ, 622 F. Supp. 51 (D.D.C. 1985).................................................................................................. 32
Mayer Brown, LLP v. Internal Revenue Serv., 562 F.3d 1190 (D.C. Cir. 2009)................................................................................................. 24
McCready v. Nicholson, 465 F.3d 1 (D.C. Cir. 2006)....................................................................................................... 13
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Mead Data Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242 (D.C. Cir. 1977)................................................................................................... 31
Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981)............................................................................................. 10, 39
Milner v. Dep’t of the Navy, 562 U.S. 562 (2011) .................................................................................................................. 24
Minier v. CIA, 88 F.3d 796 (9th Cir. 1996) ......................................................................................................... 9
Moore v. CIA, 666 F.3d 1330 (D.C. Cir. 2011)................................................................................................. 39
Moore v. Obama, 2009 WL 2762827 (D.C. Cir. Aug. 24, 2009)........................................................................... 33
Morley v. CIA, 508 F.3d 1108 (D.C. Cir. 2007)................................................................................................. 19
Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224 (D.C. Cir. 2008)................................................................................................. 28
Nat’l Sec. Archive Fund, Inc. v. CIA, 402 F. Supp. 2d 211 (D.D.C. 2005)........................................................................................... 31
Neufeld v. IRS, 646 F.2d 661 (D.C. Cir. 1981)................................................................................................... 31
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978) ............................................................................................................ 20, 37
*Oglesby v. Dep’t of the Army, 920 F.2d 57 (D.C. Cir. 1990)............................................................................................... 13, 14
Parker v. EOUSA, 852 F. Supp. 2d 1 (D.D.C. 2012)............................................................................................... 12
*People for the Ethical Treatment of Animals v. NIH, 745 F.3d 535 (D.C. Cir. 2014)................................................................................................... 36
Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982)................................................................................................... 13
Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976)......................................................................................... 4, 7, 12
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Prison Legal News v. Samuels, 787 F.3d 1142 (D.C. Cir. 2015)................................................................................................. 28
Pub. Citizen v. Dep’t of State, 11 F.3d 198 (D.C. Cir. 1993)..................................................................................................... 38
Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.Mexico, 740 F.3d 195 (D.C. Cir. 2014)................................................................................................... 20
Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978)................................................................................................. 10
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991)........................................................................................... 10, 14
Schwarz v. Dep’t of Treasury, 131 F. Supp. 2d 142 (D.D.C. 2000)........................................................................................... 32
Shannahan v. IRS., 672 F.3d 1142 (9th Cir. 2012) ................................................................................................... 20
Stern v. FBI, 737 F.2d 84 (D.C. Cir. 1984)..................................................................................................... 29
Sussman v. U.S. Marshals Serv., 494 F.3d 1106 (D.C. Cir. 2007)................................................................................................. 31
Unrow Human Rights Impact Litig. Clinic v. Dep’t of State, 134 F. Supp. 3d 263 (D.D.C. 2015)........................................................................................... 11
Wash. Post Co. v. Dep’t of Health & Human Servs., 690 F.2d 252 (D.C. Cir. 1982)................................................................................................... 28
Weisberg v. DOJ, 745 F.2d 1476 (D.C. Cir. 1984)................................................................................................. 13
Wheeler v. CIA, 271 F. Supp. 2d 132 (D.D.C. 2003)........................................................................................... 12
Williams v. FBI, 69 F.3d 1155 (D.C. Cir. 1995)................................................................................................... 23
Wilner v. NSA, 592 F.3d 60 (2d Cir. 2009) .................................................................................................. 12, 33
*Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007)....................................................................................... 11, 38, 39
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Statutes 5 U.S.C. § 552(a)(4)(B) ............................................................................................................ 9, 10 *5 U.S.C. § 552(b)(1)....................................................................................................................15 *5 U.S.C. § 552(b)(3)(A) .............................................................................................................. 18 5 U.S.C. § 552(b)(6) ..................................................................................................................... 28 5 U.S.C. § 552(b)(7) ..................................................................................................................... 20 *5 U.S.C. § 552(b)(7)(A)...............................................................................................................20 5 U.S.C. § 552(b)(7)(C) ................................................................................................................ 29 5 U.S.C. § 552(b)(7)(D) ................................................................................................................ 22 *5 U.S.C. § 552(b)(7)(E) .............................................................................................................. 24 50 U.S.C. § 3024(i)(1) .................................................................................................................. 19 Executive Order Exec. Order 13,526,
75 Fed. Reg. 707 (Dec. 29, 2009)....................................................................................... passim Other Correcting the Record—The Russia Investigations, https://intelligence.house.gov/uploadedfiles/
hpsci_redacted_minority_memo.pdf...........................................................................................7 https://twitter.com/realDonaldTrump........................................................................................6, 40 Office of the Dep. Att’y General, Order No. 3915-2017, Appointment of Special Counsel to
Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17, 2017), https://www.justice.gov/opa/press-release/file/967231/download.............................5 The Washington Post, Full transcript: FBI Director James Comey testifies on Russian interference in 2016 election (Mar. 20, 2017), https://www.washingtonpost.com/news/postpolitics/wp/2017/03/20/full-transcript-fbi-director-james-comey-testifies-on-russianinterference-in-2016-election/?utm_term=.b9f19a0cf9cf........................................................5, 6 https://vault.fbi.gov/d1-release/d1-release.......................................................................................8
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INTRODUCTION Using the Freedom of Information Act, Plaintiffs James Madison Project and Brad Heath seek detailed, highly sensitive information about a specific type of surveillance activity, allegedly related to an ongoing national security investigation, and allegedly directed at a specific group of individuals during a specific timeframe. More specifically, Plaintiffs seek to compel production of FISA applications and orders dating from mid-2016, “concerning the Trump Organization, President Trump, President Trump’s campaign for presidency, or people associated with President Trump.” The Government has made two acknowledgments arguably relevant to this request. First, the Department of Justice acknowledged, based upon the Congressional testimony of then-FBI Director James B. Comey, that it has 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. In addition, following the President’s declassification of a memorandum prepared by staff of the House Permanent Select Committee on Intelligence (“HPSCI”), and the subsequent release of a different memorandum prepared by certain HPSCI members, the Department has acknowledged responsive Foreign Intelligence Surveillance Act (“FISA”) applications and orders to conduct surveillance of Carter Page, and produced redacted versions of those documents. With these limited exceptions, DOJ has otherwise provided a “Glomar” response, declining to confirm or deny the existence of records for any other FISA surveillance responsive to Plaintiffs’ FOIA request. The applications and orders related to Carter Page were properly located, processed, redacted and produced, with some pages being withheld in full. These documents, at issue in several pending FOIA matters, are the first FISA applications ever processed for public release, and the FBI and DOJ devoted considerable resources to ensure that they were carefully
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processed, releasing information that matched prior public disclosures as well as other information that is not currently exempt. The FBI declaration establishes that some withheld information is properly classified and exempt from disclosure because it pertains to intelligence activities, sources, and methods, and/or foreign relations or foreign activities of the United States, and its disclosure would cause harm to national security; it is therefore properly withheld under Exemption 1. The FBI’s declaration further establishes that disclosure of the withheld information would reveal intelligence sources and methods protected by Exemption 3 and the National Security Act, as well as law enforcement information protected by Exemptions 7(A), 7(D) and 7(E), and private information protected by Exemptions 6 and 7(C). These records relate to an ongoing national security investigation, and full disclosure would undermine and obstruct that investigation, compromise sources, and reveal nonpublic information about important law enforcement methods, disclosure of which risks circumvention of the law.
The partial Glomar response to the remainder of Plaintiffs’ FOIA request is proper. The declarations establish that confirming or denying the existence of other responsive records would reveal classified information pertaining to intelligence sources and methods. DOJ and the FBI determined that disclosure of the existence or non-existence of records for any other FISA surveillance responsive to Plaintiffs’ FOIA request could reasonably be expected to cause harm to national security, and is exempt from disclosure pursuant to FOIA Exemption 1. FBI has further determined that this information is exempt from disclosure under Exemptions 3, 7(A) and 7(E). This determination is entitled to substantial deference from this Court under well-settled law.
There has been no official acknowledgement of the existence or non-existence of FISA applications or orders as to a range of potential surveillance targets. The limited official acknowledgements relevant to Plaintiffs’ FOIA request—then-Director Comey’s Congressional
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testimony regarding the non-existence of records of alleged wiretapping of then-candidate Trump in Trump Tower by the Obama Administration prior to the 2016 presidential election, and the extraordinary and unprecedented acknowledgement of the existence of FISA applications and orders to conduct surveillance of Carter Page—satisfy the exacting criteria for official disclosure of classified information responsive to Plaintiffs’ FOIA request, and the Department’s response is consistent with those disclosures. But there have been no other official disclosures that specifically reveal the existence or non-existence of the particular alleged FISA surveillance that Plaintiffs seek to discover. Accordingly, the Glomar response as to the remaining portions of Plaintiffs’ request is proper. The Court should defer to Defendant’s determination in this regard and grant the Government summary judgment.
BACKGROUND Administrative and Procedural Background
This matter arises from nearly identical FOIA requests submitted to the Federal Bureau of Investigation (“FBI”) and DOJ’s National Security Division (“NSD”) on March 6, 2017, in which Plaintiffs sought records related to specific individuals and organizations allegedly subject to surveillance under the Foreign Intelligence Surveillance Act (“FISA”). Specifically, Plaintiffs sought:
1) Any orders by the FISC authorizing surveillance of and/or collection of information concerning the Trump Organization, President Trump, President Trump’s campaign for presidency, or people associated with President Trump. 2) Any applications to the FISC seeking authorization for surveillance of and/or collection of information concerning the Trump Organization, President Trump, President Trump’s campaign for presidency, or people associated with President Trump. 3) Any minimization procedures issued by the FISC and that applied to any orders issued that fall within the scope of #1 or #2.
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See Third Declaration of David Hardy, dated October 19, 2018, ¶ 6 (citing 1st Hardy Decl., Dkt. 13-3, ¶ 5 & Exhibit A (FOIA Request));1 Declaration of Patrick N. Findlay, dated October 19, 2018, ¶ 4 & Exhibit A (FOIA Request). The requests limited the search to June 2016 to the date of the request. Id. JMP quoted certain public statements by President Trump and asserted that the requesters “are pre-emptively asserting that President Trump’s public comments constitute prior official disclosure of the existence of at least one, if not more, FISA warrants.” Id.
By email dated March 17, 2017, NSD refused to confirm or deny the existence of responsive records pursuant to Exemption 1, explaining that to confirm or deny the existence of responsive records would reveal information that is properly classified under Executive Order 13526. See Findlay Decl. ¶ 5 & Ex. B (NSD Response). This is known as a “Glomar” response, and is proper if the fact of the existence or non-existence of agency records is protected by a FOIA exemption. See Phillippi v. CIA, 546 F.2d 1009, 1011 (D.C. Cir. 1976) (acknowledging CIA refusal to confirm or deny existence of records regarding activities of a ship named Hughes Glomar Explorer). On the same day, Plaintiffs appealed the determination to the DOJ Office of Information Policy (“OIP”). On April 12, 2017, OIP affirmed the determination of NSD – that the existence or non-existence of responsive records is a properly classified fact. See Findlay Decl. ¶ 6 & Ex. C (OIP Determination).
By letter dated March 16, 2017, the FBI acknowledged receipt of Plaintiffs’ request, and on April 4, 2017, the FBI also issued a Glomar response. The FBI’s Glomar response was based on FOIA Exemptions (b)(1), (b)(3), (b)(7)(A), and (b)(7)(E). See 3rd Hardy Decl. ¶ 7 (citing 1st Hardy Decl., Dkt. 13-3, ¶ 11 & Ex. D).
1 A redacted version of the Hardy Declaration is filed herewith on the public record. A classified version of the declaration is being concurrently lodged with the Court ex parte and in camera, in order to more fully explain the basis for the withholding of exempt information.
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Plaintiffs filed a Complaint on April 4, 2017 and an Amended Complaint was filed on April 15, 2017. See Compl., ECF No. 1; Am. Compl. ECF No. 5.
The parties briefed cross-motions for summary judgment in summer and fall of 2017, and Defendant defended the Glomar response. In light of subsequent disclosures, DOJ sought to withdraw its motion for summary judgment and set a schedule for processing the acknowledged Carter Page materials. After the Carter Page materials were processed and released, the Court set a schedule for further briefing. Dkt. No. 38. Factual Background
Plaintiffs’ FOIA request arises in a factual context in which there is an ongoing, acknowledged official investigation related to the Russian government’s efforts to interfere in the 2016 presidential election. Specifically, the Department has acknowledged a national security investigation of “the Russian government’s efforts to interfere in the 2016 presidential election[, including] the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts [and] an assessment of whether any crimes were committed.” See The Washington Post, Full transcript: FBI Director James Comey testifies on Russian interference in 2016 election (Mar. 20, 2017), https://www.washingtonpost.com/news/postpolitics/wp/2017/03/20/full-transcript-fbi-director-james-comey-testifies-on-russian-interferencein-2016-election/?utm_term=.b9f19a0cf9cf; 3rd Hardy Decl. ¶ 14 & n.3. The investigation into Russian election interference is now under the direction of Special Counsel Robert Mueller. See Office of the Dep. Att’y General, Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17, 2017), https://www.justice.gov/opa/press-release/file/967231 /download; 3rd Hardy Decl. ¶ 16.
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On March 4, 2017, President Trump’s Twitter account made a four-part post, complaining that President Obama had Mr. Trump’s “wires tapped in Trump Tower just before the victory.” See https://twitter.com/realDonaldTrump. During sworn testimony before the House Permanent Selection Committee on Intelligence (“HPSCI”) on March 20, 2017, then-FBI Director James B. Comey was asked about this by Congressman Schiff and responded to address this specific statement:
With respect to the President’s tweets about alleged wiretapping directed at him by the prior administration, I have no information that supports those tweets and we have looked carefully inside the FBI. The Department of Justice has asked me to share with you that the answer is the same for the Department of Justice and all its components. The Department has no information that supports those tweets. See Full transcript: FBI Director James Comey testifies on Russian interference in 2016 election (Mar. 20, 2017); 3rd Hardy Decl. ¶ 26; Findlay Decl. ¶ 8.2 In March 2017, the House Permanent Select Committee on Intelligence (“HPSCI”) announced an investigation into “the Russian active measures campaign targeting the 2016 U.S. election” and later added additional areas of inquiry, including allegations regarding the purported “FISA abuse.” See 3rd Hardy Decl. ¶ 15. HPSCI’s review led to competing memoranda authored by the Majority and the Minority members – often referred to by the names of the Chairman and the Ranking Member, i.e., as the “Nunes Memo” and the “Schiff Memo.” Both memoranda were initially classified because, at a minimum, they revealed FISA-authorized surveillance on an identified target – Carter Page – which was a properly classified fact. Id. ¶ 17.
2 The Department has subsequently confirmed Director Comey’s conclusion in several FOIA matters. In the first round of summary judgment briefing in this case, Defendant specifically acknowledged this statement and noted that “Had plaintiff more specifically tied his FOIA request to the information in the tweets, he likely would have received a no-records response from the FBI and DOJ.” Dkt. No. 13, at 20.
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In February 2018, President Trump authorized the declassification of the Nunes Memo, dated January 18, 2018. See 3rd Hardy Decl. ¶ 19; Findlay Decl. ¶ 9; http://intelligence.house.gov/uploadedfiles/memo_and_white_house_letter.pdf.
As set forth in a February 2, 2018, letter from the White House Counsel, the Nunes Memo was declassified “in light of the significant public interest in the memorandum,” and “reflects the judgments of its congressional authors.” Id. Approximately three weeks after the public disclosure of the Nunes Memo, an unclassified, redacted version of the Schiff Memo, dated January 29, 2018, addressed to All Members of the House of Representatives, and entitled “Correcting the Record – The Russia Investigations” (“Minority Memo”), was released. See 3rd Hardy Decl. ¶¶ 20-22, also available at https://intelligence.house.gov/uploadedfiles/ hpsci_redacted_minority_memo.pdf (last visited Sept. 13, 2018). Prior to its release, the FBI reviewed the Schiff Memo and redacted classified information unaffected by the President’s declassification of the Nunes Memo. 3rd Hardy Decl. ¶ 21. The FBI did not declassify additional information as part of this review. Id. Neither the Majority nor the Minority asked the FBI or the Department to opine on their judgment or conclusions, and neither the FBI nor the Department did so; rather, both memoranda reflect the judgments of their congressional authors. Id. ¶ 22.3
Because the declassification of the Majority Memo and the subsequent release of the redacted Minority Memo both revealed the existence of certain FISA applications and orders to conduct surveillance of Carter Page, the Department reviewed the FISA applications and orders
3 One other Congressional memorandum references the Page FISA applications. After the declassification of the Nunes Memo, the FBI conducted a classification review of a January 4, 2018 memorandum from Senators Grassley and Graham as well. As with the other memoranda, this memorandum reflects the judgments of its Congressional authors. 3rd Hardy Decl. ¶ 22 & n. 6.
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for potential release of segregable information in response to Plaintiffs’ FOIA request.4 See 3rd Hardy Decl. ¶¶ 24, 31-34, 134; Findlay Decl. ¶ 9. On July 20, 2018, DOJ and the FBI released all responsive, non-exempt and reasonably segregable information subject to FOIA – releasing 412 pages with redactions and withholding 186 pages in full. 3rd Hardy Decl. ¶¶ 4, 134-35; Findlay Decl. ¶¶ 9-12; see also https://vault.fbi.gov/d1-release/d1-release. The redactions are coded by application exemption and certain categories within exemptions. 3rd Hardy Decl. ¶¶ 31-34. DOJ is thus no longer asserting a Glomar response with respect to the fact that Page was the subject of these FISA applications and orders. Id. ¶ 4; Findlay Decl. ¶ 13. This FOIA release was unprecedented—prior to the release, there had never been any public disclosure of an application to the FISC or an order from the FISC pertaining to a specific individual surveillance target. 3rd Hardy Decl. ¶ 13; Findlay Decl. ¶ 12.
Other than the above-described disclosures, no authorized Government official has confirmed or denied the existence of responsive FISA-related records. 3rd Hardy Decl. ¶¶ 27, 143; Findlay Decl. ¶ 23.5 Accordingly, DOJ maintains its Glomar response with respect to the remainder of Plaintiffs’ request and refuses to confirm or deny the existence of other responsive records.
4 Although Page was not associated with the Trump campaign when the initial FISA order was obtained, the Page FISA applications and orders were deemed to be responsive at least to that portion of Plaintiffs’ FOIA request that seeks FISA applications and orders “concerning . . . people associated with President Trump.” 5 On September 17, 2018, the White House Press Secretary announced that President Trump was directing DOJ and ODNI to “provide for immediate declassification of” certain documents, including additional pages of the Page documents. See Statement from the Press Secretary, https://www.whitehouse.gov/briefings-statements/statement-press-secretary-34/. The President later indicated that he was no longer requiring immediate declassification of these documents at this time.
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ARGUMENT I. Statutory Standards. A. The Freedom of Information Act
The “basic purpose” of FOIA reflects a “general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted). “Congress recognized, however, that public disclosure is not always in the public interest . . . .” CIA v. Sims, 471 U.S. 159, 166– 67 (1985). Accordingly, in passing FOIA, “Congress sought ‘to reach a workable balance between the right of the public to know and the need of the Government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy.’” John Doe Agency, 493 U.S. at 152 (quoting H.R. Rep. No. 89-1497, at 6 (1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2423). As the D.C. Circuit has recognized, “FOIA represents a balance struck by Congress between the public’s right to know and the [G]overnment’s legitimate interest in keeping certain information confidential.” Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003) (citing John Doe Agency, 493 U.S. at 152).
FOIA mandates disclosure of government records unless the requested information falls within one of nine enumerated exemptions. See 5 U.S.C. § 552(b). “A district court only has jurisdiction to compel an agency to disclose improperly withheld agency records,” i.e. records that do “not fall within an exemption.” Minier v. CIA, 88 F.3d 796, 803 (9th Cir. 1996); see also 5 U.S.C. § 552(a)(4)(B) (providing the district court with jurisdiction only “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant”); Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980) (“Under 5 U.S.C. § 552(a)(4)(B)[,] federal jurisdiction is dependent upon a showing that an agency has (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records.’”). While
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narrowly construed, FOIA’s statutory exemptions “are intended to have meaningful reach and application.” John Doe Agency, 493 U.S. at 152; accord DiBacco v.U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015).
The courts resolve most FOIA actions on summary judgment. See Judicial Watch, Inc. v. Dep't of the Navy, 25 F. Supp. 3d 131, 136 (D.D.C. 2014). The Government bears the burden of proving that the withheld information falls within the exemptions it invokes. See 5 U.S.C. § 552(a)(4)(B); King v. DOJ, 830 F.2d 210, 217 (D.C. Cir. 1987). A court may grant summary judgment to the Government based entirely on an agency’s declarations, provided they articulate “the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); accord Gov’t Accountability Project v. Food & Drug Admin., 206 F. Supp. 3d 420, 430 (D.D.C. 2016). Such declarations are accorded “a presumption of good faith, which cannot be rebutted by purely speculative claims[.]” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation omitted).
B. Special Considerations in National Security Cases The issues presented in this case directly “implicat[e] national security, a uniquely
executive purview.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 926–27. While courts review de novo an agency’s withholding of information pursuant to a FOIA request, “de novo review in FOIA cases is not everywhere alike . . . .” Ass’n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd., 830 F.2d 331, 336 (D.C. Cir. 1987). Indeed, the courts have specifically recognized the “propriety of deference to the executive in the context of FOIA claims which implicate national security.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 927; see Ray v. Turner, 587 F.2d 1187, 1194 (D.C. Cir. 1978) (“[T]he executive ha[s] unique insights into what adverse [e]ffects might occur
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as a result of public disclosure of a particular classified record.”). “[A]ccordingly, the government’s ‘arguments needs only be both ‘plausible’ and ‘logical’ to justify the invocation of a FOIA exemption in the national security context.’” Unrow Human Rights Impact Litig. Clinic v. Dep’t of State, 134 F. Supp. 3d 263, 272 (D.D.C. 2015) (quoting ACLU v. Dep’t of Def., 628 F.3d 612, 624 (D.C. Cir. 2011)).
For these reasons, the courts have “consistently deferred to executive affidavits predicting harm to the national security, and have found it unwise to undertake searching judicial review.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 927; see Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009) (citation omitted) (“Today we reaffirm our deferential posture in FOIA cases regarding the ‘uniquely executive purview’ of national security.”); accord Unrow Human Rights Impact Litig. Clinic, 134 F. Supp. 3d at 272. Consequently, a reviewing court must afford “substantial weight” to agency declarations “in the national security context.” King, 830 F.2d at 217; see Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990) (holding that the district court erred in “perform[ing] its own calculus as to whether or not harm to the national security or to intelligence sources and methods would result from disclosure . . . .”); Frugone v. CIA, 169 F.3d 772, 775 (D.C. Cir. 1999) (because “courts have little expertise in either international diplomacy or counterintelligence operations, we are in no position to dismiss the CIA’s facially reasonable concerns” about the harm that disclosure could cause to national security). FOIA “bars the courts from prying loose from the government even the smallest bit of information that is properly classified or would disclose intelligence sources or methods.” Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983).
C. The Glomar Response. A Glomar response allows the Government to “refuse to confirm or deny the existence of
records where to answer the FOIA inquiry would cause harm cognizable under an FOIA 11

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exception.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)); accord Wilner v. NSA, 592 F.3d 60, 68 (2d Cir. 2009) (“The Glomar doctrine is well settled as a proper response to a FOIA request because it is the only way in which an agency may assert that a particular FOIA statutory exemption covers the ‘existence or non-existence of the requested records[.]’” (quoting Phillippi v. CIA, 546 F.2d 1009, 1012 (D.C. Cir. 1976)). In support of a Glomar response, the asserting agency “must explain why it can neither confirm nor deny the existence of responsive records.” James Madison Project v. DOJ, 208 F. Supp. 3d 265, 283 (D.D.C. 2016) (quoting Parker v. EOUSA, 852 F. Supp. 2d 1, 10 (D.D.C. 2012)). The agency can satisfy this obligation by providing “public affidavit[s] explaining in as much detail as is possible the basis for its claim that it can be required neither to confirm nor to deny the existence of the requested records.” Phillippi, 546 F.2d at 1013. The courts in this Circuit have consistently upheld Glomar responses where, as here, confirming or denying the existence of records would reveal classified information protected by FOIA Exemption 1. See, e.g., Frugone, 169 F.3d at 774–75 (finding that CIA properly refused to confirm or deny the existence of records concerning the plaintiff’s alleged employment relationship with CIA pursuant to Exemptions 1 and 3); Larson, 565 F.3d at 861–62 (upholding the National Security Agency’s use of the Glomar response to the plaintiffs’ FOIA requests regarding past violence in Guatemala pursuant to Exemptions 1 and 3); Wheeler v. CIA, 271 F. Supp. 2d 132, 140 (D.D.C. 2003) (ruling that CIA properly invoked a Glomar response to a request for records concerning the plaintiff’s activities as a journalist in Cuba during the 1960s pursuant to Exemption 1).
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II. DOJ Conducted a Reasonable Search for Responsive Records Related to Acknowledged Surveillance of Carter Page and Properly Released Redacted Records.
NSD and the FBI searched for the acknowledged FISA applications and orders related to Carter Page. The 412 released pages reflect information properly redacted under Exemptions 1, 3, 6, 7(A), 7(C), 7(D), 7(E). The withheld in full pages from the FISA applications and orders were properly withheld pursuant to Exemptions 1, 3, 7(A) and 7(E).
A. DOJ Conducted a Reasonable Search. An agency is entitled to summary judgment in a FOIA case with respect to the adequacy of its search if it shows “‘that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.’” Clemente v. FBI, 867 F.3d 111, 117 (D.C. Cir. 2017) (quoting Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)); DiBacco, 795 F.3d at 188. “[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (emphasis in original). The search is thus gauged “not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.” Ancient Coin Collectors Guild v. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (quoting Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)). An agency can establish the reasonableness of its search by “reasonably detailed, nonconclusory affidavits describing its efforts.” Baker & Hostetler LLP v. Dep’t of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006). Such affidavits are sufficient if they “set[] forth the search terms and the type of search performed, and aver[] that all files likely to contain responsive materials (if such records exist) were searched.” Chambers v. Dep’t of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009) (quoting McCready v. Nicholson, 465 F.3d 1, 14 (D.C. Cir. 2006)). This standard is not demanding. “[I]n
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the absence of countervailing evidence or apparent inconsistency of proof, affidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice . . . . “ Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). “Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.’” SafeCard Servs., Inc., 926 F.2d at 1200 (citation omitted).
The declarations demonstrate that NSD and the FBI conducted a reasonable search for records responsive to Plaintiffs’ FOIA request insofar as it relates to the acknowledged Carter Page FISA applications. The official acknowledgement at issue here was limited to four specific FISA applications, submitted for surveillance on Carter Page, starting in October 2016 and continuing through three renewals, with accompanying FISA orders. 3rd Hardy Decl. ¶ 28. Given the information pinpointing the specific responsive records, FBI and NSD FOIA personnel consulted with knowledgeable officials in both components familiar with the investigation to locate the four responsive FISA packages, encompassing the acknowledged applications and orders related to Carter Page. Id. ¶¶ 28-30; Findlay Decl. ¶¶ 10-11. As set forth in the Hardy Declaration, the request for minimization procedures did not require a separate search because those procedures are set forth in the packages. 3rd Hardy Decl. ¶ 30. The FBI and the National Security Division compared records and confirmed that they had complete copies of each of the four FISA packages whose existence had been officially acknowledged. Id. ¶ 28. FBI then coordinated the processing of the documents, in consultation with interested components. Id. ¶ 31; Findlay Decl. ¶¶ 11-12 & n. 6.
This strategy – identifying the personnel responsible for the requested FISC information, and asking them to search their records – is a “method[] which can be reasonably expected to produce the information requested.” Oglesby, 920 F.2d at 68; see also James Madison Project v.
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DOJ, 267 F. Supp. 3d 154, 160-61 (D.D.C. 2017). Therefore, DOJ is entitled to summary judgment on this issue.
B. DOJ Properly Redacted Classified Information in the Carter Page Documents Pursuant to Exemption 1.6 (1) Exemption One Standards.
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 “are in fact properly classified pursuant to such Executive Order.” 5 U.S.C. § 552(b)(1). Under Executive Order No. 13,526, an agency may 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[.]” 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,” Exec. Order No. 13,526 §§ 1.4(c); or “foreign relations or foreign activities of the United States, including confidential sources,” id. §1.4(d). See also Judicial Watch, Inc. v. Dep’t of Defense, 715 F.3d 937, 941 (D.C. Cir. 2013) (citation omitted) (“‘[P]ertains’ is ‘not a very demanding verb.’”). As discussed above, a court “accord[s] substantial weight to an agency’s affidavit concerning the details of the classified status of the disputed record because the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse [e]ffects might occur as a result of a particular classified record.” Larson, 565 F.3d at 864 (citation omitted).
6 The FBI coordinated the review of these documents, and NSD participated in the process. Accordingly, the FBI is asserting all applicable exemptions over these materials. Findlay Decl. ¶ 12 & n.6; 3rd Hardy Decl. ¶ 31.
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(2) DOJ Properly Withheld Information Pertaining to Intelligence Activities, Sources and Methods.
Defendant redacted portions of the Carter Page FISA applications and orders to safeguard currently and properly classified information involving categories of information set forth in Section 1.4 of Executive Order 13,526. See 3rd Hardy Decl. at ¶¶ 35-67. Id. First, the redacted information pertains to “intelligence activities (including covert action), intelligence sources or methods, or cryptology.” Exec. Order 13,526 §1.4(c). FISA surveillance is an intelligence method, and the request on its face seeks information pertaining to FISA surveillance. The supporting declaration establishes that information redacted from these FISA packages encompasses “the FBI’s intelligence interests, priorities, activities and methods; undisclosed intelligence sources or methods upon which the FBI relied in support of its application for FISA authorized surveillance of Carter Page, as well as undisclosed portions of intelligence information provided by Source #1; and information about the use and implementation of various intelligence methods.” 3rd Hardy Decl. ¶ 49.
The Third Hardy Declaration identifies two general categories of information withheld on this basis and describes the specific harm to national security that would result from disclosure: activities and methods; and intelligence sources. First, the redacted information includes details about the FISA surveillance sought and obtained through the FISA applications and orders – such as dates, locations, intended purposes, and specific methods -- as well as detailed, undisclosed information about other intelligence activities and methods forming part of the underlying basis for the applications. 3rd Hardy Decl. ¶ 50. The withheld information includes, for example, detailed information about investigation of individuals other than Page, undisclosed methods used to gather information about Page, detailed undisclosed information about a source’s activities, and information about the specific amounts and timeframes for payments to
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human sources. Id. ¶¶ 56-59. Additionally, the FBI redacted information that would reveal the exact timeframes of authorized surveillance and descriptions of exactly what was authorized, including minimization procedures. Id. ¶¶ 51-53. None of that information has been previously disclosed and all of it would be valuable to adversaries seeking to analyze, undermine, and evade our counterintelligence apparatus. This type of information reveals actual intelligence activities undertaken regarding specific targets during a specific timeframe, discloses intelligencegathering capabilities of those methods, and provides an assessment of the level of FBI penetration of specific targets during a specific time frame. Id. ¶ 58. “Armed with such information, adversaries, including hostile foreign governments, could implement actions to thwart the FBI’s intelligence activities and weaken or negate the particular intelligence methods, which would severely disrupt the FBI’s intelligence-gathering capabilities.” Id.
Second, DOJ has redacted information that tends to identify particular intelligence sources. As explained in the Third Hardy Declaration, “an intelligence source who requires continued classification is one that provided or is currently providing information that pertains to national security matters, the disclosure of which could reasonably be expected to result in serious damage to FBI’s intelligence-gathering capabilities.” 3rd Hardy Decl. ¶ 60. Although the identity of one source has been disclosed, the Page applications include identifying information for other sources as well. Id. ¶¶ 61-63. Disclosure of intelligence sources “could reasonably be expected to jeopardize their livelihoods, their families and other relationships, and even their lives” and disclosure of one source can cause other current and potential sources to fear disclosure. Id. ¶¶ 62-63. Thus, disclosure of source-identifying information could reasonably be expected to damage national security by endangering current and past sources and by discouraging current and potential sources from reporting. Id. Accordingly, such information is properly redacted pursuant to Exemption 1.
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(3) DOJ Properly Redacted Information Pertaining to Foreign Relations. The Hardy Declaration establishes that DOJ also redacted certain information pertaining to foreign relations or foreign activities of the United States, and that disclosure of this information would cause harm to national security. 3rd Hardy Decl. ¶¶ 64-67. Although Mr. Hardy explains that further details cannot be provided on the public record, the redacted information relates to the United States’ interactions with foreign countries. Id. If disclosed, such information “can reasonably be expected to lead to diplomatic or economic retaliation, the loss of cooperation, or the compromise of cooperative foreign sources.” Id. The disclosure of specific relationships could reasonably be expected to cause serious damage to national security. Id. Accordingly, such information is properly redacted pursuant to Exemption 1. 7 C. DOJ Properly Withheld Information in the Carter Page Documents Pursuant to
Exemption 3, Including Information Protected By the National Security Act. 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). The Government’s mandate to withhold information under FOIA Exemption 3 is broader than its authority under FOIA Exemption 1, as it does not have to demonstrate that the disclosure will harm national security. See Sims, 471 U.S. at 167; Gardels, 689 F.2d at 1106–07. Instead, “the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within the statute’s coverage. It is particularly important to protect intelligence sources and methods from public disclosure.” Morley v. CIA, 508 F.3d 1108, 1126 (D.C. Cir.
7 The classified Hardy Declaration provides additional information about the redaction of classified information and the harm to national security that would result from disclosure.
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2007). In analyzing the propriety of a withholding made pursuant to FOIA Exemption 3, the Court need not examine “the detailed factual contents of specific documents[.]” Id.
DOJ has invoked Section 102A(i)(1) of the National Security Act of 1947, as amended (now codified at 50 U.S.C. § 3024(i)(1)), which 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., ACLU v. Dep’t of Defense, 628 F.3d at 619. In fact, the Supreme Court has recognized the “wide-ranging authority” provided by the National Security Act to protect intelligence sources and methods. See Sims, 471 U.S. at 169–70, 177, 180; see Halperin v. CIA, 629 F.2d 144, 147 (D.C. Cir. 1980) (explaining that the only question for the court is whether the agency has shown that responding to a FOIA request “could reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods”). The Act has been properly invoked to withhold information about FISA and other surveillance techniques. See, e.g., Agility Pub. Warehousing Co. K.S.C. v. NSA, 113 F. Supp. 3d 313, 329 (D.D.C. 2015).
As explained above, information redacted from the Page FISA applications and orders includes information that would disclose intelligence sources and methods. See Part II.B.2, supra. Accordingly, DOJ properly concluded that it is also prohibited from disclosing such information under the National Security Act. 3rd Hardy Decl. ¶¶ 68-72.
DOJ also redacted information pursuant to another Exemption 3 statute, which cannot be publicly identified without revealing the very information to be protected. Id. ¶ 73. The Court is referred to the ex parte, in camera declaration for additional explanation.
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D. DOJ Properly Withheld Information in the Carter Page Documents Pursuant to Exemption 7(A).
(1) Exemption 7 Threshold. Exemption 7 protects from disclosure all “records or information compiled for law enforcement purposes” that could reasonably be expected to cause one of the six harms outlined in the Exemption’s subparts. 5 U.S.C. § 552(b)(7). “To fall within any of the exemptions under the umbrella of Exemption 7, a record must have been ‘compiled for law enforcement purposes.’” Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195, 202 (D.C. Cir. 2014) (quoting 5 U.S.C. § 552(b)(7)). Here, DOJ records regarding FISA applications and orders are compiled in part for law enforcement purposes. 3rd Hardy Decl. ¶¶ 74-79. (2) Exemption 7(A) Standards. Exemption 7(A) “exempts from FOIA disclosure records or information compiled for ‘law enforcement purposes . . . to the extent that the production . . . could reasonably be expected to interfere with enforcement proceedings.’” Shannahan v. IRS., 672 F.3d 1142, 1145 (9th Cir. 2012) (quoting 5 U.S.C. § 552(b)(7)(A)). “Exemption 7(A) reflects the Congress’s recognition that ‘law enforcement agencies ha[ve] legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it [comes] time to present their case.’” Citizens for Responsibility & Ethics in Wash. v. DOJ, 746 F.3d 1082, 1096 (D.C. Cir. 2014) (hereinafter “CREW”) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978)). An ongoing investigation typically triggers Exemption 7(A). See CREW, 746 F.3d at 1098 (quoting Juarez v. DOJ, 518 F.3d 54, 59 (D.C. Cir. 2008)). “In the typical case,” therefore,
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“the requested records relate to a specific individual or entity that is the subject of the ongoing investigation, making the likelihood of interference readily apparent.” Id.
(3) Disclosure of the Withheld Information Could Reasonably Be Expected to Interfere with the Russia Investigation.
Here, the FBI sought and received authority under FISA to surveil Carter Page as part of and in furtherance of a pending proceeding – the ongoing Russian interference investigation. See 3rd Hardy Decl. ¶¶ 82-83. The redacted information reflects details relevant to the ongoing investigation, “making the likelihood of interference readily apparent.” See CREW, 746 F.3d at 1098.
The Third Hardy Declaration explains that disclosure of redacted information in the Carter Page FISA documents “could reasonably be expected to interfere with the pending Russian election interference investigation if publicly disclosed at this time.” 3rd Hardy Decl. ¶ 83. The Third Hardy Declaration explains that the types of information that could reasonably be expected to harm the investigation if disclosed include: aspects of the investigation not previously made public, what information or activities are or are not of interest to the investigators, areas in which there may be gaps in investigators’ knowledge that could be exploited, and the identities of potential witnesses and the information they provided. Hardy Decl. ¶ 85. Moreover, disclosure of confidential or classified sources risks curtailing their cooperation. Id. ¶ 87. Disclosure of the evidence relied upon risks influencing, compromising or tainting these or other witnesses, and risks revealing gaps in investigative information that can be exploited. Id. ¶ 88. Disclosure of specific investigative techniques used during specific time periods and regarding specific subject matters creates similar risks, including efforts by adversaries or targets to undermine the techniques. Id. ¶ 89.
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The FBI carefully considered whether information would match public information and whether its disclosure would reasonably be expected to harm the investigation. Id. ¶ 90. Additionally, although there has been widespread media coverage of the Russia investigation, official disclosures would cause greater harm to the investigation, regardless of whether it confirmed or refuted media reporting. Id. ¶ 84. Accordingly, such information is properly withheld pursuant to Exemption 7(A).
E. DOJ Properly Withheld Information in the Carter Page Documents Pursuant to Exemption 7(D).
DOJ properly withheld information under Exemption 7(D) because certain investigatory information would reveal the identity or information of confidential sources.
(1) 7(D) Standards. Exemption 7(D) permits the withholding or redacting of law enforcement records, the release of which “could reasonably be expected to disclose the identity of a confidential source . . . and, . . . [in the case of] an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source.” 5 U.S.C. § 552(b)(7)(D). Exemption 7(D) requires no balancing of public and private interests. See Dow Jones & Co. v. DOJ, 917 F.2d 571, 575–76 (D.C. Cir. 1990). The agency is entitled to withhold any information that could disclose a confidential source’s identity and, in the context of an agency conducting a lawful national security intelligence investigation, to withhold the substance of the information furnished by such source. See 5 U.S.C. § 552(b)(7)(D); Dep’t of Justice v. Landano, 508 U.S. 165, 172 (1993); Canning v. DOJ, 567 F. Supp. 2d 104, 111 (D.D.C. 2008). A confidential source is one who “provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred.” Landano, 508 U.S. at 172. Thus, Exemption 7(D) applies to protect the identity of a source if an
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agency establishes that a source has provided information under either an express or implied promise of confidentiality. See Williams v. FBI, 69 F.3d 1155, 1159 (D.C. Cir. 1995). In cases, such as this one, where the Government provides an express promise of confidentiality, “the issue is simple enough: The agency must present ‘probative evidence that the source . . . receive[d] an express grant of confidentiality.’” Hodge v. FBI, 703 F.3d 575, 581 (D.C. Cir. 2013) (quoting Campbell v. DOJ, 164 F.3d 20, 34 (D.C. Cir. 1998).
(2) DOJ Properly Withheld Information Regarding Confidential Sources. Here, the FBI redacted certain non-public information regarding Christopher Steele (identified as “Source #1” in the documents), and all information about and from other confidential human sources. 3rd Hardy Decl. ¶¶ 112-17. First, the Hardy Declaration establishes that the FBI provided an express promise of confidentiality to Steele as part of the FBI’s protocols for confidential human sources, and Steele in fact provided information in furtherance of a national security investigation. Id. ¶¶ 115-16. His information is therefore categorically exempt from disclosure under 7(D). Nonetheless, Steele’s identity and some of his reporting has been publicly disclosed, and the FBI therefore has not redacted information that matches his information as disclosed in the Nunes and Schiff memoranda. Id. Second, the FISA applications contain information from and about other sources who provided information to the FBI and did so pursuant to express assurances of confidentiality. Id. ¶ 117. Thus, the requirements of Exemption 7(D) are satisfied. Confidential human sources providing information to the FBI pursuant to assurances of confidentiality should be secure in the knowledge that their assistance will be held in confidence. Id. ¶¶ 113-14. Release of such information may eliminate a source and have a chilling effect on other current and potential sources, who need to know they can trust the FBI’s assurances of confidentiality. Id. Accordingly, the FBI properly redacted information pursuant to Exemption 7(D).
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F. DOJ Properly Withheld Information in the Carter Page Documents Pursuant to Exemption 7(E).
(1) 7(E) Standards. Exemption 7(E) authorizes withholding of information compiled for law enforcement purposes if release of the information “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). Congress intended that Exemption 7(E) protect law enforcement techniques and procedures from disclosure, as well as techniques and procedures used in all manner of investigations after crimes or other incidents have occurred. Exemption 7(E) is written in broad and general terms to cover not only information that will definitively lead to the circumvention of the law, but also information that risks circumvention of the law. Mayer Brown, LLP v. Internal Revenue Serv., 562 F.3d 1190, 1193 (D.C. Cir. 2009); Bigwood v. Dep’t of Defense, 132 F. Supp. 3d 124, 152–53 (D.D.C. 2015). Satisfying the exemption is a “relatively low bar”. See Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). The agency need not make a “highly specific ... showing” of risk of circumvention of the law, but only “demonstrate logically how the release of the requested information might create” such a risk. Id. (quoting Mayer Brown, 562 F.3d at 1194). Nor must the agency demonstrate “an actual or certain risk of circumvention” of the law; rather the agency need only show “the chance of a reasonably expected risk.” Mayer Brown, 562 F.3d at 1193. Importantly, the range of “law enforcement purposes” covered by Exemption 7(E) includes not only traditional criminal law enforcement duties, but also proactive steps taken by the government designed to prevent terrorism and to maintain national security. See Ctr. for Nat’l Sec. Studies, 331 F.3d at 926; Bigwood, 132 F. Supp. 3d at 152; see also Milner v. Dep’t of
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the Navy, 562 U.S. 562, 582 (2011) (“Particularly in recent years, terrorism prevention and national security measures have been recognized as vital to effective law enforcement efforts in our Nation.”) (Alito, J., concurring).
(2) DOJ Properly Withheld Information About Law Enforcement Techniques that Risks Circumvention of the Law.
The withholdings easily satisfy the “relatively low” Exemption 7(E) standard here. The entirety of the FISA packages are a law enforcement technique, whose details were not previously known to the public, and such FISA applications have never previously been processed for public release. Accordingly, the applications and orders contain a substantial amount of still nonpublic information about this law enforcement technique and how it is used in particular contexts. The Third Hardy Declaration describes eight categories of information withheld under 7(E).8 3rd Hardy Decl. ¶¶ 119-33.
First, DOJ withheld information about the investigative focus of these particular FISA applications and orders. 3rd Hardy Decl. ¶ 120. Together, the information in these applications reveals how the FBI conducted certain aspects of the investigation to that date and a road-map of certain contemplated investigative steps. Id. Although the general techniques authorized by the FISA are publicly known, this detailed information about how, when, where and why such authorities are employed in this particular investigation is not publicly known. Id. Such details would be useful to criminals and other adversaries as a guide to adjust their own behavior and develop effective countermeasures. Id.
Second, DOJ withheld information about the collection and analysis of information it
8 Each category is separately coded on the redacted documents. See 3rd Hardy Decl. ¶ 34. These categories often overlap, and redactions may be coded to more than one category. For example, specific techniques described to the Court are protected under category three, but also tend to show the focus of the investigation under category one based on which investigative activities were ongoing when and where.
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obtains for investigative purposes, including how and where the FBI collects particular types of information and the methodologies employed to analyze it. Id. ¶¶ 121-23. Such disclosures would enable subjects of investigations to identify when these or similar techniques are or might be used and take countermeasures. Id.
Third, DOJ withheld specific techniques authorized for and used in national security investigations. Hardy Decl. ¶¶ 124-26. This category includes: techniques that have not been publicly disclosed in this specific context, details about other techniques that have been disclosed generally, and those techniques specifically considered or authorized by the FISC here. Id. ¶ 124. The disclosure of techniques in this particular context would have important ramifications on the use of such techniques in other national security cases. Id. Although the techniques authorized by FISA are publicly known, detailed information about how, when, where and why such authorities are employed in a particular investigation is not publicly known. Id. Aggregated, such information provides a roadmap to counterintelligence investigations and would give sophisticated adversaries the information necessary to take countermeasures. Id.
Fourth, DOJ redacted specific databases used by the FBI for investigative purposes. It is not publicly known under what circumstances the FBI utilizes these particular databases, particularly in the context of a national security investigation. Id. ¶ 127. And their disclosure would provide another useful data point useful to spies, criminals and others intent on avoiding FBI attention and developing countermeasures. Id.
Fifth, DOJ withheld specific information about payments to confidential human sources. While it is publicly known that FBI pays such sources, the details of when, for what, and how much sources are paid are aspects of this technique that are not made public in order to protect the viability of this technique. Id. ¶ 128. Moreover, the amount paid to a particular confidential human source could suggest the relative volume or importance of information provided by a
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source, leading people who believe they are subjects of such source reporting to assess the likelihood that their activities have come to the FBI’s attention. Id. ¶¶ 128-29. And it could reveal important non-public information about the level of resources devoted to particular investigations or subjects. Id.
Sixth, DOJ withheld detailed information about the targets, dates and scope of surveillance. While it is known that the FBI conducts FISA surveillance and specifically conducted surveillance directed at Page, the details about how such surveillance was investigatively or technically implemented, the locations targeted by the surveillance, and the specific time periods under which the surveillance was conducted are not public. Id. ¶ 130. Disclosure of such details about how and when the FBI conducts surveillance would create a mosaic that criminals and other adversaries could use to predict when and where such surveillance may occur, detect it, and to develop and utilize countermeasures. Id.
Seventh, DOJ redacted information regarding dates and types of FBI investigations. In particular, the FBI protected information that identifies the type of a particular investigation, whether it is a “preliminary” or “full” investigation, and the time period of the particular investigation. Id. ¶ 131. Disclosure would allow individuals to know what types of activities would trigger which type of investigation and allow them to deduce applicable time periods. Id. Disclosure that a particular activity warrants investigation could cause individuals to adjust conduct to avoid detection. Id.
Eighth, DOJ redacted investigative strategies for particular evidence. The FBI redacted information that describes a specific purpose for which it might use information gathered as a result of its FISA authorized surveillance of Page. Id. ¶¶ 132-33. Publicly disclosing this information would permit targets of FBI investigative activities to anticipate such activities and take effective countermeasures. Id.
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G. DOJ Properly Withheld Private Information in the Carter Page Documents Pursuant to Exemptions 6 and/or 7(C).
(1) Applicable Exemptions. Two FOIA exemptions cover different types of private information redacted in these documents. First, Exemption 6 allows agencies to withhold “personnel and medical files and similar files” whenever “disclosure . . . would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). To determine whether a file qualifies as “similar” to “personnel or medical files,” courts examine whether information in that file “applies to a particular individual.” Dep’t of State v. Wash. Post Co., 456 U.S. 595, 601-02 (1982). Therefore, not only does the exemption protect files, “but also bits of personal information, such as names and addresses, the release of which would create a palpable threat to privacy.” Prison Legal News v. Samuels, 787 F.3d 1142, 1147 (D.C. Cir. 2015) (citation omitted). If the threshold requirement is met, a court must next ask whether disclosure would compromise a “substantial” privacy interest, since FOIA requires the release of information “[i]f no significant privacy interest is implicated . . . .” Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1229 (D.C. Cir. 2008) (citation omitted). “Anything greater than a de minimis privacy interest” is generally sufficient. Id. at 1229–30. Finally, courts test whether release of such information would constitute a “clearly unwarranted invasion of personal privacy,” Wash. Post Co. v. Dep’t of Health & Human Servs., 690 F.2d 252, 260 (D.C. Cir. 1982), by balancing “the privacy interest that would be compromised by disclosure against any public interest in the requested information,” Multi Ag Media, 515 F.3d at 1228. Courts examine the “public need for the information” in light of “the basic purpose of [FOIA] to open agency action to the light of public scrutiny, rather than . . . the particular purpose for which the document is being requested.” DOJ v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 772 (1989) (internal citations omitted).
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“That purpose . . . is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency’s own conduct.” Id. at 773.
Second, under Exemption 7(C), an agency is exempt from producing “records or information compiled for law enforcement purposes . . . to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). In determining whether this exemption applies to particular information, a court must balance the privacy interests of individuals mentioned in the records against the public interest in disclosure. See ACLU v. DOJ, 655 F.3d 1, 6 (D.C. Cir. 2011). The privacy interest at stake belongs to the individual, not the government agency, see Reporters Comm., 489 U.S. at 763–65, and “individuals have a strong interest in not being associated unwarrantedly with alleged criminal activity,” Stern v. FBI, 737 F.2d 84, 91–92 (D.C. Cir. 1984).
(2) DOJ Properly Withheld Private Information. Here, the Third Hardy Declaration establishes that several categories of private or personally identifying information are properly redacted. First, DOJ withheld the names of the FBI agents who signed the Page FISA applications under Exemption 6 and 7(C). Such agents can become the target of harassing inquiries or threats, a risk that is heightened in the context of national security or counterintelligence cases. 3rd Hardy Decl. ¶¶ 96-101. They have substantial privacy interests in avoiding such harassment or threats, an interest that is heightened by the high profile nature of the investigation. Id. Finally, there is no legitimate public interest in these identities, which would not inform the public understanding of the Page warrants, the Russia investigation or anything else. Id. Accordingly, the FBI properly protected these names. Second, DOJ withheld certain personal information about Carter Page. While FISC-
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authorized surveillance of Carter Page has been officially acknowledged, there remains information not previously made public by the Government and in which he retains a privacy interest. 3rd Hardy Decl. ¶¶ 102-05. Although there is a demonstrated public interest in these applications, the particular information redacted would not substantially increase the public’s understanding of this matter. Id.
Third, DOJ withheld identifying information about a FISC deputy clerk and the career NSD attorney who submitted the FISA applications to the FISC. Id. ¶¶ 106-109. Such employees could become targets of harassing inquiries or threats, and they may be targeted by foreign powers; in contrast, there is no public interest in their identities. Id. Accordingly, their identifying information was properly redacted.
Finally, DOJ redacted identifying information regarding a third party source. This particular source is mentioned twice in the released documents and did not provide information directly to the FBI. Id. ¶¶ 110-11. The individual has a substantial privacy interest in not being publicly linked to the investigation and could face harassment, retaliation, threats or physical harm if revealed publicly in connection with a sensitive national security investigation. Id. And the public interest in an individual mentioned in two footnotes is quite limited and would not increase the public’s understanding of FBI operations or this investigation. Id. Accordingly, this information was properly redacted.
H. DOJ Properly Withheld in Full Certain Portions of the Carter Page Documents Pursuant to Exemptions 1, 3, 7(A), and 7(E).
DOJ withheld 186 pages in full from the Carter Page FISA packages. Disclosure would reveal classified intelligence methods and law enforcement techniques. 3rd Hardy Decl. ¶¶ 13541. There is no additional information that can be provided on the public record but the justification for withholding is similar to the justification for other redactions under these
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exemptions. The classified ex parte, in camera submission provides additional information. I. DOJ Released All Reasonably Segregable Information. Under FOIA, “any reasonably segregable portion of a record shall be provided to any
person requesting such record after deletion of the portions which are exempt . . . .” 5 U.S.C. § 552(b). Accordingly, “non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.” Mead Data Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). An agency has no obligation to segregate non-exempt material that is so “inextricably intertwined” with exempt material that “the excision of exempt information would impose significant costs on the agency and produce an edited document with little informational value.” Neufeld v. IRS, 646 F.2d 661, 666 (D.C. Cir. 1981), abrogated on other grounds by Church of Scientology of Calif. v. IRS, 792 F.2d 153 (D.C. Cir. 1986); see also Nat’l Sec. Archive Fund, Inc. v. CIA, 402 F. Supp. 2d 211, 220–21 (D.D.C. 2005) (same). A court “may rely on government affidavits that show with reasonable specificity why documents withheld pursuant to a valid exemption cannot be further segregated . . . .” Juarez, 518 F.3d at 61 (internal citation omitted). “Agencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007).
Here, DOJ has shown that it released all reasonably segregable material through the declaration of Mr. Hardy. 3rd Hardy Decl. ¶ 134. Mr. Hardy indicates that the agency conducted a document-by-document and line-by-line review to ensure that all reasonably segregable, nonexempt information was released, taking into account the public disclosures related to this matter. Id. See Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776-77 (D.C. Cir. 2002) (holding that agency had demonstrated there was no reasonably segregable nondeliberative material when it had submitted an affidavit by an agency official confirming that “a
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line-by-line review of each document withheld in full [had] determined that ‘no documents contained releasable information which could be reasonably segregated from the nonreleasable portions.’”). This segregability conclusion is borne out by the released documents: redactions have been taken narrowly and only where specific information protected by exemptions is at issue.
Because the Hardy Declaration establishes that all reasonably segregable, non-exempt information has been released, Defendant is entitled to summary judgment.
III. DOJ Properly Refused to Confirm or Deny the Existence of Other Responsive Records.
DOJ has refused to confirm or deny the existence of FISA applications and orders beyond the four previously acknowledged Carter Page packages. DOJ has established that this partial Glomar response is proper, pursuant to Exemptions 1, 3, 7(A) and 7(E). 3rd Hardy Decl. ¶¶ 14246; Findlay Decl. ¶¶ 14-15.
The standards for these exemptions are outlined in Part II of this memorandum, and the application of FOIA standards to refuse to confirm or deny the use of particular surveillance techniques against particular individuals ought to be non-controversial. The Government routinely makes Glomar responses to similar requests for information about particular surveillance subjects, see 3rd Hardy Decl. ¶¶ 13, 143 (confirming that with extremely limited exceptions, the FBI does not confirm or deny FISA surveillance of particular individuals or entities); Findlay Decl. ¶ 16 (same), and courts routinely uphold such responses. See, e.g., Marrera v. DOJ, 622 F. Supp. 51, 53–54 (D.D.C. 1985) (“[T]his Court finds that OIPR’s refusal to confirm or deny the existence of FISA records pertaining to this particular plaintiff to be justified in the interests of national security as part of an overall policy of [the Executive Order] with respect to all FISA FOIA requests.”); Schwarz v. Dep’t of Treasury, 131 F. Supp. 2d 142,
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149 (D.D.C. 2000) (“The Office properly refused to confirm or deny that it had any responsive records maintained under the Foreign Intelligence Surveillance Act of 1978 (FISA) and in nonFISA files relating to various intelligence techniques.”), aff’d, No. 00-5453, 2001 WL 674636 (D.C. Cir. May 10, 2001); Competitive Enter. Inst. v. NSA, 78 F. Supp. 3d 45, 60 (D.D.C. 2015) (upholding NSA Glomar response to request for metadata records with respect to two particular individuals); Agility Pub. Warehousing Co. K.S.C., 113 F. Supp. 3d at 329 (upholding NSA Glomar in response to request for particular surveillance records); see also Carter v. NSA, No. 1:12-CV-00968-CKK, 2014 WL 2178708, at *1 (D.C. Cir. Apr. 23, 2014) (upholding Glomar response to request for records related to alleged NSA surveillance of plaintiff); Moore v. Obama, No. 09-5072, 2009 WL 2762827, at *1 (D.C. Cir. Aug. 24, 2009) (same); Wilner, 592 F.3d at 65 (“Glomar responses are available, when appropriate, to agencies when responding to FOIA requests for information obtained under a ‘publicly acknowledged’ intelligence program, such as the [Terrorist Surveillance Program], at least when the existence of such information has not already been publicly disclosed.”).
A. The Partial Glomar is Proper Pursuant to Exemption One Because the Existence or Non-Existence of Responsive Records is Properly Classified.
The Glomar response with respect to the existence or non-existence of other FISA surveillance applications is proper under FOIA Exemption 1. DOJ has logically and plausibly explained why it cannot confirm or deny the existence of additional responsive records that would identify other FISA targets, if any, without revealing information that is currently and properly classified and exempt from disclosure under FOIA Exemption 1. First, the existence or non-existence of additional responsive records “pertains to” one of the categories of information protected by Executive Order 13526, namely, “intelligence sources and methods” and “foreign relations and foreign activities of the United States.” And the disclosure of either category
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would cause harm to national security. The existence or non-existence of responsive records pertains to intelligence sources and
methods because the request, on its face, seeks information about whether there has been additional FISA surveillance, beyond that already acknowledged. 3rd Hardy Decl. ¶¶ 152-55; Findlay Decl. ¶¶ 16-19. Confirming or denying whether other responsive records exist “would be tantamount to confirming whether or not the FBI has relied on a particular intelligence activity or method targeted at particular individuals or organizations” and “reveal otherwise nonpublic information regarding the nature of the FBI’s intelligence interests, priorities, activities and methods– information that is highly desired by hostile actors who seek to thwart the FBI’s intelligence-gathering mission.” 3rd Hardy Decl. ¶ 155; Findlay Decl. ¶ 17 (“To disclose the existence or non-existence of responsive documents in NSD files would disclose whether or not particular individuals or organizations were targets of FISC-authorized surveillance.”). Such activities and methods “are valuable only so long as they remain unknown and unsuspected” and that disclosure would “seriously jeopardize[]” the use of such methods. 3rd Hardy Decl. ¶¶ 15354; Findlay Decl. ¶¶ 20-21. Mr. Hardy further explains that hostile groups review officially released information like this; they have “the ability to gather information from myriad sources, analyze it, and deduce means and methods from disparate details to defeat the U.S. Government’s collection efforts.” 3rd Hardy Decl. ¶ 154; Findlay Decl. ¶¶ 20-21. Disclosure of the withheld information “would pose at least a serious risk to national security.” 3rd Hardy Decl. ¶ 155; Findlay Decl. ¶ 20.
Further, the Hardy Declaration establishes that confirming the existence or non-existence of other responsive documents would reveal information about the United States Government’s foreign relations, the disclosure of which could cause damage to national security. 3rd Hardy Decl. ¶¶ 156-60. Such disclosure could “weaken, or even sever, the relationship between the
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United States and its foreign partners (present and future), thus degrading the Government’s ability to combat hostile threats abroad.” Id. 9
Accordingly, the partial Glomar response was proper under Exemption One. B. The FBI Established that the Partial Glomar is Proper Pursuant to Exemption 3 and the National Security Act.
As discussed in Part II, Exemption 3 and the National Security Act prohibit the disclosure of intelligence sources and methods. For the reasons discussed above with regard to Exemption 1, confirming the existence or non-existence of responsive records could divulge information about the existence or nonexistence of intelligence sources and methods protected from disclosure under the National Security Act. 3rd Hardy Decl. ¶¶ 161-63. No additional showing is necessary under the National Security Act.
C. The FBI Established that the Partial Glomar is Proper Pursuant to Exemption 7(A).
Here, the Hardy Declaration justifies the FBI’s use of Exemption 7(A) to protect the currently undisclosed fact of the existence or non-existence of any investigative records that would be responsive to Plaintiffs’ requests. As an initial matter, FISA records are plainly compiled for law enforcement purposes. As the Hardy Declaration establishes, the “only circumstance under which the FBI can request a FISA order is when the FBI is conducting an authorized, predicated national security investigation within the scope of its law enforcement and foreign intelligence responsibilities.” 3rd Hardy Decl. ¶ 77. Accordingly, FISA applications and FISC orders – when they exist – are records compiled for law enforcement purposes.
9 The Government is not arguing that such disclosure of the existence or nonexistence of records would reveal the existence of the Russia investigation. The existence of the Russia investigation is officially acknowledged information. Additional information about the harm to foreign relations that would result from disclosure is available in the ex parte, in camera declaration.
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Additionally, the information requested purportedly relates to an ongoing investigation.
Plaintiffs’ request explicitly mentions the investigation into the Russian government’s efforts to
interfere in the 2016 presidential election. 3rd Hardy Decl. ¶¶ 14 (describing opening of
investigation); 168 (describing ongoing investigation). Any sort of investigation involving such
FISA records would be the sort of active investigation protected by Exemption 7(A). See, e.g.,
People for the Ethical Treatment of Animals v. NIH, 745 F.3d 535, 541 (D.C. Cir. 2014)
(Exemption 7’s threshold requirement satisfied in a Glomar response case because FOIA
requester did not dispute that “any responsive documents,” if they existed, “would constitute
records or information compiled for law enforcement purposes . . .”).
The Hardy Declaration further describes the harm to an investigation that may result:
Confirming or denying the existence or non-existence of responsive records would reveal non-public information about the focus, scope, and conduct of that investigation. Specifically, it would reveal whether or not specific investigative techniques have been used; when and to what extent they were used, if they were; their relative value or benefit if they were used; and the targets they were used against, if any. Prematurely disclosing nonpublic information about the Russia investigation could give targets and others intent on interfering with the FBI’s investigative efforts the information necessary to: take defensive actions to conceal criminal activities; develop and implement countermeasures to elude detection; suppress, destroy, or fabricate evidence; and identify potential witnesses or sources, exposing them to harassment, intimidation, coercion, and/or physical threats. Accordingly, confirming or denying the existence or non-existence of responsive records, beyond the four Carter Page FISA applications . . . , could reasonably be expected to adversely affect the pending investigation.
3rd Hardy Decl. ¶ 169.
Accordingly, a Glomar response is available under these circumstances to protect the
integrity of confidential law-enforcement investigations, and to therefore prevent harm
cognizable by FOIA Exemption 7(A). See, e.g., Cozen O’Connor v. Dep’t of Treasury, 570 F.
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Supp. 2d 749, 788 (E.D. Pa. 2008); see also CREW, 746 F.3d at 1096 (“Exemption 7(A) reflects the Congress’s recognition that ‘law enforcement agencies ha[ve] legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it [comes] time to present their case.’” (quoting Robbins Tire, 437 U.S. at 224)). For these reasons, the FBI’s Glomar response is justified by Exemption 7(A).
D. The FBI Established that the Partial Glomar Response is Proper Pursuant to Exemption 7(E).
As discussed in Part II, Exemption 7(E) protects law enforcement techniques and procedures, where disclosure risks circumvention of the law. Here, the Third Hardy Declaration establishes that disclosure of existence or non-existence of responsive records would reveal a law enforcement technique or procedure. “How the FBI applies its investigative resources (or not) against a particular allegation, report of criminal activity, or perceived threat is itself a law enforcement technique or procedure that the FBI protects.” 3rd Hardy Decl. ¶ 171. Such an acknowledgment of the existence or non-existence of responsive records “would reveal when and under what circumstances the FBI relies upon FISA-authorized techniques in an investigation,” and “provide pieces of information that adversaries could use to ascertain at what point, and against whom we might use particular techniques.” Id. ¶ 172. “Armed with this information, adversaries could glean significant insight into the activities likely to attract – or not attract – the FBI’s law enforcement attention. These individuals would then be able to alter their behavior to avoid attention by law enforcement, making it more difficult for the FBI to be proactive in assessing threats and investigating crimes.” Id. Accordingly, the FBI properly invoked Exemption 7(E) to refuse to confirm nor deny the existence of responsive records, beyond the Carter Page documents discussed in detail above.
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IV. The Withheld Information Has Not Been Officially Acknowledged. As a general matter, under FOIA, “when an agency has officially acknowledged
otherwise exempt information through prior disclosure, the agency has waived its right to claim an exemption with respect to that information.” ACLU v. CIA, 710 F.3d 422, 426 (D.C. Cir. 2013). This “official acknowledgement” principle applies to the Glomar context, so a requester “can overcome a Glomar response by showing that the agency has already disclosed the fact of the existence (or non-existence) of responsive records, since that is the purportedly exempt information that a Glomar response is designed to protect.” Id. at 427. But the plaintiff “must bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld.” Id. (quoting Wolf, 473 F.3d at 378).
The D.C. Circuit has narrowly construed the “official acknowledgment” doctrine, however, and to bring such a challenge plaintiff must satisfy three stringent criteria, none of which are satisfied here. “First, the information requested must be as specific as the information previously released.” Wolf, 473 F.3d at 378 (quoting Fitzgibbon, 911 F.2d at 765); James Madison Project v. DOJ, No. CV 17-1392 (ABJ), 2018 WL 4283562, at *6 (D.D.C. Sept. 7, 2018). “Prior disclosure of similar information does not suffice; instead, the specific information sought by the plaintiff must already be in the public domain by official disclosure. This insistence on exactitude [by the D.C. Circuit] recognizes ‘the Government’s vital interest in information relating to national security and foreign affairs.” Id. (quoting Pub. Citizen v. Dep’t of State, 11 F.3d 198, 203 (D.C. Cir. 1993)); Competitive Enter. Inst., 78 F. Supp. 3d at 54 (“Plaintiffs in this case must therefore point to specific information in the public domain establishing that the NSA has [the claimed information.]”). The information already released must also be of the same level of generality as the information sought—broadly crafted disclosures, even on the same general topic, do not waive the Glomar response. See, e.g., Afshar,
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702 F.2d at 1133 (previous disclosure that plaintiff had “‘created a problem’ in U.S.-Iranian relations” was too general to justify releasing documents detailing the nature of that problem).
“Second, the information requested must match the information previously disclosed.” Wolf, 473 F.3d at 378 (quoting Fitzgibbon, 911 F.2d at 765). If there are “substantive differences” between the two, an official-acknowledgment claim must fail. ACLU v. DOD, 628 F.3d at 621. That is true even if the previous disclosures are on the same topic. See, e.g., Competitive Enter. Inst., 78 F. Supp. 3d at 57 (a Presidential statement that “the intelligence community . . . is looking at phone numbers and durations of calls,” was not adequately congruent with a request seeking the companies that had provided that data to U.S. intelligence agencies); Wolf, 473 F.3d at 379 (holding that CIA could not claim Glomar protection when it had previously read excerpts from materials sought into the record during congressional hearing); James Madison Project v. DOJ, 2018 WL 4283562, at *8-*16 (various Presidential statements failed to meet matching and specificity requirements).
“Third, . . . the information requested must already have been made public through an official and documented disclosure.” Id. at 378 (quoting Fitzgibbon, 911 F.2d at 765). Key to this element is that the source must be official; non-governmental releases, or anonymous leaks by government officials or former government officials do not qualify. See, e.g., ACLU v. Dep’t of Defense, 628 F.3d at 621-22; Agility Public Warehousing Co. K.S.C., 113 F. Supp. 3d at 330 n.8; Competitive Enter. Inst., 78 F. Supp. 3d at 55. In other words, “mere public speculation, no matter how widespread,” cannot undermine the agency’s Glomar prerogative. Wolf, 473 F.3d at 378. And Congressional statements also cannot waive Executive Branch classification or other Exemptions. See Military Audit Project, 656 F.2d at 742-745; see also Moore v. CIA, 666 F.3d 1330, 1333 n.4 (D.C. Cir. 2011) (“[W]e do not deem ‘official’ a disclosure made by someone other than the agency from which the information is being sought.”).
39

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Plaintiffs cannot meet their burden of pointing to an official disclosure of the information they seek. The declarations establish that no authorized government official has disclosed the precise information withheld and that the declarants carefully considered the known public information related to this issue. See 3rd Hardy Decl. ¶¶ 23-27, 31-32, 134, 143; Findlay Decl. ¶ 23.
The Amended Complaint cites a number of public statements that Plaintiffs allege constitute official acknowledgement of properly classified facts. See Am. Compl. ¶ 11 (“The comments of President Trump and Press Secretary Sean Spicer constitute prior official disclosure of the existence of surveillance orders issued by the FISC and that authorized collection of information that, at a minimum, incidentally implicated President Trump and/or his associates. This lawsuit ultimately will seek to determine the circumstances in which specific surveillance/collection orders were issued by the FISC.”). But these cited public statements about an investigation and alleged surveillance do not come close to meeting the standard for official acknowledgement of the information sought by Plaintiffs.
Plaintiffs appear to rely on President Trump’s four-part post on Twitter on March 4, 2017, discussed supra. See https://twitter.com/realDonaldTrump; see also Am. Compl. ¶ 7; 3rd Hardy Decl. ¶ 26; Findlay Decl. ¶ 8. As discussed above, DOJ – through the testimony of thenFBI Director James Comey – has confirmed that it has no records that support this statement. Hardy Decl. ¶ 26; Findlay Decl. ¶ 8 & Ex. E.10
10 In any event, this series of tweets contains a constellation of specific opinions and allegations regarding wiretapping, including that (1) his phones were tapped; (2) at Trump Tower; (3) in October just prior to the election; (4) by the Obama Administration; and (5) that such actions were comparable to “Nixon/Watergate.” Nowhere do these tweets mention FISA, the FISC, any targets other than President Trump, or the involvement of DOJ or FBI. Moreover, the statements are limited to a particular time, a particular target, and a particular place, in contrast to Plaintiffs’ FOIA request. Thus, the statements do not match the information sought in this FOIA request. The follow-up statements to the media by the President or his Press Secretary as cited in the
40

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Neither the Complaint nor the request point to any statements that could constitute

official acknowledgment, and the agency has carefully considered the known public information

on this issue. Accordingly, Plaintiffs cannot establish official acknowledgment.

CONCLUSION

For the foregoing reasons, the Court should grant the Government’s motion for summary

judgment.

Dated: October 19, 2018

Respectfully Submitted,

CHAD A. READLER Principal Deputy Assistant Attorney General

MARCIA BERMAN Assistant Director, Federal Programs Branch

/s/Amy E. Powell AMY E. POWELL Trial Attorney, Federal Programs Branch Civil Division, Department of Justice 310 New Bern Avenue, Suite 800 Federal Building Raleigh, NC 27601-1461 Phone: 919-856-4013 Email: amy.powell@usdoj.gov

complaint also do not match the specific information sought by Plaintiffs here. Am. Compl. ¶¶ 7-11.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF JUSTICE, )

)

Defendant.

)

)

Case No. 17-597-APM

[PROPOSED] ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Having considered the submissions of the parties, the Court hereby ORDERS that the Defendant’s Motion for Summary Judgment is GRANTED.

U.S. DISTRICT COURT JUDGE

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al Plaintiffs,
V.
U.S. DEPARTMENT OF JUSTICE, •
Defendant.

Civil Action No. l:17-cv-0597-APM

(U) THIRD DECLARATION OF DAVID M. HARDY (U) I, David M. Hardy, declare as follows: (1) (U) I am the Section Chief of the Record/Information Dissemination Section
("RIDS"), Information Management Division ("IMD"), in Winchester, Virginia.^ I have held
this position since August 1,2002. Prior to myjoining the Federal Bureau of Investigation ("FBI"), from May 1,2001 to July 31,2002,1 was the Assistant Judge Advocate General of the Navy for Civil Law. In that capacity, I had direct oversight of Freedom of Information Act ("FOIA") policy, procedures, appeals, and litigation for the Navy. From October 1,1980 to April 30,2001,1 served as a Navy Judge Advocate at various commands and routinely worked with FOIA matters. I am also an attorney who has been licensed to practice law in the State of
Texas since 1980.
(2) (U) In my official capacity as Section Chief of RIDS, I supervise approximately

' (U) IMD was formerly known as the Records Management Division, or RMD.
1
Classified By: Derived From: Multiple Sources
Declassify On: 20431231
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242 employees who staff a total of twelve (12) Federal Bureau of Investigation Headquarters ("FBIHQ") units and two (2) field operational service center units whose collective mission is to effectively plan, develop, direct, and manage responses to requests for access to FBI records and information pursuant to the FOIA as amended by the OPEN Government Act of 2007, the OPEN FOIA Act of 2009, and FOIA Improvement Act of 2016; the Privacy Act of 1974; Executive Order 13526; Presidential, Attorney General, and FBI policies and procedures; judicial decisions; and Presidential and Congressional directives. My responsibilities also include the review of FBI information for classification purposes as mandated by Executive Order 13526, and the preparation of declarations in support of Exemption 1 claims asserted under the FOIA. I have been designated by the Attorney General of the United States as an original classification authority and a declassification authority pursuant to Executive Order 13526, §§ 1.3 and 3.1. The statements contained in this declaration are based upon my personal knowledge, upon information provided to me in my official capacity, and upon conclusions and determinations
reached and made in accordance therewith.
(3) (U) Due to the nature of my official duties, I am familiar with the procedures followed by the FBI in responding to requests for information fi:om its files pursuant to the provisions of the FOIA, 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. Specifically, I am aware of the FBI's handling of plaintiffs James Madison Project ("JMP") and Brad Heath's FOIA request for three categories of records concerning surveillance under the Foreign Intelligence Surveillance Act of 1978 ("FISA"), which is at issue in this litigation. In response to this request, the FBI issued a so-called Glomar response, whereby it neither confirmed nor denied the existence or non-existence of responsive records. Due to intervening events, the FBI pierced that Glomar response in a limited fashion, acknowledged the existence of four FISA
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applications and resulting orders regarding Carter Page, and processed those four packages for
release. The FBI retained its Glomar response as to the existence or non-existence of any other responsive records.
(4) (U) The FBI processed 598 pages, which is the totality of the four Page FISA applications and orders; released five pages in whole and 407 in part, with information redacted pursuant to FOIA exemptions; and withheld 186 pages in full pursuant to FOIA exemptions. The FBI relied on the following FOIA exemptions in redacting information or withholding pages: FOIA Exemptions (b)(1), (b)(3), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(E).
5 U.S.C. §§ 552(b)(1), (b)(3), (b)(6), and (b)(7)(A), (C)-(E). (5) (U) This declaration is being submitted in support of DOJ's motion for summary
judgment on the partial Glomar response and on the processing of plaintiffs' FOIA request. It supplements and incorporates by reference my previous two declarations in this case. See ECF No. 13-3, Declaration of David M. Hardy (hereafter "First Hardy Deck"), submitted in support of DOJ's withdrawn motion for summary judgment (ECF No. 13); ECF No. 34-1, Second Declaration of David M. Hardy (hereafter "Second Hardy Deck"), submitted in support of the DOJ's Joint Status Report (ECF No. 34).
(U) ADMINISTRATIVE fflSTORY (6) (U) Plaintiffs submitted a FOIA request to the FBI dated March 6,2017, requesting:
1. Any orders by the FISC authorizing surveillance of and/or collection of information concerning the Trump Organization, President Trump, President Trump's campaign for presidency, or people associated with President Trump.
2. Any applications to the FISC seeking authorization for surveillance of and/or collection of information concerning the Trump Organization, President Trump, President Trump's campaign for presidency, or people associated with
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President Trump. 3. Any minimization procedures issued by the FISC and that applied to any
orders issued that fall within the scope of #1 or #2. See ECF No. 13-3, First Hardy Decl., at f 5; ECF No. 14, Exhibits to First Hardy Decl.,
Exhibit A.
(7) (U) On April 4,2017, the FBI responded to plaintiffs'request by issuing a Glomar response and refusing to confirm or deny the existence of responsive records based on FOIA Exemptions (b)(1), (b)(3), (b)(7)(A), and (b)(7)(E). See ECF No. 13-3, First Hardy Decl., at ^ 11; ECF No. 14, Exhibits to First Hardy Dec!., Exhibit D.
(8) (U) That same day, April 4, 2017, plaintiffs filed their complaint in this case. See ECF No. 1, Complaint; ECF No. 13-3, First Hardy Decl., at f 12.
(9) (U) On April 15, 2017, plaintiffs filed their amended complaint. ^yeeECFNo. 5, First Amended Complaint; ECF No. 13-3, First Hardy Decl., at ^ 13.
(10) (U) As described above, due to events occurring after this lawsuit was filed, the FBI pierced its Glomar response in a limited fashion and processed four FISA applications and FISC orders related to Carter Page. On July 20,2018, the FBI released all reasonably segregable, non-exempt portions of those FISA materials and published them on the FBI's electronic FOIA reading room at https://vault.fbi.gov/dl-release/dl-release/view. {See also Exhibit A attached hereto.)
(U) CARTER PAGE FISA APPLICATIONS AND FISC ORDERS (U) Background
(11) (U) The Foreign Intelligence Surveillance Act of 1978, or FISA, establishes procedures for the physical search, electronic surveillance, and collection of "foreign intelligence
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information" between "foreign powers" and "agents of foreign powers" suspected of espionage or terrorism. 50 U.S.C. § 1801(b). The statute also createdthe FISC to overseerequests for surveillancewarrants by federal law enforcement and intelligence agencies.
(12) (U) The FISC meets in secret, and approves or denies requests for search warrants. Proceedings before the FISC are generally exparte and non-adversarial. But see 50 U.S.C. § 1803(i)(2)(A). The court hears evidence presented solely by DOJ, and unlikemost opinions rendered by otherFederal courts, there is no provision for the publication or release of
FISC opinions orother information regarding FISC hearings.^
(13) (U) FISA is, itself, an intelligence method and details of its use are classified, and prohibited from disclosure underthe National Security Act of 1947, 50 U.S.C. § 3024(i)(l). Speeifieally, the identity of a target of a FISA application/warrant is a classified fact,
as are the dates of FISA authorized surveillance, the types and locations of authorized surveillance methods and tools, and other details about the authorized surveillance. Accordingly, FISA applicationspreviously have never been disclosed publicly, including under the FOIA or through IC transparency efforts. The disclosure of the four Carter Page FISA applications is unprecedented.
(14) (U) In July 2016, the FBI opened an investigation of "the Russian government's
efforts to interfere in the 2016 Presidential eIection[.]"^ As part of this investigation, in October
^ (U) Under some circumstances, certain FISC opinions and orders have been released in response to FOIA requests or as part of Intelligence Community ("IC") transparency efforts. See 50 U.S.C. § 1872.
^ (U) On March 20,2017, then-FBI Director James B. Comey publicly confirmed the existence of this investigation in testimony before Congress, stating "that the FBI, as part of our counterintelligence mission, is investigating the Russian government's efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia's efforts." Statement Before the House Permanent Select Committee on Intelligence, available at https://www.fbi.gov/news/testimony/hpscihearing-titled-russian-active-measures-investigation).
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2016, the FBI first sought and obtained a PISA warrant to conduct surveillance on Carter Page. Like any other FISA application and resulting order, the existence of the Carter Page FISA was a classified fact. The Government thereafter sought and obtained three renewals from the FISC to continue surveilling Page. The existence of each of those applications and resulting
orders was also classified.
(15) (U) Separately, in March 2017, the House Permanent Select Committee on Intelligence ("HPSCl") announced an investigation into "the Russian active measures campaign targeting the 2016 U.S. election." See https://intelIigence.house.gov/news/ doeumentsingle.aspx?DocumentlD=767. Although not originally part of the scope of that investigation, HPSCl added additional areas of inquiry, including the purported abuse of FISA. See https://intelligence.house.gov/uploadedfiles/hpsci_russia_investigation_one_page_summary. pdf. As part of its investigation, HPSCl sought and was ultimately provided access to the Carter Page FISA applications and orders.
(16) (U) On May 17, 2017, Acting Attorney General Rod Rosenstein appointed Robert S. Mueller as Special Counsel. See DOJ Order No. 2915-2017 (May 17, 2017). Under the terms of his appointment, Special Counsel Mueller is authorized to "conduct the investigation
confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20,2017, including (i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and
(iii) any other matters within the scope of 28 C.F.R. § 600.4(a)." The FBI's FISA authorized stirveillance on Page continued after the Special Counsel was appointed.
(17) (U) InFebruary2018, the HPSCl Majority and Minority issued two memoranda
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regarding HPSCI's Russia investigation, which are oftencolloquially referred to by the names of
the HPSCI Chairman and Ranking Member - /.e., as the "Nunes Memo" and the "Schiff Memo." As originally drafted, both memoranda were classified because they revealed FISA
authorized surveillance on an identified target - Carter Page.'^ (18) (U) HPSCI voted to release the Nunes Memo publiclybut could not immediately
do so because it was classified at the Top Secret level. Thus, pursuant to clause 11(g) of Rule X of the Houseof Representatives, HPSCI forwarded the Nunes Memo to President Trump with a request to declassify it. The declassificationrequest did not ask the President to opine on the judgments and conclusions of the HPSCI Majority.
(19) (U) OnFebruary2, 2018, President Trump declassified the Nunes Memo "in light of the significant public interest in the memorandum." See Letter from Donald F. McGahn II, Counsel to the President, to Devin Nunes, Chairman of HPSCI (Feb. 2, 2018). HPSCI thereafter publicly released the Nunes Memo with a cover letter authored by Mr. McGahn documenting the President's action (which was also noted on the Nunes Memo itself with a stamp stating "Declassified by order of the President February 2, 2018"). Mr. McGahn's cover letter made it "clear [that] the Memorandum reflects the judgments of its congressional authors."
https://docs.house.gOv/meetings/IG/IG00/20180129/106822/HMTG-115-IG00-20180129SD001.pdf.
(20) (U) Subsequently, the HPSCI Minority submitted the Schiff Memo to DOJ,
* (U) Under classification rules, an entire documentis classifiedif any single piece of information in it is classified. So, for example, an entire document is classified as Top Secret if it contains any Top Secret information, even if it also contains Secret, Confidential, or unclassified information. Moreover, information that by itself is
unclassified can become classified when combined or associated with other unclassified or classified information, if the compiled information reveals an association or relationship that meets the standards and criteria for classification (/.e., when disclosure of the compiled information would, itself, reveal classified information).
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asking for a classification review. The FBI conducted the review requested by the HPSCI Minority and identified those portions of the SchiffMemo that contained classified information
unaffected by the President's declassification ofthe Nunes Memo.^
(21) (U) The FBI did not declassify any additional information during the review of
the Schiff Memo, nor did the HPSCI Minority request any further declassification. Rather, the FBI conducted a review to identify what information remained classified, in light of the President's declassification of the Nunes Memo. The HPSCI Minority redacted those portions of the Schiff Memo that the FBI identified as classified, and then released the redacted memorandum. See https://docs.house.gOv/meetings/ig/ig00/20180205/106838/hmtg-l 15-igOO20180205-sd002.pdf.
(22) (U) As with the HPSCI Majority, the HPSCI Minority did not ask the FBI to opine on their judgment or conclusions, and the FBI did not do so. And as with the Nunes
Memo, the Schiff Memo reflects thejudgments of its congressional authors.®
(23) (U) Although DOJ and the FBI had previously and properly refused to confirm or deny the existence of any records responsive to plaintiffs request on the grounds that doing so could reasonably be expected to reveal classified information, among other things, the
^ (U) The President's declassification of the Nunes Memo resultedonly in the declassification of the
classified information contained in that memorandum. It did not broadly declassify all information contained in or related to the Carter Page FISA applications and orders.
®(U) On January 4,2018, Senators Grassley and Graham referred to DOJ their allegations that Christopher Steele had violated 18 U.S.C. § 1001. The referral memorandum referenced the Page FISA applications/orders and identified Steele, a classified intelligence source. Thus, the memorandum was classified. After the declassification of the Nunes Memo and the release of the Nunes and Schiff Memos, the FBI was asked to conduct a classification review of the referral memorandum so that the Senate could publicly release it. The FBI conducted that classification review and identified the portions that remained classified following the declassification of the Nunes Memo. The memorandum reflects the Senators' judgments and conclusions; they did not ask the FBI to opine on them and the FBI did not do so as part of its classification review.
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President's declassification of the existence of the Carter Page FISA applications and orders, through his declassification of the Nunes Memo, pierced that Glomar response as to the four
FISA applications and resulting orders referenced intheNunes Memo.^
(24) (U) As a result of the President's declassification of the existence of four Carter Page FISA applications and orders, DOJ and the FBI undertook a FOIA review of the four sets of applications and orders to determine whether any information necessarily had to be disclosed in light of the President's declassification order. On July 20,2018, the FBI produced all reasonably segregable, non-exempt portions of those four FISA packages in response to
plaintiffs FOIA request at issue in this case, among others.^
(25) (U) Substantial portions of the Page FISA materials remain classified; the President's declassification of the Nunes Memo resulted in the declassification of a relatively limited amount of information. Thus, the information that remains classified was protected pursuant to FOIA Exemption (b)(1), 5 U.S.C. § 552(b)(1). Furthermore, as previously noted, the materials contain investigative information relevant to the pending investigation into Russia's
interference in the 2016 Presidential election. Disclosure ofthis withheld relevant information
(none of which exactly matches that disclosed in the Nunes, Schiff, or Grassley/Graham Memos) could reasonably be expected to interfere with this active and pending investigation.^ See 5
' (U) The NunesMemo referencedan initial FISA application and order from October2016, and three
renewals thereafter.
®(U) Because the FBI received morethan threerequests to whichthe CarterPageFISApackages were
responsive, the records were posted to The Vault, the FBI electronic reading room, on July 21,2018. See 5 U.S.C. § 552(a)(2)(D)(ii)(n).
^ (U) While the three Congressional memoranda each reflect statements by theLegislative Branch, notthe
Executive Branch, in light ofthe President's actions with respect to the Congressional memoranda, the FBI identified and released any information contained in the four Page FISA packagesthat matchedinformation released in the Congressional memoranda.
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U.S.C. § 552(b)(7)(A). The FISA packages also contain information from and about intelligence sources, and detailed information about intelligence methods, including non-public information about FISA surveillance. This information was also protected. See 5 U.S.C. §§ 552(b)(3), (b)(7)(D), (b)(7)(E). Finally, these documents contain personally-identifying information about DOJ and FBI personnel and other third parties, which was withheld pursuant to the FOIA. See 5 U.S.C. §§ 552(b)(6), (b)(7)(C).
(26) (U) Plaintiffs request is broader than the four acknowledged applications and resulting orders, however. As discussed further below, the FBI's original Glomar response was pierced only in a very limited fashion for those four acknowledged applications and resulting orders. It remains in place as to any other responsive applications and orders, with one other exception. Specifically, on March 20, 2017, then FBI Director James B. Comey specifically addressed President Trump's four-part post on Twitter on March 4,2017 that President Obama had had President Trump's '"wires tapped' in Trump Tower just before the victory," stating:
With respect to the President's tweets about alleged wiretapping directed at him by the prior administration, I have no information that supports those tweets and we have looked carefully inside the FBI. The Department of Justice has asked me to share with you that the answer is the same for the Department of Justice and all its components. The Department has no information that supports
those tweets.
See Transcript of the House Permanent Select Committee on Intelligence Hearing on Russian Interference in the 2016 U.S. Election, March 20, 2017. https://www.washingtonpost.com/news/ post-politics/wp/2017/03/20/full-transcript-fbi-director-james-comey-testifies-on-russianinterference-in-2016-election/?utm_term=.b9fl9a0cf9cf (last access 6/12/2017).
(27) (U) Aside from this statement and the acknowledgment of the four Page FISA applications and accompanying FISC orders, neitherthe FBI nor DOJ have publicly commented
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on or acknowledged the existence or non-existence of any other FISA records within the scope of plaintiffs FOIA request, and the FBI's Glomar response remains intact as to the existence or non-existence of any other responsive records.
(U) Search (28) (U) In most instances, when searching for records to respond to a FOIA request, RIDS's first step is to conduct a search of the FBI's Central Records System ("CRS"). Such a search was not necessary here. In this case, a known universe of responsive records was revealed through the release of the Nunes and Schiff Memos. Specifically, the memoranda revealed the existence of four FISA applications submitted for surveillance on Carter Page, starting in October 2016 and continuing through three renewals, with accompanying FISA orders. FBI FOIA personnel consulted with FBI personnel familiar with the Russia investigation to locate the four Page FISA packages. Through these efforts, the FBI was able to locate each of the four packages. At the same time, the FBI also contacted DOJ's National Security Division ("NSD"), which represents the Government before the FISC, to obtain copies of all four applications that NSD had submitted to the FISC and all accompanying orders on the applications. NSD provided the FBI copies of all four packages for processing. The FBI then confirmed that between its records and the NSD records, it had complete copies of each of the four FISA packages on Carter Page that had been revealed by the Nunes and Schiff Memos. (29) (U) With regard to Item 2 of plaintiffs' request, the FBI interpreted this to include the four final applications actually submitted to the FISC seeking authorization for surveillance of Carter Page, which resulted in orders from the FISC authorizing surveillance. The FBI did not interpret Item 2 to include all versions or drafts of those applications, as plaintiffs did not specifically reference other versions or drafts.
11
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(30) (tJ) With regard to Item 3 of plaintiffs' request, a separate search was not
required because the minimization procedures that DOJ proposed and that the FISC ordered with regard to the Page surveillance are included within the four applications and resulting FISC
orders.
(U) FOIA Exemptions (31) (U) The FBI carefully reviewed, processed, released to plaintiff (and others), and posted to The Vault all non-exempt portions of the four Page FISA packages (applications and
orders) that were revealed in the Nunes Memo.^° In conjunction with DOJ, the FBI conducted a
thorough review of each page and redacted information or withheld pages in full pursuant to FOIA Exemptions (b)(1), (b)(3), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(E).
(32) (U) Every effort was made to provide plaintiff with all material in the public domain and with all reasonably segregable portions of non-exempt material. No reasonably segregable, non-exempt portions have been withheld. To further describe the information withheld could reveal the very material which the FBI seeks to protect.
(33) (U) On the pages released to plaintiff, each redaction is marked by two pieces of information: a FOIA exemption (e.g.^ "(b)(6)") and a code (e.g., "-1"). The FOIA exemption marking shows that the redaction contains information determined to be exempt under that particular exemption. The code corresponds to a particular category of information determined to be exempt. For example, where "(b)(6)-r' appears on a document, it signals that the FBI relied on FOIA Exemption (b)(6), which protects against unwarranted invasions of personal
(U) Thereleased pages are Bates numbered "17-cv-597(FBl)-l" through "17-cv-597(FBl}-412." A chart identifying which exemptions were cited on which pages is attachedhereto as Exhibit B.
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privacy, to protect a particular category of information - i. e., the names and/or other identifying
information of FBI Special Agents or Support Personnel.
(34) (U) A key to the coding system applied to the Carter Page FISA records follows:

Exemptions and Coded Categories
Exemption (b)(1) (b)(i)-i
Exemption (b)f3) (b)(3)-l Exemptions (b)(6) and (b)(7)(C) (b)(6)-l (b)(7)(C)-l (b)(6)-2 (b)(7)(C)-2 (b)(6)-3 (b)(7)(C)-3 (b)(6)-4 (b)(7)(C)-4 Exemption (b)(7)(A)
(b)(7)(A)-1
Exemption (b)(7)(D)
(b)(7)(D)-1
Exemption (b)(7)(E) (b)(7)(E)-l (b)(7)(E)-2
(b)(7)(E)-3
(b)(7)(E)-4
(b)(7)(E)-5
(b)(7)(E)-6

Category Description
ClassiHed Information
Information properly classified by an FBI Original Classification
Authority pursuant to Executive Order 13526 Information Protected by Statute
Intelligence sources and methods, prohibited from disclosure by the
National Security Act of 1947, 50 U.S.C. § 3024(i)(l)
Unwarranted Invasions of Personal Privacy
Names of FBI Special Agents
Personally-identifying and other non-public information about
Carter Page
Names of and/or other information about one FISC employee and one NSD employee Information sufficient to identify a third party who was a source of information relied upon in the Carter Page FISA applications
Pending Enforcement Proceedings
Information which, if disclosed, could reasonably be expected to interfere with the pending Russia investigation
Confidential Source Information
Names of or other identifying information about individuals who provided information under an express assurance of confidentiality, and any information that they provided Investigative Techniques and Procedures Information revealing the investigative focus of an investigation Information about the collection and/or analysis of information Information that would reveal the specific techniques authorized for and used in national security investigations Information about specific databases utilized by the FBI for
investigative and law enforcement purposes
Information about monetary payments in relation to utilization of investigative techniques, such as the payment of confidential
human sources
Information about the targets, dates, and scope of surveillance

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Exemptions and Coded Categories
(b)(7)(E)-7
(b)(7)(E)-8

Category Description
Information that would reveal the dates and types of investigations {i.e., preliminary investigations, full investigations) Information that would reveal investigative strategies for utilizing particular evidence

(U) Exemption (b)(1) - Classified Information

(35) (U) Given that FISA applications and orders, by their nature, containsensitive

classified intelligence information, and given that the declassification of the Nunes Memo did

not impact all information in the four Page FISA packages, it should be unsurprising that the FBI

protected a relatively significant amount of information under Exemption (b)(1) here.

(36) (U) Exemption (b)(1) protects from disclosure records that are (A) specifically

authorized under criteria established by an Executive Order to be kept secret in the interest of

national defense or foreign policy; and (B) in fact properly classified pursuant to such Executive

Order. 5 U.S.C. § 552(b)(1).

(37) (U) The FBI's analysis of whether Exemption (b)(1) permits the withholding of

agency information consists of two significant steps. The FBI must determine first whether the

information contained in the records qualifies for classification under the applicable Executive

Order governing classification and protection of national security information, and second

whether the information actually has been classified in compliance with the various substantive

and procedural criteria of the Executive Order.

(38) (U) E.O. 13526 presently governs the classification and protection of information

that affects the national security {i.e., "the national defense or foreign relations of the United

States," § 6.1(cc)), and prescribes the various substantive and procedural criteria for classifying

information. I am bound by its requirements when making classification determinations.

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(39) (U) For information to be properly classified, andthus properly withheld pursuantto Exemption (b)(1), the information must meet the substantive requirements set forth
inE.O. 13526 § 1.1(a), which requires:
(1) an original classification authority must have classified the information; (2) the information must be owned by, produced by or for, or be under the
control ofthe United States Government;
(3) the information must fall within one or more of the categories of
information listed in § 1.4 of [the] order; and
(4) the original classification authority must determine that the unauthorized
disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the.original classification authority must be able to identify or describe the damage.
(40) (U) The information covered by Exemption (b)(1) here is under the control of the United States Government, falls within applicable categories of E.G. 13526 § 1.4, and requires a
classification marking at the TOP SECRET level because unauthorized disclosure of this information could reasonably be expected to cause exceptionally grave damage to the national
security, or at the SECRET level because the unauthorized disclosure of this information
reasonably could be expected to cause serious damage to the national security. See E.G. 13526 § 1.2(a)(l)-(2).
(41) (U) In addition to these substantive requirements, certain procedural and administrative requirements set forth in E.G. 13526 must be followed before information can be considered to be properly classified, such as proper identification and marking of documents. Specifically, E.G. 13526 requires that:
(a) Each document was marked as required and stamped with the proper classification designation. SeeE.O. 13526 § 1.6(a)(1) - (5).
(b) Each document was marked to indicate clearly which portions are
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. classified and which portions are exempt from declassification as set forth inE.O. 13526 § 1.5(b). See E.O. 13526 § 1.6(a)(5)(c).
(c) The prohibitions and limitations on classification specified in E.O. 13526 § 1.7 were followed.
(d) The declassification policies set forth in E.O. 13526 §§ 3.1 and 3.3 were
followed.
(e) Any reasonably segregable portions of these classified documents that did
not meet the standards for classification under E.O. 13526 were
declassified and marked for release, unless withholding was otherwise warranted under applicable law. (42) (U) With the above requirements in mind, I determined that the information protected pursuant to Exemption (b)(1) in the four Page EISA applications and accompanying orders is currently and properly classified at the TOP SECRET or SECRET level pursuant to E.O. 13526, and satisfies both the procedural and substantive requirements set forth in the
Executive Order.
(43) (U) Specifically, this information is owned by, was produced by or for, and is under the control of the U.S. Government; was classified by an original classification authority; meets all of the procedural requirements of E.O. 13526; and warrants classification at the TOP SECRET or SECRET level to protect "intelligence activities (including covert action), intelligence sources or methods, or cryptology," see E.O. 13526 § 1.4(c), and "foreign relations or foreign activities of the United States, including confidential sources," see E.O. 13526 § 1.4(d), because unauthorized disclosure of this information could be expected to cause exceptionally grave damage to national security (for information classified at the TOP SECRET level) or serious damage to national security (for information classified at the SECRET level).
This is discussed further below.
(44) (U) I examined the information protected in this case pursuant to Exemption
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(b)(1) in light of the body of information available to me concerning the national defense and foreign relations of the United States. This information was not examined in isolation. Instead, it was evaluated with carefiil consideration given to the impact that its disclosure could have on other sensitive information contained elsewhere in the United States Intelligence Community's files. Equal consideration was given to the impact that other information - both in the public domain and likely known or suspected by present or potential adversaries of the United States would have upon the information protected here.
(45) (U) The justifications for protecting classified information here were prepared with the intent that they be read with consideration given to the context in which the classified information is found. This context includes not only the surrounding unclassified information, but also other information already in the public domain, as well as information likely known or suspected by other hostile intelligence entities. It is my judgment that any greater specificity in the descriptions and justifications set forth with respect to information relating to intelligence activities, sources, and methods and foreign relations/activities of the United States could reasonably be expected to harm interests that FOIA exemptions wete designed to protect.
(U) E.0.13526 § 1.4(c) - Intelligence Activities, Sources and Methods (U) Overview
(46) (U) E.G. 13526 § 1.4(c) authorizes the classification of "intelligence activities (including covert action), intelligence sources or methods, or cryptology." An intelligence activity, source, or method includes any intelligence action or technique utilized by the FBI against a targeted individual or organization that has been determined to be of national security interest, and includes any procedure (human or non-human) utilized to obtain information concerning such individual or organization. An intelligence activity, source, or method has two
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characteristics. First, the intelligence activity, source, or method, and information generated by it, is needed by United States Intelligence/Counterintelligence agencies to carry out their missions. Second, confidentiality must be maintained with respect to the use or non-use of the activity, source, or method, including intelligence sources, if the viability, productivity, and usefulness of the activity, source, and method are to be preserved.
(47) (U) Intelligence activities, sources, and methods must be protected from disclosure in every situation in which a certain intelligence capability, technique, or interest - or its specific use - is unknown to the groups against which it is deployed, since those groups could take countermeasures to nullify its effectiveness. Intelligence activities, sources, and methods are valuable only so long as they remain unknown and unsuspected. Once an intelligence activity, source, or method - or the fact of its use or non-use in a certain situation - is discovered, its continued successful use is seriously jeopardized.
(48) (U) Moreover, the U.S. Government must do more than prevent explicit references to intelligence activities, sources, and methods; it must also prevent indirect references to them. One vehicle for gathering information about the U.S. Government's capabilities is by reviewing officially-released information. We know that terrorist organizations and other hostile or Foreign Intelligence groups have the capacity and ability to gather information from myriad sources, analyze it, and deduce means and methods from disparate details to defeat the U.S. Government's collection efforts. Thus, even seemingly innocuous, indirect references to an intelligence activity, source, or method could have significant adverse effects when juxtaposed with other publicly-available data. •
(U) Information Protected In This Case (49) (U) As discussed below, information withheld under Exemption (b)(1) in
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conjunction with E.O. 13526 § 1.4(c) would, if disclosed, reveal otherwise non-public information regarding: the FBI's intelligence interests, priorities, activities, and methods; undisclosed intelligence sources or methods upon which the FBI relied in support of its application for FISA authorized surveillance of Carter Page, as well as undisclosed portions of intelligence information provided by Source #1; and information about the use and implementationof various intelligence methods, including the specific details of the surveillance of Carter Page authorized by the FISC via the four applications and orders publicly revealed in the HSPCI memoranda. All of this information is highly desired by hostile actors who seek to thwart,the FBI's intelligence-gathering mission.
(U) Intelligence Activities and Methods (50) (U) In the four Page FISA applications and accompanying orders, the FBI protected details about intelligence activities undertaken by the FBI and the methods utilized during those intelligence activities. This information includes the details about the FISA surveillance sought and obtained through the four Page FISA applications and accompanying orders, but also includes information about other intelligence activities and methods utilized by the FBI that were included in the responsive records. (51) (U) With regard to the FISA surveillance of Page, the withheld information reveals the specific surveillance method(s) sought and authorized by the FISC, including citations to relevant legal authorities that would reveal the specific method(s) sought or authorized with respect to a specific individual during a particular timefirame. The withheld
information includes the minimization procedures, which are specifically tied to the particular surveillancemethods and activities requested by DOJ and authorized by the FISC. Using the fourth application and resulting order as an example, this information was protected on Bates
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pages 17-cv-597(FBI)-361-364 and 404-411. (52) (S//NF)
(53) (U) The withheld information also reveals: descriptions of and the particulars about implementingthe authorized surveillancemethod(s); information that would reveal the
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exact periods ofFISA authorized surveillance''; what information was being sought through the
surveillance; and any information obtained as a result of the EISA-authorized surveillance of Page included in the second through fourth applications.
(54) (S//NF)
(55) (S//NF)
(U) This includes the FISC docket numbers and the specific dates on which coverage was sought and authorized (including as reflected in the "declassify on" dates in the classification blocks).
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(56) (U) The withheld information also reflects intelligence-gathering activities, including specific intelligence methods used and information obtained in broader contexts. Using the fourth application and resulting orders as an example, this information was protected on Bates pages 17-cv-597(FBI)-301-302, 304-308, 311-312, 317-319, 324-325, 353, and386.
(57) (U) Finally, the withheld information includes information about Source# Us intelligence reporting activities and the period of time he served as an intelligence source for the
FBI. While some information about Source #1 has been declassified and disclosed, other .
information remains classified and has not been publicly disclosed. Using the fourth application and resulting orders as an example, this information was protected on Bates pages 17-cv597(FBI)-308-316.
(58) (U)' The disclosure of the above-described types of information could reasonably
be expected to cause serious damage to the national security, as it would: (a) reveal actual intelligence activities undertaken by the FBI, and the methods used in doing so, regarding specific targets and during specific periods of time; (b) disclose the intelligence-gathering capabilities of the methods; and (c) provide an assessment of the level of penetration by the FBI of specific targets during the specific time period. Armed with such information, adversaries, including hostile foreign governments, could implement actions to thwart the FBI's intelligence activities and weaken or negate the particular intelligence methods, which would severely disrupt the FBI's intelligence-gathering capabilities. Accordingly, this information is currently and properly classified pursuant to E.G. 13526, § 1.4(c) at the SECRET level, and the FBI properly withheld it imder Exemption (b)(1).
(59) (U) The FBI also concluded that the specific amounts of payments made to
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intelligence sources reflected in the records is classified intelligence method information. Without adequate context, the particular amount paid to a particular intelligence source could be viewed to suggest the relative voliime of information provided by a particular source, which could cause individuals who believe they are the subjects of such source reporting to assess the
likelihood that their activities have come to the FBI's attention and then take countermeasures, destroy or fabricate evidence, or otherwise act in a way to thwart the FBI's intelligence activities. Moreover, disclosure would reveal non-public information about the level of resources devoted to particular targets or subject matters. The FBI has limited resources that it must allocate strategically in order to effectively pursue its intelligence gathering mission. Revealing the amount of money the FBI has paid to particular intelligence sources and over particular periods of time would reveal the FBI's level of focus on certain intelligence gathering efforts. Revealing this level of focus would reveal how the FBI has allocated and is allocating its limited resources.
I
If aggregated over time, this information would paint a high-level picture of the resources devoted to particular threat areas, and reveal where the FBI's strengths and weaknesses lie within the spectrum of its intelligence-gathering activities. This would give sophisticated adversaries and hostile governments the information necessary to adjust their activities in accordance with the FBI's perceived priorities, in order to avoid the FBI's strength areas and exploit its weak ones. Accordingly, the disclosure of this information could reasonably be expected to cause serious damage to the national security, and is currently and properly classified pursuant to E.O. 13526, § 1.4(c) at the SECRET level, and the FBI properly withheld it under Exemption (b)(1).
(U) Intelligence Sources (60) (U) An intelligence source who requires continued classification is one that provided or is currently providing information that pertains to national security matters, the
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disclosure of which could reasonably be expected to result in serious damage to the FBI's intelligence-gathering capabilities.
(61) (U) Although some information about Source #1 and his activities has been declassified and publicly disclosed, the four Page PISA applications include information about other intelligence sources. This information, including specific information about the sources themselves as well as the information they provided, is singular in nature and, if disclosed, reasonably could be expected to identify the contributing sources.
(62) (U) Disclosure of the identities of intelligence sources could reasonably be expected to jeopardize their livelihoods, their families and other relationships, and even their lives. Moreover, disclosure of one source can reasonably be expected to cause other current and potential intelligence sources to fear that their identities will be publicly revealed at some point. Using the fourth application and resulting orders as an example, this information was protected on Bates pages 17-cv-597(FBI)-308-319.
(63) (U) Thus, the release of source-identifying information can reasonably be expected to cause damage to the national security by causing current intelligence sources to cease providing information, and discouraging potential intelligence sources from cooperating with the FBI for fear their identities would be publicly revealed at some point. Such a source reaction would eliminate one of the Intelligence Community's most crucial means of collecting intelligence information and, therefore, severely hamper the FBI's intelligence and investigative missions. Accordingly, some of the protected intelligence source information here is currently and properly classified pursuant to E.G. 13526, § 1.4(c) at the TOP SECRET level, for intelligence source information that could reasonably be expected to cause exceptionally grave damage to the national security, and some of the protected intelligence source information here is
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currently and properly classified at the SECRET level, for intelligence source information that could reasonably be expected to cause serious damage to the national security. The FBI properly
withheld this information under Exemption (b)(l).^^
(U) E,0.13526 § L4(d) - Foreign Relations or Foreign Activities (64) (U) E.G. 13526 § 1.4 (d) authorizes the classification of information about foreign relations or foreign activities of the United States, including confidential sources. Such information includes information gathered from/with the assistance of and/or about foreign countries. It is sensitive due in part to the delicate nature of international diplomacy, and must be handled with care so as not to jeopardize the fragile relationships that exist between the United States and certain foreign governments. (65) (U) The unauthorized disclosure of information concerning foreign relations Or foreign activities of the United States can reasonably be expected to lead to diplomatic or economic retaliation against the United States; the loss of the cooperation and assistance of friendly nations; or the compromise of cooperative foreign sources, which may jeopardize their safety and curtail the flow of information from these sources. Due to the nature of the information here, the FBI carmot provide any more specific details on the public record about its basis for redacting information pursuant to E.G. 13526, § 1.4(d) and Exemption (b)(1). However, as the FBI's classified portions of this declaration demonstrate, this information is currently and properly classified and was appropriately redacted by the FBI. (66) (S//NF)
(U) The intelligence source information protected in the FISC orders is classified at the SECRET level only. The FISA applications include information classified at both the SECRET and the TOP SECRET levels.
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(67) (U) Thus, the FBI protected such information because, if disclosed, it could reasonably be expected to cause serious damage to national security. Because this information
remains currently and properly classified, pursuant to E.O. 13526 § 1.4(c), the FBI properly protected it under Exemption (b)(1).
(U) Exemption (b)(3) ~ Information Protected by Statute (68) (U) Exemption (b)(3) protects information that is specifically exempted from public disclosure by a statute that requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, establishes particular criteria for withholding, or refers to particular types of matters to be withheld. 5 U.S.C. § 552(b)(3)(A). If the non disclosure statute was enacted after the date of enactment of the OPEN FOIA Act of 2009, it must specifically cite this paragraph in order for Exemption (b)(3) to apply. Id. at § 552(b)(3)(B). (69) (U) As explained above, the four Page FISA applications and resulting orders, include information that is classified pursuantto E.G. 13526 § 1.4(c) to protect intelligence
sources and methods, which the FBI has protected under Exemption (b)(1). Those same intelligence sources and methods are also exempt here under Exemption (b)(3). Specifically, their disclosure is prohibited pursuant to the National Security Act of 1947, as amended, which
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provides that the Director of National Intelligence (DNI) "shall protect intelligence sources and methods from unauthorized disclosure." 50 U.S.C. § 3024(i)(l).
(70) (U) As relevant to the FBI's application of Exemption (b)(3), the National Security Act of 1947 was enacted before the date of enactment of the OPEN FOIA Act of 2009, and on its face, leaves no discretion to agencies about withholding from the public information about intelligence sources and methods.
(71) (U) In order to fulfill its obligation of protecting intelligence sources and methods, the DNI is authorized to establish and implement guidelines for the Intelligence Community ("IC") for the classification of information under applicable laws, Executive Orders, or other Presidential Directives, and for access to and dissemination of intelligence. 50 U.S.C. §§ 3024(i)(l). The FBI is one of the member agencies comprisingthe IC, and as such must protect intelligence sources and methods.
(72) (U) Accordingly, the information in the Page FISA applications and resulting FISC orders that reveals intelligence sources and methods is prohibited from disclosure pursuant to 50 U.S.C. § 3024(i)(l) and thus exempt from disclosure under Exemption (b)(3).
(73) (S//NF)
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(U) Exemption (b)(7) - Law Enforcement Information (U) Threshold
(74) (U) The first step in applying any of Exemption (b)(7)'ssubparts is to demonstrate that the records or information at issue were compiled for law enforcement purposes. 5 U.S.C. § 552(b)(7). Law enforcement agencies such as the FBI must demonstrate
that the records at issue are related to the enforcement of federal laws and that the enforcement
activity is within the law enforcement responsibility of the agency. (75) (U) Pursuant to 28 U.S.C. §§ 533 and 534, Executive Order 12333 as
implemented by the Attorney General's Guidelines for Domestic FBI Operations ("AGGDOM"), and 28 C.F.R. § 0.85, the FBI is the primary investigative agency of the federal government, with authority and responsibility to: investigate all violations of federal law not exclusively assigned to another agency; conduct investigations and activities to protect the United States and its people from terrorism and threats to national security; and further the foreign intelligence objectives of the United States.
(76) (U) As discussed previously, and as has been publicly disclosed, in July 2016, the FBI opened an investigation of the Russian government's efforts to interfere in the 2016 election.
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The FBI sought and obtained a FISA warrant in October 2016 to conduct surveillance of Carter Page in the course of that investigation. The FBI thereafter sought and obtained three renewals from the FISC to continue surveilling Page. Those applications were compiled as part of the FBI's investigation of Russian election interference.
(77) (U) The only circumstance under which the FBI can request a FISA order is when the FBI is conducting an authorized, predicated national security investigation within the scope of its law enforcement and foreign intelligence responsibilities. The Russia investigation is clearly within the law enforcement and foreign intelligence responsibilities of the FBI. Similarly, any records reflecting NSD and FBI's efforts to respond to questions from the FISC about the application(s) were compiled in furtherance of this law enforcement purpose. Thus, Exemption (b)(7)'s threshold is easily satisfied here.
i
(78) (U) In May 2017, the Acting Attorney General appointed Special Counsel Robert S. Mueller, III and authorized him to conduct the investigation confirmed by then-FBI Director Comey in Congressional testimony, including "(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a)." DOJ Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17,2017)). In addition, "[i]fthe Special Counsel believes it necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters." Id.
(79) (U) Accordingly, the Page FISA applications and orders are records that were
compiled in partfor law enforcement purposes, and Exemption (b)(7)'s threshold is easily
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satisfied here.
(U) Exemption (b)(7)(A) - Pendins EnforcementProceedinss (80) (U) Exemption (b)(7)(A) protects "records or information compiled for law enforcement purposes [when disclosure] could reasonably be expected to interfere with enforcement proceedings." 5U.S.C. § 552(b)(7)(A). (81) (U) Thus, to apply Exemption (b)(7)(A), the FBI must establish the existence of a pending or prospective investigation or other enforcement proceeding and must show a reasonable expectation that disclosure of the withheld information could interfere with that proceeding. (82) (U) Here, the enforcement proceeding at risk is the Russian interference investigation. That investigation is pending as of the date of this filing. (83) (U) The FBI, in consultation with DOJ, concluded that disclosure of a variety of information in the Page FISA applications and orders could reasonably be expected to interfere with the pending Russian election interference investigation if publicly disclosed at this time. (84) (U) The FBI is limited in the amount of information it can provide publicly about how the investigation may be adversely affected by disclosure of this information without the explanation itself risking harm to the investigation or revealing information exempt under one or more other exemptions. Although there has been extensive media coverage of the investigation, that coverage often relies on speculation, assumptions, and anonymous/unnamed sources. Greater harm to the investigation would result from official disclosures, regardless of whether it confirmed or refuted widespread media reporting. That is because official disclosure directly reveals law enforcement activity or lack thereof, removing doubts or ambiguity inherently present in other reporting.
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(85) (U) Broadly speaking, the redacted/withheld portions of the four Page FISA applications and accompanying orders could reasonably be expectedto adversely affect the pending investigation by revealing aspects of the investigation that have not previously been made public; what information or activities are or are not of interestto investigators, and areas where there may be gaps in the investigators' knowledge about such information/activities that could be exploited by targets and other adversaries; who investigatorshave already spoken with or interviewed and what they said (and did not say); and whether particular persons or entities
are or are not of interest in the investigation.
(86) (U) Moreover, the FBI has explained herein why particular types of information contained in the four Page FISA applications and accompanying orders are exempt under other exemptions because of the harm associated with disclosure. While Exemption (b)(7)(A) considers the impact on a specific investigation or investigations, the big-picture risks to law
enforcement, national security, and privacy interests addressed by the other exemptions are relevant here, and indeed are more immediate here.
(87) (U) Disclosing information that would identify confidential and/or classified intelligence sources or other individuals who are or could become witnesses risks their compromise through efforts to discredit, harass, or even threaten them. This, in turn, creates the
risk of curtailing theirfurther cooperation, which can significantly hamper an investigation.^^
(88) (U) Similarly, disclosing the evidence, information, or intelligence (including source reporting) already obtained by/known to the FBI risks influencing, compromising, or tainting testimony by other witnesses and/or the fabrication of other information/falsification of
(U) The harms in disclosing information about and from confidential sources is discussed further in the Exemption (b)(7)(D) discussion below.
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other testimony for the purpose of countering or undermining the credibility of the evidence, information, or intelligence already gathered. It would also reveal gaps in the FBI's knowledge of information, intelligence, or sourcereporting/witness testimony, which risks destruction or adulteration of evidence or fabrication of false evidence, and attempts to intimidate or improperly influence potential sources/witnesses.
(89) (U) Disclosing the investigative techniques already used in this case during specific time periodsand regarding specific subjectmatter areas creates a risk of revealing what investigators already know, what they do not or may not know yet, who is or may be of interest to investigators, and who may be cooperating in the investigation, which, for all reasons discussed above^ would adversely affect the investigation. Moreover, providing details about the use of those techniques risks efforts by targets, subjects, and other adversaries to undermine or
thwart the techniques.
(90) (U) Consistent with its standard practices, the FBI and SCO have not publicly identified the specific scope/focus of, subjects of, witnesses/sources in, or evidence/information fi-om the pending Russia investigation, beyond the information made public through criminal justice proceedings. To the extent that information made public in those criminal proceedings
(U) Included here would be the FISC docket numbers. If aggregated with each other and/or other FISC docket numbers, they could be used to pinpoint the times of FISA coverage on Page, which creates the risks discussed here in the Exemption (b)(7)(A) analysis, as well as those in the analysis of Exemption (b)(7)(E), and particularly category (b)(7)(E)-6, below.
(U) Disclosing the use of specific techniques during identified timeframes would allow targets and potential targets to determine the probability that the FBI is aware of particular information likely to be obtained through such techniques during that time as well as the probability that the FBI may not be aware ofthe information. Such knowledge could allow targets, potential targets, and others intent on disrupting the investigation to better target their activities toward, for example, creation or destruction of evidence, fabrication of cover stories, intimidation of witnesses, etc.
(U) The risks of circumvention are discussed flirther in the Exemption (b)(7)(E) descriptions below.
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exactly matched information in the four Page FISA packages processed in this case, it was not redacted. Moreover, while unclear that HSPCI's disclosures of the Nunes and Schiff Memos legally precluded the FBI's ability to assert FOIA exemptions over matching information in the four Page FISA packages processed here, the FBI nevertheless did not redact any exactly matching information. Furthermore, the FBI carefully considered whether to disclose similar information that was not an exact match to the memoranda, and asserted Exemption (b)(7)(A) only upon concluding that disclosure of the non-matching information could reasonably be expected to harm the investigation.
(91) (U) For the reasons discussed above, combined with the justifications for protecting information under the other exemptions discussed herein, the FBI concluded that disclosure of information marked as "(b)(7)(A)-1" could reasonably be expected to interfere with the pending investigation. Accordingly, the FBI withheld that information pursuant to Exemption (b)(7)(A).
(U) Exemption (b)(7)(C) - Unwarranted Invasions ofPersonal Privacy (92) (U) Exemption (b)(7)(C) exempts from disclosure "records or information compiled for law enforcement purposes [when disclosure] could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). (93) (U) As previously noted in the section of this declaration concerning Exemption (b)(6), the practice of the FBI is to conjunctively assert Exemptions (b)(6) and (b)(7)(C) as they provide overlapping protections for personal privacy. Although the balancing test for Exemption (b)(6) uses a "would constitute a clearly unwarranted invasion of personal privacy" standard, and the test for Exemption (b)(7)(C) uses the lower standard of "could reasonably be expected to
constitute an unwarranted invasion of personal privacy," the analysis and balancing required by
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both exemptions is sufficiently similar to warrant a consolidated discussion. Each exemption

balances individuals' privacy interests against the public's interest in disclosure.

(94) (U) For purposes of both exemptions, a public interest exists only when

information would significantly increase the public's understanding of the FBI's performance of

its mission to protect and defend the United States against terrorist and foreign intelligence

threats; uphold and enforce the criminal laws of the United States; and provide leadership and

criminal justice services to federal, state, municipal, and international agencies and partners.

(95) (U) The FBI has relied on Exemptions (b)(6) and (b)(7)(C) here to protect the

names of or information about FBI Special Agents and FISC and NSD employees; information

sufficient to identify a third party who was the source of some information relied upon in the

four Page FISA applications; and certain personally-identifying and other non-public private

information about Carter Page.

(U) (h)(6VmTi(C)-l

FBI Special Agents

(96) (U) The FBI withheld the names of the FBI Special Agents who signed the Page

FISA applications processed in response to plaintiffs request. These Special Agents were

assigned to the pending Russia investigation during the period covered by the four Page FISA

applications and are experienced counterintelligence agents.

(97) (U) The FBI regularly protects the identities of its Special Agents. FBI agents

have access to information regarding official law enforcement investigations, and therefore may

become targets of harassing inquiries for unauthorized access to information regarding such

investigations if their identities were released. This is particularly true of agents who work

national security cases, including coimterintelligence cases, who have access to some of the most

sensitive and highly classified information possessed by the FBI. Assignments of agents to any

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particular investigation or matter are not by choice. Publicity (adverse or otherwise) regarding a specific investigation to which they have been assigned may seriouslyprejudice their effectiveness in conducting other investigations. FBI agents also have privacy interests in being free from unnecessary, unofficial questioning regarding their conduct in particular investigations, whether or not they are currently employed by the FBI. For example, an individual investigated by the FBI may carry a grudge and may seek revenge on the agents involvedin that
investigation.
(98) (U) Many of these concerns are heightened when the agents whoseidentities are protected work counterintelligence cases. The FBI's counterintelligence mission involves protecting the secrets of the U.S. Intelligence Community from risks of espionage and insider threats; protecting the nation's critical assets; and countering the activities offoreign spies. FBI counterintelligence investigations involve significant threats to the national security of the United States by foreign intelligence services and other hostile government actors. FBI agents responsible for conducting these investigations can be exposed to real and substantial threats to their lives and safety, and the FBI's concerns about targets of such investigations holding grudges against such agents are more acute when those targets are foreign intelligence officers
from hostile governments.
(99) (U) Here, the above-described reasons led the FBI to conclude that the Special Agents whose names are protected here have substantial privacy interests. That determination is frirther bolstered by the fact that the investigation and specific investigative activity at issue here are very high-profile and have been the subject of substantial media attention and speculation.
(100) (U) In contrast, there is no public interest to be served by disclosing these employees' identities because they would not, by themselves, significantly increase the public's
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understanding of the FBI's operations and activities with respect to obtaining the four FISA

warrants on Page, the conduct of the Russia investigationwrit large, or any other FBI operations

or activities.
(101) (U) In the absence of a public interest, the Special Agents' substantial privacy

interests necessarily must prevail under the balancing tests for Exemptions (b)(6) and (b)(7)(C).
Accordingly, the FBI properly protected the names ofitsSpecial Agents.*^

(U) m6Vmn(C)-2

carter Page

(102) (U) Whilethe declassification of the Nunes Memo and the release of it and the

Schiff Memo revealed to the public that Carter Page had been the subject of FISC-authorized

surveillance under the FISA, there nevertheless remains information about him contained in the

FISA applications and FISC orders that was not made public and in which he retains a privacy

interest. The FBI cannot publicly describe the nature of the information it has protected without

revealing information that is exempt under these or other cited exemptions.

(103) (S//NF)

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(105) (U) After concluding that Page retains substantial privacy interests in the

redacted information, the FBI considered whether there is any public interest that overrides these

privacy interests. While there is certainly a demonstrated public interest in these FISA

applications, the particular information about Carter Page that has been protected here would not

so significantly increase the public's understanding of the FBI's operations and activities in

relation to obtaining authority from the FISC on four occasions to surveil Page pursuant to the

FISA. Thus, on balance, the FBI concluded that Page's privacy interests outweighed any public

interest in the redacted information.

(U) (h)(6V(b)(7)(C)-3

FISC and NSD Employees

(106) (U) The information falling within this category consists of the names and titles

of a FISC deputy clerk and the NSD attorney who signed and submitted the four Page FISA

applications to the FISC. Neither of these employees is an executive-level employee. The FBI

regularly protects the names and identities of employees of other Government agencies or offices

who are identified in FBI law enforcement records. The reasons for doing so are similar to the

FBI's reasons for protecting the identities of its Special Agents as detailed above.

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(107) (U) Here, the FISC and NSD employees whose identities the FBI protected are in

positions to access highly-sensitive and classified information concerning coimterintelligence

and counterterrorism matters. If their identities were disclosed, they could become targets of

harassing inquiries for unauthorized access to non-public information about the four Page FISAs

specifically, or more generally, non-public information about other FISC matters, FBI

investigations, or 10 intelligence activities to which they may have access. Disclosure of their

identities would also risk hostile action by adverse foreign powers, either by way of revenge or

of actively targeting them in intelligence-gathering operations.

(108) (U) In contrast, there is no public interest to be served by disclosing these

employees' identities because they would not, by themselves, significantly increase the public's

understanding of the FBI's operations and activities with respect to obtaining the four FISA

warrants on Page, the conduct of the Russia investigation writ large, or other FBI operations or

activities.

(109) (U) In the absence of a public interest, these employees' substantial privacy

interests necessarily must prevail under the balancing tests for Exemptions (b)(6) and (b)(7)(C).

Accordingly, the FBI properly protected the names and titles of these FISC and NSD

employees.

(U) (b)('6V(b)I7)(0-4

Third Party Who Was a Source of Information Relied Upon in
the Carter Page FISA Applications

(110) (U) The FBI protected information that would identify an individual who was a

source of information that came into the FBI's possession during a particular phase of the

(U) Information about the NSD employee was also redacted pursuant to Exemptions (b)(6) and (b)(7)(C) atNSD's request.
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investigation. This identifying information appears on one page in the third FISA application and onepage in the fourth FISAapplication.'®
(111) (U) Individuals identified in FBI investigativematerials have substantialprivacy interests in not being publicly linked with a sensitive national security investigation. Such public exposure could subject the individuals to harassment, intimidation, or threats of legal or economic reprisal; possible physical harm; or even death. These considerations led the FBI to conclude that this individual has substantial privacy interests here, particularly considering that the investigation is a sensitive investigation involving the activities of a foreign government and has received such wide-spread attention. In contrast, the identity of this individual who is mentioned in a single footnote in two of the applications would not, without more, significantly increase the public's understanding of FBI operations or activities. Accordingly, the FBI concluded that this individual's privacy interests outweighed any public interest in his/her identity, and protected the information under Exemptions (b)(6) and (b)(7)(C).
(U) Exemption (b)(7)(D) - Confidential Source Information (112) (U) Exemption (b)(7)(D) protects records or information compiled for law enforcement purposes when disclosure:
could reasonably be expected to disclose the identity of a confidential source, including a State, local or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case ofa record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by the confidential source.
(U) The particular identifying information about this third party is not classified and the individual did not provide information directly to the FBI as part of its investigation. Accordingly, the FBI has not cited Exemptions (b)(1) or (b)(7)(D) to protect this particular individual.
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5 U.S.C. § 552(b)(7)(D). Exemption (b)(7)(D) provides categorical protection for the identities of confidential sources, as well as information provided by such a source in a criminal or national security investigation. No balancing of interests is required and the public's interest in the information is not a factor. Rather, once the FBI establishes that the source provided information under express or implied assurances of confidentiality, the identity of the source and all information the source provided in a criminal or national security investigation are exempt under Exemption (b)(7)(D).
(113) (U) The FBI regularly relies on confidential sources. Confidential sources may provide information under express assurances of confidentiality, and are "informants" within the common meaning of the term, although the FBI refers to them as "Confidential Human Sources" or "CHSs." Alternatively, confidential sources may provide information under circumstances from which assurances of confidentiality may be inferred. In either situation, these sources are considered to be confidential because they furnish information only with the understanding that their identities and the information they provided will not be divulged outside the FBI. Information provided by these sources is singular in nature, and if released, could reveal their identities. Sources must feel free to furnish information to the FBI with complete candor and
without the imderstandable tendency to hedge or withhold information because of fear that their
cooperation with the FBI will later be made public and that they may, as a result, face reprisals. Sources providing information to the FBI should be secure in the knowledge that their assistance
and their identities will be held in confidence.
(114) (U) The release of a source's identity could forever eliminate that source as a future means of obtaining information, and also has a chilling effect on the cooperation of other sources. Revealing the identities of confidential sources risks one of the FBI's most important
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means of collecting infonnation and intelligence, and severely hampers law enforcement efforts to detect and apprehend individuals engaged in the violation of federal criminal and national security laws.
(115) (U) As a result of the declassification of the Nunes Memo, and the release of both of the HSPCI memoranda, it was publicly revealed that the FBI relied on a confidential and classified intelligence source, referred to throughout the Page FISA applications as "Source #1 The FBI has not protected information about this source's identity, nor has it protected information he provided that matches information revealed in the HPSCI memoranda or the Grassley/Graham letter. The FBI has protected information that would identify the identities of other confidential sources who provided information or intelligence to the FBI; information provided by those sources; and information provided by Source #1 that does not match
information revealed in the HPSCI memoranda or the Grassley/Graham letter. (116) (U) Source #1 was a code-named CHS for the FBI. By definition, such sources
are confidential. That is, as part of the FBI's protocols for CHSs, they are provided express assurances of confidentiality. Moreover, Source #1 provided information in furtherance of a sensitive national security investigation being conducted by the FBI. Accordingly, under the second clause of Exemption (b)(7)(D), any information he provided is categorically exempt. Thus, except as to information that matches information revealed in the HPSCI memoranda or the Grassley/Graham letter, the FBI redacted all information provided by Source #1. Using the fourth application and resulting orders as an example, this information was protected on Bates pages 17-cv-597(FBI)-303, 309-310, and 312-317.
(117) (U) The FISA applications also contain information about and from other sources who cooperated with and provided information to the FBI under express assurances of
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confidentiality. CHSs are provided express assurances of confidentiality by the FBI. Accordingly, the FBI concluded that the requirements for expressassurances of confidentiality had been satisfied here. Further description of the bases for this conclusion as to the FISA applications cannot be discussed publicly without disclosing information that is exempt under this or one of the other exemptions cited in relation to this information. However, because these sources cooperated with and provided information to the FBI in fiirtherance of a national security (intelligence) investigation under express assurances of confidentiality, the requirements of Exemption (b)(7)(D) are satisfiedand the FBI properlyprotected information that wouldreveal the identities of the sources, as well as the information that theyprovided to the FBI. Using the fourth application and resulting orders as an example, this information was protected on Bates pages 17-cv-597(FBI)-301-302, 308-311, and 317-318.
(118) (S//NF)
(U) Exemption {b){7){E) ~ Investisative Techniques and Procedures (119) (U) Exemption (b)(7)(E) protects "records or information compiled for law enforcement purposes [when release] would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." 5 U.S.C. § 552(b)(7)(E). This exemption affords categorical protection to techniques and procedures used in law enforcement investigations. It protects techniques and procedures that are not well-known to the public as well as non-public details
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about the use of publicly-known techniques and procedures.

(U) (b)(7)fE1-l

Investigative Focus

(120) (U) Many investigative steps preceded the FBI's FISA applications; the four

Page FISA applications and orders reveal how the FBI conducted certain aspects of the

investigation to that date and a road-map of certain contemplated investigative steps (i.e., the

requested surveillance). Although the general techniques authorized by the FISA are publicly

known, this detailed information about how, when, where, and why such authorities are

employed in a particular investigation is not publiclyknown. This type of detailedinformation

would be valuable to criminals and adversaries as a guide to adjusting their behaviors, taking

evasive actions, and developing countenneasures to thwart FBI investigations. Accordingly, the

FBI protected this information in the four Page applications.and resulting orders, including in the

minimization procedures, under Exemption (b)(7)(E) in order to the risk of circumvention posed

by disclosure of this information.

(U) (b)(7)(E)-2

Collection and/or Analysis of Information

(121) (U) Category (b)(7)(E)-2 includes information that reveals the methods used by

the FBI to collect and analyze information it obtains for investigative purposes.

(122) (S//NF)

(U) This information overlaps with the information protected in category (b)(7)(E)-3, which protects specific investigative techniques authorized and utilized in national security investigations inasmuch as the FBI's methods for collecting information and the types of techniques it is authorized to use in national security investigations will, in the context of these records, generally be the same thing. The FBI cited category (b)(7)(E)-3 in every instance that it cited category (b)(7)(E)-2.
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(123) (U) The release of this information would disclose the methods used in the

collection and analysis of information, including how and from where the FBI collects particular

types of information and the methodologies employed to analyze it once collected. Such

disclosures would enable subjects of FBI investigations to identify when these or similar

currently used techniques are being used and then take evasive actions or countermeasures to

circumvent them. This would diminish the relative utility of these techniques and facilitate the

accumulation of information by investigative subjects regarding the circumstances under which

the specific techniques were used or requested and the usefulness of the information obtained.

Accordingly, to protect the viability of these techniques, the FBI protected this information in the

four Page applications and resulting orders, including in the minimization procedures, under

Exemption (b)(7)(E).

(U) (bV7irEV3

Specific Techniques Authorized for and Used in National Security
Investigations

(124) (U) The FBI protected information that would reveal the specific techniques that

the FBI is authorized to and in fact uses in national security investigations. In this context, the

techniques were referenced because they were used in the context of this national security

investigation but their disclosure here would also have ramifications for the use of these

techniques in other national security cases. The FBI has a toolbox of investigative techniques

that it uses in national security (counterintelligence and counterterrorism) cases, which overlap in

many respects with its criminal investigative toolbox, although the FBI obviously has one

significant and different tool in the national security toolbox - FISA. This category covers non-

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public information about all of the techniques referenced in the PageFISAapplications and orders including those that have not been publicly disclosed in relation to investigative actions taken in this investigation; those that have been publicly disclosed in relation to this investigation, such as CHSs; and those underthe FISA that the FISC authorized the FBI to use here. Although techniques authorized by the FISA are publiclyknown, this detailed information about how, when, where, and why such authorities are employed in a particular investigation is
not publicly known. (125)
(126) (U) Here, the context in which these techniques are discussed reveals details about when in an investigation a particular technique might be utilized, the types of information that might be sought via the technique, and the limitations on its use and/or utility; what techniques might be used in combination; and non-public information about how the techniques
are implemented. When aggregated, as it is here, this information can paint a road-map of how a
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national security, and in particular a counterintelligence, investigation is conducted.^® Disclosure

of such a road-map here and over time would give sophisticated criminals and adversaries the

information necessary to adjust their activities and take effective countermeasures to circumvent

the FBI's investigative and intelligence-gathering efforts. Accordingly, the FBI protected this

information under Exemption (b)(7)(E) here.

(U) (bV71fEV4

Specific Databases Used bv the FBI for Investigative and Law
Enforcement Purposes

(127) (U) The FBI protected its use of several non-public databases that it relied on to

obtain/confirm information and intelligence gathered in the course of its investigation. These

databases are accessible to law enforcement personnel to conduct queries of or for particular

types of information for law enforcement and intelligence gathering purposes. The databases

protected include those exclusive to the FBI as well as others that are available to other federal

government law enforcement personnel. These databases are essentially "one-stop" shops where

the FBI can query already-gathered information in order to corroborate or refute it, and/or obtain

new or additional information in order to develop investigative leads. It is not publicly known

when and under what circumstances the FBI utilizes these particular databases, particularly in the

context of a national security/counterintelligence investigation. Armed with such information,

spies, criminals, and others intent on avoiding FBI attention could develop coimtermeasures to

avoid detection, which would impede the FBI's ability to effectively conduct national security

and criminal investigations.

(U) The FISA applications explainthe investigative steps taken prior to seekingFISA coverage, as well as the information that the FBI was able to obtainusing them, which formedthe probable causenecessaryto obtain
a FISA warrant.
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GJ) (b)(7)(EVS

Monetary Payments in Relation to Utilization of Investigative
Techniques

(128) (U) The FBI protected specific information about payments to CHSs on two

pages of each FISA application. While it is publicly known that the FBI pays CHSs under some

circumstances, the details of when, for what, and how much CHSs are paid are aspects of this

technique that are not made public, in order to protect the viability of the technique. Without

adequate context, the particular amount paid to a CHS could be viewed to suggest the relative

volume of information provided by a particular CHS, which could cause individuals who believe

they are the subjects of such source reporting to assess the likelihood that their activities have

come to the FBI's attention and then take countermeasures, destroy or fabricate evidence, or

otherwise act in a way to thwart the FBI's activities.

(129) (U) Finally, disclosing the amounts paid to CHSs in a particular investigation or

for particular types of information would reveal non-public information about the level of

resources devoted to particular investigations or subject matters. The FBI has limited resources

that it must allocate strategically in order to effectively pursue its law enforcement and

intelligence gathering missions. Revealing the amount of money the FBI has paid to particular

CHSs in particular investigations and over particular periods of time would reveal the FBI's

emphasis on certain investigations or intelligence gathering efforts. Revealing this emphasis

would reveal how the FBI has allocated and is allocating its limited resources. If aggregated

over time, this information would paint a high-level picture of the resources devoted to particular

types of investigations or particular FBI threat areas, and reveal where the FBI's strengths and

weaknesses lie within the spectrum of its intelligence gathering and criminal investigative

activities. This would give sophisticated criminals and adversaries the information necessary to

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adjust their activities in accordance with the FBI's perceived priorities, in order to avoid the FBI

strength areas and exploit the weak ones. Accordingly, the FBI protected payment information

under Exemption (b)(7)(E) in this case.

(U) (bK7KEV6

Targets, Dates, and Scope of Surveillance

(130) (U) While it is known that the FBI conducts surveillance authorized under the

FISA, as well as other types of authorized surveillance, and while it is known that there was

surveillance conducted here, the details about how the surveillance was implemented

(investigatively and/or technically), the locations targeted by the surveillance, and the specific

time period(s) during which the surveillance was conducted are not public and were not

disclosed in the HPSCI memoranda.^^ These non-public details about the conduct of

surveillance, particularly surveillance authorized under the FISA, are utilized by the FBI in other

current investigations. Disclosure of non-public details about when and how the FBI conducts

surveillance and the circumstances under which the FBI will seek authority to do so would, over

time, create a mosaic that criminals and other adversaries could use to predict when and where

surveillance may occur, detect it when it is occurring, and develop and utilize countermeasures to

defeat or avoid different types of surveillances. Accordingly, the FBI protected this information

under Exemption (b)(7)(E) in the four Page FISA applications and resulting orders, including in .

the minimization procedures, in order to preserve the usefulness and utility of this technique.

(U) (by7)(EI-7

Dates and Types of Investigations

(131) (tJ) On one page in each of the FISA applications, the FBI protected information

(U) This includes, for example,the FISC docket numbers, the specificdates that the FISA applications were filed and orders issued, and the declassification dates in the classification stamps (which can be used to pinpoint the datesof the applications and orders). All of this information reveals the specific time period(s) under
which the surveillance was conducted.
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that, when referenced in connection with an actual investigation and not in general discussion,

pertains to the type of investigation, whether it is a "preliminary" or "full" investigation, and the

time period of the particular investigation. Disclosure of this information would allow

individuals to know the types of activities that would trigger a full investigation as opposed to a

preliminary investigation and the particular dates that the investigation covers, which would

allow targets to identify what activities might be under investigation and to adjust their behavior

accordingly. Moreover, the knowledge that a specific activity in general warrants investigation

could likewise cause individuals to adjust their conduct to avoid detection. Because disclosure

of this information could reasonably be expected to impede the FBI's effectiveness and

potentially aid in circumvention of the law, the FBI has properly withheld this information

pursuant to Exemption (b)(7)(E). .

(U) (b)C7)(E)-8

Investigative Strategies for Utilizing Particular Evidence

(132) (U) The FBI protected information, which was repeated in each of the four FISA

applications, that describes a particular purpose for which it might use information gathered as a

result of its FISA authorized surveillance on Page. This information reflects non-public

information about how the FBI investigatively uses information that it gathers during an

investigation. While the particular context here concerns information gathered as a result of its

utilization of FISA, the same potential uses of investigative information could be present in

many other contexts. Publicly disclosing this information would permit targets of FBI

investigative activities to anticipate FBI investigative activities, and this in turn would permit

them to take countermeasures against such activities. This would abrogate the usefulness of

FISA as a technique, at least in this particular and important regard, as well as the investigative

activities that may flow as a result of information obtained under FISA. No further information

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about this category of information or how it falls within Exemption (b)(7)(E) can be made on the public record without undermining the FBI's assertion of this exemption, as well as Exemptions (b)(1), (b)(3), and (b)(7)(A), which were also asserted to protect this information.
(133) (S)
(U) Segregability Determinations for Released in Part Pages (134) (U) Each page of the four Page EISA applications and accompanying orders was carefully reviewed by a team of DOJ employees to determine what portions of the pages contained exempt information requiring redaction pursuant to the FOIA, what portions could be segregated and released, and what pages did not contain any segregable information and had to be withheld in full. As part of this review, the employees carefully analyzed all information in the four Page FISA applications and resulting orders to determine what information has been revealed through the HPSCI memoranda and/or officially, publicly disclosed, and to ensure that no information for which FOIA exemptions were or likely have been waived was redacted. A total of 598 pages of responsive records were carefully reviewed and analyzed, and it was determined that 412 pages could be released in part and that 186 pages had to be withheld in full, in order to protect the classified and otherwise exempt information contained therein.
(U) Pages Withheld in Full - Page FISAs (135) (U) The FBI withheld in full 186 pages associated with the FISA applications and resulting orders pursuant to Exemptions (b)(1), (b)(3), (b)(7)(A), and (b)(7)(E) (categories 1-3
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and 6)}^ Disclosure of these pages would reveal classified intelligence methods and law
enforcement techniques; however, the FBI cannot publicly describe these pages and the bases for withholding them any further without revealing information that is itself exempt.
(136) (S//MF)
(137) (S/mP)
(U) Discrete information in the records would be subject to redaction pursuant Exemptions (b)(6) and (b)(7)(C), as described in the category (b)(6)/(b)(7)(C)-2 discussion above.
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(139) (S//NF)
(140) (S//MF)
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(141) (sm¥)
(U) PARTIAL GLOMAR RESPONSE (142) (U) The FBI relies on a Glomar response in instances in which, assuming that responsive records existed, even acknowledging their existence would result in harm protected against by one or more FOIA exemptions. To be credible and effective, the FBI must use a Glomar response in all similar cases regardless of whether responsive records actually exist, including instances in which the FBI does not possess records responsive to a particular request. If the FBI were to invoke a Glomar response only when it actually possessed responsive records, the Glomar response would be interpreted as an admission that responsive records exist. (143) (U) Here, the FBI has determined that merely acknowledging the existence or
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non-existence of any records responsive to plaintiffs request, beyond the four Carter Page FISA
applications and resulting FISC orders, and former Director Comey's March 20,2017 statement
that neither the FBI nor DOJ have any information about the alleged wiretapping referred to in
President Trump's March 4,.2017 tweets, could trigger harm under FOIA exemptions. With
limited exceptions, such as the unique circumstances giving rise to the FBI's processing and
release of the four Page FISA packages, the FBI does not and cannot publicly confirm or deny
FISA coverage on particular individuals or entities, or that FISC orders have been sought or
obtained in the conduct of any particular investigation. As no authorized Executive Branch
official has acknowledged the existence or non-existence of FISA warrants, applications and
orders beyond the four on Carter Page, the FBI's partial Glomar response as to any other
responsive records remains proper.^^
(144) (U) As an original classification authority, I have determined that the FBI can
neither confirm nor deny whether the FBI maintains responsive records because to do so could
reasonably be expected to compromise national security and/or reveal intelligence activities,
sources, or methods. See 5 U.S.C. §§ 552(b)(1), (b)(3).
(U) On March 20,2017, then FBI Director James B. Comey specifically addressed President Trump's four-part post on Twitter on March 4,2017 that President Obama had had President Trump's" 'wires tapped' in Trump Tower just before the victory," stating:
With respect to the President's tweets about alleged wiretapping directed at him by the prior administration, I have no information that supports those tweets and we have looked carefully inside the FBI. The Department of Justice has asked me to share with you that the answer is the same for the Department ofJustice and all its components. The Department has no information that supports those tweets. See Transcript of the House Permanent Select Committee on Intelligence Hearing on Russian Interference in the 2016 U.S. Election, March20,2017. https://www.washingtonpost.eom/news/Dost-politics/wp/2017/03/20/fulltranscript-fbi-director-iames-comev-testifies-on-russian-interference-in-2016-election/?utm term=.b9fl9a0cf9cf (last accessed 6/12/2017). Aside fromthis statementand the acknowledgment of the four Page FISA applications and accompanying FISC orders,neither the FBI not DOJ have publiclycommented on or acknowledged the existenceor non-existence of any other FISA records within the scope of plaintiffs FOIA request.
54
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(145) (U) Moreover, acknowledging or denying the existence or non-existence of records could result in harms protected against by FOIA Exemption (b)(7)(A), 5 U.S.C. § 552(b)(7)(A).
A. (U) Aspreviouslydescribed, on March 20,2017, then-FBI Director Comey publicly confirmed the existence of an investigation into Russia's interference in the
2016 Presidential election. See Statement Before the House Permanent Select Committee on
Intelligence, available at https://www.fbi.gov/news/testimonv/hpsci-hearing-titled-russian-activemeasures-investigation'). On May 17, 2017, the Acting Attorney General appointed Special Counsel Mueller and authorized him to conduct the investigation confirmed by then-FBI Director Comey on March 20, 2017. DOJ Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17,2017)).
B. (U) As plaintiff specifically requested FISA/FISC records related to Russian interference in the 2016 election, the FBI cannot confirm or deny the existence or nonexistence of responsive records, beyond those already acknowledged and processed, because that could reasonably be expected to adversely affect the pending investigation.
(146) (U) Finally, acknowledging the existence or non-existence of any other responsive records could reasonably be expected to risk circumvention of the law. See 5 U.S.C. § 552(b)(7)(E).
(U) FOIA Exemption (b)(1) as a Basis for the Partial Glomar Response (147) (U) FOIA Exemption (b)(1) protects records that are: "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national
55
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defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1).
(148) (U) E.0.13526 § 1.1(a) provides that information maybe originally classified imder the terms of this order only if all of the following conditions are met: (1) an original classification authority is classifying the information; (2) the information is owned by, produced by or for, or is under the control of the U.S. Government; (3) the information falls within one or more of the categories of information listed in § 1.4 of E.G. 13526; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in some level of damage to the national security, and the original classification authority is able to identify or describe the damage.
(149) (U) E.G. 13526 explicitly authorizes precisely the type of response that the FBI has provided to plaintiff in this case. Specifically, § 3.6(a) provides that "[a]n agency may refuse to confirm or deny the existence or nonexistence of requested records whenever the fact of their existence or nonexistence is itself classified under this order or its predecessors."
(150) (U) Consistent with E.G. 13526 and as described below, I have determined that acknowledging the existence or nonexistence of the records requested by plaintiff, beyond the four Carter Page FISA applications and orders discussed in detail above, would require the FBI to disclose properly classified facts that concern § i.4(c) ("intelligence activities, sources, and methods") and § 1.4(d) ("foreign relations and foreign activities of the United States"). Moreover, responsive records, if they exist, would be owned by and under the control of the U.S. Government. Finally, I have determined that acknowledging the existence or non-existence of the requested records reasonably could be expected to result in damage to national security.
56
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(151) (U) My determination that the existence or nonexistence of the requested records is classified has not been made to conceal violations of law, inefficiency, or administrative error; to prevent embarrassment to a person, organization, or agency; to restrain competition; or to prevent or delay the release of information that does not require protection in the interests of national security
(U) Intelligence Activities, Sources, and Methods (152) (U) The records requested by plaintiffs, if they exist, implicate classified intelligence activities and methods, and acknowledging the existence or non-existence of any such records reasonably can be expected to cause damage to national security. An intelligence activity or method includes any intelligence action or technique utilized by the FBI against a targeted individual or organization that has been determined to be of national security interest, and includes any procedure (human or non-human) utilized to obtain information concerning such individual or organization. An intelligence activity or method has two characteristics. First, the intelligence activity or method, and information generated by it, is needed by United States Intelligence/Counterintelligence agencies to carry out their missions. Second, confidentiality must be maintained with respect to the use or non-use of the activity or method, including intelligence sources, if the viability, productivity, and usefulness ofthe activity, method, and source are to be preserved. (153) (U) Intelligence activities and methods must be protected from disclosure in every situation in which a certain intelligence capability, technique, or interest - or its specific
^ (U) To the extentpossible on the public record, I haveexplained the harmto national security that
would result from confirming or denying the existence or non-existence responsive records here. If the Court finds that explanation inadequate, Defendants could offer further explanation exparte and in camera.
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use - is unknown to the groups against which it is deployed, since those groups could take countermeasures to nullify its effectiveness. Intelligence activities and methods are valuable only so long as they remain unknown and unsuspected. Once an intelligence activity of method
- or the fact of its use or non-use in a certain situation - is discovered, its continued successful use is seriously jeopardized.
(154) (U) The U.S. Government must do more than prevent explicit referencesto an intelligence activity or method; it must also prevent indirect references to them. One vehicle for gathering information about the U.S. Government's capabilities is by reviewing officiallyreleased information. We know that terrorist organizations and other hostile or Foreign Intelligence groups have the capacity and ability to gather information from myriad sources, analyze it, and deduce means and methods from disparate details to defeat the U.S. Government's collection efforts. Thus, even seemingly innocuous, indirect references to an intelligence activity, source, or method could have significant adverse effects when juxtaposed with other publicly-available data.
(155) (U) Here, acknowledging the existence or non-existence of records responsive to plaintiffs request, beyond the four Carter Page FISA applications and resulting FISC orders, and former Director Comey's March 20, 2017 statement that neither the FBI nor DOJ have any information about the alleged wiretapping referred to in President Trump's March 4, 2017
tweets, would be tantamount to confirming whether or not the FBI has relied on a particular
intelligence activity or method targeted at particular individuals or organizations. The FBI has not confirmed or denied the existence of any other FISA surveillance records responsive to
plaintiffs request. Confirming or denying whether any or not other responsive records exist would reveal otherwise non-public information regarding the nature of the FBI's intelligence
58

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interests, priorities, activities, and methods—information that is highly desired by hostile actors who seek to thwart the FBI's intelligence-gathering mission. Accordingly, to confirm or deny that the FBI possesses or does not possess records responsive to plaintiffs request could risk compromising intelligence activities or methods, and thus would pose at least a serious risk to
the national security.^^
(U) Foreign Relations and Foreign Activities ofthe United States (156) (U) Responding to plaintiffs request with anything other than a Glomar response would also reveal information concerning U.S. foreign relations and foreign activities, the disclosure of which reasonably can be expected to cause damage to national security. Plaintiffs request necessarily implicates U.S. foreign relations and foreign activities in relation to foreign governments or government officials/employees. (157) (U) FISA prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" suspected of espionage or terrorism. Thus, on its face, a request for informationabout FISA materials implicates foreign relations and foreign activities because those are at the heart of the FBI's use of FISA as an intelligence and investigative tool. (158) (U) The FBI's confirmation or denial of the existence of responsive records could reasonably be expected to cause damage to the national security interests of the United States by negatively impacting U.S. foreign relations with these and other countries. Given the sensitivity of the United States' present and future relationships with foreign coimtries and the importance of such relationships to our national security, requests like plaintiffs—which, directly or
(U) FISC orders, applications, and minimization procedures are classified, at a minimum, at the
SECRET level.
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indirectly, call for records thatwould relate to sensitive and appropriately classified details of the United States' relationship with foreign govemment(s)—reflect precisely the situation in which
the FBI finds it necessary to assert a partial Glomar response to plaintiff s request. (159)
(160) (U) Accordingly, confirming or denying the existence or non-existence of particular FISA records can reasonably be expected to cause serious damage to the national security by undermining our relationships with foreign partners.
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(U) FOIA Exemption (b)(3) as a Basis for the Partial Glomar Response (161) (U) Exemption (b)(3) protects information that is specifically exempted from public disclosure by a statute that requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, establishes particular criteria for withholding, or refers to particular types of matters to be withheld. 5 U.S.C. § 552(b)(3)(A). If the non
disclosure statute was enacted after the date of enactment of the OPEN FOIA Act of 2009, it
must specifically cite this paragraph in order for Exemption (b)(3) to apply. Id. at § 552(b)(3)(B).
(162) (U) Section 102A(i)(l) of the National Security Act of 1947, as amended, 50 U.S.C. § 403-1 (i)(l) (the "National Security Act"), provides that the Director of National Intelligence ("DNI") "shall protect intelligence sources and methods from unauthorized disclosure." Accordingly, the National Security Act constitutes a federal statute which "requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue" under 5 U.S.C. § 552(b)(3). Under the direction of the DNI, other components within the U.S. Government are authorized to protect intelligence sources and methods from unauthorized
disclosure.
(163) (U) As previously described in relation to the Exemption (b)(1) Glomar explanation, acknowledging the existence or non-existence of records responsive to plaintiffs request, beyond the four Carter Page EISA applications and orders discussed in detail above,
would tend to reveal whether an intelligence method^^ is being deployed against a particular
(U) An intelligence method includes any intelligence action or technique utilized by the FBI against a targetedindividual or organization determined to be of national securityinterest; any procedure(humanor nonhuman)or intelligence source, used to obtain information concerning the individual or organization; and foreign liaison relationships.
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target or organization, thus compromising the national security interests of the United States. Accordingly, the National Security Act, in conjunction with Exemption (b)(3), provides an additional and independent basis for the FBI's partial Glomar response to plaintiffs request.
(U) FOIA Exemptions (b)(7)(A) and (b)(7)(E) as Bases for the Glomar Response (U) Exemption (b)(7) Threshold
(164) (U) As discussed above, before an agency can invoke any of the harms enumerated in Exemption (b)(7), it must first demonstrate that the records or information at issue were compiled for law enforcement purposes. Law enforcement agencies such as the FBI must
demonstrate that the records at issue are related to the enforcement of federal laws and that the
enforcement activity is within the law enforcement duty of that agency. (165) (U) The only circumstance under which the FBI can request a FISA order is
when the FBI is conducting an authorized, predicated national security investigation within the scope of its law enforcement and foreign intelligence responsibilities. Accordingly, FISA applications and FISC orders - when they exist - are records compiled for law enforcement
purposes.
(U) Exemption (b)(7)(A) (166) (U) FOIA Exemption 7(A) protects "records or information compiled for law enforcement purposes [when disclosure] could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). (167) (U) In addition to satisfying Exemption (b)(7)'s threshold, an agency must establish that (a) there is a pending or prospective law enforcement proceeding and (b) disclosure of responsive records could reasonably be expected to adversely affect it.
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(168) (U) As previously noted, in July 2016, the FBI opened an investigation of Russian election interference. The FBI sought and obtained a FISA warrant in October 2016 to conduct surveillance of Carter Page in the course of that investigation. The FBI thereafter sought and obtained three renewals from the FISC to continue surveilling Page. The FISA applications were compiled as part of the investigation into Russian election interference. In May 2017, the Acting Attorney General appointed Special Counsel Mueller and authorized him to conduct the Russian election interference investigation confirmed by then-FBI Director James Comey on March 20,2017. That investigation is on-going. Plaintiffs request specifically seeks FISA applications and FISC orders related to the Russian election interference investigation. Thus, the requirement of a pending enforcement proceeding in Exemption (b)(7)(A) is satisfied.
(169) (U) The final element —interference with that investigation - is readily established. Confirming or denying the existence or non-existence of responsive records would reveal non-public information about the focus, scope, and conduct of that investigation. Specifically, it would reveal whether or not specific investigative techniques have been used; when and to what extent they were used, if they were; their relative value or benefit if they were used; and the targets they were used against, if any. Prematurely disclosing non-public
information about the Russia investigation could give targets and others intent on interfering with the FBI's investigative efforts the information necessary to: take defensive actions to conceal criminal activities; develop and implement countermeasures to elude detection; suppress, destroy, or fabricate evidence; and identify potential witnesses or sources, exposing them to
harassment, intimidation, coercion, and/or physical threats. Accordingly, confirming or denying the existence or non-existence of responsive records, beyond the four Carter Page FISA applications and orders discussed in detail above, could reasonably be expected to adversely
m
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affect the pending investigation. Therefore, the FBTs partial Glomar response is justified under
Exemption (b)(7)(A) as well. (U) Exemption (b)(7)(E)
(170) (U) Exemption (b)(7)(E) protects "records or information compiled for law enforcementpurposes [when disclosure] would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." 5 U.S.C. § 552 (b)(7)(E). This exemption affords categorical protection to techniques and procedures used in law enforcement investigations; it protects techniques and procedures that are not well-known to the public as well as non-public details
about the use of well-known techniques and procedures. (171) (U) How the FBI applies its investigative resources (or not) against a particular
allegation, report of criminal activity, or perceived threat is itself a law enforcement technique or procedure that the FBI protects pursuant to Exemption (b)(7)(E).
(172) (U) As previously demonstrated, acknowledging or denying the existence or nonexistence of the law enforcement records that plaintiff seeks, beyond the four Carter Page FISA applications and orders discussed in detail above, would be tantamount to confirming or denying whether or not the FBI is employing specific investigative techniques authorized under the FISA against specific targets as part of the pending Russian interference investigation. Even in acknowledged investigations, the FBI does not routinely disclose whether or not it has employed this particular classified investigative technique against a particular target. Such an acknowledgment would reveal when and under what circumstances the FBI relies upon FISAauthorjzed techniques in an investigation. Confirming whether or not FBI has responsive
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records would provide pieces of information that adversaries could use to ascertain at what point, and against whom we might use particular techniques. Armed withlthis information, adversaries could glean significant insight into the activities likely to attract - or not attract - the FBI's law
enforcement attention. These individuals would then be able alter their behavior to avoid
attention by law enforcement, making it more difficult for the FBI to be proactive in assessing threats and investigating crimes. Therefore, the FBI can neither confirm nor deny the existence of records responsive to plaintiffs request, beyond the four Carter Page FISA applications and orders discussed in detail above, without causing harms protected against by FOIA Exemption (b)(7)(E), and Exemption (b)(7)(E) provides independent justification for the FBI's partial Glomar response here.
(U) CONCLUSION (173) (U) For the reasons described above, the FBI's Glomar response to plaintiffs request, except as to records that have been officially publicly revealed, was proper; the FBI's search for records responsive to the portion of plaintiffs request for which the Glomar response has been pierced - i.e., the four FISA applications and orders on Carter Page revealed in the HPSCI memoranda - was reasonably calculated to, and in fact did, locate the responsive records; the FBI properly protected information in the four Page FISA applications and orders pursuant to FOIA Exemptions (b)(1), (b)(3), (b)(6), and (b)(7)(A) and (C)-(E); and the FBI reasonably segregated and released non-exempt information on the pages released in part and properly concluded that it could not do so on the pages withheld in full.
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(U) Pursuant to 28 U.S.C. § 1746,1declare underpenaltyof perjurythat the foregoing is
true and correct, andthatExhibits Aai^>B^^chedhereto are true and correctcopies.

(U) Executed this

CTSOlS.

DAVID M. HARDY Section Chief Record/Information Dissemination Section
Information Management Division Federal Bureau of Investigation Winchester, Virginia

66 5ECD,BT//MOrORM

Case 1:17-cv-00597-APM Document 40-2 Filed 10/19/18 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.
Plaintiffs, v. U.S. DEPARTMENT OF JUSTICE,
Defendant.

Civil Action No. 1:17-cv-0597-APM

EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.
Plaintiffs, v. U.S. DEPARTMENT OF JUSTICE,
Defendant.

Civil Action No. 1:17-cv-0597-APM

EXHIBIT B

Bates
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Case 1J:a1m7-ecsvM-0a0d5is9o7n-APProMjectDeotcaul.mv.eDntO4J0, -127-cFv-il0e5d9710(D/1.9D/1.C8.) Page 6 of 16 FOIA Exemption Code Index

b1 b3 1 7A-1 6/7C 1 6/7C 2 6/7C 3 6/7C 4 7D 1 7E 1 7E 2 7E 3 7E 4 7E 5 7E 6 7E 7 7E 8 RIF RIP

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39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76

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Case 1:17-cv-00597-APM Document 40-2 Filed 10/19/18 Page 11 of 16

Bates
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Case 1:17-cv-00597-APM Document 40-2 Filed 10/19/18 Page 12 of 16

Bates
229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266

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Bates
267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304

b1 b3 1 7A-1 6/7C 1 6/7C 2 6/7C 3 6/7C 4 7D 1

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Bates
305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342

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Bates
343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380

b1 b3 1 7A-1 6/7C 1 6/7C 2 6/7C 3 6/7C 4 7D 1

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Bates
381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418

b1 b3 1 7A-1 6/7C 1 6/7C 2 6/7C 3 6/7C 4 7D 1

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 Case 1:17-cv-00597-APM Document 40 Filed 10/19/18 Page 1 of 64

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF JUSTICE, )

)

Defendant.

)

)

Case No. 17-597-APM

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Defendant United States Department of Justice (“DOJ”) hereby moves for summary

judgment pursuant to Fed. R. Civ. P. 56(b) and Local Rule 7(h) for the reasons stated in the

attached memorandum of points and authorities, statement of material facts, and supporting

declarations and exhibits, and in the ex parte, in camera submission.

Dated: October 19, 2018

Respectfully Submitted,

CHAD A. READLER Principal Deputy Assistant Attorney General

MARCIA BERMAN Assistant Director, Federal Programs Branch

/s/Amy E. Powell AMY E. POWELL Federal Programs Branch Civil Division, Department of Justice 310 New Bern Avenue, Suite 800 Federal Building Raleigh, NC 27601-1461 Phone: 919-856-4013 Email: amy.powell@usdoj.gov Attorneys for Defendant

Case 1:17-cv-00597-APM Document 40 Filed 10/19/18 Page 2 of 64

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF JUSTICE, )

)

Defendant.

)

)

Case No. 17-597-APM

STATEMENT OF MATERIAL FACTS IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

As required by Local Civil Rule 7(h)(1), and in support of the Motion for Summary

Judgment, Defendants hereby make the following statement of material facts as to which there is

no genuine issue.

Administrative Background

1. This action arises from FOIA requests submitted by the Plaintiffs to the Federal

Bureau of Investigation (“FBI”) and DOJ’s National Security Division (“NSD”). By letter dated

March 6, 2017, Plaintiffs sought:

1) Any orders by the FISC authorizing surveillance of and/or collection of information concerning the Trump Organization, President Trump, President Trump’s campaign for presidency, or people associated with President Trump. 2) Any applications to the FISC seeking authorization for surveillance of and/or collection of information concerning the Trump Organization, President Trump, President Trump’s campaign for presidency, or people associated with President Trump. 3) Any minimization procedures issued by the FISC and that applied to any orders issued that fall within the scope of #1 or #2.

1

Case 1:17-cv-00597-APM Document 40 Filed 10/19/18 Page 3 of 64
See Third Declaration of David Hardy, dated October 19, 2018, ¶ 6 (citing 1st Hardy Decl., Dkt. 13-3, ¶ 5 & Exhibit A (FOIA Request));1 Declaration of Patrick N. Findlay, dated October 19, 2018, ¶ 4 & Exhibit A (FOIA Request).
2. By email dated March 17, 2017, NSD refused to confirm or deny the existence of responsive records pursuant to Exemption 1, explaining that to confirm or deny the existence of responsive records would reveal information that is properly classified under Executive Order 13526. See Findlay Decl. ¶ 5 & Ex. B (NSD Response).
3. On the same day, Plaintiffs appealed the determination to the DOJ Office of Information Policy (“OIP”). On April 12, 2017, OIP affirmed the determination of NSD – that the existence or non-existence of responsive records is a properly classified fact. See Findlay Decl. ¶ 6 & Ex. C (OIP Determination).
4. By letter dated March 16, 2017, the FBI acknowledged receipt of Plaintiffs’ request, and on April 4, 2017, the FBI also issued a Glomar response. The FBI’s Glomar response was based on FOIA Exemptions (b)(1), (b)(3), (b)(7)(A), and (b)(7)(E). See 3rd Hardy Decl. ¶ 7 (citing 1st Hardy Decl., Dkt. 13-3, ¶ 11 & Ex. D). Factual Background.
5. DOJ has acknowledged a national security investigation of “the Russian government’s efforts to interfere in the 2016 presidential election[, including] the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts [and] an assessment of whether any crimes were committed.” See The Washington Post, Full transcript:
1 A redacted version of the Third Hardy Declaration is filed herewith on the public record. A classified version of the declaration is being concurrently lodged with the Court ex parte and in camera, in order to more fully explain the basis for the withholding of exempt information.
2

Case 1:17-cv-00597-APM Document 40 Filed 10/19/18 Page 4 of 64
FBI Director James Comey testifies on Russian interference in 2016 election (Mar. 20, 2017), https://www.washingtonpost.com/news/post-politics/wp/2017/03/20/full-transcript-fbi-directorjames-comey-testifies-on-russian-interference-in-2016-election/?utm_term=.b9f19a0cf9cf; 3rd Hardy Decl. ¶ 14 & n.3. The investigation of Russian election interference is now under the direction of Special Counsel Robert Mueller. See Office of the Dep. Att’y General, Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17, 2017), https://www.justice.gov/opa/pressrelease/file/967231/download; 3rd Hardy Decl. ¶ 16.
6. On March 4, 2017, President Trump’s Twitter account made a four-part post, complaining that President Obama had Mr. Trump’s “wires tapped in Trump Tower just before the victory.” See https://twitter.com/realDonaldTrump. During sworn testimony before the House Permanent Selection Committee on Intelligence (“HPSCI”) on March 20, 2017, then-FBI Director James B. Comey was asked about this by Congressman Schiff and responded to address this specific statement:
With respect to the President’s tweets about alleged wiretapping directed at him by the prior administration, I have no information that supports those tweets and we have looked carefully inside the FBI. The Department of Justice has asked me to share with you that the answer is the same for the Department of Justice and all its components. The Department has no information that supports those tweets. See Full transcript: FBI Director James Comey testifies on Russian interference in 2016 election (Mar. 20, 2017); 3rd Hardy Decl. ¶ 26. 7. In March 2017, the House Permanent Select Committee on Intelligence (“HPSCI”) announced an investigation into “the Russian active measures campaign targeting the 2016 U.S. election” and later added additional areas of inquiry, including allegations regarding the purported “FISA abuse.” See 3rd Hardy Decl. ¶ 15. HPSCI’s review led to competing
3

Case 1:17-cv-00597-APM Document 40 Filed 10/19/18 Page 5 of 64
memoranda authored by the Majority and the Minority members – often referred to by the names of the Chairman and the Ranking Member, i.e., as the “Nunes Memo” and the “Schiff Memo.” Both memoranda were initially classified because, at a minimum, they revealed FISA coverage on an identified target – Carter Page – which was a properly classified fact. Id. ¶ 17.
8. In February 2018, President Trump authorized the declassification of the Nunes Memo, dated January 18, 2018. See 3rd Hardy Decl. ¶ 19; Findlay Decl. ¶ 9; http://intelligence.house.gov/uploadedfiles/memo_and_white_house_letter.pdf. As set forth in a February 2, 2018, letter from the White House Counsel, the Nunes Memo was declassified “in light of the significant public interest in the memorandum,” and “reflects the judgments of its congressional authors.” Id.
9. Approximately three weeks after the public disclosure of the Nunes Memo, an unclassified, redacted version of the Schiff Memo, dated January 29, 2018, addressed to All Members of the House of Representatives, and entitled “Correcting the Record – The Russia Investigations” (“Minority Memo”), was released. See https://intelligence.house.gov/uploadedfiles/ hpsci_redacted_minority_memo.pdf (last visited Sept. 13, 2018). Prior to its release, the FBI reviewed the Schiff Memo and redacted classified information unaffected by the President’s declassification of the Nunes Memo. The FBI did not declassify additional information as part of this review. See 3rd Hardy Decl. ¶¶ 20-22.
10. Neither the Majority nor the Minority asked the FBI or the Department to opine on their judgment or conclusions, and neither the FBI nor the Department did so; rather, both memoranda reflect the judgments of their congressional authors. See 3rd Hardy Decl. ¶¶ 20-22. FOIA Determination
4

Case 1:17-cv-00597-APM Document 40 Filed 10/19/18 Page 6 of 64
11. Because the declassification of the Majority Memo and the subsequent release of the redacted Minority Memo both revealed the existence of certain FISA applications and orders to conduct surveillance of Carter Page, the Department reviewed the FISA applications and orders for potential release of segregable information in response to Plaintiffs’ FOIA request. See 3rd Hardy Decl. ¶¶ 24, 31-34, 134; Findlay Decl. ¶ 12. On July 20, 2018, DOJ and the FBI released all responsive, non-exempt and reasonably segregable information subject to FOIA – releasing 412 pages with redactions and withholding 186 pages in full. 3rd Hardy Decl. ¶¶ 4, 134-35; Findlay Decl. ¶¶ 11-12; see also https://vault.fbi.gov/d1-release/d1-release. DOJ is thus no longer asserting a Glomar response with respect to the fact that Page was the subject of these FISA applications and orders. Id. ¶ 4; Findlay Decl. ¶ 13. This FOIA release was unprecedented—prior to the release, there had never been any public disclosure of an application to the FISC or an order from the FISC pertaining to a specific individual surveillance target. 3rd Hardy Decl. ¶ 13.
12. Other than the above-described disclosures, no authorized Government official has confirmed or denied the existence of responsive FISA-related records. 3rd Hardy Decl. ¶¶ 27, 143; Findlay Decl. ¶ 23. Accordingly, DOJ maintains its Glomar response with respect to the remainder of Plaintiffs’ request and refuses to confirm or deny the existence of other responsive records. Search for Documents Related to Acknowledged Carter Page Surveillance
13. NSD and the FBI conducted a reasonable search for records responsive to Plaintiffs’ FOIA request insofar as it relates to the acknowledged Carter Page FISA applications. The official acknowledgement at issue here was limited to four specific FISA applications, submitted for surveillance on Carter Page, starting in October 2016 and continuing through three
5

Case 1:17-cv-00597-APM Document 40 Filed 10/19/18 Page 7 of 64
renewals, with accompanying FISA orders. 3rd Hardy Decl. ¶ 28. Given the information pinpointing the specific responsive records, FBI and NSD FOIA personnel consulted with knowledgeable officials in both components familiar with the investigation to locate the four responsive FISA packages, encompassing the acknowledged applications and orders related to Carter Page. Id. ¶¶ 28-30; Findlay Decl. ¶¶ 10-11. As set forth in the Hardy Declaration, the request for minimization procedures did not require a separate search because those procedures are set forth in the packages. 3rd Hardy Decl. ¶ 30. The FBI and NSD compared records and confirmed that they had complete copies of each of the four FISA packages whose existence had been officially acknowledged. Id. ¶ 28.
14. The FBI coordinated the review of these documents, and NSD participated in the process. Accordingly, the FBI is asserting all applicable exemptions over these materials. Findlay Decl. ¶ 12 & n.6; 3rd Hardy Decl. ¶ 31. Exemption One and Carter Page Documents
15. David M. Hardy is an original classification authority. 3rd Hardy Decl. ¶ 2. 16. Mr. Hardy determined that information withheld from the Carter Page documents pursuant to Exemption 1 is under control of the United States Government, and contains information pertaining to intelligence activities, sources or methods. See Executive Order 13526 §§ 1.4(c). 3rd Hardy Decl. ¶¶ 43, 46-63. 17. In particular, Mr. Hardy has determined that the information pertaining to intelligence activities, sources and methods includes the FBI’s intelligence interests, priorities, activities and methods; undisclosed intelligence sources or methods upon which the FBI relied in support of its application for FISA coverage on Carter Page, as well as undisclosed portions of
6

Case 1:17-cv-00597-APM Document 40 Filed 10/19/18 Page 8 of 64
intelligence information provided by Source #1; and information about the use and implementation of various intelligence methods. 3rd Hardy Decl. ¶ 49.
18. Mr. Hardy has determined that disclosure of this information pertaining to intelligence sources and methods in these documents would cause harm to national security, and has articulated the harm that could be expected to occur. 3rd Hardy Decl. ¶¶ 49-63.
19. Mr. Hardy has further determined that information in the Carter Page documents pertains to foreign relations, and determined that disclosure of such information would cause harm to national security. Mr. Hardy has articulated the harm that could be expected to occur. 3rd Hardy Decl. ¶¶ 49, 64-67. Exemption Three and Carter Page Documents
20. DOJ also withheld information in the Carter Page documents to protect intelligence sources and methods from disclosure under Exemption 3 and the National Security Act. Mr. Hardy articulated the risk of disclosure of intelligence sources and methods. 3rd Hardy Decl. ¶¶ 68-72.
21. DOJ also redacted information pursuant to another Exemption 3 statute, which cannot be publicly identified without revealing the very information to be protected. Id. ¶ 73. Exemption 7 and the Carter Page Documents
22. The FISA applications and orders are compiled in part for law enforcement purposes. 3rd Hardy Decl. ¶¶ 74-79.
23. DOJ withheld information from these documents pursuant to Exemption 7(A). Mr. Hardy has determined that disclosure of redacted information in the Carter Page FISA documents could reasonably be expected to interfere with the pending investigation into Russian election interference if publicly disclosed at this time, and has articulated the harms that would
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occur. The types of information that could reasonably be expected to harm the investigation if disclosed include: aspects of the investigation not previously made public, what information or activities are or are not of interest to the investigators, areas in which there may be gaps in investigators’ knowledge that could be exploited, and the identities of potential witnesses and the information they provided. 3rd Hardy Decl. ¶¶ 80-91.
24. DOJ withheld information under Exemption 7(D) because certain investigatory information would reveal the identity or information of confidential sources. This includes nonpublic information about and provided by Christopher Steele, as well as information about and provided by other confidential sources, all of whom were provided express assurances of confidentiality. 3rd Hardy Decl. ¶¶ 112-18.
25. DOJ withheld eight categories of information in the Carter Page documents pursuant to Exemption 7(E): information about the investigative focus of these applications; information about collection and analysis of information; information about specific techniques used in the national security investigations; information about specific databases used for law enforcement purposes; information about payments to confidential sources; detailed information about targets, dates and scope of surveillance; information about dates and types of investigations; and investigative strategies for particular evidence. Mr. Hardy determined each of the nine categories encompasses nonpublic information about law enforcement techniques and has articulated how its disclosure risks circumvention of the law. 3rd Hardy Decl. ¶¶ 119-33. Private Information in the Carter Page Documents
26. DOJ withheld four categories of private information in the Carter Page documents pursuant to Exemption 6 and Exemption 7(E): identifying information for FBI agents; personal information about Carter Page; identifying information about a FISC deputy clerk and an NSD
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attorney; and identifying information about a third party source. For each category, the FBI articulated and balanced the person’s substantial privacy interest in nondisclosure and the public interest in the withheld information. 3rd Hardy Decl. ¶¶ 92-111. Withheld in Full Pages from FISA Packages
27. DOJ withheld 186 pages in full from the Carter Page FISA packages pursuant to Exemptions 1, 3, 7(A), and 7(E). Mr. Hardy determined that disclosure would reveal classified intelligence methods and law enforcement techniques. There is no additional information that can be provided on the public record but the justification for withholding is similar to the justification for other redactions under these exemptions. 3rd Hardy Decl. ¶¶ 135-41. Segregability Analysis
28. DOJ released all reasonably segregable, non-exempt information from the Carter Page documents. DOJ conducted a document- by-document and line-by-line review to ensure that all reasonably segregable, non-exempt information was released, taking into account the public disclosures related to this matter. 3rd Hardy Decl. ¶ 134. Partial Glomar
29. DOJ has refused to confirm or deny the existence of FISA applications and orders beyond the four previously acknowledged Carter Page packages. Accordingly, DOJ has refused to confirm or deny whether there are responsive record beyond the limited disclosures outlined above, pursuant to Exemptions 1, 3, 7(A) and 7(E). 3rd Hardy Decl. ¶¶ 142-46; Findlay Decl. ¶¶ 14-15 (asserting Exemption 1).
30. Patrick Findlay is an original classification authority. He determined that the information withheld by NSD – the existence or nonexistence of other responsive records – is protected by Exemption 1. Findlay Decl. ¶¶ 2, 14-22.
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31. David M. Hardy is an original classification authority. 3rd Hardy Decl. ¶ 2. He determined that the information withheld by FBI – the existence or nonexistence of other responsive records – is protected by Exemption 1. Id. ¶¶ 143-44, 152-60.
32. Mr. Hardy has determined that the existence or nonexistence of other responsive records pertains to intelligence activities, sources and methods, and Mr. Hardy has articulated the harm to national security that would result from disclosure of the existence or nonexistence of other responsive records. 3rd Hardy Decl. ¶¶ 147-55.
33. Mr. Findlay has determined that the existence or nonexistence of other responsive records is currently and properly classified and is therefore properly withheld pursuant to Exemption 1. That information pertains to intelligence activities, sources and methods, and Mr. Findlay has articulated the harm to national security that would result from disclosure of the existence or nonexistence of other responsive records. Findlay Decl. ¶¶ 14-22.
34. The information withheld pursuant to Exemption 1 also pertains to foreign relations, and Mr. Hardy has articulated the harm to national security that would result from disclosure of the existence or nonexistence of other responsive records. 3rd Hardy Decl. ¶¶ 15660.
35. Mr. Hardy further determined that disclosure of the existence or non-existence of responsive records risks disclosure of intelligence sources and methods and is therefore protected by the National Security Act and Exemption 3. See 3rd Hardy Decl. at ¶¶ 161-64.
36. Mr. Hardy further determined that FISA applications and FISC orders – when they exist – are records compiled for law enforcement purposes within the meaning of Exemption 7. See 3rd Hardy Decl. ¶¶ 164-65.
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37. Mr. Hardy further determined that disclosure of the existence or non-existence of other responsive records could reasonably be expected to interfere with enforcement proceedings that are pending or reasonably anticipated, and that the information is therefore properly withheld under Exemption 7(A). The withheld information pertains to the pending Russia investigation and that its disclosure could reasonably be expected to interfere with enforcement proceedings. Mr. Hardy has articulated the anticipated harm. 3rd Hardy Decl. ¶¶ 166-69.
38. Mr. Hardy further determined that disclosure of the existence or non-existence of other responsive records would disclose techniques and procedures for law enforcement investigations and that such disclosure could reasonably be expected to risk circumvention of the law, and that the information is therefore properly withheld under Exemption 7(E). Disclosure would reveal nonpublic information about whether the FBI is employing specific investigative techniques against specific targets and would reveal nonpublic information when and under what circumstances the FBI relies upon FISA-authorized techniques. Mr. Hardy has articulated how such disclosure risks circumvention of the law. 3rd Hardy Decl. ¶¶ 170-72. Official Acknowledgement
39. No authorized government official has disclosed the precise information withheld. See 3rd Hardy Decl. ¶¶ 13, 25, 27, 44, 134, 143; Findlay Decl. ¶ 23.

Dated: October 19, 2018

Respectfully Submitted,
CHAD READLER Principal Deputy Assistant Attorney General
MARCIA BERMAN Assistant Director, Federal Programs Branch
/s/Amy E. Powell AMY E. POWELL
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Case 1:17-cv-00597-APM Document 40 Filed 10/19/18 Page 13 of 64 Federal Programs Branch Civil Division, Department of Justice 310 New Bern Avenue, Suite 800 Federal Building Raleigh, NC 27601-1461 Phone: 919-856-4013 Email: amy.powell@usdoj.gov Attorneys for Defendant
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF JUSTICE, )

)

Defendant.

)

)

Case No. 17-597-APM

DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

CHAD A. READLER Principal Deputy Assistant Attorney General Civil Division

MARCIA BERMAN Assistant Director, Federal Programs Branch

AMY E. POWELL Trial Attorney, Federal Programs Branch Civil Division, United States Department of Justice 310 New Bern Avenue, Suite 800 Federal Building Raleigh, NC 27601-1461 Phone: (919) 856-4013 Email: amy.powell@usdoj.gov

Counsel for Defendant

Case 1:17-cv-00597-APM Document 40 Filed 10/19/18 Page 15 of 64
Table of Contents
INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 3
Administrative and Procedural Background................................................................................ 3 Factual Background ..................................................................................................................... 5 ARGUMENT . ................................................................................................................................ 9 I. Statutory Standards. ............................................................................................................ 9
A. The Freedom of Information Act .................................................................................. 9 B. Special Considerations in National Security Cases .................................................... 10 C. The Glomar Response................................................................................................. 11 II. DOJ Conducted a Reasonable Search for Responsive Records Related to Acknowledged Surveillance of Carter Page and Properly Released Redacted Records. .......................... 13 A. DOJ Conducted a Reasonable Search......................................................................... 13 B. DOJ Properly Redacted Classified Information in the Carter Page Documents
Pursuant to Exemption 1............................................................................................. 15 (1) Exemption One Standards. ............................................................................ 15 (2) DOJ Properly Withheld Information Pertaining to Intelligence Activities, Sources and Methods..................................................................................... 16 (3) DOJ Properly Redacted Information Pertaining to Foreign Relations.......... 18
C. DOJ Properly Withheld Information in the Carter Page Documents Pursuant to Exemption 3, Including Information Protected By the National Security Act. .......... 18
D. DOJ Properly Withheld Information in the Carter Page Documents Pursuant to Exemption 7(A). ......................................................................................................... 20 (1) Exemption 7 Threshold. ................................................................................ 20 (2) Exemption 7(A) Standards. ........................................................................... 20 (3) Disclosure of the Withheld Information Could Reasonably Be Expected to Interfere with the Russia Investigation.......................................................... 21
E. DOJ Properly Withheld Information in the Carter Page Documents Pursuant to Exemption 7(D). ......................................................................................................... 22 (1) 7(D) Standards............................................................................................... 22 (2) DOJ Properly Withheld Information Regarding Confidential Sources......... 23
F. DOJ Properly Withheld Information in the Carter Page Documents Pursuant to Exemption 7(E)........................................................................................................... 24
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(1) 7(E) Standards. .............................................................................................. 24 (2) DOJ Properly Withheld Information About Law Enforcement Techniques
that Risks Circumvention of the Law. ........................................................... 25 G. DOJ Properly Withheld Private Information in the Carter Page Documents Pursuant
to Exemptions 6 and/or 7(C)....................................................................................... 28 (1) Applicable Exemptions. ................................................................................ 28 (2) DOJ Properly Withheld Private Information................................................. 29
H. DOJ Properly Withheld in Full Certain Portions of the Carter Page Documents Pursuant to Exemptions 1, 3, 7(A), and 7(E). ............................................................. 30
I. DOJ Released All Reasonably Segregable Information. ............................................ 31 III. DOJ Properly Refused to Confirm or Deny the Existence of Other Responsive
Records. ............................................................................................................................ 32 A. The Partial Glomar is Proper Pursuant to Exemption One Because the Existence or
Non-Existence of Responsive Records is Properly Classified. .................................. 33 B. The FBI Established that the Partial Glomar is Proper Pursuant to Exemption 3 and
the National Security Act............................................................................................ 35 C. The FBI Established that the Partial Glomar is Proper Pursuant to Exemption 7(A). 35 D. The FBI Established that the Partial Glomar Response is Proper Pursuant to
Exemption 7(E)........................................................................................................... 37 IV. The Withheld Information Has Not Been Officially Acknowledged. .............................. 38 CONCLUSION............................................................................................................................. 41
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Table of Authorities Cases ACLU v. CIA,
710 F.3d 422 (D.C. Cir. 2013)................................................................................................... 38 ACLU v. Dep’t of Def.,
628 F.3d 612 (D.C. Cir. 2011)....................................................................................... 11, 19, 39 ACLU v. DOJ,
655 F.3d 1 (D.C. Cir. 2011)....................................................................................................... 29 Afshar v. Dep’t of State,
702 F.2d 1125 (D.C. Cir. 1983)........................................................................................... 11, 38 *Agility Pub. Warehousing Co. K.S.C. v. NSA,
113 F. Supp. 3d 313 (D.D.C. 2015)............................................................................... 19, 33, 39 *Ancient Coin Collectors Guild v. Dep’t of State,
641 F.3d 504 (D.C. Cir. 2011)................................................................................................... 13 Ass’n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd.,
830 F.2d 331 (D.C. Cir. 1987)................................................................................................... 10 Baker & Hostetler LLP v. Dep’t of Commerce,
473 F.3d 312 (D.C. Cir. 2006)................................................................................................... 13 Bigwood v. Dep’t of Defense,
132 F. Supp. 3d 124 (D.D.C. 2015)........................................................................................... 24 Blackwell v. FBI,
646 F.3d 37 (D.C. Cir. 2011)..................................................................................................... 24 Campbell v. DOJ,
164 F.3d 20 (D.C. Cir. 1998)..................................................................................................... 23 Canning v. DOJ,
567 F. Supp. 2d 104 (D.D.C. 2008)........................................................................................... 22 Carter v. NSA,
2014 WL 2178708 (D.C. Cir. Apr. 23, 2014) ........................................................................... 33 Chambers v. Dep’t of Interior,
568 F.3d 998 (D.C. Cir. 2009)................................................................................................... 13
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*CIA v. Sims, 471 U.S. 159 (1985) ........................................................................................................ 9, 18, 19
*Citizens for Responsibility and Ethics in Wash. v. DOJ, 746 F.3d 1082 (D.C. Cir. 2014)..................................................................................... 20, 21, 37
Clemente v. FBI, 867 F.3d 111 (D.C. Cir. 2017)................................................................................................... 13
*Competitive Enter. Inst. v. NSA, 78 F. Supp. 3d 45 (D.D.C. 2015)................................................................................... 33, 38, 39
Cozen O’Connor v. Dep’t of Treasury, 570 F. Supp. 2d 749 (E.D. Pa. 2008)......................................................................................... 36
*Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918 (D.C. Cir. 2003)................................................................................... 9, 10, 11, 24
DOJ v. Landano, 508 U.S. 165 (1993) .................................................................................................................. 22
Dep’t of State v. Wash. Post Co., 456 U.S. 595 (1982) .................................................................................................................. 28
DiBacco v. Army, 795 F.3d 178 (D.C. Cir. 2015)............................................................................................. 10, 13
DOJ v. Reporters Comm. For Freedom of Press, 489 U.S. 749 (1989) ............................................................................................................ 28, 29
Dow Jones & Co. v. DOJ, 917 F.2d 571 (D.C. Cir. 1990)................................................................................................... 22
Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990)....................................................................................... 11, 38, 39
Frugone v. CIA, 169 F.3d 772 (D.C. Cir. 1999)............................................................................................. 11, 12
Gardels v. CIA, 689 F.2d 1100 (D.C. Cir. 1982)........................................................................................... 11, 18
Gov’t Accountability Project v. Food & Drug Admin., 206 F. Supp. 3d 420 (D.D.C. 2016)........................................................................................... 10
Halperin v. CIA, 629 F.2d 144 (D.C. Cir. 1980)................................................................................................... 19
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Hodge v. FBI, 703 F.3d 575 (D.C. Cir. 2013)................................................................................................... 23
Iturralde v. Comptroller of Currency, 315 F.3d 311 (D.C. Cir. 2003)................................................................................................... 13
James Madison Project v. DOJ, 208 F. Supp. 3d 265 (D.D.C. 2016)........................................................................................... 12
James Madison Project v. DOJ, 267 F. Supp. 3d 154 (D.D.C. 2017)........................................................................................... 14
*James Madison Project v. DOJ, 2018 WL 4283562 (D.D.C. Sept. 7, 2018).......................................................................... 38, 39
John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989) .............................................................................................................. 9, 10
Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771 (D.C. Cir. 2002)................................................................................................... 31
Juarez v. DOJ, 518 F.3d 54 (D.C. Cir. 2008)............................................................................................... 20, 31
Judicial Watch, Inc. v. Dep't of the Navy, 25 F. Supp. 3d 131 (D.D.C. 2014)............................................................................................. 10
Judicial Watch, Inc. v. Dep’t of Defense, 715 F.3d 937 (D.C. Cir. 2013)................................................................................................... 15
King v. DOJ, 830 F.2d 210 (D.C. Cir. 1987)............................................................................................. 10, 11
Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) .................................................................................................................... 9
Larson v. Dep’t of State, 565 F.3d 857 (D.C. Cir. 2009)....................................................................................... 11, 12, 15
*Marrera v. DOJ, 622 F. Supp. 51 (D.D.C. 1985).................................................................................................. 32
Mayer Brown, LLP v. Internal Revenue Serv., 562 F.3d 1190 (D.C. Cir. 2009)................................................................................................. 24
McCready v. Nicholson, 465 F.3d 1 (D.C. Cir. 2006)....................................................................................................... 13
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Mead Data Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242 (D.C. Cir. 1977)................................................................................................... 31
Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981)............................................................................................. 10, 39
Milner v. Dep’t of the Navy, 562 U.S. 562 (2011) .................................................................................................................. 24
Minier v. CIA, 88 F.3d 796 (9th Cir. 1996) ......................................................................................................... 9
Moore v. CIA, 666 F.3d 1330 (D.C. Cir. 2011)................................................................................................. 39
Moore v. Obama, 2009 WL 2762827 (D.C. Cir. Aug. 24, 2009)........................................................................... 33
Morley v. CIA, 508 F.3d 1108 (D.C. Cir. 2007)................................................................................................. 19
Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224 (D.C. Cir. 2008)................................................................................................. 28
Nat’l Sec. Archive Fund, Inc. v. CIA, 402 F. Supp. 2d 211 (D.D.C. 2005)........................................................................................... 31
Neufeld v. IRS, 646 F.2d 661 (D.C. Cir. 1981)................................................................................................... 31
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978) ............................................................................................................ 20, 37
*Oglesby v. Dep’t of the Army, 920 F.2d 57 (D.C. Cir. 1990)............................................................................................... 13, 14
Parker v. EOUSA, 852 F. Supp. 2d 1 (D.D.C. 2012)............................................................................................... 12
*People for the Ethical Treatment of Animals v. NIH, 745 F.3d 535 (D.C. Cir. 2014)................................................................................................... 36
Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982)................................................................................................... 13
Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976)......................................................................................... 4, 7, 12
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Prison Legal News v. Samuels, 787 F.3d 1142 (D.C. Cir. 2015)................................................................................................. 28
Pub. Citizen v. Dep’t of State, 11 F.3d 198 (D.C. Cir. 1993)..................................................................................................... 38
Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.Mexico, 740 F.3d 195 (D.C. Cir. 2014)................................................................................................... 20
Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978)................................................................................................. 10
SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991)........................................................................................... 10, 14
Schwarz v. Dep’t of Treasury, 131 F. Supp. 2d 142 (D.D.C. 2000)........................................................................................... 32
Shannahan v. IRS., 672 F.3d 1142 (9th Cir. 2012) ................................................................................................... 20
Stern v. FBI, 737 F.2d 84 (D.C. Cir. 1984)..................................................................................................... 29
Sussman v. U.S. Marshals Serv., 494 F.3d 1106 (D.C. Cir. 2007)................................................................................................. 31
Unrow Human Rights Impact Litig. Clinic v. Dep’t of State, 134 F. Supp. 3d 263 (D.D.C. 2015)........................................................................................... 11
Wash. Post Co. v. Dep’t of Health & Human Servs., 690 F.2d 252 (D.C. Cir. 1982)................................................................................................... 28
Weisberg v. DOJ, 745 F.2d 1476 (D.C. Cir. 1984)................................................................................................. 13
Wheeler v. CIA, 271 F. Supp. 2d 132 (D.D.C. 2003)........................................................................................... 12
Williams v. FBI, 69 F.3d 1155 (D.C. Cir. 1995)................................................................................................... 23
Wilner v. NSA, 592 F.3d 60 (2d Cir. 2009) .................................................................................................. 12, 33
*Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007)....................................................................................... 11, 38, 39
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Statutes 5 U.S.C. § 552(a)(4)(B) ............................................................................................................ 9, 10 *5 U.S.C. § 552(b)(1)....................................................................................................................15 *5 U.S.C. § 552(b)(3)(A) .............................................................................................................. 18 5 U.S.C. § 552(b)(6) ..................................................................................................................... 28 5 U.S.C. § 552(b)(7) ..................................................................................................................... 20 *5 U.S.C. § 552(b)(7)(A)...............................................................................................................20 5 U.S.C. § 552(b)(7)(C) ................................................................................................................ 29 5 U.S.C. § 552(b)(7)(D) ................................................................................................................ 22 *5 U.S.C. § 552(b)(7)(E) .............................................................................................................. 24 50 U.S.C. § 3024(i)(1) .................................................................................................................. 19 Executive Order Exec. Order 13,526,
75 Fed. Reg. 707 (Dec. 29, 2009)....................................................................................... passim Other Correcting the Record—The Russia Investigations, https://intelligence.house.gov/uploadedfiles/
hpsci_redacted_minority_memo.pdf...........................................................................................7 https://twitter.com/realDonaldTrump........................................................................................6, 40 Office of the Dep. Att’y General, Order No. 3915-2017, Appointment of Special Counsel to
Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17, 2017), https://www.justice.gov/opa/press-release/file/967231/download.............................5 The Washington Post, Full transcript: FBI Director James Comey testifies on Russian interference in 2016 election (Mar. 20, 2017), https://www.washingtonpost.com/news/postpolitics/wp/2017/03/20/full-transcript-fbi-director-james-comey-testifies-on-russianinterference-in-2016-election/?utm_term=.b9f19a0cf9cf........................................................5, 6 https://vault.fbi.gov/d1-release/d1-release.......................................................................................8
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INTRODUCTION Using the Freedom of Information Act, Plaintiffs James Madison Project and Brad Heath seek detailed, highly sensitive information about a specific type of surveillance activity, allegedly related to an ongoing national security investigation, and allegedly directed at a specific group of individuals during a specific timeframe. More specifically, Plaintiffs seek to compel production of FISA applications and orders dating from mid-2016, “concerning the Trump Organization, President Trump, President Trump’s campaign for presidency, or people associated with President Trump.” The Government has made two acknowledgments arguably relevant to this request. First, the Department of Justice acknowledged, based upon the Congressional testimony of then-FBI Director James B. Comey, that it has 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. In addition, following the President’s declassification of a memorandum prepared by staff of the House Permanent Select Committee on Intelligence (“HPSCI”), and the subsequent release of a different memorandum prepared by certain HPSCI members, the Department has acknowledged responsive Foreign Intelligence Surveillance Act (“FISA”) applications and orders to conduct surveillance of Carter Page, and produced redacted versions of those documents. With these limited exceptions, DOJ has otherwise provided a “Glomar” response, declining to confirm or deny the existence of records for any other FISA surveillance responsive to Plaintiffs’ FOIA request. The applications and orders related to Carter Page were properly located, processed, redacted and produced, with some pages being withheld in full. These documents, at issue in several pending FOIA matters, are the first FISA applications ever processed for public release, and the FBI and DOJ devoted considerable resources to ensure that they were carefully
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processed, releasing information that matched prior public disclosures as well as other information that is not currently exempt. The FBI declaration establishes that some withheld information is properly classified and exempt from disclosure because it pertains to intelligence activities, sources, and methods, and/or foreign relations or foreign activities of the United States, and its disclosure would cause harm to national security; it is therefore properly withheld under Exemption 1. The FBI’s declaration further establishes that disclosure of the withheld information would reveal intelligence sources and methods protected by Exemption 3 and the National Security Act, as well as law enforcement information protected by Exemptions 7(A), 7(D) and 7(E), and private information protected by Exemptions 6 and 7(C). These records relate to an ongoing national security investigation, and full disclosure would undermine and obstruct that investigation, compromise sources, and reveal nonpublic information about important law enforcement methods, disclosure of which risks circumvention of the law.
The partial Glomar response to the remainder of Plaintiffs’ FOIA request is proper. The declarations establish that confirming or denying the existence of other responsive records would reveal classified information pertaining to intelligence sources and methods. DOJ and the FBI determined that disclosure of the existence or non-existence of records for any other FISA surveillance responsive to Plaintiffs’ FOIA request could reasonably be expected to cause harm to national security, and is exempt from disclosure pursuant to FOIA Exemption 1. FBI has further determined that this information is exempt from disclosure under Exemptions 3, 7(A) and 7(E). This determination is entitled to substantial deference from this Court under well-settled law.
There has been no official acknowledgement of the existence or non-existence of FISA applications or orders as to a range of potential surveillance targets. The limited official acknowledgements relevant to Plaintiffs’ FOIA request—then-Director Comey’s Congressional
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testimony regarding the non-existence of records of alleged wiretapping of then-candidate Trump in Trump Tower by the Obama Administration prior to the 2016 presidential election, and the extraordinary and unprecedented acknowledgement of the existence of FISA applications and orders to conduct surveillance of Carter Page—satisfy the exacting criteria for official disclosure of classified information responsive to Plaintiffs’ FOIA request, and the Department’s response is consistent with those disclosures. But there have been no other official disclosures that specifically reveal the existence or non-existence of the particular alleged FISA surveillance that Plaintiffs seek to discover. Accordingly, the Glomar response as to the remaining portions of Plaintiffs’ request is proper. The Court should defer to Defendant’s determination in this regard and grant the Government summary judgment.
BACKGROUND Administrative and Procedural Background
This matter arises from nearly identical FOIA requests submitted to the Federal Bureau of Investigation (“FBI”) and DOJ’s National Security Division (“NSD”) on March 6, 2017, in which Plaintiffs sought records related to specific individuals and organizations allegedly subject to surveillance under the Foreign Intelligence Surveillance Act (“FISA”). Specifically, Plaintiffs sought:
1) Any orders by the FISC authorizing surveillance of and/or collection of information concerning the Trump Organization, President Trump, President Trump’s campaign for presidency, or people associated with President Trump. 2) Any applications to the FISC seeking authorization for surveillance of and/or collection of information concerning the Trump Organization, President Trump, President Trump’s campaign for presidency, or people associated with President Trump. 3) Any minimization procedures issued by the FISC and that applied to any orders issued that fall within the scope of #1 or #2.
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See Third Declaration of David Hardy, dated October 19, 2018, ¶ 6 (citing 1st Hardy Decl., Dkt. 13-3, ¶ 5 & Exhibit A (FOIA Request));1 Declaration of Patrick N. Findlay, dated October 19, 2018, ¶ 4 & Exhibit A (FOIA Request). The requests limited the search to June 2016 to the date of the request. Id. JMP quoted certain public statements by President Trump and asserted that the requesters “are pre-emptively asserting that President Trump’s public comments constitute prior official disclosure of the existence of at least one, if not more, FISA warrants.” Id.
By email dated March 17, 2017, NSD refused to confirm or deny the existence of responsive records pursuant to Exemption 1, explaining that to confirm or deny the existence of responsive records would reveal information that is properly classified under Executive Order 13526. See Findlay Decl. ¶ 5 & Ex. B (NSD Response). This is known as a “Glomar” response, and is proper if the fact of the existence or non-existence of agency records is protected by a FOIA exemption. See Phillippi v. CIA, 546 F.2d 1009, 1011 (D.C. Cir. 1976) (acknowledging CIA refusal to confirm or deny existence of records regarding activities of a ship named Hughes Glomar Explorer). On the same day, Plaintiffs appealed the determination to the DOJ Office of Information Policy (“OIP”). On April 12, 2017, OIP affirmed the determination of NSD – that the existence or non-existence of responsive records is a properly classified fact. See Findlay Decl. ¶ 6 & Ex. C (OIP Determination).
By letter dated March 16, 2017, the FBI acknowledged receipt of Plaintiffs’ request, and on April 4, 2017, the FBI also issued a Glomar response. The FBI’s Glomar response was based on FOIA Exemptions (b)(1), (b)(3), (b)(7)(A), and (b)(7)(E). See 3rd Hardy Decl. ¶ 7 (citing 1st Hardy Decl., Dkt. 13-3, ¶ 11 & Ex. D).
1 A redacted version of the Hardy Declaration is filed herewith on the public record. A classified version of the declaration is being concurrently lodged with the Court ex parte and in camera, in order to more fully explain the basis for the withholding of exempt information.
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Plaintiffs filed a Complaint on April 4, 2017 and an Amended Complaint was filed on April 15, 2017. See Compl., ECF No. 1; Am. Compl. ECF No. 5.
The parties briefed cross-motions for summary judgment in summer and fall of 2017, and Defendant defended the Glomar response. In light of subsequent disclosures, DOJ sought to withdraw its motion for summary judgment and set a schedule for processing the acknowledged Carter Page materials. After the Carter Page materials were processed and released, the Court set a schedule for further briefing. Dkt. No. 38. Factual Background
Plaintiffs’ FOIA request arises in a factual context in which there is an ongoing, acknowledged official investigation related to the Russian government’s efforts to interfere in the 2016 presidential election. Specifically, the Department has acknowledged a national security investigation of “the Russian government’s efforts to interfere in the 2016 presidential election[, including] the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts [and] an assessment of whether any crimes were committed.” See The Washington Post, Full transcript: FBI Director James Comey testifies on Russian interference in 2016 election (Mar. 20, 2017), https://www.washingtonpost.com/news/postpolitics/wp/2017/03/20/full-transcript-fbi-director-james-comey-testifies-on-russian-interferencein-2016-election/?utm_term=.b9f19a0cf9cf; 3rd Hardy Decl. ¶ 14 & n.3. The investigation into Russian election interference is now under the direction of Special Counsel Robert Mueller. See Office of the Dep. Att’y General, Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17, 2017), https://www.justice.gov/opa/press-release/file/967231 /download; 3rd Hardy Decl. ¶ 16.
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On March 4, 2017, President Trump’s Twitter account made a four-part post, complaining that President Obama had Mr. Trump’s “wires tapped in Trump Tower just before the victory.” See https://twitter.com/realDonaldTrump. During sworn testimony before the House Permanent Selection Committee on Intelligence (“HPSCI”) on March 20, 2017, then-FBI Director James B. Comey was asked about this by Congressman Schiff and responded to address this specific statement:
With respect to the President’s tweets about alleged wiretapping directed at him by the prior administration, I have no information that supports those tweets and we have looked carefully inside the FBI. The Department of Justice has asked me to share with you that the answer is the same for the Department of Justice and all its components. The Department has no information that supports those tweets. See Full transcript: FBI Director James Comey testifies on Russian interference in 2016 election (Mar. 20, 2017); 3rd Hardy Decl. ¶ 26; Findlay Decl. ¶ 8.2 In March 2017, the House Permanent Select Committee on Intelligence (“HPSCI”) announced an investigation into “the Russian active measures campaign targeting the 2016 U.S. election” and later added additional areas of inquiry, including allegations regarding the purported “FISA abuse.” See 3rd Hardy Decl. ¶ 15. HPSCI’s review led to competing memoranda authored by the Majority and the Minority members – often referred to by the names of the Chairman and the Ranking Member, i.e., as the “Nunes Memo” and the “Schiff Memo.” Both memoranda were initially classified because, at a minimum, they revealed FISA-authorized surveillance on an identified target – Carter Page – which was a properly classified fact. Id. ¶ 17.
2 The Department has subsequently confirmed Director Comey’s conclusion in several FOIA matters. In the first round of summary judgment briefing in this case, Defendant specifically acknowledged this statement and noted that “Had plaintiff more specifically tied his FOIA request to the information in the tweets, he likely would have received a no-records response from the FBI and DOJ.” Dkt. No. 13, at 20.
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In February 2018, President Trump authorized the declassification of the Nunes Memo, dated January 18, 2018. See 3rd Hardy Decl. ¶ 19; Findlay Decl. ¶ 9; http://intelligence.house.gov/uploadedfiles/memo_and_white_house_letter.pdf.
As set forth in a February 2, 2018, letter from the White House Counsel, the Nunes Memo was declassified “in light of the significant public interest in the memorandum,” and “reflects the judgments of its congressional authors.” Id. Approximately three weeks after the public disclosure of the Nunes Memo, an unclassified, redacted version of the Schiff Memo, dated January 29, 2018, addressed to All Members of the House of Representatives, and entitled “Correcting the Record – The Russia Investigations” (“Minority Memo”), was released. See 3rd Hardy Decl. ¶¶ 20-22, also available at https://intelligence.house.gov/uploadedfiles/ hpsci_redacted_minority_memo.pdf (last visited Sept. 13, 2018). Prior to its release, the FBI reviewed the Schiff Memo and redacted classified information unaffected by the President’s declassification of the Nunes Memo. 3rd Hardy Decl. ¶ 21. The FBI did not declassify additional information as part of this review. Id. Neither the Majority nor the Minority asked the FBI or the Department to opine on their judgment or conclusions, and neither the FBI nor the Department did so; rather, both memoranda reflect the judgments of their congressional authors. Id. ¶ 22.3
Because the declassification of the Majority Memo and the subsequent release of the redacted Minority Memo both revealed the existence of certain FISA applications and orders to conduct surveillance of Carter Page, the Department reviewed the FISA applications and orders
3 One other Congressional memorandum references the Page FISA applications. After the declassification of the Nunes Memo, the FBI conducted a classification review of a January 4, 2018 memorandum from Senators Grassley and Graham as well. As with the other memoranda, this memorandum reflects the judgments of its Congressional authors. 3rd Hardy Decl. ¶ 22 & n. 6.
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for potential release of segregable information in response to Plaintiffs’ FOIA request.4 See 3rd Hardy Decl. ¶¶ 24, 31-34, 134; Findlay Decl. ¶ 9. On July 20, 2018, DOJ and the FBI released all responsive, non-exempt and reasonably segregable information subject to FOIA – releasing 412 pages with redactions and withholding 186 pages in full. 3rd Hardy Decl. ¶¶ 4, 134-35; Findlay Decl. ¶¶ 9-12; see also https://vault.fbi.gov/d1-release/d1-release. The redactions are coded by application exemption and certain categories within exemptions. 3rd Hardy Decl. ¶¶ 31-34. DOJ is thus no longer asserting a Glomar response with respect to the fact that Page was the subject of these FISA applications and orders. Id. ¶ 4; Findlay Decl. ¶ 13. This FOIA release was unprecedented—prior to the release, there had never been any public disclosure of an application to the FISC or an order from the FISC pertaining to a specific individual surveillance target. 3rd Hardy Decl. ¶ 13; Findlay Decl. ¶ 12.
Other than the above-described disclosures, no authorized Government official has confirmed or denied the existence of responsive FISA-related records. 3rd Hardy Decl. ¶¶ 27, 143; Findlay Decl. ¶ 23.5 Accordingly, DOJ maintains its Glomar response with respect to the remainder of Plaintiffs’ request and refuses to confirm or deny the existence of other responsive records.
4 Although Page was not associated with the Trump campaign when the initial FISA order was obtained, the Page FISA applications and orders were deemed to be responsive at least to that portion of Plaintiffs’ FOIA request that seeks FISA applications and orders “concerning . . . people associated with President Trump.” 5 On September 17, 2018, the White House Press Secretary announced that President Trump was directing DOJ and ODNI to “provide for immediate declassification of” certain documents, including additional pages of the Page documents. See Statement from the Press Secretary, https://www.whitehouse.gov/briefings-statements/statement-press-secretary-34/. The President later indicated that he was no longer requiring immediate declassification of these documents at this time.
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ARGUMENT I. Statutory Standards. A. The Freedom of Information Act
The “basic purpose” of FOIA reflects a “general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted). “Congress recognized, however, that public disclosure is not always in the public interest . . . .” CIA v. Sims, 471 U.S. 159, 166– 67 (1985). Accordingly, in passing FOIA, “Congress sought ‘to reach a workable balance between the right of the public to know and the need of the Government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy.’” John Doe Agency, 493 U.S. at 152 (quoting H.R. Rep. No. 89-1497, at 6 (1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2423). As the D.C. Circuit has recognized, “FOIA represents a balance struck by Congress between the public’s right to know and the [G]overnment’s legitimate interest in keeping certain information confidential.” Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003) (citing John Doe Agency, 493 U.S. at 152).
FOIA mandates disclosure of government records unless the requested information falls within one of nine enumerated exemptions. See 5 U.S.C. § 552(b). “A district court only has jurisdiction to compel an agency to disclose improperly withheld agency records,” i.e. records that do “not fall within an exemption.” Minier v. CIA, 88 F.3d 796, 803 (9th Cir. 1996); see also 5 U.S.C. § 552(a)(4)(B) (providing the district court with jurisdiction only “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant”); Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980) (“Under 5 U.S.C. § 552(a)(4)(B)[,] federal jurisdiction is dependent upon a showing that an agency has (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records.’”). While
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narrowly construed, FOIA’s statutory exemptions “are intended to have meaningful reach and application.” John Doe Agency, 493 U.S. at 152; accord DiBacco v.U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015).
The courts resolve most FOIA actions on summary judgment. See Judicial Watch, Inc. v. Dep't of the Navy, 25 F. Supp. 3d 131, 136 (D.D.C. 2014). The Government bears the burden of proving that the withheld information falls within the exemptions it invokes. See 5 U.S.C. § 552(a)(4)(B); King v. DOJ, 830 F.2d 210, 217 (D.C. Cir. 1987). A court may grant summary judgment to the Government based entirely on an agency’s declarations, provided they articulate “the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); accord Gov’t Accountability Project v. Food & Drug Admin., 206 F. Supp. 3d 420, 430 (D.D.C. 2016). Such declarations are accorded “a presumption of good faith, which cannot be rebutted by purely speculative claims[.]” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation omitted).
B. Special Considerations in National Security Cases The issues presented in this case directly “implicat[e] national security, a uniquely
executive purview.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 926–27. While courts review de novo an agency’s withholding of information pursuant to a FOIA request, “de novo review in FOIA cases is not everywhere alike . . . .” Ass’n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd., 830 F.2d 331, 336 (D.C. Cir. 1987). Indeed, the courts have specifically recognized the “propriety of deference to the executive in the context of FOIA claims which implicate national security.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 927; see Ray v. Turner, 587 F.2d 1187, 1194 (D.C. Cir. 1978) (“[T]he executive ha[s] unique insights into what adverse [e]ffects might occur
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as a result of public disclosure of a particular classified record.”). “[A]ccordingly, the government’s ‘arguments needs only be both ‘plausible’ and ‘logical’ to justify the invocation of a FOIA exemption in the national security context.’” Unrow Human Rights Impact Litig. Clinic v. Dep’t of State, 134 F. Supp. 3d 263, 272 (D.D.C. 2015) (quoting ACLU v. Dep’t of Def., 628 F.3d 612, 624 (D.C. Cir. 2011)).
For these reasons, the courts have “consistently deferred to executive affidavits predicting harm to the national security, and have found it unwise to undertake searching judicial review.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 927; see Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009) (citation omitted) (“Today we reaffirm our deferential posture in FOIA cases regarding the ‘uniquely executive purview’ of national security.”); accord Unrow Human Rights Impact Litig. Clinic, 134 F. Supp. 3d at 272. Consequently, a reviewing court must afford “substantial weight” to agency declarations “in the national security context.” King, 830 F.2d at 217; see Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990) (holding that the district court erred in “perform[ing] its own calculus as to whether or not harm to the national security or to intelligence sources and methods would result from disclosure . . . .”); Frugone v. CIA, 169 F.3d 772, 775 (D.C. Cir. 1999) (because “courts have little expertise in either international diplomacy or counterintelligence operations, we are in no position to dismiss the CIA’s facially reasonable concerns” about the harm that disclosure could cause to national security). FOIA “bars the courts from prying loose from the government even the smallest bit of information that is properly classified or would disclose intelligence sources or methods.” Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983).
C. The Glomar Response. A Glomar response allows the Government to “refuse to confirm or deny the existence of
records where to answer the FOIA inquiry would cause harm cognizable under an FOIA 11

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exception.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)); accord Wilner v. NSA, 592 F.3d 60, 68 (2d Cir. 2009) (“The Glomar doctrine is well settled as a proper response to a FOIA request because it is the only way in which an agency may assert that a particular FOIA statutory exemption covers the ‘existence or non-existence of the requested records[.]’” (quoting Phillippi v. CIA, 546 F.2d 1009, 1012 (D.C. Cir. 1976)). In support of a Glomar response, the asserting agency “must explain why it can neither confirm nor deny the existence of responsive records.” James Madison Project v. DOJ, 208 F. Supp. 3d 265, 283 (D.D.C. 2016) (quoting Parker v. EOUSA, 852 F. Supp. 2d 1, 10 (D.D.C. 2012)). The agency can satisfy this obligation by providing “public affidavit[s] explaining in as much detail as is possible the basis for its claim that it can be required neither to confirm nor to deny the existence of the requested records.” Phillippi, 546 F.2d at 1013. The courts in this Circuit have consistently upheld Glomar responses where, as here, confirming or denying the existence of records would reveal classified information protected by FOIA Exemption 1. See, e.g., Frugone, 169 F.3d at 774–75 (finding that CIA properly refused to confirm or deny the existence of records concerning the plaintiff’s alleged employment relationship with CIA pursuant to Exemptions 1 and 3); Larson, 565 F.3d at 861–62 (upholding the National Security Agency’s use of the Glomar response to the plaintiffs’ FOIA requests regarding past violence in Guatemala pursuant to Exemptions 1 and 3); Wheeler v. CIA, 271 F. Supp. 2d 132, 140 (D.D.C. 2003) (ruling that CIA properly invoked a Glomar response to a request for records concerning the plaintiff’s activities as a journalist in Cuba during the 1960s pursuant to Exemption 1).
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II. DOJ Conducted a Reasonable Search for Responsive Records Related to Acknowledged Surveillance of Carter Page and Properly Released Redacted Records.
NSD and the FBI searched for the acknowledged FISA applications and orders related to Carter Page. The 412 released pages reflect information properly redacted under Exemptions 1, 3, 6, 7(A), 7(C), 7(D), 7(E). The withheld in full pages from the FISA applications and orders were properly withheld pursuant to Exemptions 1, 3, 7(A) and 7(E).
A. DOJ Conducted a Reasonable Search. An agency is entitled to summary judgment in a FOIA case with respect to the adequacy of its search if it shows “‘that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.’” Clemente v. FBI, 867 F.3d 111, 117 (D.C. Cir. 2017) (quoting Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)); DiBacco, 795 F.3d at 188. “[T]he issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.” Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (emphasis in original). The search is thus gauged “not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.” Ancient Coin Collectors Guild v. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (quoting Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)). An agency can establish the reasonableness of its search by “reasonably detailed, nonconclusory affidavits describing its efforts.” Baker & Hostetler LLP v. Dep’t of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006). Such affidavits are sufficient if they “set[] forth the search terms and the type of search performed, and aver[] that all files likely to contain responsive materials (if such records exist) were searched.” Chambers v. Dep’t of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009) (quoting McCready v. Nicholson, 465 F.3d 1, 14 (D.C. Cir. 2006)). This standard is not demanding. “[I]n
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the absence of countervailing evidence or apparent inconsistency of proof, affidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice . . . . “ Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). “Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.’” SafeCard Servs., Inc., 926 F.2d at 1200 (citation omitted).
The declarations demonstrate that NSD and the FBI conducted a reasonable search for records responsive to Plaintiffs’ FOIA request insofar as it relates to the acknowledged Carter Page FISA applications. The official acknowledgement at issue here was limited to four specific FISA applications, submitted for surveillance on Carter Page, starting in October 2016 and continuing through three renewals, with accompanying FISA orders. 3rd Hardy Decl. ¶ 28. Given the information pinpointing the specific responsive records, FBI and NSD FOIA personnel consulted with knowledgeable officials in both components familiar with the investigation to locate the four responsive FISA packages, encompassing the acknowledged applications and orders related to Carter Page. Id. ¶¶ 28-30; Findlay Decl. ¶¶ 10-11. As set forth in the Hardy Declaration, the request for minimization procedures did not require a separate search because those procedures are set forth in the packages. 3rd Hardy Decl. ¶ 30. The FBI and the National Security Division compared records and confirmed that they had complete copies of each of the four FISA packages whose existence had been officially acknowledged. Id. ¶ 28. FBI then coordinated the processing of the documents, in consultation with interested components. Id. ¶ 31; Findlay Decl. ¶¶ 11-12 & n. 6.
This strategy – identifying the personnel responsible for the requested FISC information, and asking them to search their records – is a “method[] which can be reasonably expected to produce the information requested.” Oglesby, 920 F.2d at 68; see also James Madison Project v.
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DOJ, 267 F. Supp. 3d 154, 160-61 (D.D.C. 2017). Therefore, DOJ is entitled to summary judgment on this issue.
B. DOJ Properly Redacted Classified Information in the Carter Page Documents Pursuant to Exemption 1.6 (1) Exemption One Standards.
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 “are in fact properly classified pursuant to such Executive Order.” 5 U.S.C. § 552(b)(1). Under Executive Order No. 13,526, an agency may 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[.]” 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,” Exec. Order No. 13,526 §§ 1.4(c); or “foreign relations or foreign activities of the United States, including confidential sources,” id. §1.4(d). See also Judicial Watch, Inc. v. Dep’t of Defense, 715 F.3d 937, 941 (D.C. Cir. 2013) (citation omitted) (“‘[P]ertains’ is ‘not a very demanding verb.’”). As discussed above, a court “accord[s] substantial weight to an agency’s affidavit concerning the details of the classified status of the disputed record because the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse [e]ffects might occur as a result of a particular classified record.” Larson, 565 F.3d at 864 (citation omitted).
6 The FBI coordinated the review of these documents, and NSD participated in the process. Accordingly, the FBI is asserting all applicable exemptions over these materials. Findlay Decl. ¶ 12 & n.6; 3rd Hardy Decl. ¶ 31.
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(2) DOJ Properly Withheld Information Pertaining to Intelligence Activities, Sources and Methods.
Defendant redacted portions of the Carter Page FISA applications and orders to safeguard currently and properly classified information involving categories of information set forth in Section 1.4 of Executive Order 13,526. See 3rd Hardy Decl. at ¶¶ 35-67. Id. First, the redacted information pertains to “intelligence activities (including covert action), intelligence sources or methods, or cryptology.” Exec. Order 13,526 §1.4(c). FISA surveillance is an intelligence method, and the request on its face seeks information pertaining to FISA surveillance. The supporting declaration establishes that information redacted from these FISA packages encompasses “the FBI’s intelligence interests, priorities, activities and methods; undisclosed intelligence sources or methods upon which the FBI relied in support of its application for FISA authorized surveillance of Carter Page, as well as undisclosed portions of intelligence information provided by Source #1; and information about the use and implementation of various intelligence methods.” 3rd Hardy Decl. ¶ 49.
The Third Hardy Declaration identifies two general categories of information withheld on this basis and describes the specific harm to national security that would result from disclosure: activities and methods; and intelligence sources. First, the redacted information includes details about the FISA surveillance sought and obtained through the FISA applications and orders – such as dates, locations, intended purposes, and specific methods -- as well as detailed, undisclosed information about other intelligence activities and methods forming part of the underlying basis for the applications. 3rd Hardy Decl. ¶ 50. The withheld information includes, for example, detailed information about investigation of individuals other than Page, undisclosed methods used to gather information about Page, detailed undisclosed information about a source’s activities, and information about the specific amounts and timeframes for payments to
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human sources. Id. ¶¶ 56-59. Additionally, the FBI redacted information that would reveal the exact timeframes of authorized surveillance and descriptions of exactly what was authorized, including minimization procedures. Id. ¶¶ 51-53. None of that information has been previously disclosed and all of it would be valuable to adversaries seeking to analyze, undermine, and evade our counterintelligence apparatus. This type of information reveals actual intelligence activities undertaken regarding specific targets during a specific timeframe, discloses intelligencegathering capabilities of those methods, and provides an assessment of the level of FBI penetration of specific targets during a specific time frame. Id. ¶ 58. “Armed with such information, adversaries, including hostile foreign governments, could implement actions to thwart the FBI’s intelligence activities and weaken or negate the particular intelligence methods, which would severely disrupt the FBI’s intelligence-gathering capabilities.” Id.
Second, DOJ has redacted information that tends to identify particular intelligence sources. As explained in the Third Hardy Declaration, “an intelligence source who requires continued classification is one that provided or is currently providing information that pertains to national security matters, the disclosure of which could reasonably be expected to result in serious damage to FBI’s intelligence-gathering capabilities.” 3rd Hardy Decl. ¶ 60. Although the identity of one source has been disclosed, the Page applications include identifying information for other sources as well. Id. ¶¶ 61-63. Disclosure of intelligence sources “could reasonably be expected to jeopardize their livelihoods, their families and other relationships, and even their lives” and disclosure of one source can cause other current and potential sources to fear disclosure. Id. ¶¶ 62-63. Thus, disclosure of source-identifying information could reasonably be expected to damage national security by endangering current and past sources and by discouraging current and potential sources from reporting. Id. Accordingly, such information is properly redacted pursuant to Exemption 1.
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(3) DOJ Properly Redacted Information Pertaining to Foreign Relations. The Hardy Declaration establishes that DOJ also redacted certain information pertaining to foreign relations or foreign activities of the United States, and that disclosure of this information would cause harm to national security. 3rd Hardy Decl. ¶¶ 64-67. Although Mr. Hardy explains that further details cannot be provided on the public record, the redacted information relates to the United States’ interactions with foreign countries. Id. If disclosed, such information “can reasonably be expected to lead to diplomatic or economic retaliation, the loss of cooperation, or the compromise of cooperative foreign sources.” Id. The disclosure of specific relationships could reasonably be expected to cause serious damage to national security. Id. Accordingly, such information is properly redacted pursuant to Exemption 1. 7 C. DOJ Properly Withheld Information in the Carter Page Documents Pursuant to
Exemption 3, Including Information Protected By the National Security Act. 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). The Government’s mandate to withhold information under FOIA Exemption 3 is broader than its authority under FOIA Exemption 1, as it does not have to demonstrate that the disclosure will harm national security. See Sims, 471 U.S. at 167; Gardels, 689 F.2d at 1106–07. Instead, “the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within the statute’s coverage. It is particularly important to protect intelligence sources and methods from public disclosure.” Morley v. CIA, 508 F.3d 1108, 1126 (D.C. Cir.
7 The classified Hardy Declaration provides additional information about the redaction of classified information and the harm to national security that would result from disclosure.
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2007). In analyzing the propriety of a withholding made pursuant to FOIA Exemption 3, the Court need not examine “the detailed factual contents of specific documents[.]” Id.
DOJ has invoked Section 102A(i)(1) of the National Security Act of 1947, as amended (now codified at 50 U.S.C. § 3024(i)(1)), which 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., ACLU v. Dep’t of Defense, 628 F.3d at 619. In fact, the Supreme Court has recognized the “wide-ranging authority” provided by the National Security Act to protect intelligence sources and methods. See Sims, 471 U.S. at 169–70, 177, 180; see Halperin v. CIA, 629 F.2d 144, 147 (D.C. Cir. 1980) (explaining that the only question for the court is whether the agency has shown that responding to a FOIA request “could reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods”). The Act has been properly invoked to withhold information about FISA and other surveillance techniques. See, e.g., Agility Pub. Warehousing Co. K.S.C. v. NSA, 113 F. Supp. 3d 313, 329 (D.D.C. 2015).
As explained above, information redacted from the Page FISA applications and orders includes information that would disclose intelligence sources and methods. See Part II.B.2, supra. Accordingly, DOJ properly concluded that it is also prohibited from disclosing such information under the National Security Act. 3rd Hardy Decl. ¶¶ 68-72.
DOJ also redacted information pursuant to another Exemption 3 statute, which cannot be publicly identified without revealing the very information to be protected. Id. ¶ 73. The Court is referred to the ex parte, in camera declaration for additional explanation.
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D. DOJ Properly Withheld Information in the Carter Page Documents Pursuant to Exemption 7(A).
(1) Exemption 7 Threshold. Exemption 7 protects from disclosure all “records or information compiled for law enforcement purposes” that could reasonably be expected to cause one of the six harms outlined in the Exemption’s subparts. 5 U.S.C. § 552(b)(7). “To fall within any of the exemptions under the umbrella of Exemption 7, a record must have been ‘compiled for law enforcement purposes.’” Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195, 202 (D.C. Cir. 2014) (quoting 5 U.S.C. § 552(b)(7)). Here, DOJ records regarding FISA applications and orders are compiled in part for law enforcement purposes. 3rd Hardy Decl. ¶¶ 74-79. (2) Exemption 7(A) Standards. Exemption 7(A) “exempts from FOIA disclosure records or information compiled for ‘law enforcement purposes . . . to the extent that the production . . . could reasonably be expected to interfere with enforcement proceedings.’” Shannahan v. IRS., 672 F.3d 1142, 1145 (9th Cir. 2012) (quoting 5 U.S.C. § 552(b)(7)(A)). “Exemption 7(A) reflects the Congress’s recognition that ‘law enforcement agencies ha[ve] legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it [comes] time to present their case.’” Citizens for Responsibility & Ethics in Wash. v. DOJ, 746 F.3d 1082, 1096 (D.C. Cir. 2014) (hereinafter “CREW”) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978)). An ongoing investigation typically triggers Exemption 7(A). See CREW, 746 F.3d at 1098 (quoting Juarez v. DOJ, 518 F.3d 54, 59 (D.C. Cir. 2008)). “In the typical case,” therefore,
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“the requested records relate to a specific individual or entity that is the subject of the ongoing investigation, making the likelihood of interference readily apparent.” Id.
(3) Disclosure of the Withheld Information Could Reasonably Be Expected to Interfere with the Russia Investigation.
Here, the FBI sought and received authority under FISA to surveil Carter Page as part of and in furtherance of a pending proceeding – the ongoing Russian interference investigation. See 3rd Hardy Decl. ¶¶ 82-83. The redacted information reflects details relevant to the ongoing investigation, “making the likelihood of interference readily apparent.” See CREW, 746 F.3d at 1098.
The Third Hardy Declaration explains that disclosure of redacted information in the Carter Page FISA documents “could reasonably be expected to interfere with the pending Russian election interference investigation if publicly disclosed at this time.” 3rd Hardy Decl. ¶ 83. The Third Hardy Declaration explains that the types of information that could reasonably be expected to harm the investigation if disclosed include: aspects of the investigation not previously made public, what information or activities are or are not of interest to the investigators, areas in which there may be gaps in investigators’ knowledge that could be exploited, and the identities of potential witnesses and the information they provided. Hardy Decl. ¶ 85. Moreover, disclosure of confidential or classified sources risks curtailing their cooperation. Id. ¶ 87. Disclosure of the evidence relied upon risks influencing, compromising or tainting these or other witnesses, and risks revealing gaps in investigative information that can be exploited. Id. ¶ 88. Disclosure of specific investigative techniques used during specific time periods and regarding specific subject matters creates similar risks, including efforts by adversaries or targets to undermine the techniques. Id. ¶ 89.
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The FBI carefully considered whether information would match public information and whether its disclosure would reasonably be expected to harm the investigation. Id. ¶ 90. Additionally, although there has been widespread media coverage of the Russia investigation, official disclosures would cause greater harm to the investigation, regardless of whether it confirmed or refuted media reporting. Id. ¶ 84. Accordingly, such information is properly withheld pursuant to Exemption 7(A).
E. DOJ Properly Withheld Information in the Carter Page Documents Pursuant to Exemption 7(D).
DOJ properly withheld information under Exemption 7(D) because certain investigatory information would reveal the identity or information of confidential sources.
(1) 7(D) Standards. Exemption 7(D) permits the withholding or redacting of law enforcement records, the release of which “could reasonably be expected to disclose the identity of a confidential source . . . and, . . . [in the case of] an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source.” 5 U.S.C. § 552(b)(7)(D). Exemption 7(D) requires no balancing of public and private interests. See Dow Jones & Co. v. DOJ, 917 F.2d 571, 575–76 (D.C. Cir. 1990). The agency is entitled to withhold any information that could disclose a confidential source’s identity and, in the context of an agency conducting a lawful national security intelligence investigation, to withhold the substance of the information furnished by such source. See 5 U.S.C. § 552(b)(7)(D); Dep’t of Justice v. Landano, 508 U.S. 165, 172 (1993); Canning v. DOJ, 567 F. Supp. 2d 104, 111 (D.D.C. 2008). A confidential source is one who “provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred.” Landano, 508 U.S. at 172. Thus, Exemption 7(D) applies to protect the identity of a source if an
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agency establishes that a source has provided information under either an express or implied promise of confidentiality. See Williams v. FBI, 69 F.3d 1155, 1159 (D.C. Cir. 1995). In cases, such as this one, where the Government provides an express promise of confidentiality, “the issue is simple enough: The agency must present ‘probative evidence that the source . . . receive[d] an express grant of confidentiality.’” Hodge v. FBI, 703 F.3d 575, 581 (D.C. Cir. 2013) (quoting Campbell v. DOJ, 164 F.3d 20, 34 (D.C. Cir. 1998).
(2) DOJ Properly Withheld Information Regarding Confidential Sources. Here, the FBI redacted certain non-public information regarding Christopher Steele (identified as “Source #1” in the documents), and all information about and from other confidential human sources. 3rd Hardy Decl. ¶¶ 112-17. First, the Hardy Declaration establishes that the FBI provided an express promise of confidentiality to Steele as part of the FBI’s protocols for confidential human sources, and Steele in fact provided information in furtherance of a national security investigation. Id. ¶¶ 115-16. His information is therefore categorically exempt from disclosure under 7(D). Nonetheless, Steele’s identity and some of his reporting has been publicly disclosed, and the FBI therefore has not redacted information that matches his information as disclosed in the Nunes and Schiff memoranda. Id. Second, the FISA applications contain information from and about other sources who provided information to the FBI and did so pursuant to express assurances of confidentiality. Id. ¶ 117. Thus, the requirements of Exemption 7(D) are satisfied. Confidential human sources providing information to the FBI pursuant to assurances of confidentiality should be secure in the knowledge that their assistance will be held in confidence. Id. ¶¶ 113-14. Release of such information may eliminate a source and have a chilling effect on other current and potential sources, who need to know they can trust the FBI’s assurances of confidentiality. Id. Accordingly, the FBI properly redacted information pursuant to Exemption 7(D).
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F. DOJ Properly Withheld Information in the Carter Page Documents Pursuant to Exemption 7(E).
(1) 7(E) Standards. Exemption 7(E) authorizes withholding of information compiled for law enforcement purposes if release of the information “would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). Congress intended that Exemption 7(E) protect law enforcement techniques and procedures from disclosure, as well as techniques and procedures used in all manner of investigations after crimes or other incidents have occurred. Exemption 7(E) is written in broad and general terms to cover not only information that will definitively lead to the circumvention of the law, but also information that risks circumvention of the law. Mayer Brown, LLP v. Internal Revenue Serv., 562 F.3d 1190, 1193 (D.C. Cir. 2009); Bigwood v. Dep’t of Defense, 132 F. Supp. 3d 124, 152–53 (D.D.C. 2015). Satisfying the exemption is a “relatively low bar”. See Blackwell v. FBI, 646 F.3d 37, 42 (D.C. Cir. 2011). The agency need not make a “highly specific ... showing” of risk of circumvention of the law, but only “demonstrate logically how the release of the requested information might create” such a risk. Id. (quoting Mayer Brown, 562 F.3d at 1194). Nor must the agency demonstrate “an actual or certain risk of circumvention” of the law; rather the agency need only show “the chance of a reasonably expected risk.” Mayer Brown, 562 F.3d at 1193. Importantly, the range of “law enforcement purposes” covered by Exemption 7(E) includes not only traditional criminal law enforcement duties, but also proactive steps taken by the government designed to prevent terrorism and to maintain national security. See Ctr. for Nat’l Sec. Studies, 331 F.3d at 926; Bigwood, 132 F. Supp. 3d at 152; see also Milner v. Dep’t of
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the Navy, 562 U.S. 562, 582 (2011) (“Particularly in recent years, terrorism prevention and national security measures have been recognized as vital to effective law enforcement efforts in our Nation.”) (Alito, J., concurring).
(2) DOJ Properly Withheld Information About Law Enforcement Techniques that Risks Circumvention of the Law.
The withholdings easily satisfy the “relatively low” Exemption 7(E) standard here. The entirety of the FISA packages are a law enforcement technique, whose details were not previously known to the public, and such FISA applications have never previously been processed for public release. Accordingly, the applications and orders contain a substantial amount of still nonpublic information about this law enforcement technique and how it is used in particular contexts. The Third Hardy Declaration describes eight categories of information withheld under 7(E).8 3rd Hardy Decl. ¶¶ 119-33.
First, DOJ withheld information about the investigative focus of these particular FISA applications and orders. 3rd Hardy Decl. ¶ 120. Together, the information in these applications reveals how the FBI conducted certain aspects of the investigation to that date and a road-map of certain contemplated investigative steps. Id. Although the general techniques authorized by the FISA are publicly known, this detailed information about how, when, where and why such authorities are employed in this particular investigation is not publicly known. Id. Such details would be useful to criminals and other adversaries as a guide to adjust their own behavior and develop effective countermeasures. Id.
Second, DOJ withheld information about the collection and analysis of information it
8 Each category is separately coded on the redacted documents. See 3rd Hardy Decl. ¶ 34. These categories often overlap, and redactions may be coded to more than one category. For example, specific techniques described to the Court are protected under category three, but also tend to show the focus of the investigation under category one based on which investigative activities were ongoing when and where.
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obtains for investigative purposes, including how and where the FBI collects particular types of information and the methodologies employed to analyze it. Id. ¶¶ 121-23. Such disclosures would enable subjects of investigations to identify when these or similar techniques are or might be used and take countermeasures. Id.
Third, DOJ withheld specific techniques authorized for and used in national security investigations. Hardy Decl. ¶¶ 124-26. This category includes: techniques that have not been publicly disclosed in this specific context, details about other techniques that have been disclosed generally, and those techniques specifically considered or authorized by the FISC here. Id. ¶ 124. The disclosure of techniques in this particular context would have important ramifications on the use of such techniques in other national security cases. Id. Although the techniques authorized by FISA are publicly known, detailed information about how, when, where and why such authorities are employed in a particular investigation is not publicly known. Id. Aggregated, such information provides a roadmap to counterintelligence investigations and would give sophisticated adversaries the information necessary to take countermeasures. Id.
Fourth, DOJ redacted specific databases used by the FBI for investigative purposes. It is not publicly known under what circumstances the FBI utilizes these particular databases, particularly in the context of a national security investigation. Id. ¶ 127. And their disclosure would provide another useful data point useful to spies, criminals and others intent on avoiding FBI attention and developing countermeasures. Id.
Fifth, DOJ withheld specific information about payments to confidential human sources. While it is publicly known that FBI pays such sources, the details of when, for what, and how much sources are paid are aspects of this technique that are not made public in order to protect the viability of this technique. Id. ¶ 128. Moreover, the amount paid to a particular confidential human source could suggest the relative volume or importance of information provided by a
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source, leading people who believe they are subjects of such source reporting to assess the likelihood that their activities have come to the FBI’s attention. Id. ¶¶ 128-29. And it could reveal important non-public information about the level of resources devoted to particular investigations or subjects. Id.
Sixth, DOJ withheld detailed information about the targets, dates and scope of surveillance. While it is known that the FBI conducts FISA surveillance and specifically conducted surveillance directed at Page, the details about how such surveillance was investigatively or technically implemented, the locations targeted by the surveillance, and the specific time periods under which the surveillance was conducted are not public. Id. ¶ 130. Disclosure of such details about how and when the FBI conducts surveillance would create a mosaic that criminals and other adversaries could use to predict when and where such surveillance may occur, detect it, and to develop and utilize countermeasures. Id.
Seventh, DOJ redacted information regarding dates and types of FBI investigations. In particular, the FBI protected information that identifies the type of a particular investigation, whether it is a “preliminary” or “full” investigation, and the time period of the particular investigation. Id. ¶ 131. Disclosure would allow individuals to know what types of activities would trigger which type of investigation and allow them to deduce applicable time periods. Id. Disclosure that a particular activity warrants investigation could cause individuals to adjust conduct to avoid detection. Id.
Eighth, DOJ redacted investigative strategies for particular evidence. The FBI redacted information that describes a specific purpose for which it might use information gathered as a result of its FISA authorized surveillance of Page. Id. ¶¶ 132-33. Publicly disclosing this information would permit targets of FBI investigative activities to anticipate such activities and take effective countermeasures. Id.
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G. DOJ Properly Withheld Private Information in the Carter Page Documents Pursuant to Exemptions 6 and/or 7(C).
(1) Applicable Exemptions. Two FOIA exemptions cover different types of private information redacted in these documents. First, Exemption 6 allows agencies to withhold “personnel and medical files and similar files” whenever “disclosure . . . would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). To determine whether a file qualifies as “similar” to “personnel or medical files,” courts examine whether information in that file “applies to a particular individual.” Dep’t of State v. Wash. Post Co., 456 U.S. 595, 601-02 (1982). Therefore, not only does the exemption protect files, “but also bits of personal information, such as names and addresses, the release of which would create a palpable threat to privacy.” Prison Legal News v. Samuels, 787 F.3d 1142, 1147 (D.C. Cir. 2015) (citation omitted). If the threshold requirement is met, a court must next ask whether disclosure would compromise a “substantial” privacy interest, since FOIA requires the release of information “[i]f no significant privacy interest is implicated . . . .” Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1229 (D.C. Cir. 2008) (citation omitted). “Anything greater than a de minimis privacy interest” is generally sufficient. Id. at 1229–30. Finally, courts test whether release of such information would constitute a “clearly unwarranted invasion of personal privacy,” Wash. Post Co. v. Dep’t of Health & Human Servs., 690 F.2d 252, 260 (D.C. Cir. 1982), by balancing “the privacy interest that would be compromised by disclosure against any public interest in the requested information,” Multi Ag Media, 515 F.3d at 1228. Courts examine the “public need for the information” in light of “the basic purpose of [FOIA] to open agency action to the light of public scrutiny, rather than . . . the particular purpose for which the document is being requested.” DOJ v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 772 (1989) (internal citations omitted).
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“That purpose . . . is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency’s own conduct.” Id. at 773.
Second, under Exemption 7(C), an agency is exempt from producing “records or information compiled for law enforcement purposes . . . to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). In determining whether this exemption applies to particular information, a court must balance the privacy interests of individuals mentioned in the records against the public interest in disclosure. See ACLU v. DOJ, 655 F.3d 1, 6 (D.C. Cir. 2011). The privacy interest at stake belongs to the individual, not the government agency, see Reporters Comm., 489 U.S. at 763–65, and “individuals have a strong interest in not being associated unwarrantedly with alleged criminal activity,” Stern v. FBI, 737 F.2d 84, 91–92 (D.C. Cir. 1984).
(2) DOJ Properly Withheld Private Information. Here, the Third Hardy Declaration establishes that several categories of private or personally identifying information are properly redacted. First, DOJ withheld the names of the FBI agents who signed the Page FISA applications under Exemption 6 and 7(C). Such agents can become the target of harassing inquiries or threats, a risk that is heightened in the context of national security or counterintelligence cases. 3rd Hardy Decl. ¶¶ 96-101. They have substantial privacy interests in avoiding such harassment or threats, an interest that is heightened by the high profile nature of the investigation. Id. Finally, there is no legitimate public interest in these identities, which would not inform the public understanding of the Page warrants, the Russia investigation or anything else. Id. Accordingly, the FBI properly protected these names. Second, DOJ withheld certain personal information about Carter Page. While FISC-
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authorized surveillance of Carter Page has been officially acknowledged, there remains information not previously made public by the Government and in which he retains a privacy interest. 3rd Hardy Decl. ¶¶ 102-05. Although there is a demonstrated public interest in these applications, the particular information redacted would not substantially increase the public’s understanding of this matter. Id.
Third, DOJ withheld identifying information about a FISC deputy clerk and the career NSD attorney who submitted the FISA applications to the FISC. Id. ¶¶ 106-109. Such employees could become targets of harassing inquiries or threats, and they may be targeted by foreign powers; in contrast, there is no public interest in their identities. Id. Accordingly, their identifying information was properly redacted.
Finally, DOJ redacted identifying information regarding a third party source. This particular source is mentioned twice in the released documents and did not provide information directly to the FBI. Id. ¶¶ 110-11. The individual has a substantial privacy interest in not being publicly linked to the investigation and could face harassment, retaliation, threats or physical harm if revealed publicly in connection with a sensitive national security investigation. Id. And the public interest in an individual mentioned in two footnotes is quite limited and would not increase the public’s understanding of FBI operations or this investigation. Id. Accordingly, this information was properly redacted.
H. DOJ Properly Withheld in Full Certain Portions of the Carter Page Documents Pursuant to Exemptions 1, 3, 7(A), and 7(E).
DOJ withheld 186 pages in full from the Carter Page FISA packages. Disclosure would reveal classified intelligence methods and law enforcement techniques. 3rd Hardy Decl. ¶¶ 13541. There is no additional information that can be provided on the public record but the justification for withholding is similar to the justification for other redactions under these
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exemptions. The classified ex parte, in camera submission provides additional information. I. DOJ Released All Reasonably Segregable Information. Under FOIA, “any reasonably segregable portion of a record shall be provided to any
person requesting such record after deletion of the portions which are exempt . . . .” 5 U.S.C. § 552(b). Accordingly, “non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.” Mead Data Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). An agency has no obligation to segregate non-exempt material that is so “inextricably intertwined” with exempt material that “the excision of exempt information would impose significant costs on the agency and produce an edited document with little informational value.” Neufeld v. IRS, 646 F.2d 661, 666 (D.C. Cir. 1981), abrogated on other grounds by Church of Scientology of Calif. v. IRS, 792 F.2d 153 (D.C. Cir. 1986); see also Nat’l Sec. Archive Fund, Inc. v. CIA, 402 F. Supp. 2d 211, 220–21 (D.D.C. 2005) (same). A court “may rely on government affidavits that show with reasonable specificity why documents withheld pursuant to a valid exemption cannot be further segregated . . . .” Juarez, 518 F.3d at 61 (internal citation omitted). “Agencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007).
Here, DOJ has shown that it released all reasonably segregable material through the declaration of Mr. Hardy. 3rd Hardy Decl. ¶ 134. Mr. Hardy indicates that the agency conducted a document-by-document and line-by-line review to ensure that all reasonably segregable, nonexempt information was released, taking into account the public disclosures related to this matter. Id. See Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776-77 (D.C. Cir. 2002) (holding that agency had demonstrated there was no reasonably segregable nondeliberative material when it had submitted an affidavit by an agency official confirming that “a
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line-by-line review of each document withheld in full [had] determined that ‘no documents contained releasable information which could be reasonably segregated from the nonreleasable portions.’”). This segregability conclusion is borne out by the released documents: redactions have been taken narrowly and only where specific information protected by exemptions is at issue.
Because the Hardy Declaration establishes that all reasonably segregable, non-exempt information has been released, Defendant is entitled to summary judgment.
III. DOJ Properly Refused to Confirm or Deny the Existence of Other Responsive Records.
DOJ has refused to confirm or deny the existence of FISA applications and orders beyond the four previously acknowledged Carter Page packages. DOJ has established that this partial Glomar response is proper, pursuant to Exemptions 1, 3, 7(A) and 7(E). 3rd Hardy Decl. ¶¶ 14246; Findlay Decl. ¶¶ 14-15.
The standards for these exemptions are outlined in Part II of this memorandum, and the application of FOIA standards to refuse to confirm or deny the use of particular surveillance techniques against particular individuals ought to be non-controversial. The Government routinely makes Glomar responses to similar requests for information about particular surveillance subjects, see 3rd Hardy Decl. ¶¶ 13, 143 (confirming that with extremely limited exceptions, the FBI does not confirm or deny FISA surveillance of particular individuals or entities); Findlay Decl. ¶ 16 (same), and courts routinely uphold such responses. See, e.g., Marrera v. DOJ, 622 F. Supp. 51, 53–54 (D.D.C. 1985) (“[T]his Court finds that OIPR’s refusal to confirm or deny the existence of FISA records pertaining to this particular plaintiff to be justified in the interests of national security as part of an overall policy of [the Executive Order] with respect to all FISA FOIA requests.”); Schwarz v. Dep’t of Treasury, 131 F. Supp. 2d 142,
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149 (D.D.C. 2000) (“The Office properly refused to confirm or deny that it had any responsive records maintained under the Foreign Intelligence Surveillance Act of 1978 (FISA) and in nonFISA files relating to various intelligence techniques.”), aff’d, No. 00-5453, 2001 WL 674636 (D.C. Cir. May 10, 2001); Competitive Enter. Inst. v. NSA, 78 F. Supp. 3d 45, 60 (D.D.C. 2015) (upholding NSA Glomar response to request for metadata records with respect to two particular individuals); Agility Pub. Warehousing Co. K.S.C., 113 F. Supp. 3d at 329 (upholding NSA Glomar in response to request for particular surveillance records); see also Carter v. NSA, No. 1:12-CV-00968-CKK, 2014 WL 2178708, at *1 (D.C. Cir. Apr. 23, 2014) (upholding Glomar response to request for records related to alleged NSA surveillance of plaintiff); Moore v. Obama, No. 09-5072, 2009 WL 2762827, at *1 (D.C. Cir. Aug. 24, 2009) (same); Wilner, 592 F.3d at 65 (“Glomar responses are available, when appropriate, to agencies when responding to FOIA requests for information obtained under a ‘publicly acknowledged’ intelligence program, such as the [Terrorist Surveillance Program], at least when the existence of such information has not already been publicly disclosed.”).
A. The Partial Glomar is Proper Pursuant to Exemption One Because the Existence or Non-Existence of Responsive Records is Properly Classified.
The Glomar response with respect to the existence or non-existence of other FISA surveillance applications is proper under FOIA Exemption 1. DOJ has logically and plausibly explained why it cannot confirm or deny the existence of additional responsive records that would identify other FISA targets, if any, without revealing information that is currently and properly classified and exempt from disclosure under FOIA Exemption 1. First, the existence or non-existence of additional responsive records “pertains to” one of the categories of information protected by Executive Order 13526, namely, “intelligence sources and methods” and “foreign relations and foreign activities of the United States.” And the disclosure of either category
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would cause harm to national security. The existence or non-existence of responsive records pertains to intelligence sources and
methods because the request, on its face, seeks information about whether there has been additional FISA surveillance, beyond that already acknowledged. 3rd Hardy Decl. ¶¶ 152-55; Findlay Decl. ¶¶ 16-19. Confirming or denying whether other responsive records exist “would be tantamount to confirming whether or not the FBI has relied on a particular intelligence activity or method targeted at particular individuals or organizations” and “reveal otherwise nonpublic information regarding the nature of the FBI’s intelligence interests, priorities, activities and methods– information that is highly desired by hostile actors who seek to thwart the FBI’s intelligence-gathering mission.” 3rd Hardy Decl. ¶ 155; Findlay Decl. ¶ 17 (“To disclose the existence or non-existence of responsive documents in NSD files would disclose whether or not particular individuals or organizations were targets of FISC-authorized surveillance.”). Such activities and methods “are valuable only so long as they remain unknown and unsuspected” and that disclosure would “seriously jeopardize[]” the use of such methods. 3rd Hardy Decl. ¶¶ 15354; Findlay Decl. ¶¶ 20-21. Mr. Hardy further explains that hostile groups review officially released information like this; they have “the ability to gather information from myriad sources, analyze it, and deduce means and methods from disparate details to defeat the U.S. Government’s collection efforts.” 3rd Hardy Decl. ¶ 154; Findlay Decl. ¶¶ 20-21. Disclosure of the withheld information “would pose at least a serious risk to national security.” 3rd Hardy Decl. ¶ 155; Findlay Decl. ¶ 20.
Further, the Hardy Declaration establishes that confirming the existence or non-existence of other responsive documents would reveal information about the United States Government’s foreign relations, the disclosure of which could cause damage to national security. 3rd Hardy Decl. ¶¶ 156-60. Such disclosure could “weaken, or even sever, the relationship between the
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United States and its foreign partners (present and future), thus degrading the Government’s ability to combat hostile threats abroad.” Id. 9
Accordingly, the partial Glomar response was proper under Exemption One. B. The FBI Established that the Partial Glomar is Proper Pursuant to Exemption 3 and the National Security Act.
As discussed in Part II, Exemption 3 and the National Security Act prohibit the disclosure of intelligence sources and methods. For the reasons discussed above with regard to Exemption 1, confirming the existence or non-existence of responsive records could divulge information about the existence or nonexistence of intelligence sources and methods protected from disclosure under the National Security Act. 3rd Hardy Decl. ¶¶ 161-63. No additional showing is necessary under the National Security Act.
C. The FBI Established that the Partial Glomar is Proper Pursuant to Exemption 7(A).
Here, the Hardy Declaration justifies the FBI’s use of Exemption 7(A) to protect the currently undisclosed fact of the existence or non-existence of any investigative records that would be responsive to Plaintiffs’ requests. As an initial matter, FISA records are plainly compiled for law enforcement purposes. As the Hardy Declaration establishes, the “only circumstance under which the FBI can request a FISA order is when the FBI is conducting an authorized, predicated national security investigation within the scope of its law enforcement and foreign intelligence responsibilities.” 3rd Hardy Decl. ¶ 77. Accordingly, FISA applications and FISC orders – when they exist – are records compiled for law enforcement purposes.
9 The Government is not arguing that such disclosure of the existence or nonexistence of records would reveal the existence of the Russia investigation. The existence of the Russia investigation is officially acknowledged information. Additional information about the harm to foreign relations that would result from disclosure is available in the ex parte, in camera declaration.
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Additionally, the information requested purportedly relates to an ongoing investigation.
Plaintiffs’ request explicitly mentions the investigation into the Russian government’s efforts to
interfere in the 2016 presidential election. 3rd Hardy Decl. ¶¶ 14 (describing opening of
investigation); 168 (describing ongoing investigation). Any sort of investigation involving such
FISA records would be the sort of active investigation protected by Exemption 7(A). See, e.g.,
People for the Ethical Treatment of Animals v. NIH, 745 F.3d 535, 541 (D.C. Cir. 2014)
(Exemption 7’s threshold requirement satisfied in a Glomar response case because FOIA
requester did not dispute that “any responsive documents,” if they existed, “would constitute
records or information compiled for law enforcement purposes . . .”).
The Hardy Declaration further describes the harm to an investigation that may result:
Confirming or denying the existence or non-existence of responsive records would reveal non-public information about the focus, scope, and conduct of that investigation. Specifically, it would reveal whether or not specific investigative techniques have been used; when and to what extent they were used, if they were; their relative value or benefit if they were used; and the targets they were used against, if any. Prematurely disclosing nonpublic information about the Russia investigation could give targets and others intent on interfering with the FBI’s investigative efforts the information necessary to: take defensive actions to conceal criminal activities; develop and implement countermeasures to elude detection; suppress, destroy, or fabricate evidence; and identify potential witnesses or sources, exposing them to harassment, intimidation, coercion, and/or physical threats. Accordingly, confirming or denying the existence or non-existence of responsive records, beyond the four Carter Page FISA applications . . . , could reasonably be expected to adversely affect the pending investigation.
3rd Hardy Decl. ¶ 169.
Accordingly, a Glomar response is available under these circumstances to protect the
integrity of confidential law-enforcement investigations, and to therefore prevent harm
cognizable by FOIA Exemption 7(A). See, e.g., Cozen O’Connor v. Dep’t of Treasury, 570 F.
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Supp. 2d 749, 788 (E.D. Pa. 2008); see also CREW, 746 F.3d at 1096 (“Exemption 7(A) reflects the Congress’s recognition that ‘law enforcement agencies ha[ve] legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it [comes] time to present their case.’” (quoting Robbins Tire, 437 U.S. at 224)). For these reasons, the FBI’s Glomar response is justified by Exemption 7(A).
D. The FBI Established that the Partial Glomar Response is Proper Pursuant to Exemption 7(E).
As discussed in Part II, Exemption 7(E) protects law enforcement techniques and procedures, where disclosure risks circumvention of the law. Here, the Third Hardy Declaration establishes that disclosure of existence or non-existence of responsive records would reveal a law enforcement technique or procedure. “How the FBI applies its investigative resources (or not) against a particular allegation, report of criminal activity, or perceived threat is itself a law enforcement technique or procedure that the FBI protects.” 3rd Hardy Decl. ¶ 171. Such an acknowledgment of the existence or non-existence of responsive records “would reveal when and under what circumstances the FBI relies upon FISA-authorized techniques in an investigation,” and “provide pieces of information that adversaries could use to ascertain at what point, and against whom we might use particular techniques.” Id. ¶ 172. “Armed with this information, adversaries could glean significant insight into the activities likely to attract – or not attract – the FBI’s law enforcement attention. These individuals would then be able to alter their behavior to avoid attention by law enforcement, making it more difficult for the FBI to be proactive in assessing threats and investigating crimes.” Id. Accordingly, the FBI properly invoked Exemption 7(E) to refuse to confirm nor deny the existence of responsive records, beyond the Carter Page documents discussed in detail above.
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IV. The Withheld Information Has Not Been Officially Acknowledged. As a general matter, under FOIA, “when an agency has officially acknowledged
otherwise exempt information through prior disclosure, the agency has waived its right to claim an exemption with respect to that information.” ACLU v. CIA, 710 F.3d 422, 426 (D.C. Cir. 2013). This “official acknowledgement” principle applies to the Glomar context, so a requester “can overcome a Glomar response by showing that the agency has already disclosed the fact of the existence (or non-existence) of responsive records, since that is the purportedly exempt information that a Glomar response is designed to protect.” Id. at 427. But the plaintiff “must bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld.” Id. (quoting Wolf, 473 F.3d at 378).
The D.C. Circuit has narrowly construed the “official acknowledgment” doctrine, however, and to bring such a challenge plaintiff must satisfy three stringent criteria, none of which are satisfied here. “First, the information requested must be as specific as the information previously released.” Wolf, 473 F.3d at 378 (quoting Fitzgibbon, 911 F.2d at 765); James Madison Project v. DOJ, No. CV 17-1392 (ABJ), 2018 WL 4283562, at *6 (D.D.C. Sept. 7, 2018). “Prior disclosure of similar information does not suffice; instead, the specific information sought by the plaintiff must already be in the public domain by official disclosure. This insistence on exactitude [by the D.C. Circuit] recognizes ‘the Government’s vital interest in information relating to national security and foreign affairs.” Id. (quoting Pub. Citizen v. Dep’t of State, 11 F.3d 198, 203 (D.C. Cir. 1993)); Competitive Enter. Inst., 78 F. Supp. 3d at 54 (“Plaintiffs in this case must therefore point to specific information in the public domain establishing that the NSA has [the claimed information.]”). The information already released must also be of the same level of generality as the information sought—broadly crafted disclosures, even on the same general topic, do not waive the Glomar response. See, e.g., Afshar,
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702 F.2d at 1133 (previous disclosure that plaintiff had “‘created a problem’ in U.S.-Iranian relations” was too general to justify releasing documents detailing the nature of that problem).
“Second, the information requested must match the information previously disclosed.” Wolf, 473 F.3d at 378 (quoting Fitzgibbon, 911 F.2d at 765). If there are “substantive differences” between the two, an official-acknowledgment claim must fail. ACLU v. DOD, 628 F.3d at 621. That is true even if the previous disclosures are on the same topic. See, e.g., Competitive Enter. Inst., 78 F. Supp. 3d at 57 (a Presidential statement that “the intelligence community . . . is looking at phone numbers and durations of calls,” was not adequately congruent with a request seeking the companies that had provided that data to U.S. intelligence agencies); Wolf, 473 F.3d at 379 (holding that CIA could not claim Glomar protection when it had previously read excerpts from materials sought into the record during congressional hearing); James Madison Project v. DOJ, 2018 WL 4283562, at *8-*16 (various Presidential statements failed to meet matching and specificity requirements).
“Third, . . . the information requested must already have been made public through an official and documented disclosure.” Id. at 378 (quoting Fitzgibbon, 911 F.2d at 765). Key to this element is that the source must be official; non-governmental releases, or anonymous leaks by government officials or former government officials do not qualify. See, e.g., ACLU v. Dep’t of Defense, 628 F.3d at 621-22; Agility Public Warehousing Co. K.S.C., 113 F. Supp. 3d at 330 n.8; Competitive Enter. Inst., 78 F. Supp. 3d at 55. In other words, “mere public speculation, no matter how widespread,” cannot undermine the agency’s Glomar prerogative. Wolf, 473 F.3d at 378. And Congressional statements also cannot waive Executive Branch classification or other Exemptions. See Military Audit Project, 656 F.2d at 742-745; see also Moore v. CIA, 666 F.3d 1330, 1333 n.4 (D.C. Cir. 2011) (“[W]e do not deem ‘official’ a disclosure made by someone other than the agency from which the information is being sought.”).
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Plaintiffs cannot meet their burden of pointing to an official disclosure of the information they seek. The declarations establish that no authorized government official has disclosed the precise information withheld and that the declarants carefully considered the known public information related to this issue. See 3rd Hardy Decl. ¶¶ 23-27, 31-32, 134, 143; Findlay Decl. ¶ 23.
The Amended Complaint cites a number of public statements that Plaintiffs allege constitute official acknowledgement of properly classified facts. See Am. Compl. ¶ 11 (“The comments of President Trump and Press Secretary Sean Spicer constitute prior official disclosure of the existence of surveillance orders issued by the FISC and that authorized collection of information that, at a minimum, incidentally implicated President Trump and/or his associates. This lawsuit ultimately will seek to determine the circumstances in which specific surveillance/collection orders were issued by the FISC.”). But these cited public statements about an investigation and alleged surveillance do not come close to meeting the standard for official acknowledgement of the information sought by Plaintiffs.
Plaintiffs appear to rely on President Trump’s four-part post on Twitter on March 4, 2017, discussed supra. See https://twitter.com/realDonaldTrump; see also Am. Compl. ¶ 7; 3rd Hardy Decl. ¶ 26; Findlay Decl. ¶ 8. As discussed above, DOJ – through the testimony of thenFBI Director James Comey – has confirmed that it has no records that support this statement. Hardy Decl. ¶ 26; Findlay Decl. ¶ 8 & Ex. E.10
10 In any event, this series of tweets contains a constellation of specific opinions and allegations regarding wiretapping, including that (1) his phones were tapped; (2) at Trump Tower; (3) in October just prior to the election; (4) by the Obama Administration; and (5) that such actions were comparable to “Nixon/Watergate.” Nowhere do these tweets mention FISA, the FISC, any targets other than President Trump, or the involvement of DOJ or FBI. Moreover, the statements are limited to a particular time, a particular target, and a particular place, in contrast to Plaintiffs’ FOIA request. Thus, the statements do not match the information sought in this FOIA request. The follow-up statements to the media by the President or his Press Secretary as cited in the
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Neither the Complaint nor the request point to any statements that could constitute

official acknowledgment, and the agency has carefully considered the known public information

on this issue. Accordingly, Plaintiffs cannot establish official acknowledgment.

CONCLUSION

For the foregoing reasons, the Court should grant the Government’s motion for summary

judgment.

Dated: October 19, 2018

Respectfully Submitted,

CHAD A. READLER Principal Deputy Assistant Attorney General

MARCIA BERMAN Assistant Director, Federal Programs Branch

/s/Amy E. Powell AMY E. POWELL Trial Attorney, Federal Programs Branch Civil Division, Department of Justice 310 New Bern Avenue, Suite 800 Federal Building Raleigh, NC 27601-1461 Phone: 919-856-4013 Email: amy.powell@usdoj.gov

complaint also do not match the specific information sought by Plaintiffs here. Am. Compl. ¶¶ 7-11.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF JUSTICE, )

)

Defendant.

)

)

Case No. 17-597-APM

[PROPOSED] ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Having considered the submissions of the parties, the Court hereby ORDERS that the Defendant’s Motion for Summary Judgment is GRANTED.

U.S. DISTRICT COURT JUDGE

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al Plaintiffs,
V.
U.S. DEPARTMENT OF JUSTICE, •
Defendant.

Civil Action No. l:17-cv-0597-APM

(U) THIRD DECLARATION OF DAVID M. HARDY (U) I, David M. Hardy, declare as follows: (1) (U) I am the Section Chief of the Record/Information Dissemination Section
("RIDS"), Information Management Division ("IMD"), in Winchester, Virginia.^ I have held
this position since August 1,2002. Prior to myjoining the Federal Bureau of Investigation ("FBI"), from May 1,2001 to July 31,2002,1 was the Assistant Judge Advocate General of the Navy for Civil Law. In that capacity, I had direct oversight of Freedom of Information Act ("FOIA") policy, procedures, appeals, and litigation for the Navy. From October 1,1980 to April 30,2001,1 served as a Navy Judge Advocate at various commands and routinely worked with FOIA matters. I am also an attorney who has been licensed to practice law in the State of
Texas since 1980.
(2) (U) In my official capacity as Section Chief of RIDS, I supervise approximately

' (U) IMD was formerly known as the Records Management Division, or RMD.
1
Classified By: Derived From: Multiple Sources
Declassify On: 20431231
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242 employees who staff a total of twelve (12) Federal Bureau of Investigation Headquarters ("FBIHQ") units and two (2) field operational service center units whose collective mission is to effectively plan, develop, direct, and manage responses to requests for access to FBI records and information pursuant to the FOIA as amended by the OPEN Government Act of 2007, the OPEN FOIA Act of 2009, and FOIA Improvement Act of 2016; the Privacy Act of 1974; Executive Order 13526; Presidential, Attorney General, and FBI policies and procedures; judicial decisions; and Presidential and Congressional directives. My responsibilities also include the review of FBI information for classification purposes as mandated by Executive Order 13526, and the preparation of declarations in support of Exemption 1 claims asserted under the FOIA. I have been designated by the Attorney General of the United States as an original classification authority and a declassification authority pursuant to Executive Order 13526, §§ 1.3 and 3.1. The statements contained in this declaration are based upon my personal knowledge, upon information provided to me in my official capacity, and upon conclusions and determinations
reached and made in accordance therewith.
(3) (U) Due to the nature of my official duties, I am familiar with the procedures followed by the FBI in responding to requests for information fi:om its files pursuant to the provisions of the FOIA, 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. Specifically, I am aware of the FBI's handling of plaintiffs James Madison Project ("JMP") and Brad Heath's FOIA request for three categories of records concerning surveillance under the Foreign Intelligence Surveillance Act of 1978 ("FISA"), which is at issue in this litigation. In response to this request, the FBI issued a so-called Glomar response, whereby it neither confirmed nor denied the existence or non-existence of responsive records. Due to intervening events, the FBI pierced that Glomar response in a limited fashion, acknowledged the existence of four FISA
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applications and resulting orders regarding Carter Page, and processed those four packages for
release. The FBI retained its Glomar response as to the existence or non-existence of any other responsive records.
(4) (U) The FBI processed 598 pages, which is the totality of the four Page FISA applications and orders; released five pages in whole and 407 in part, with information redacted pursuant to FOIA exemptions; and withheld 186 pages in full pursuant to FOIA exemptions. The FBI relied on the following FOIA exemptions in redacting information or withholding pages: FOIA Exemptions (b)(1), (b)(3), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(E).
5 U.S.C. §§ 552(b)(1), (b)(3), (b)(6), and (b)(7)(A), (C)-(E). (5) (U) This declaration is being submitted in support of DOJ's motion for summary
judgment on the partial Glomar response and on the processing of plaintiffs' FOIA request. It supplements and incorporates by reference my previous two declarations in this case. See ECF No. 13-3, Declaration of David M. Hardy (hereafter "First Hardy Deck"), submitted in support of DOJ's withdrawn motion for summary judgment (ECF No. 13); ECF No. 34-1, Second Declaration of David M. Hardy (hereafter "Second Hardy Deck"), submitted in support of the DOJ's Joint Status Report (ECF No. 34).
(U) ADMINISTRATIVE fflSTORY (6) (U) Plaintiffs submitted a FOIA request to the FBI dated March 6,2017, requesting:
1. Any orders by the FISC authorizing surveillance of and/or collection of information concerning the Trump Organization, President Trump, President Trump's campaign for presidency, or people associated with President Trump.
2. Any applications to the FISC seeking authorization for surveillance of and/or collection of information concerning the Trump Organization, President Trump, President Trump's campaign for presidency, or people associated with
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President Trump. 3. Any minimization procedures issued by the FISC and that applied to any
orders issued that fall within the scope of #1 or #2. See ECF No. 13-3, First Hardy Decl., at f 5; ECF No. 14, Exhibits to First Hardy Decl.,
Exhibit A.
(7) (U) On April 4,2017, the FBI responded to plaintiffs'request by issuing a Glomar response and refusing to confirm or deny the existence of responsive records based on FOIA Exemptions (b)(1), (b)(3), (b)(7)(A), and (b)(7)(E). See ECF No. 13-3, First Hardy Decl., at ^ 11; ECF No. 14, Exhibits to First Hardy Dec!., Exhibit D.
(8) (U) That same day, April 4, 2017, plaintiffs filed their complaint in this case. See ECF No. 1, Complaint; ECF No. 13-3, First Hardy Decl., at f 12.
(9) (U) On April 15, 2017, plaintiffs filed their amended complaint. ^yeeECFNo. 5, First Amended Complaint; ECF No. 13-3, First Hardy Decl., at ^ 13.
(10) (U) As described above, due to events occurring after this lawsuit was filed, the FBI pierced its Glomar response in a limited fashion and processed four FISA applications and FISC orders related to Carter Page. On July 20,2018, the FBI released all reasonably segregable, non-exempt portions of those FISA materials and published them on the FBI's electronic FOIA reading room at https://vault.fbi.gov/dl-release/dl-release/view. {See also Exhibit A attached hereto.)
(U) CARTER PAGE FISA APPLICATIONS AND FISC ORDERS (U) Background
(11) (U) The Foreign Intelligence Surveillance Act of 1978, or FISA, establishes procedures for the physical search, electronic surveillance, and collection of "foreign intelligence
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information" between "foreign powers" and "agents of foreign powers" suspected of espionage or terrorism. 50 U.S.C. § 1801(b). The statute also createdthe FISC to overseerequests for surveillancewarrants by federal law enforcement and intelligence agencies.
(12) (U) The FISC meets in secret, and approves or denies requests for search warrants. Proceedings before the FISC are generally exparte and non-adversarial. But see 50 U.S.C. § 1803(i)(2)(A). The court hears evidence presented solely by DOJ, and unlikemost opinions rendered by otherFederal courts, there is no provision for the publication or release of
FISC opinions orother information regarding FISC hearings.^
(13) (U) FISA is, itself, an intelligence method and details of its use are classified, and prohibited from disclosure underthe National Security Act of 1947, 50 U.S.C. § 3024(i)(l). Speeifieally, the identity of a target of a FISA application/warrant is a classified fact,
as are the dates of FISA authorized surveillance, the types and locations of authorized surveillance methods and tools, and other details about the authorized surveillance. Accordingly, FISA applicationspreviously have never been disclosed publicly, including under the FOIA or through IC transparency efforts. The disclosure of the four Carter Page FISA applications is unprecedented.
(14) (U) In July 2016, the FBI opened an investigation of "the Russian government's
efforts to interfere in the 2016 Presidential eIection[.]"^ As part of this investigation, in October
^ (U) Under some circumstances, certain FISC opinions and orders have been released in response to FOIA requests or as part of Intelligence Community ("IC") transparency efforts. See 50 U.S.C. § 1872.
^ (U) On March 20,2017, then-FBI Director James B. Comey publicly confirmed the existence of this investigation in testimony before Congress, stating "that the FBI, as part of our counterintelligence mission, is investigating the Russian government's efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia's efforts." Statement Before the House Permanent Select Committee on Intelligence, available at https://www.fbi.gov/news/testimony/hpscihearing-titled-russian-active-measures-investigation).
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2016, the FBI first sought and obtained a PISA warrant to conduct surveillance on Carter Page. Like any other FISA application and resulting order, the existence of the Carter Page FISA was a classified fact. The Government thereafter sought and obtained three renewals from the FISC to continue surveilling Page. The existence of each of those applications and resulting
orders was also classified.
(15) (U) Separately, in March 2017, the House Permanent Select Committee on Intelligence ("HPSCl") announced an investigation into "the Russian active measures campaign targeting the 2016 U.S. election." See https://intelIigence.house.gov/news/ doeumentsingle.aspx?DocumentlD=767. Although not originally part of the scope of that investigation, HPSCl added additional areas of inquiry, including the purported abuse of FISA. See https://intelligence.house.gov/uploadedfiles/hpsci_russia_investigation_one_page_summary. pdf. As part of its investigation, HPSCl sought and was ultimately provided access to the Carter Page FISA applications and orders.
(16) (U) On May 17, 2017, Acting Attorney General Rod Rosenstein appointed Robert S. Mueller as Special Counsel. See DOJ Order No. 2915-2017 (May 17, 2017). Under the terms of his appointment, Special Counsel Mueller is authorized to "conduct the investigation
confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20,2017, including (i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and
(iii) any other matters within the scope of 28 C.F.R. § 600.4(a)." The FBI's FISA authorized stirveillance on Page continued after the Special Counsel was appointed.
(17) (U) InFebruary2018, the HPSCl Majority and Minority issued two memoranda
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regarding HPSCI's Russia investigation, which are oftencolloquially referred to by the names of
the HPSCI Chairman and Ranking Member - /.e., as the "Nunes Memo" and the "Schiff Memo." As originally drafted, both memoranda were classified because they revealed FISA
authorized surveillance on an identified target - Carter Page.'^ (18) (U) HPSCI voted to release the Nunes Memo publiclybut could not immediately
do so because it was classified at the Top Secret level. Thus, pursuant to clause 11(g) of Rule X of the Houseof Representatives, HPSCI forwarded the Nunes Memo to President Trump with a request to declassify it. The declassificationrequest did not ask the President to opine on the judgments and conclusions of the HPSCI Majority.
(19) (U) OnFebruary2, 2018, President Trump declassified the Nunes Memo "in light of the significant public interest in the memorandum." See Letter from Donald F. McGahn II, Counsel to the President, to Devin Nunes, Chairman of HPSCI (Feb. 2, 2018). HPSCI thereafter publicly released the Nunes Memo with a cover letter authored by Mr. McGahn documenting the President's action (which was also noted on the Nunes Memo itself with a stamp stating "Declassified by order of the President February 2, 2018"). Mr. McGahn's cover letter made it "clear [that] the Memorandum reflects the judgments of its congressional authors."
https://docs.house.gOv/meetings/IG/IG00/20180129/106822/HMTG-115-IG00-20180129SD001.pdf.
(20) (U) Subsequently, the HPSCI Minority submitted the Schiff Memo to DOJ,
* (U) Under classification rules, an entire documentis classifiedif any single piece of information in it is classified. So, for example, an entire document is classified as Top Secret if it contains any Top Secret information, even if it also contains Secret, Confidential, or unclassified information. Moreover, information that by itself is
unclassified can become classified when combined or associated with other unclassified or classified information, if the compiled information reveals an association or relationship that meets the standards and criteria for classification (/.e., when disclosure of the compiled information would, itself, reveal classified information).
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asking for a classification review. The FBI conducted the review requested by the HPSCI Minority and identified those portions of the SchiffMemo that contained classified information
unaffected by the President's declassification ofthe Nunes Memo.^
(21) (U) The FBI did not declassify any additional information during the review of
the Schiff Memo, nor did the HPSCI Minority request any further declassification. Rather, the FBI conducted a review to identify what information remained classified, in light of the President's declassification of the Nunes Memo. The HPSCI Minority redacted those portions of the Schiff Memo that the FBI identified as classified, and then released the redacted memorandum. See https://docs.house.gOv/meetings/ig/ig00/20180205/106838/hmtg-l 15-igOO20180205-sd002.pdf.
(22) (U) As with the HPSCI Majority, the HPSCI Minority did not ask the FBI to opine on their judgment or conclusions, and the FBI did not do so. And as with the Nunes
Memo, the Schiff Memo reflects thejudgments of its congressional authors.®
(23) (U) Although DOJ and the FBI had previously and properly refused to confirm or deny the existence of any records responsive to plaintiffs request on the grounds that doing so could reasonably be expected to reveal classified information, among other things, the
^ (U) The President's declassification of the Nunes Memo resultedonly in the declassification of the
classified information contained in that memorandum. It did not broadly declassify all information contained in or related to the Carter Page FISA applications and orders.
®(U) On January 4,2018, Senators Grassley and Graham referred to DOJ their allegations that Christopher Steele had violated 18 U.S.C. § 1001. The referral memorandum referenced the Page FISA applications/orders and identified Steele, a classified intelligence source. Thus, the memorandum was classified. After the declassification of the Nunes Memo and the release of the Nunes and Schiff Memos, the FBI was asked to conduct a classification review of the referral memorandum so that the Senate could publicly release it. The FBI conducted that classification review and identified the portions that remained classified following the declassification of the Nunes Memo. The memorandum reflects the Senators' judgments and conclusions; they did not ask the FBI to opine on them and the FBI did not do so as part of its classification review.
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President's declassification of the existence of the Carter Page FISA applications and orders, through his declassification of the Nunes Memo, pierced that Glomar response as to the four
FISA applications and resulting orders referenced intheNunes Memo.^
(24) (U) As a result of the President's declassification of the existence of four Carter Page FISA applications and orders, DOJ and the FBI undertook a FOIA review of the four sets of applications and orders to determine whether any information necessarily had to be disclosed in light of the President's declassification order. On July 20,2018, the FBI produced all reasonably segregable, non-exempt portions of those four FISA packages in response to
plaintiffs FOIA request at issue in this case, among others.^
(25) (U) Substantial portions of the Page FISA materials remain classified; the President's declassification of the Nunes Memo resulted in the declassification of a relatively limited amount of information. Thus, the information that remains classified was protected pursuant to FOIA Exemption (b)(1), 5 U.S.C. § 552(b)(1). Furthermore, as previously noted, the materials contain investigative information relevant to the pending investigation into Russia's
interference in the 2016 Presidential election. Disclosure ofthis withheld relevant information
(none of which exactly matches that disclosed in the Nunes, Schiff, or Grassley/Graham Memos) could reasonably be expected to interfere with this active and pending investigation.^ See 5
' (U) The NunesMemo referencedan initial FISA application and order from October2016, and three
renewals thereafter.
®(U) Because the FBI received morethan threerequests to whichthe CarterPageFISApackages were
responsive, the records were posted to The Vault, the FBI electronic reading room, on July 21,2018. See 5 U.S.C. § 552(a)(2)(D)(ii)(n).
^ (U) While the three Congressional memoranda each reflect statements by theLegislative Branch, notthe
Executive Branch, in light ofthe President's actions with respect to the Congressional memoranda, the FBI identified and released any information contained in the four Page FISA packagesthat matchedinformation released in the Congressional memoranda.
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U.S.C. § 552(b)(7)(A). The FISA packages also contain information from and about intelligence sources, and detailed information about intelligence methods, including non-public information about FISA surveillance. This information was also protected. See 5 U.S.C. §§ 552(b)(3), (b)(7)(D), (b)(7)(E). Finally, these documents contain personally-identifying information about DOJ and FBI personnel and other third parties, which was withheld pursuant to the FOIA. See 5 U.S.C. §§ 552(b)(6), (b)(7)(C).
(26) (U) Plaintiffs request is broader than the four acknowledged applications and resulting orders, however. As discussed further below, the FBI's original Glomar response was pierced only in a very limited fashion for those four acknowledged applications and resulting orders. It remains in place as to any other responsive applications and orders, with one other exception. Specifically, on March 20, 2017, then FBI Director James B. Comey specifically addressed President Trump's four-part post on Twitter on March 4,2017 that President Obama had had President Trump's '"wires tapped' in Trump Tower just before the victory," stating:
With respect to the President's tweets about alleged wiretapping directed at him by the prior administration, I have no information that supports those tweets and we have looked carefully inside the FBI. The Department of Justice has asked me to share with you that the answer is the same for the Department of Justice and all its components. The Department has no information that supports
those tweets.
See Transcript of the House Permanent Select Committee on Intelligence Hearing on Russian Interference in the 2016 U.S. Election, March 20, 2017. https://www.washingtonpost.com/news/ post-politics/wp/2017/03/20/full-transcript-fbi-director-james-comey-testifies-on-russianinterference-in-2016-election/?utm_term=.b9fl9a0cf9cf (last access 6/12/2017).
(27) (U) Aside from this statement and the acknowledgment of the four Page FISA applications and accompanying FISC orders, neitherthe FBI nor DOJ have publicly commented
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on or acknowledged the existence or non-existence of any other FISA records within the scope of plaintiffs FOIA request, and the FBI's Glomar response remains intact as to the existence or non-existence of any other responsive records.
(U) Search (28) (U) In most instances, when searching for records to respond to a FOIA request, RIDS's first step is to conduct a search of the FBI's Central Records System ("CRS"). Such a search was not necessary here. In this case, a known universe of responsive records was revealed through the release of the Nunes and Schiff Memos. Specifically, the memoranda revealed the existence of four FISA applications submitted for surveillance on Carter Page, starting in October 2016 and continuing through three renewals, with accompanying FISA orders. FBI FOIA personnel consulted with FBI personnel familiar with the Russia investigation to locate the four Page FISA packages. Through these efforts, the FBI was able to locate each of the four packages. At the same time, the FBI also contacted DOJ's National Security Division ("NSD"), which represents the Government before the FISC, to obtain copies of all four applications that NSD had submitted to the FISC and all accompanying orders on the applications. NSD provided the FBI copies of all four packages for processing. The FBI then confirmed that between its records and the NSD records, it had complete copies of each of the four FISA packages on Carter Page that had been revealed by the Nunes and Schiff Memos. (29) (U) With regard to Item 2 of plaintiffs' request, the FBI interpreted this to include the four final applications actually submitted to the FISC seeking authorization for surveillance of Carter Page, which resulted in orders from the FISC authorizing surveillance. The FBI did not interpret Item 2 to include all versions or drafts of those applications, as plaintiffs did not specifically reference other versions or drafts.
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(30) (tJ) With regard to Item 3 of plaintiffs' request, a separate search was not
required because the minimization procedures that DOJ proposed and that the FISC ordered with regard to the Page surveillance are included within the four applications and resulting FISC
orders.
(U) FOIA Exemptions (31) (U) The FBI carefully reviewed, processed, released to plaintiff (and others), and posted to The Vault all non-exempt portions of the four Page FISA packages (applications and
orders) that were revealed in the Nunes Memo.^° In conjunction with DOJ, the FBI conducted a
thorough review of each page and redacted information or withheld pages in full pursuant to FOIA Exemptions (b)(1), (b)(3), (b)(6), (b)(7)(A), (b)(7)(C), (b)(7)(D), and (b)(7)(E).
(32) (U) Every effort was made to provide plaintiff with all material in the public domain and with all reasonably segregable portions of non-exempt material. No reasonably segregable, non-exempt portions have been withheld. To further describe the information withheld could reveal the very material which the FBI seeks to protect.
(33) (U) On the pages released to plaintiff, each redaction is marked by two pieces of information: a FOIA exemption (e.g.^ "(b)(6)") and a code (e.g., "-1"). The FOIA exemption marking shows that the redaction contains information determined to be exempt under that particular exemption. The code corresponds to a particular category of information determined to be exempt. For example, where "(b)(6)-r' appears on a document, it signals that the FBI relied on FOIA Exemption (b)(6), which protects against unwarranted invasions of personal
(U) Thereleased pages are Bates numbered "17-cv-597(FBl)-l" through "17-cv-597(FBl}-412." A chart identifying which exemptions were cited on which pages is attachedhereto as Exhibit B.
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privacy, to protect a particular category of information - i. e., the names and/or other identifying
information of FBI Special Agents or Support Personnel.
(34) (U) A key to the coding system applied to the Carter Page FISA records follows:

Exemptions and Coded Categories
Exemption (b)(1) (b)(i)-i
Exemption (b)f3) (b)(3)-l Exemptions (b)(6) and (b)(7)(C) (b)(6)-l (b)(7)(C)-l (b)(6)-2 (b)(7)(C)-2 (b)(6)-3 (b)(7)(C)-3 (b)(6)-4 (b)(7)(C)-4 Exemption (b)(7)(A)
(b)(7)(A)-1
Exemption (b)(7)(D)
(b)(7)(D)-1
Exemption (b)(7)(E) (b)(7)(E)-l (b)(7)(E)-2
(b)(7)(E)-3
(b)(7)(E)-4
(b)(7)(E)-5
(b)(7)(E)-6

Category Description
ClassiHed Information
Information properly classified by an FBI Original Classification
Authority pursuant to Executive Order 13526 Information Protected by Statute
Intelligence sources and methods, prohibited from disclosure by the
National Security Act of 1947, 50 U.S.C. § 3024(i)(l)
Unwarranted Invasions of Personal Privacy
Names of FBI Special Agents
Personally-identifying and other non-public information about
Carter Page
Names of and/or other information about one FISC employee and one NSD employee Information sufficient to identify a third party who was a source of information relied upon in the Carter Page FISA applications
Pending Enforcement Proceedings
Information which, if disclosed, could reasonably be expected to interfere with the pending Russia investigation
Confidential Source Information
Names of or other identifying information about individuals who provided information under an express assurance of confidentiality, and any information that they provided Investigative Techniques and Procedures Information revealing the investigative focus of an investigation Information about the collection and/or analysis of information Information that would reveal the specific techniques authorized for and used in national security investigations Information about specific databases utilized by the FBI for
investigative and law enforcement purposes
Information about monetary payments in relation to utilization of investigative techniques, such as the payment of confidential
human sources
Information about the targets, dates, and scope of surveillance

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Exemptions and Coded Categories
(b)(7)(E)-7
(b)(7)(E)-8

Category Description
Information that would reveal the dates and types of investigations {i.e., preliminary investigations, full investigations) Information that would reveal investigative strategies for utilizing particular evidence

(U) Exemption (b)(1) - Classified Information

(35) (U) Given that FISA applications and orders, by their nature, containsensitive

classified intelligence information, and given that the declassification of the Nunes Memo did

not impact all information in the four Page FISA packages, it should be unsurprising that the FBI

protected a relatively significant amount of information under Exemption (b)(1) here.

(36) (U) Exemption (b)(1) protects from disclosure records that are (A) specifically

authorized under criteria established by an Executive Order to be kept secret in the interest of

national defense or foreign policy; and (B) in fact properly classified pursuant to such Executive

Order. 5 U.S.C. § 552(b)(1).

(37) (U) The FBI's analysis of whether Exemption (b)(1) permits the withholding of

agency information consists of two significant steps. The FBI must determine first whether the

information contained in the records qualifies for classification under the applicable Executive

Order governing classification and protection of national security information, and second

whether the information actually has been classified in compliance with the various substantive

and procedural criteria of the Executive Order.

(38) (U) E.O. 13526 presently governs the classification and protection of information

that affects the national security {i.e., "the national defense or foreign relations of the United

States," § 6.1(cc)), and prescribes the various substantive and procedural criteria for classifying

information. I am bound by its requirements when making classification determinations.

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(39) (U) For information to be properly classified, andthus properly withheld pursuantto Exemption (b)(1), the information must meet the substantive requirements set forth
inE.O. 13526 § 1.1(a), which requires:
(1) an original classification authority must have classified the information; (2) the information must be owned by, produced by or for, or be under the
control ofthe United States Government;
(3) the information must fall within one or more of the categories of
information listed in § 1.4 of [the] order; and
(4) the original classification authority must determine that the unauthorized
disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the.original classification authority must be able to identify or describe the damage.
(40) (U) The information covered by Exemption (b)(1) here is under the control of the United States Government, falls within applicable categories of E.G. 13526 § 1.4, and requires a
classification marking at the TOP SECRET level because unauthorized disclosure of this information could reasonably be expected to cause exceptionally grave damage to the national
security, or at the SECRET level because the unauthorized disclosure of this information
reasonably could be expected to cause serious damage to the national security. See E.G. 13526 § 1.2(a)(l)-(2).
(41) (U) In addition to these substantive requirements, certain procedural and administrative requirements set forth in E.G. 13526 must be followed before information can be considered to be properly classified, such as proper identification and marking of documents. Specifically, E.G. 13526 requires that:
(a) Each document was marked as required and stamped with the proper classification designation. SeeE.O. 13526 § 1.6(a)(1) - (5).
(b) Each document was marked to indicate clearly which portions are
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. classified and which portions are exempt from declassification as set forth inE.O. 13526 § 1.5(b). See E.O. 13526 § 1.6(a)(5)(c).
(c) The prohibitions and limitations on classification specified in E.O. 13526 § 1.7 were followed.
(d) The declassification policies set forth in E.O. 13526 §§ 3.1 and 3.3 were
followed.
(e) Any reasonably segregable portions of these classified documents that did
not meet the standards for classification under E.O. 13526 were
declassified and marked for release, unless withholding was otherwise warranted under applicable law. (42) (U) With the above requirements in mind, I determined that the information protected pursuant to Exemption (b)(1) in the four Page EISA applications and accompanying orders is currently and properly classified at the TOP SECRET or SECRET level pursuant to E.O. 13526, and satisfies both the procedural and substantive requirements set forth in the
Executive Order.
(43) (U) Specifically, this information is owned by, was produced by or for, and is under the control of the U.S. Government; was classified by an original classification authority; meets all of the procedural requirements of E.O. 13526; and warrants classification at the TOP SECRET or SECRET level to protect "intelligence activities (including covert action), intelligence sources or methods, or cryptology," see E.O. 13526 § 1.4(c), and "foreign relations or foreign activities of the United States, including confidential sources," see E.O. 13526 § 1.4(d), because unauthorized disclosure of this information could be expected to cause exceptionally grave damage to national security (for information classified at the TOP SECRET level) or serious damage to national security (for information classified at the SECRET level).
This is discussed further below.
(44) (U) I examined the information protected in this case pursuant to Exemption
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(b)(1) in light of the body of information available to me concerning the national defense and foreign relations of the United States. This information was not examined in isolation. Instead, it was evaluated with carefiil consideration given to the impact that its disclosure could have on other sensitive information contained elsewhere in the United States Intelligence Community's files. Equal consideration was given to the impact that other information - both in the public domain and likely known or suspected by present or potential adversaries of the United States would have upon the information protected here.
(45) (U) The justifications for protecting classified information here were prepared with the intent that they be read with consideration given to the context in which the classified information is found. This context includes not only the surrounding unclassified information, but also other information already in the public domain, as well as information likely known or suspected by other hostile intelligence entities. It is my judgment that any greater specificity in the descriptions and justifications set forth with respect to information relating to intelligence activities, sources, and methods and foreign relations/activities of the United States could reasonably be expected to harm interests that FOIA exemptions wete designed to protect.
(U) E.0.13526 § 1.4(c) - Intelligence Activities, Sources and Methods (U) Overview
(46) (U) E.G. 13526 § 1.4(c) authorizes the classification of "intelligence activities (including covert action), intelligence sources or methods, or cryptology." An intelligence activity, source, or method includes any intelligence action or technique utilized by the FBI against a targeted individual or organization that has been determined to be of national security interest, and includes any procedure (human or non-human) utilized to obtain information concerning such individual or organization. An intelligence activity, source, or method has two
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characteristics. First, the intelligence activity, source, or method, and information generated by it, is needed by United States Intelligence/Counterintelligence agencies to carry out their missions. Second, confidentiality must be maintained with respect to the use or non-use of the activity, source, or method, including intelligence sources, if the viability, productivity, and usefulness of the activity, source, and method are to be preserved.
(47) (U) Intelligence activities, sources, and methods must be protected from disclosure in every situation in which a certain intelligence capability, technique, or interest - or its specific use - is unknown to the groups against which it is deployed, since those groups could take countermeasures to nullify its effectiveness. Intelligence activities, sources, and methods are valuable only so long as they remain unknown and unsuspected. Once an intelligence activity, source, or method - or the fact of its use or non-use in a certain situation - is discovered, its continued successful use is seriously jeopardized.
(48) (U) Moreover, the U.S. Government must do more than prevent explicit references to intelligence activities, sources, and methods; it must also prevent indirect references to them. One vehicle for gathering information about the U.S. Government's capabilities is by reviewing officially-released information. We know that terrorist organizations and other hostile or Foreign Intelligence groups have the capacity and ability to gather information from myriad sources, analyze it, and deduce means and methods from disparate details to defeat the U.S. Government's collection efforts. Thus, even seemingly innocuous, indirect references to an intelligence activity, source, or method could have significant adverse effects when juxtaposed with other publicly-available data. •
(U) Information Protected In This Case (49) (U) As discussed below, information withheld under Exemption (b)(1) in
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conjunction with E.O. 13526 § 1.4(c) would, if disclosed, reveal otherwise non-public information regarding: the FBI's intelligence interests, priorities, activities, and methods; undisclosed intelligence sources or methods upon which the FBI relied in support of its application for FISA authorized surveillance of Carter Page, as well as undisclosed portions of intelligence information provided by Source #1; and information about the use and implementationof various intelligence methods, including the specific details of the surveillance of Carter Page authorized by the FISC via the four applications and orders publicly revealed in the HSPCI memoranda. All of this information is highly desired by hostile actors who seek to thwart,the FBI's intelligence-gathering mission.
(U) Intelligence Activities and Methods (50) (U) In the four Page FISA applications and accompanying orders, the FBI protected details about intelligence activities undertaken by the FBI and the methods utilized during those intelligence activities. This information includes the details about the FISA surveillance sought and obtained through the four Page FISA applications and accompanying orders, but also includes information about other intelligence activities and methods utilized by the FBI that were included in the responsive records. (51) (U) With regard to the FISA surveillance of Page, the withheld information reveals the specific surveillance method(s) sought and authorized by the FISC, including citations to relevant legal authorities that would reveal the specific method(s) sought or authorized with respect to a specific individual during a particular timefirame. The withheld
information includes the minimization procedures, which are specifically tied to the particular surveillancemethods and activities requested by DOJ and authorized by the FISC. Using the fourth application and resulting order as an example, this information was protected on Bates
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pages 17-cv-597(FBI)-361-364 and 404-411. (52) (S//NF)
(53) (U) The withheld information also reveals: descriptions of and the particulars about implementingthe authorized surveillancemethod(s); information that would reveal the
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exact periods ofFISA authorized surveillance''; what information was being sought through the
surveillance; and any information obtained as a result of the EISA-authorized surveillance of Page included in the second through fourth applications.
(54) (S//NF)
(55) (S//NF)
(U) This includes the FISC docket numbers and the specific dates on which coverage was sought and authorized (including as reflected in the "declassify on" dates in the classification blocks).
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(56) (U) The withheld information also reflects intelligence-gathering activities, including specific intelligence methods used and information obtained in broader contexts. Using the fourth application and resulting orders as an example, this information was protected on Bates pages 17-cv-597(FBI)-301-302, 304-308, 311-312, 317-319, 324-325, 353, and386.
(57) (U) Finally, the withheld information includes information about Source# Us intelligence reporting activities and the period of time he served as an intelligence source for the
FBI. While some information about Source #1 has been declassified and disclosed, other .
information remains classified and has not been publicly disclosed. Using the fourth application and resulting orders as an example, this information was protected on Bates pages 17-cv597(FBI)-308-316.
(58) (U)' The disclosure of the above-described types of information could reasonably
be expected to cause serious damage to the national security, as it would: (a) reveal actual intelligence activities undertaken by the FBI, and the methods used in doing so, regarding specific targets and during specific periods of time; (b) disclose the intelligence-gathering capabilities of the methods; and (c) provide an assessment of the level of penetration by the FBI of specific targets during the specific time period. Armed with such information, adversaries, including hostile foreign governments, could implement actions to thwart the FBI's intelligence activities and weaken or negate the particular intelligence methods, which would severely disrupt the FBI's intelligence-gathering capabilities. Accordingly, this information is currently and properly classified pursuant to E.G. 13526, § 1.4(c) at the SECRET level, and the FBI properly withheld it imder Exemption (b)(1).
(59) (U) The FBI also concluded that the specific amounts of payments made to
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intelligence sources reflected in the records is classified intelligence method information. Without adequate context, the particular amount paid to a particular intelligence source could be viewed to suggest the relative voliime of information provided by a particular source, which could cause individuals who believe they are the subjects of such source reporting to assess the
likelihood that their activities have come to the FBI's attention and then take countermeasures, destroy or fabricate evidence, or otherwise act in a way to thwart the FBI's intelligence activities. Moreover, disclosure would reveal non-public information about the level of resources devoted to particular targets or subject matters. The FBI has limited resources that it must allocate strategically in order to effectively pursue its intelligence gathering mission. Revealing the amount of money the FBI has paid to particular intelligence sources and over particular periods of time would reveal the FBI's level of focus on certain intelligence gathering efforts. Revealing this level of focus would reveal how the FBI has allocated and is allocating its limited resources.
I
If aggregated over time, this information would paint a high-level picture of the resources devoted to particular threat areas, and reveal where the FBI's strengths and weaknesses lie within the spectrum of its intelligence-gathering activities. This would give sophisticated adversaries and hostile governments the information necessary to adjust their activities in accordance with the FBI's perceived priorities, in order to avoid the FBI's strength areas and exploit its weak ones. Accordingly, the disclosure of this information could reasonably be expected to cause serious damage to the national security, and is currently and properly classified pursuant to E.O. 13526, § 1.4(c) at the SECRET level, and the FBI properly withheld it under Exemption (b)(1).
(U) Intelligence Sources (60) (U) An intelligence source who requires continued classification is one that provided or is currently providing information that pertains to national security matters, the
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disclosure of which could reasonably be expected to result in serious damage to the FBI's intelligence-gathering capabilities.
(61) (U) Although some information about Source #1 and his activities has been declassified and publicly disclosed, the four Page PISA applications include information about other intelligence sources. This information, including specific information about the sources themselves as well as the information they provided, is singular in nature and, if disclosed, reasonably could be expected to identify the contributing sources.
(62) (U) Disclosure of the identities of intelligence sources could reasonably be expected to jeopardize their livelihoods, their families and other relationships, and even their lives. Moreover, disclosure of one source can reasonably be expected to cause other current and potential intelligence sources to fear that their identities will be publicly revealed at some point. Using the fourth application and resulting orders as an example, this information was protected on Bates pages 17-cv-597(FBI)-308-319.
(63) (U) Thus, the release of source-identifying information can reasonably be expected to cause damage to the national security by causing current intelligence sources to cease providing information, and discouraging potential intelligence sources from cooperating with the FBI for fear their identities would be publicly revealed at some point. Such a source reaction would eliminate one of the Intelligence Community's most crucial means of collecting intelligence information and, therefore, severely hamper the FBI's intelligence and investigative missions. Accordingly, some of the protected intelligence source information here is currently and properly classified pursuant to E.G. 13526, § 1.4(c) at the TOP SECRET level, for intelligence source information that could reasonably be expected to cause exceptionally grave damage to the national security, and some of the protected intelligence source information here is
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currently and properly classified at the SECRET level, for intelligence source information that could reasonably be expected to cause serious damage to the national security. The FBI properly
withheld this information under Exemption (b)(l).^^
(U) E,0.13526 § L4(d) - Foreign Relations or Foreign Activities (64) (U) E.G. 13526 § 1.4 (d) authorizes the classification of information about foreign relations or foreign activities of the United States, including confidential sources. Such information includes information gathered from/with the assistance of and/or about foreign countries. It is sensitive due in part to the delicate nature of international diplomacy, and must be handled with care so as not to jeopardize the fragile relationships that exist between the United States and certain foreign governments. (65) (U) The unauthorized disclosure of information concerning foreign relations Or foreign activities of the United States can reasonably be expected to lead to diplomatic or economic retaliation against the United States; the loss of the cooperation and assistance of friendly nations; or the compromise of cooperative foreign sources, which may jeopardize their safety and curtail the flow of information from these sources. Due to the nature of the information here, the FBI carmot provide any more specific details on the public record about its basis for redacting information pursuant to E.G. 13526, § 1.4(d) and Exemption (b)(1). However, as the FBI's classified portions of this declaration demonstrate, this information is currently and properly classified and was appropriately redacted by the FBI. (66) (S//NF)
(U) The intelligence source information protected in the FISC orders is classified at the SECRET level only. The FISA applications include information classified at both the SECRET and the TOP SECRET levels.
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(67) (U) Thus, the FBI protected such information because, if disclosed, it could reasonably be expected to cause serious damage to national security. Because this information
remains currently and properly classified, pursuant to E.O. 13526 § 1.4(c), the FBI properly protected it under Exemption (b)(1).
(U) Exemption (b)(3) ~ Information Protected by Statute (68) (U) Exemption (b)(3) protects information that is specifically exempted from public disclosure by a statute that requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, establishes particular criteria for withholding, or refers to particular types of matters to be withheld. 5 U.S.C. § 552(b)(3)(A). If the non disclosure statute was enacted after the date of enactment of the OPEN FOIA Act of 2009, it must specifically cite this paragraph in order for Exemption (b)(3) to apply. Id. at § 552(b)(3)(B). (69) (U) As explained above, the four Page FISA applications and resulting orders, include information that is classified pursuantto E.G. 13526 § 1.4(c) to protect intelligence
sources and methods, which the FBI has protected under Exemption (b)(1). Those same intelligence sources and methods are also exempt here under Exemption (b)(3). Specifically, their disclosure is prohibited pursuant to the National Security Act of 1947, as amended, which
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provides that the Director of National Intelligence (DNI) "shall protect intelligence sources and methods from unauthorized disclosure." 50 U.S.C. § 3024(i)(l).
(70) (U) As relevant to the FBI's application of Exemption (b)(3), the National Security Act of 1947 was enacted before the date of enactment of the OPEN FOIA Act of 2009, and on its face, leaves no discretion to agencies about withholding from the public information about intelligence sources and methods.
(71) (U) In order to fulfill its obligation of protecting intelligence sources and methods, the DNI is authorized to establish and implement guidelines for the Intelligence Community ("IC") for the classification of information under applicable laws, Executive Orders, or other Presidential Directives, and for access to and dissemination of intelligence. 50 U.S.C. §§ 3024(i)(l). The FBI is one of the member agencies comprisingthe IC, and as such must protect intelligence sources and methods.
(72) (U) Accordingly, the information in the Page FISA applications and resulting FISC orders that reveals intelligence sources and methods is prohibited from disclosure pursuant to 50 U.S.C. § 3024(i)(l) and thus exempt from disclosure under Exemption (b)(3).
(73) (S//NF)
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(U) Exemption (b)(7) - Law Enforcement Information (U) Threshold
(74) (U) The first step in applying any of Exemption (b)(7)'ssubparts is to demonstrate that the records or information at issue were compiled for law enforcement purposes. 5 U.S.C. § 552(b)(7). Law enforcement agencies such as the FBI must demonstrate
that the records at issue are related to the enforcement of federal laws and that the enforcement
activity is within the law enforcement responsibility of the agency. (75) (U) Pursuant to 28 U.S.C. §§ 533 and 534, Executive Order 12333 as
implemented by the Attorney General's Guidelines for Domestic FBI Operations ("AGGDOM"), and 28 C.F.R. § 0.85, the FBI is the primary investigative agency of the federal government, with authority and responsibility to: investigate all violations of federal law not exclusively assigned to another agency; conduct investigations and activities to protect the United States and its people from terrorism and threats to national security; and further the foreign intelligence objectives of the United States.
(76) (U) As discussed previously, and as has been publicly disclosed, in July 2016, the FBI opened an investigation of the Russian government's efforts to interfere in the 2016 election.
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The FBI sought and obtained a FISA warrant in October 2016 to conduct surveillance of Carter Page in the course of that investigation. The FBI thereafter sought and obtained three renewals from the FISC to continue surveilling Page. Those applications were compiled as part of the FBI's investigation of Russian election interference.
(77) (U) The only circumstance under which the FBI can request a FISA order is when the FBI is conducting an authorized, predicated national security investigation within the scope of its law enforcement and foreign intelligence responsibilities. The Russia investigation is clearly within the law enforcement and foreign intelligence responsibilities of the FBI. Similarly, any records reflecting NSD and FBI's efforts to respond to questions from the FISC about the application(s) were compiled in furtherance of this law enforcement purpose. Thus, Exemption (b)(7)'s threshold is easily satisfied here.
i
(78) (U) In May 2017, the Acting Attorney General appointed Special Counsel Robert S. Mueller, III and authorized him to conduct the investigation confirmed by then-FBI Director Comey in Congressional testimony, including "(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a)." DOJ Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17,2017)). In addition, "[i]fthe Special Counsel believes it necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters." Id.
(79) (U) Accordingly, the Page FISA applications and orders are records that were
compiled in partfor law enforcement purposes, and Exemption (b)(7)'s threshold is easily
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satisfied here.
(U) Exemption (b)(7)(A) - Pendins EnforcementProceedinss (80) (U) Exemption (b)(7)(A) protects "records or information compiled for law enforcement purposes [when disclosure] could reasonably be expected to interfere with enforcement proceedings." 5U.S.C. § 552(b)(7)(A). (81) (U) Thus, to apply Exemption (b)(7)(A), the FBI must establish the existence of a pending or prospective investigation or other enforcement proceeding and must show a reasonable expectation that disclosure of the withheld information could interfere with that proceeding. (82) (U) Here, the enforcement proceeding at risk is the Russian interference investigation. That investigation is pending as of the date of this filing. (83) (U) The FBI, in consultation with DOJ, concluded that disclosure of a variety of information in the Page FISA applications and orders could reasonably be expected to interfere with the pending Russian election interference investigation if publicly disclosed at this time. (84) (U) The FBI is limited in the amount of information it can provide publicly about how the investigation may be adversely affected by disclosure of this information without the explanation itself risking harm to the investigation or revealing information exempt under one or more other exemptions. Although there has been extensive media coverage of the investigation, that coverage often relies on speculation, assumptions, and anonymous/unnamed sources. Greater harm to the investigation would result from official disclosures, regardless of whether it confirmed or refuted widespread media reporting. That is because official disclosure directly reveals law enforcement activity or lack thereof, removing doubts or ambiguity inherently present in other reporting.
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(85) (U) Broadly speaking, the redacted/withheld portions of the four Page FISA applications and accompanying orders could reasonably be expectedto adversely affect the pending investigation by revealing aspects of the investigation that have not previously been made public; what information or activities are or are not of interestto investigators, and areas where there may be gaps in the investigators' knowledge about such information/activities that could be exploited by targets and other adversaries; who investigatorshave already spoken with or interviewed and what they said (and did not say); and whether particular persons or entities
are or are not of interest in the investigation.
(86) (U) Moreover, the FBI has explained herein why particular types of information contained in the four Page FISA applications and accompanying orders are exempt under other exemptions because of the harm associated with disclosure. While Exemption (b)(7)(A) considers the impact on a specific investigation or investigations, the big-picture risks to law
enforcement, national security, and privacy interests addressed by the other exemptions are relevant here, and indeed are more immediate here.
(87) (U) Disclosing information that would identify confidential and/or classified intelligence sources or other individuals who are or could become witnesses risks their compromise through efforts to discredit, harass, or even threaten them. This, in turn, creates the
risk of curtailing theirfurther cooperation, which can significantly hamper an investigation.^^
(88) (U) Similarly, disclosing the evidence, information, or intelligence (including source reporting) already obtained by/known to the FBI risks influencing, compromising, or tainting testimony by other witnesses and/or the fabrication of other information/falsification of
(U) The harms in disclosing information about and from confidential sources is discussed further in the Exemption (b)(7)(D) discussion below.
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other testimony for the purpose of countering or undermining the credibility of the evidence, information, or intelligence already gathered. It would also reveal gaps in the FBI's knowledge of information, intelligence, or sourcereporting/witness testimony, which risks destruction or adulteration of evidence or fabrication of false evidence, and attempts to intimidate or improperly influence potential sources/witnesses.
(89) (U) Disclosing the investigative techniques already used in this case during specific time periodsand regarding specific subjectmatter areas creates a risk of revealing what investigators already know, what they do not or may not know yet, who is or may be of interest to investigators, and who may be cooperating in the investigation, which, for all reasons discussed above^ would adversely affect the investigation. Moreover, providing details about the use of those techniques risks efforts by targets, subjects, and other adversaries to undermine or
thwart the techniques.
(90) (U) Consistent with its standard practices, the FBI and SCO have not publicly identified the specific scope/focus of, subjects of, witnesses/sources in, or evidence/information fi-om the pending Russia investigation, beyond the information made public through criminal justice proceedings. To the extent that information made public in those criminal proceedings
(U) Included here would be the FISC docket numbers. If aggregated with each other and/or other FISC docket numbers, they could be used to pinpoint the times of FISA coverage on Page, which creates the risks discussed here in the Exemption (b)(7)(A) analysis, as well as those in the analysis of Exemption (b)(7)(E), and particularly category (b)(7)(E)-6, below.
(U) Disclosing the use of specific techniques during identified timeframes would allow targets and potential targets to determine the probability that the FBI is aware of particular information likely to be obtained through such techniques during that time as well as the probability that the FBI may not be aware ofthe information. Such knowledge could allow targets, potential targets, and others intent on disrupting the investigation to better target their activities toward, for example, creation or destruction of evidence, fabrication of cover stories, intimidation of witnesses, etc.
(U) The risks of circumvention are discussed flirther in the Exemption (b)(7)(E) descriptions below.
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exactly matched information in the four Page FISA packages processed in this case, it was not redacted. Moreover, while unclear that HSPCI's disclosures of the Nunes and Schiff Memos legally precluded the FBI's ability to assert FOIA exemptions over matching information in the four Page FISA packages processed here, the FBI nevertheless did not redact any exactly matching information. Furthermore, the FBI carefully considered whether to disclose similar information that was not an exact match to the memoranda, and asserted Exemption (b)(7)(A) only upon concluding that disclosure of the non-matching information could reasonably be expected to harm the investigation.
(91) (U) For the reasons discussed above, combined with the justifications for protecting information under the other exemptions discussed herein, the FBI concluded that disclosure of information marked as "(b)(7)(A)-1" could reasonably be expected to interfere with the pending investigation. Accordingly, the FBI withheld that information pursuant to Exemption (b)(7)(A).
(U) Exemption (b)(7)(C) - Unwarranted Invasions ofPersonal Privacy (92) (U) Exemption (b)(7)(C) exempts from disclosure "records or information compiled for law enforcement purposes [when disclosure] could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). (93) (U) As previously noted in the section of this declaration concerning Exemption (b)(6), the practice of the FBI is to conjunctively assert Exemptions (b)(6) and (b)(7)(C) as they provide overlapping protections for personal privacy. Although the balancing test for Exemption (b)(6) uses a "would constitute a clearly unwarranted invasion of personal privacy" standard, and the test for Exemption (b)(7)(C) uses the lower standard of "could reasonably be expected to
constitute an unwarranted invasion of personal privacy," the analysis and balancing required by
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both exemptions is sufficiently similar to warrant a consolidated discussion. Each exemption

balances individuals' privacy interests against the public's interest in disclosure.

(94) (U) For purposes of both exemptions, a public interest exists only when

information would significantly increase the public's understanding of the FBI's performance of

its mission to protect and defend the United States against terrorist and foreign intelligence

threats; uphold and enforce the criminal laws of the United States; and provide leadership and

criminal justice services to federal, state, municipal, and international agencies and partners.

(95) (U) The FBI has relied on Exemptions (b)(6) and (b)(7)(C) here to protect the

names of or information about FBI Special Agents and FISC and NSD employees; information

sufficient to identify a third party who was the source of some information relied upon in the

four Page FISA applications; and certain personally-identifying and other non-public private

information about Carter Page.

(U) (h)(6VmTi(C)-l

FBI Special Agents

(96) (U) The FBI withheld the names of the FBI Special Agents who signed the Page

FISA applications processed in response to plaintiffs request. These Special Agents were

assigned to the pending Russia investigation during the period covered by the four Page FISA

applications and are experienced counterintelligence agents.

(97) (U) The FBI regularly protects the identities of its Special Agents. FBI agents

have access to information regarding official law enforcement investigations, and therefore may

become targets of harassing inquiries for unauthorized access to information regarding such

investigations if their identities were released. This is particularly true of agents who work

national security cases, including coimterintelligence cases, who have access to some of the most

sensitive and highly classified information possessed by the FBI. Assignments of agents to any

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particular investigation or matter are not by choice. Publicity (adverse or otherwise) regarding a specific investigation to which they have been assigned may seriouslyprejudice their effectiveness in conducting other investigations. FBI agents also have privacy interests in being free from unnecessary, unofficial questioning regarding their conduct in particular investigations, whether or not they are currently employed by the FBI. For example, an individual investigated by the FBI may carry a grudge and may seek revenge on the agents involvedin that
investigation.
(98) (U) Many of these concerns are heightened when the agents whoseidentities are protected work counterintelligence cases. The FBI's counterintelligence mission involves protecting the secrets of the U.S. Intelligence Community from risks of espionage and insider threats; protecting the nation's critical assets; and countering the activities offoreign spies. FBI counterintelligence investigations involve significant threats to the national security of the United States by foreign intelligence services and other hostile government actors. FBI agents responsible for conducting these investigations can be exposed to real and substantial threats to their lives and safety, and the FBI's concerns about targets of such investigations holding grudges against such agents are more acute when those targets are foreign intelligence officers
from hostile governments.
(99) (U) Here, the above-described reasons led the FBI to conclude that the Special Agents whose names are protected here have substantial privacy interests. That determination is frirther bolstered by the fact that the investigation and specific investigative activity at issue here are very high-profile and have been the subject of substantial media attention and speculation.
(100) (U) In contrast, there is no public interest to be served by disclosing these employees' identities because they would not, by themselves, significantly increase the public's
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understanding of the FBI's operations and activities with respect to obtaining the four FISA

warrants on Page, the conduct of the Russia investigationwrit large, or any other FBI operations

or activities.
(101) (U) In the absence of a public interest, the Special Agents' substantial privacy

interests necessarily must prevail under the balancing tests for Exemptions (b)(6) and (b)(7)(C).
Accordingly, the FBI properly protected the names ofitsSpecial Agents.*^

(U) m6Vmn(C)-2

carter Page

(102) (U) Whilethe declassification of the Nunes Memo and the release of it and the

Schiff Memo revealed to the public that Carter Page had been the subject of FISC-authorized

surveillance under the FISA, there nevertheless remains information about him contained in the

FISA applications and FISC orders that was not made public and in which he retains a privacy

interest. The FBI cannot publicly describe the nature of the information it has protected without

revealing information that is exempt under these or other cited exemptions.

(103) (S//NF)

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(105) (U) After concluding that Page retains substantial privacy interests in the

redacted information, the FBI considered whether there is any public interest that overrides these

privacy interests. While there is certainly a demonstrated public interest in these FISA

applications, the particular information about Carter Page that has been protected here would not

so significantly increase the public's understanding of the FBI's operations and activities in

relation to obtaining authority from the FISC on four occasions to surveil Page pursuant to the

FISA. Thus, on balance, the FBI concluded that Page's privacy interests outweighed any public

interest in the redacted information.

(U) (h)(6V(b)(7)(C)-3

FISC and NSD Employees

(106) (U) The information falling within this category consists of the names and titles

of a FISC deputy clerk and the NSD attorney who signed and submitted the four Page FISA

applications to the FISC. Neither of these employees is an executive-level employee. The FBI

regularly protects the names and identities of employees of other Government agencies or offices

who are identified in FBI law enforcement records. The reasons for doing so are similar to the

FBI's reasons for protecting the identities of its Special Agents as detailed above.

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(107) (U) Here, the FISC and NSD employees whose identities the FBI protected are in

positions to access highly-sensitive and classified information concerning coimterintelligence

and counterterrorism matters. If their identities were disclosed, they could become targets of

harassing inquiries for unauthorized access to non-public information about the four Page FISAs

specifically, or more generally, non-public information about other FISC matters, FBI

investigations, or 10 intelligence activities to which they may have access. Disclosure of their

identities would also risk hostile action by adverse foreign powers, either by way of revenge or

of actively targeting them in intelligence-gathering operations.

(108) (U) In contrast, there is no public interest to be served by disclosing these

employees' identities because they would not, by themselves, significantly increase the public's

understanding of the FBI's operations and activities with respect to obtaining the four FISA

warrants on Page, the conduct of the Russia investigation writ large, or other FBI operations or

activities.

(109) (U) In the absence of a public interest, these employees' substantial privacy

interests necessarily must prevail under the balancing tests for Exemptions (b)(6) and (b)(7)(C).

Accordingly, the FBI properly protected the names and titles of these FISC and NSD

employees.

(U) (b)('6V(b)I7)(0-4

Third Party Who Was a Source of Information Relied Upon in
the Carter Page FISA Applications

(110) (U) The FBI protected information that would identify an individual who was a

source of information that came into the FBI's possession during a particular phase of the

(U) Information about the NSD employee was also redacted pursuant to Exemptions (b)(6) and (b)(7)(C) atNSD's request.
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investigation. This identifying information appears on one page in the third FISA application and onepage in the fourth FISAapplication.'®
(111) (U) Individuals identified in FBI investigativematerials have substantialprivacy interests in not being publicly linked with a sensitive national security investigation. Such public exposure could subject the individuals to harassment, intimidation, or threats of legal or economic reprisal; possible physical harm; or even death. These considerations led the FBI to conclude that this individual has substantial privacy interests here, particularly considering that the investigation is a sensitive investigation involving the activities of a foreign government and has received such wide-spread attention. In contrast, the identity of this individual who is mentioned in a single footnote in two of the applications would not, without more, significantly increase the public's understanding of FBI operations or activities. Accordingly, the FBI concluded that this individual's privacy interests outweighed any public interest in his/her identity, and protected the information under Exemptions (b)(6) and (b)(7)(C).
(U) Exemption (b)(7)(D) - Confidential Source Information (112) (U) Exemption (b)(7)(D) protects records or information compiled for law enforcement purposes when disclosure:
could reasonably be expected to disclose the identity of a confidential source, including a State, local or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case ofa record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by the confidential source.
(U) The particular identifying information about this third party is not classified and the individual did not provide information directly to the FBI as part of its investigation. Accordingly, the FBI has not cited Exemptions (b)(1) or (b)(7)(D) to protect this particular individual.
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5 U.S.C. § 552(b)(7)(D). Exemption (b)(7)(D) provides categorical protection for the identities of confidential sources, as well as information provided by such a source in a criminal or national security investigation. No balancing of interests is required and the public's interest in the information is not a factor. Rather, once the FBI establishes that the source provided information under express or implied assurances of confidentiality, the identity of the source and all information the source provided in a criminal or national security investigation are exempt under Exemption (b)(7)(D).
(113) (U) The FBI regularly relies on confidential sources. Confidential sources may provide information under express assurances of confidentiality, and are "informants" within the common meaning of the term, although the FBI refers to them as "Confidential Human Sources" or "CHSs." Alternatively, confidential sources may provide information under circumstances from which assurances of confidentiality may be inferred. In either situation, these sources are considered to be confidential because they furnish information only with the understanding that their identities and the information they provided will not be divulged outside the FBI. Information provided by these sources is singular in nature, and if released, could reveal their identities. Sources must feel free to furnish information to the FBI with complete candor and
without the imderstandable tendency to hedge or withhold information because of fear that their
cooperation with the FBI will later be made public and that they may, as a result, face reprisals. Sources providing information to the FBI should be secure in the knowledge that their assistance
and their identities will be held in confidence.
(114) (U) The release of a source's identity could forever eliminate that source as a future means of obtaining information, and also has a chilling effect on the cooperation of other sources. Revealing the identities of confidential sources risks one of the FBI's most important
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means of collecting infonnation and intelligence, and severely hampers law enforcement efforts to detect and apprehend individuals engaged in the violation of federal criminal and national security laws.
(115) (U) As a result of the declassification of the Nunes Memo, and the release of both of the HSPCI memoranda, it was publicly revealed that the FBI relied on a confidential and classified intelligence source, referred to throughout the Page FISA applications as "Source #1 The FBI has not protected information about this source's identity, nor has it protected information he provided that matches information revealed in the HPSCI memoranda or the Grassley/Graham letter. The FBI has protected information that would identify the identities of other confidential sources who provided information or intelligence to the FBI; information provided by those sources; and information provided by Source #1 that does not match
information revealed in the HPSCI memoranda or the Grassley/Graham letter. (116) (U) Source #1 was a code-named CHS for the FBI. By definition, such sources
are confidential. That is, as part of the FBI's protocols for CHSs, they are provided express assurances of confidentiality. Moreover, Source #1 provided information in furtherance of a sensitive national security investigation being conducted by the FBI. Accordingly, under the second clause of Exemption (b)(7)(D), any information he provided is categorically exempt. Thus, except as to information that matches information revealed in the HPSCI memoranda or the Grassley/Graham letter, the FBI redacted all information provided by Source #1. Using the fourth application and resulting orders as an example, this information was protected on Bates pages 17-cv-597(FBI)-303, 309-310, and 312-317.
(117) (U) The FISA applications also contain information about and from other sources who cooperated with and provided information to the FBI under express assurances of
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confidentiality. CHSs are provided express assurances of confidentiality by the FBI. Accordingly, the FBI concluded that the requirements for expressassurances of confidentiality had been satisfied here. Further description of the bases for this conclusion as to the FISA applications cannot be discussed publicly without disclosing information that is exempt under this or one of the other exemptions cited in relation to this information. However, because these sources cooperated with and provided information to the FBI in fiirtherance of a national security (intelligence) investigation under express assurances of confidentiality, the requirements of Exemption (b)(7)(D) are satisfiedand the FBI properlyprotected information that wouldreveal the identities of the sources, as well as the information that theyprovided to the FBI. Using the fourth application and resulting orders as an example, this information was protected on Bates pages 17-cv-597(FBI)-301-302, 308-311, and 317-318.
(118) (S//NF)
(U) Exemption {b){7){E) ~ Investisative Techniques and Procedures (119) (U) Exemption (b)(7)(E) protects "records or information compiled for law enforcement purposes [when release] would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." 5 U.S.C. § 552(b)(7)(E). This exemption affords categorical protection to techniques and procedures used in law enforcement investigations. It protects techniques and procedures that are not well-known to the public as well as non-public details
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about the use of publicly-known techniques and procedures.

(U) (b)(7)fE1-l

Investigative Focus

(120) (U) Many investigative steps preceded the FBI's FISA applications; the four

Page FISA applications and orders reveal how the FBI conducted certain aspects of the

investigation to that date and a road-map of certain contemplated investigative steps (i.e., the

requested surveillance). Although the general techniques authorized by the FISA are publicly

known, this detailed information about how, when, where, and why such authorities are

employed in a particular investigation is not publiclyknown. This type of detailedinformation

would be valuable to criminals and adversaries as a guide to adjusting their behaviors, taking

evasive actions, and developing countenneasures to thwart FBI investigations. Accordingly, the

FBI protected this information in the four Page applications.and resulting orders, including in the

minimization procedures, under Exemption (b)(7)(E) in order to the risk of circumvention posed

by disclosure of this information.

(U) (b)(7)(E)-2

Collection and/or Analysis of Information

(121) (U) Category (b)(7)(E)-2 includes information that reveals the methods used by

the FBI to collect and analyze information it obtains for investigative purposes.

(122) (S//NF)

(U) This information overlaps with the information protected in category (b)(7)(E)-3, which protects specific investigative techniques authorized and utilized in national security investigations inasmuch as the FBI's methods for collecting information and the types of techniques it is authorized to use in national security investigations will, in the context of these records, generally be the same thing. The FBI cited category (b)(7)(E)-3 in every instance that it cited category (b)(7)(E)-2.
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(123) (U) The release of this information would disclose the methods used in the

collection and analysis of information, including how and from where the FBI collects particular

types of information and the methodologies employed to analyze it once collected. Such

disclosures would enable subjects of FBI investigations to identify when these or similar

currently used techniques are being used and then take evasive actions or countermeasures to

circumvent them. This would diminish the relative utility of these techniques and facilitate the

accumulation of information by investigative subjects regarding the circumstances under which

the specific techniques were used or requested and the usefulness of the information obtained.

Accordingly, to protect the viability of these techniques, the FBI protected this information in the

four Page applications and resulting orders, including in the minimization procedures, under

Exemption (b)(7)(E).

(U) (bV7irEV3

Specific Techniques Authorized for and Used in National Security
Investigations

(124) (U) The FBI protected information that would reveal the specific techniques that

the FBI is authorized to and in fact uses in national security investigations. In this context, the

techniques were referenced because they were used in the context of this national security

investigation but their disclosure here would also have ramifications for the use of these

techniques in other national security cases. The FBI has a toolbox of investigative techniques

that it uses in national security (counterintelligence and counterterrorism) cases, which overlap in

many respects with its criminal investigative toolbox, although the FBI obviously has one

significant and different tool in the national security toolbox - FISA. This category covers non-

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public information about all of the techniques referenced in the PageFISAapplications and orders including those that have not been publicly disclosed in relation to investigative actions taken in this investigation; those that have been publicly disclosed in relation to this investigation, such as CHSs; and those underthe FISA that the FISC authorized the FBI to use here. Although techniques authorized by the FISA are publiclyknown, this detailed information about how, when, where, and why such authorities are employed in a particular investigation is
not publicly known. (125)
(126) (U) Here, the context in which these techniques are discussed reveals details about when in an investigation a particular technique might be utilized, the types of information that might be sought via the technique, and the limitations on its use and/or utility; what techniques might be used in combination; and non-public information about how the techniques
are implemented. When aggregated, as it is here, this information can paint a road-map of how a
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national security, and in particular a counterintelligence, investigation is conducted.^® Disclosure

of such a road-map here and over time would give sophisticated criminals and adversaries the

information necessary to adjust their activities and take effective countermeasures to circumvent

the FBI's investigative and intelligence-gathering efforts. Accordingly, the FBI protected this

information under Exemption (b)(7)(E) here.

(U) (bV71fEV4

Specific Databases Used bv the FBI for Investigative and Law
Enforcement Purposes

(127) (U) The FBI protected its use of several non-public databases that it relied on to

obtain/confirm information and intelligence gathered in the course of its investigation. These

databases are accessible to law enforcement personnel to conduct queries of or for particular

types of information for law enforcement and intelligence gathering purposes. The databases

protected include those exclusive to the FBI as well as others that are available to other federal

government law enforcement personnel. These databases are essentially "one-stop" shops where

the FBI can query already-gathered information in order to corroborate or refute it, and/or obtain

new or additional information in order to develop investigative leads. It is not publicly known

when and under what circumstances the FBI utilizes these particular databases, particularly in the

context of a national security/counterintelligence investigation. Armed with such information,

spies, criminals, and others intent on avoiding FBI attention could develop coimtermeasures to

avoid detection, which would impede the FBI's ability to effectively conduct national security

and criminal investigations.

(U) The FISA applications explainthe investigative steps taken prior to seekingFISA coverage, as well as the information that the FBI was able to obtainusing them, which formedthe probable causenecessaryto obtain
a FISA warrant.
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GJ) (b)(7)(EVS

Monetary Payments in Relation to Utilization of Investigative
Techniques

(128) (U) The FBI protected specific information about payments to CHSs on two

pages of each FISA application. While it is publicly known that the FBI pays CHSs under some

circumstances, the details of when, for what, and how much CHSs are paid are aspects of this

technique that are not made public, in order to protect the viability of the technique. Without

adequate context, the particular amount paid to a CHS could be viewed to suggest the relative

volume of information provided by a particular CHS, which could cause individuals who believe

they are the subjects of such source reporting to assess the likelihood that their activities have

come to the FBI's attention and then take countermeasures, destroy or fabricate evidence, or

otherwise act in a way to thwart the FBI's activities.

(129) (U) Finally, disclosing the amounts paid to CHSs in a particular investigation or

for particular types of information would reveal non-public information about the level of

resources devoted to particular investigations or subject matters. The FBI has limited resources

that it must allocate strategically in order to effectively pursue its law enforcement and

intelligence gathering missions. Revealing the amount of money the FBI has paid to particular

CHSs in particular investigations and over particular periods of time would reveal the FBI's

emphasis on certain investigations or intelligence gathering efforts. Revealing this emphasis

would reveal how the FBI has allocated and is allocating its limited resources. If aggregated

over time, this information would paint a high-level picture of the resources devoted to particular

types of investigations or particular FBI threat areas, and reveal where the FBI's strengths and

weaknesses lie within the spectrum of its intelligence gathering and criminal investigative

activities. This would give sophisticated criminals and adversaries the information necessary to

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adjust their activities in accordance with the FBI's perceived priorities, in order to avoid the FBI

strength areas and exploit the weak ones. Accordingly, the FBI protected payment information

under Exemption (b)(7)(E) in this case.

(U) (bK7KEV6

Targets, Dates, and Scope of Surveillance

(130) (U) While it is known that the FBI conducts surveillance authorized under the

FISA, as well as other types of authorized surveillance, and while it is known that there was

surveillance conducted here, the details about how the surveillance was implemented

(investigatively and/or technically), the locations targeted by the surveillance, and the specific

time period(s) during which the surveillance was conducted are not public and were not

disclosed in the HPSCI memoranda.^^ These non-public details about the conduct of

surveillance, particularly surveillance authorized under the FISA, are utilized by the FBI in other

current investigations. Disclosure of non-public details about when and how the FBI conducts

surveillance and the circumstances under which the FBI will seek authority to do so would, over

time, create a mosaic that criminals and other adversaries could use to predict when and where

surveillance may occur, detect it when it is occurring, and develop and utilize countermeasures to

defeat or avoid different types of surveillances. Accordingly, the FBI protected this information

under Exemption (b)(7)(E) in the four Page FISA applications and resulting orders, including in .

the minimization procedures, in order to preserve the usefulness and utility of this technique.

(U) (by7)(EI-7

Dates and Types of Investigations

(131) (tJ) On one page in each of the FISA applications, the FBI protected information

(U) This includes, for example,the FISC docket numbers, the specificdates that the FISA applications were filed and orders issued, and the declassification dates in the classification stamps (which can be used to pinpoint the datesof the applications and orders). All of this information reveals the specific time period(s) under
which the surveillance was conducted.
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that, when referenced in connection with an actual investigation and not in general discussion,

pertains to the type of investigation, whether it is a "preliminary" or "full" investigation, and the

time period of the particular investigation. Disclosure of this information would allow

individuals to know the types of activities that would trigger a full investigation as opposed to a

preliminary investigation and the particular dates that the investigation covers, which would

allow targets to identify what activities might be under investigation and to adjust their behavior

accordingly. Moreover, the knowledge that a specific activity in general warrants investigation

could likewise cause individuals to adjust their conduct to avoid detection. Because disclosure

of this information could reasonably be expected to impede the FBI's effectiveness and

potentially aid in circumvention of the law, the FBI has properly withheld this information

pursuant to Exemption (b)(7)(E). .

(U) (b)C7)(E)-8

Investigative Strategies for Utilizing Particular Evidence

(132) (U) The FBI protected information, which was repeated in each of the four FISA

applications, that describes a particular purpose for which it might use information gathered as a

result of its FISA authorized surveillance on Page. This information reflects non-public

information about how the FBI investigatively uses information that it gathers during an

investigation. While the particular context here concerns information gathered as a result of its

utilization of FISA, the same potential uses of investigative information could be present in

many other contexts. Publicly disclosing this information would permit targets of FBI

investigative activities to anticipate FBI investigative activities, and this in turn would permit

them to take countermeasures against such activities. This would abrogate the usefulness of

FISA as a technique, at least in this particular and important regard, as well as the investigative

activities that may flow as a result of information obtained under FISA. No further information

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about this category of information or how it falls within Exemption (b)(7)(E) can be made on the public record without undermining the FBI's assertion of this exemption, as well as Exemptions (b)(1), (b)(3), and (b)(7)(A), which were also asserted to protect this information.
(133) (S)
(U) Segregability Determinations for Released in Part Pages (134) (U) Each page of the four Page EISA applications and accompanying orders was carefully reviewed by a team of DOJ employees to determine what portions of the pages contained exempt information requiring redaction pursuant to the FOIA, what portions could be segregated and released, and what pages did not contain any segregable information and had to be withheld in full. As part of this review, the employees carefully analyzed all information in the four Page FISA applications and resulting orders to determine what information has been revealed through the HPSCI memoranda and/or officially, publicly disclosed, and to ensure that no information for which FOIA exemptions were or likely have been waived was redacted. A total of 598 pages of responsive records were carefully reviewed and analyzed, and it was determined that 412 pages could be released in part and that 186 pages had to be withheld in full, in order to protect the classified and otherwise exempt information contained therein.
(U) Pages Withheld in Full - Page FISAs (135) (U) The FBI withheld in full 186 pages associated with the FISA applications and resulting orders pursuant to Exemptions (b)(1), (b)(3), (b)(7)(A), and (b)(7)(E) (categories 1-3
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!ECRET//NOFORN
and 6)}^ Disclosure of these pages would reveal classified intelligence methods and law
enforcement techniques; however, the FBI cannot publicly describe these pages and the bases for withholding them any further without revealing information that is itself exempt.
(136) (S//MF)
(137) (S/mP)
(U) Discrete information in the records would be subject to redaction pursuant Exemptions (b)(6) and (b)(7)(C), as described in the category (b)(6)/(b)(7)(C)-2 discussion above.
51
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SECRET//HOFORN
(139) (S//NF)
(140) (S//MF)
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Case 1:17-cv-00597-APM Document 40-1 Filed 10/19/18 Page 53 of 66
(141) (sm¥)
(U) PARTIAL GLOMAR RESPONSE (142) (U) The FBI relies on a Glomar response in instances in which, assuming that responsive records existed, even acknowledging their existence would result in harm protected against by one or more FOIA exemptions. To be credible and effective, the FBI must use a Glomar response in all similar cases regardless of whether responsive records actually exist, including instances in which the FBI does not possess records responsive to a particular request. If the FBI were to invoke a Glomar response only when it actually possessed responsive records, the Glomar response would be interpreted as an admission that responsive records exist. (143) (U) Here, the FBI has determined that merely acknowledging the existence or
53 SECRET//NOFORN

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SECRET//NOFORN
non-existence of any records responsive to plaintiffs request, beyond the four Carter Page FISA
applications and resulting FISC orders, and former Director Comey's March 20,2017 statement
that neither the FBI nor DOJ have any information about the alleged wiretapping referred to in
President Trump's March 4,.2017 tweets, could trigger harm under FOIA exemptions. With
limited exceptions, such as the unique circumstances giving rise to the FBI's processing and
release of the four Page FISA packages, the FBI does not and cannot publicly confirm or deny
FISA coverage on particular individuals or entities, or that FISC orders have been sought or
obtained in the conduct of any particular investigation. As no authorized Executive Branch
official has acknowledged the existence or non-existence of FISA warrants, applications and
orders beyond the four on Carter Page, the FBI's partial Glomar response as to any other
responsive records remains proper.^^
(144) (U) As an original classification authority, I have determined that the FBI can
neither confirm nor deny whether the FBI maintains responsive records because to do so could
reasonably be expected to compromise national security and/or reveal intelligence activities,
sources, or methods. See 5 U.S.C. §§ 552(b)(1), (b)(3).
(U) On March 20,2017, then FBI Director James B. Comey specifically addressed President Trump's four-part post on Twitter on March 4,2017 that President Obama had had President Trump's" 'wires tapped' in Trump Tower just before the victory," stating:
With respect to the President's tweets about alleged wiretapping directed at him by the prior administration, I have no information that supports those tweets and we have looked carefully inside the FBI. The Department of Justice has asked me to share with you that the answer is the same for the Department ofJustice and all its components. The Department has no information that supports those tweets. See Transcript of the House Permanent Select Committee on Intelligence Hearing on Russian Interference in the 2016 U.S. Election, March20,2017. https://www.washingtonpost.eom/news/Dost-politics/wp/2017/03/20/fulltranscript-fbi-director-iames-comev-testifies-on-russian-interference-in-2016-election/?utm term=.b9fl9a0cf9cf (last accessed 6/12/2017). Aside fromthis statementand the acknowledgment of the four Page FISA applications and accompanying FISC orders,neither the FBI not DOJ have publiclycommented on or acknowledged the existenceor non-existence of any other FISA records within the scope of plaintiffs FOIA request.
54
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(145) (U) Moreover, acknowledging or denying the existence or non-existence of records could result in harms protected against by FOIA Exemption (b)(7)(A), 5 U.S.C. § 552(b)(7)(A).
A. (U) Aspreviouslydescribed, on March 20,2017, then-FBI Director Comey publicly confirmed the existence of an investigation into Russia's interference in the
2016 Presidential election. See Statement Before the House Permanent Select Committee on
Intelligence, available at https://www.fbi.gov/news/testimonv/hpsci-hearing-titled-russian-activemeasures-investigation'). On May 17, 2017, the Acting Attorney General appointed Special Counsel Mueller and authorized him to conduct the investigation confirmed by then-FBI Director Comey on March 20, 2017. DOJ Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17,2017)).
B. (U) As plaintiff specifically requested FISA/FISC records related to Russian interference in the 2016 election, the FBI cannot confirm or deny the existence or nonexistence of responsive records, beyond those already acknowledged and processed, because that could reasonably be expected to adversely affect the pending investigation.
(146) (U) Finally, acknowledging the existence or non-existence of any other responsive records could reasonably be expected to risk circumvention of the law. See 5 U.S.C. § 552(b)(7)(E).
(U) FOIA Exemption (b)(1) as a Basis for the Partial Glomar Response (147) (U) FOIA Exemption (b)(1) protects records that are: "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national
55
SECRET//NOFORN

Case 1:17-cv-00597-APM Document 40-1 Filed 10/19/18 Page 56 of 66
SECRET//NOFQRN
defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1).
(148) (U) E.0.13526 § 1.1(a) provides that information maybe originally classified imder the terms of this order only if all of the following conditions are met: (1) an original classification authority is classifying the information; (2) the information is owned by, produced by or for, or is under the control of the U.S. Government; (3) the information falls within one or more of the categories of information listed in § 1.4 of E.G. 13526; and (4) the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in some level of damage to the national security, and the original classification authority is able to identify or describe the damage.
(149) (U) E.G. 13526 explicitly authorizes precisely the type of response that the FBI has provided to plaintiff in this case. Specifically, § 3.6(a) provides that "[a]n agency may refuse to confirm or deny the existence or nonexistence of requested records whenever the fact of their existence or nonexistence is itself classified under this order or its predecessors."
(150) (U) Consistent with E.G. 13526 and as described below, I have determined that acknowledging the existence or nonexistence of the records requested by plaintiff, beyond the four Carter Page FISA applications and orders discussed in detail above, would require the FBI to disclose properly classified facts that concern § i.4(c) ("intelligence activities, sources, and methods") and § 1.4(d) ("foreign relations and foreign activities of the United States"). Moreover, responsive records, if they exist, would be owned by and under the control of the U.S. Government. Finally, I have determined that acknowledging the existence or non-existence of the requested records reasonably could be expected to result in damage to national security.
56
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SECRET//NOFORN
(151) (U) My determination that the existence or nonexistence of the requested records is classified has not been made to conceal violations of law, inefficiency, or administrative error; to prevent embarrassment to a person, organization, or agency; to restrain competition; or to prevent or delay the release of information that does not require protection in the interests of national security
(U) Intelligence Activities, Sources, and Methods (152) (U) The records requested by plaintiffs, if they exist, implicate classified intelligence activities and methods, and acknowledging the existence or non-existence of any such records reasonably can be expected to cause damage to national security. An intelligence activity or method includes any intelligence action or technique utilized by the FBI against a targeted individual or organization that has been determined to be of national security interest, and includes any procedure (human or non-human) utilized to obtain information concerning such individual or organization. An intelligence activity or method has two characteristics. First, the intelligence activity or method, and information generated by it, is needed by United States Intelligence/Counterintelligence agencies to carry out their missions. Second, confidentiality must be maintained with respect to the use or non-use of the activity or method, including intelligence sources, if the viability, productivity, and usefulness ofthe activity, method, and source are to be preserved. (153) (U) Intelligence activities and methods must be protected from disclosure in every situation in which a certain intelligence capability, technique, or interest - or its specific
^ (U) To the extentpossible on the public record, I haveexplained the harmto national security that
would result from confirming or denying the existence or non-existence responsive records here. If the Court finds that explanation inadequate, Defendants could offer further explanation exparte and in camera.
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SECRET//NOFORN
use - is unknown to the groups against which it is deployed, since those groups could take countermeasures to nullify its effectiveness. Intelligence activities and methods are valuable only so long as they remain unknown and unsuspected. Once an intelligence activity of method
- or the fact of its use or non-use in a certain situation - is discovered, its continued successful use is seriously jeopardized.
(154) (U) The U.S. Government must do more than prevent explicit referencesto an intelligence activity or method; it must also prevent indirect references to them. One vehicle for gathering information about the U.S. Government's capabilities is by reviewing officiallyreleased information. We know that terrorist organizations and other hostile or Foreign Intelligence groups have the capacity and ability to gather information from myriad sources, analyze it, and deduce means and methods from disparate details to defeat the U.S. Government's collection efforts. Thus, even seemingly innocuous, indirect references to an intelligence activity, source, or method could have significant adverse effects when juxtaposed with other publicly-available data.
(155) (U) Here, acknowledging the existence or non-existence of records responsive to plaintiffs request, beyond the four Carter Page FISA applications and resulting FISC orders, and former Director Comey's March 20, 2017 statement that neither the FBI nor DOJ have any information about the alleged wiretapping referred to in President Trump's March 4, 2017
tweets, would be tantamount to confirming whether or not the FBI has relied on a particular
intelligence activity or method targeted at particular individuals or organizations. The FBI has not confirmed or denied the existence of any other FISA surveillance records responsive to
plaintiffs request. Confirming or denying whether any or not other responsive records exist would reveal otherwise non-public information regarding the nature of the FBI's intelligence
58

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interests, priorities, activities, and methods—information that is highly desired by hostile actors who seek to thwart the FBI's intelligence-gathering mission. Accordingly, to confirm or deny that the FBI possesses or does not possess records responsive to plaintiffs request could risk compromising intelligence activities or methods, and thus would pose at least a serious risk to
the national security.^^
(U) Foreign Relations and Foreign Activities ofthe United States (156) (U) Responding to plaintiffs request with anything other than a Glomar response would also reveal information concerning U.S. foreign relations and foreign activities, the disclosure of which reasonably can be expected to cause damage to national security. Plaintiffs request necessarily implicates U.S. foreign relations and foreign activities in relation to foreign governments or government officials/employees. (157) (U) FISA prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" suspected of espionage or terrorism. Thus, on its face, a request for informationabout FISA materials implicates foreign relations and foreign activities because those are at the heart of the FBI's use of FISA as an intelligence and investigative tool. (158) (U) The FBI's confirmation or denial of the existence of responsive records could reasonably be expected to cause damage to the national security interests of the United States by negatively impacting U.S. foreign relations with these and other countries. Given the sensitivity of the United States' present and future relationships with foreign coimtries and the importance of such relationships to our national security, requests like plaintiffs—which, directly or
(U) FISC orders, applications, and minimization procedures are classified, at a minimum, at the
SECRET level.
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indirectly, call for records thatwould relate to sensitive and appropriately classified details of the United States' relationship with foreign govemment(s)—reflect precisely the situation in which
the FBI finds it necessary to assert a partial Glomar response to plaintiff s request. (159)
(160) (U) Accordingly, confirming or denying the existence or non-existence of particular FISA records can reasonably be expected to cause serious damage to the national security by undermining our relationships with foreign partners.
60 SECRET//NOFQRN

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SECRET//NOFORN
(U) FOIA Exemption (b)(3) as a Basis for the Partial Glomar Response (161) (U) Exemption (b)(3) protects information that is specifically exempted from public disclosure by a statute that requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, establishes particular criteria for withholding, or refers to particular types of matters to be withheld. 5 U.S.C. § 552(b)(3)(A). If the non
disclosure statute was enacted after the date of enactment of the OPEN FOIA Act of 2009, it
must specifically cite this paragraph in order for Exemption (b)(3) to apply. Id. at § 552(b)(3)(B).
(162) (U) Section 102A(i)(l) of the National Security Act of 1947, as amended, 50 U.S.C. § 403-1 (i)(l) (the "National Security Act"), provides that the Director of National Intelligence ("DNI") "shall protect intelligence sources and methods from unauthorized disclosure." Accordingly, the National Security Act constitutes a federal statute which "requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue" under 5 U.S.C. § 552(b)(3). Under the direction of the DNI, other components within the U.S. Government are authorized to protect intelligence sources and methods from unauthorized
disclosure.
(163) (U) As previously described in relation to the Exemption (b)(1) Glomar explanation, acknowledging the existence or non-existence of records responsive to plaintiffs request, beyond the four Carter Page EISA applications and orders discussed in detail above,
would tend to reveal whether an intelligence method^^ is being deployed against a particular
(U) An intelligence method includes any intelligence action or technique utilized by the FBI against a targetedindividual or organization determined to be of national securityinterest; any procedure(humanor nonhuman)or intelligence source, used to obtain information concerning the individual or organization; and foreign liaison relationships.
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target or organization, thus compromising the national security interests of the United States. Accordingly, the National Security Act, in conjunction with Exemption (b)(3), provides an additional and independent basis for the FBI's partial Glomar response to plaintiffs request.
(U) FOIA Exemptions (b)(7)(A) and (b)(7)(E) as Bases for the Glomar Response (U) Exemption (b)(7) Threshold
(164) (U) As discussed above, before an agency can invoke any of the harms enumerated in Exemption (b)(7), it must first demonstrate that the records or information at issue were compiled for law enforcement purposes. Law enforcement agencies such as the FBI must
demonstrate that the records at issue are related to the enforcement of federal laws and that the
enforcement activity is within the law enforcement duty of that agency. (165) (U) The only circumstance under which the FBI can request a FISA order is
when the FBI is conducting an authorized, predicated national security investigation within the scope of its law enforcement and foreign intelligence responsibilities. Accordingly, FISA applications and FISC orders - when they exist - are records compiled for law enforcement
purposes.
(U) Exemption (b)(7)(A) (166) (U) FOIA Exemption 7(A) protects "records or information compiled for law enforcement purposes [when disclosure] could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). (167) (U) In addition to satisfying Exemption (b)(7)'s threshold, an agency must establish that (a) there is a pending or prospective law enforcement proceeding and (b) disclosure of responsive records could reasonably be expected to adversely affect it.
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(168) (U) As previously noted, in July 2016, the FBI opened an investigation of Russian election interference. The FBI sought and obtained a FISA warrant in October 2016 to conduct surveillance of Carter Page in the course of that investigation. The FBI thereafter sought and obtained three renewals from the FISC to continue surveilling Page. The FISA applications were compiled as part of the investigation into Russian election interference. In May 2017, the Acting Attorney General appointed Special Counsel Mueller and authorized him to conduct the Russian election interference investigation confirmed by then-FBI Director James Comey on March 20,2017. That investigation is on-going. Plaintiffs request specifically seeks FISA applications and FISC orders related to the Russian election interference investigation. Thus, the requirement of a pending enforcement proceeding in Exemption (b)(7)(A) is satisfied.
(169) (U) The final element —interference with that investigation - is readily established. Confirming or denying the existence or non-existence of responsive records would reveal non-public information about the focus, scope, and conduct of that investigation. Specifically, it would reveal whether or not specific investigative techniques have been used; when and to what extent they were used, if they were; their relative value or benefit if they were used; and the targets they were used against, if any. Prematurely disclosing non-public
information about the Russia investigation could give targets and others intent on interfering with the FBI's investigative efforts the information necessary to: take defensive actions to conceal criminal activities; develop and implement countermeasures to elude detection; suppress, destroy, or fabricate evidence; and identify potential witnesses or sources, exposing them to
harassment, intimidation, coercion, and/or physical threats. Accordingly, confirming or denying the existence or non-existence of responsive records, beyond the four Carter Page FISA applications and orders discussed in detail above, could reasonably be expected to adversely
m
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SECRET//NQFORN
affect the pending investigation. Therefore, the FBTs partial Glomar response is justified under
Exemption (b)(7)(A) as well. (U) Exemption (b)(7)(E)
(170) (U) Exemption (b)(7)(E) protects "records or information compiled for law enforcementpurposes [when disclosure] would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." 5 U.S.C. § 552 (b)(7)(E). This exemption affords categorical protection to techniques and procedures used in law enforcement investigations; it protects techniques and procedures that are not well-known to the public as well as non-public details
about the use of well-known techniques and procedures. (171) (U) How the FBI applies its investigative resources (or not) against a particular
allegation, report of criminal activity, or perceived threat is itself a law enforcement technique or procedure that the FBI protects pursuant to Exemption (b)(7)(E).
(172) (U) As previously demonstrated, acknowledging or denying the existence or nonexistence of the law enforcement records that plaintiff seeks, beyond the four Carter Page FISA applications and orders discussed in detail above, would be tantamount to confirming or denying whether or not the FBI is employing specific investigative techniques authorized under the FISA against specific targets as part of the pending Russian interference investigation. Even in acknowledged investigations, the FBI does not routinely disclose whether or not it has employed this particular classified investigative technique against a particular target. Such an acknowledgment would reveal when and under what circumstances the FBI relies upon FISAauthorjzed techniques in an investigation. Confirming whether or not FBI has responsive
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SECRET//NOFORN
records would provide pieces of information that adversaries could use to ascertain at what point, and against whom we might use particular techniques. Armed withlthis information, adversaries could glean significant insight into the activities likely to attract - or not attract - the FBI's law
enforcement attention. These individuals would then be able alter their behavior to avoid
attention by law enforcement, making it more difficult for the FBI to be proactive in assessing threats and investigating crimes. Therefore, the FBI can neither confirm nor deny the existence of records responsive to plaintiffs request, beyond the four Carter Page FISA applications and orders discussed in detail above, without causing harms protected against by FOIA Exemption (b)(7)(E), and Exemption (b)(7)(E) provides independent justification for the FBI's partial Glomar response here.
(U) CONCLUSION (173) (U) For the reasons described above, the FBI's Glomar response to plaintiffs request, except as to records that have been officially publicly revealed, was proper; the FBI's search for records responsive to the portion of plaintiffs request for which the Glomar response has been pierced - i.e., the four FISA applications and orders on Carter Page revealed in the HPSCI memoranda - was reasonably calculated to, and in fact did, locate the responsive records; the FBI properly protected information in the four Page FISA applications and orders pursuant to FOIA Exemptions (b)(1), (b)(3), (b)(6), and (b)(7)(A) and (C)-(E); and the FBI reasonably segregated and released non-exempt information on the pages released in part and properly concluded that it could not do so on the pages withheld in full.
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SECRBT//NOFORN

(U) Pursuant to 28 U.S.C. § 1746,1declare underpenaltyof perjurythat the foregoing is
true and correct, andthatExhibits Aai^>B^^chedhereto are true and correctcopies.

(U) Executed this

CTSOlS.

DAVID M. HARDY Section Chief Record/Information Dissemination Section
Information Management Division Federal Bureau of Investigation Winchester, Virginia

66 5ECD,BT//MOrORM

Case 1:17-cv-00597-APM Document 40-2 Filed 10/19/18 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.
Plaintiffs, v. U.S. DEPARTMENT OF JUSTICE,
Defendant.

Civil Action No. 1:17-cv-0597-APM

EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.
Plaintiffs, v. U.S. DEPARTMENT OF JUSTICE,
Defendant.

Civil Action No. 1:17-cv-0597-APM

EXHIBIT B

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b1 b3 1 7A-1 6/7C 1 6/7C 2 6/7C 3 6/7C 4 7D 1 7E 1 7E 2 7E 3 7E 4 7E 5 7E 6 7E 7 7E 8 RIF RIP

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Case 1:17-cv-00597-APM Document 40-2 Filed 10/19/18 Page 10 of 16

Bates
153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190

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Bates
191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228

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Bates
229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266

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Bates
267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304

b1 b3 1 7A-1 6/7C 1 6/7C 2 6/7C 3 6/7C 4 7D 1

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Bates
305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342

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Bates
343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380

b1 b3 1 7A-1 6/7C 1 6/7C 2 6/7C 3 6/7C 4 7D 1

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7E 1 7E 2 7E 3 7E 4 7E 5 7E 6 7E 7 7E 8 RIF RIP

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Bates
381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418

b1 b3 1 7A-1 6/7C 1 6/7C 2 6/7C 3 6/7C 4 7D 1

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7E 1 7E 2 7E 3 7E 4 7E 5 7E 6 7E 7 7E 8 RIF RIP

X XX X XX XX XX X XX X XX X XX X XX
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 Case 1:17-cv-00597-APM Document 51 Filed 07/30/19 Page 1 of 6

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

JAMES MADISON PROJECT, et al.,

)

)

Plaintiffs,

)

)

v.

)

Case No. 17-cv-00597 (APM)

)

UNITED STATES DEPARTMENT OF

)

JUSTICE,

)

)

Defendant.

)

_________________________________________ )

MEMORANDUM OPINION AND ORDER

I. On March 6, 2017, Plaintiffs The James Madison Project and Brad Heath submitted a

Freedom of Information Act (“FOIA”) request to Defendant Department of Justice for, among

other things, orders by or applications to the United States Foreign Intelligence Surveillance Court

concerning the Trump Organization, President Trump, President Trump’s campaign for the

presidency, or people associated with President Trump. See Def.’s Mot. for Summ. J., ECF No.

40 [hereinafter Def.’s Mot.], Def.’s Stmt. of Material Facts, ECF No. 40 at 1–11 [hereinafter Def.’s

Facts], ¶ 1; see also Pls.’ Mot. for Summ. J., ECF No. 41 [hereinafter Pl.’s Mot.], at 2

(incorporating Defendant’s fact). On July 20, 2018, in response to multiple FOIA requests like

the one at issue here, Defendant made public 412 pages, which constituted “all responsive, non-

exempt and reasonably segregable information” from Foreign Intelligence Surveillance Act (“FISA”) applications related to Carter Page. See Def.’s Facts ¶ 11; see also Pl.’s Mot. at 2.1

1 The Carter Page FISA applications were publicly acknowledged following release of a declassified memorandum from Devin Nunes, Chairman of the House Permanent Select Committee on Intelligence, and an unclassified, redacted memorandum from Adam Schiff, Ranking Member of the House Permanent Select Committee on Intelligence.

Case 1:17-cv-00597-APM Document 51 Filed 07/30/19 Page 2 of 6
The released 412 pages were heavily redacted and identified a range of FOIA exemptions to justify the withholdings. See https://vault.fbi.gov/d1-release/d1-release (last visited July 30, 2019).
Defendant’s continued redaction of 21 of the 412 pages is the sole contested issue in the parties’ cross-motions for summary judgment. See Pl.’s Mot. at 1. The dispute arises because, nearly two months after releasing the 412 pages, on September 17, 2018, the White House announced in a Press Release that President Trump had
directed the Office of the Director of National Intelligence and the Department of Justice (including the FBI) to provide for the immediate declassification of the following materials: (1) pages 1012 and 17-34 of the June 2017 application to the FISA court in the matter of Carter W. Page . . . See Pl.’s Mot. at 4; see also Press Release, White House Press Secretary (Sept. 17, 2018), https://www.whitehouse.gov/briefings-statements/statement-press-secretary-34/ (last visited July 30, 2019) [hereinafter Press Release]. Plaintiffs contend that the Press Release reflects a presidential order to declassify the referenced 21 pages (“the Pages”) in full. Yet, in this FOIA litigation, Defendant has not withdrawn Exemptions 1 and 3—both based on the purported classification of the redacted material—as a basis for withholding information from the Pages. It also continues to assert other exemptions, including Exemptions 7(D) and 7(E), to justify withholding the same information. See Pl.’s Mot. at 4–8.2 Plaintiffs contend that the Press Release creates a genuine dispute of material fact as to (1) whether Defendant validly can maintain
See Def.’s Facts ¶¶ 7–11. “[N]o authorized government official has confirmed or denied the existence of any other responsive FISA-related records.” See id. ¶ 12. 2 Defendant at first invoked multiple exemptions for each of the redacted portions from the Pages. The complete line up of exemptions included some combination of Exemptions 1, 3, 6, 7(A), 7(C), 7(D), and 7(E). See https://vault fbi.gov/d1-release/d1-release (the Pages are at 301–03, 308–25). Since the start of this litigation, Defendant has withdrawn Exemptions 6 and 7(C), because Carter Page supplied a privacy waiver, see Def.’s Opp’n to Pl.’s Mot., ECF No. 43, at 12, and Exemption 7(A), as the Russia investigation has since concluded, see Def.’s Supp. Memo., ECF No. 49, at 3. Thus, what remains asserted as to the Pages is Exemptions 1, 3, 7(D), and 7(E).
2

Case 1:17-cv-00597-APM Document 51 Filed 07/30/19 Page 3 of 6
Exemptions 1 and 3, and (2) whether the court can in good faith rely on Exemptions 7(D) and 7(E) in the alternative to affirm the withholdings.
II. In FOIA cases, “the agency bears the burden of justifying its decision to withhold requested information.” King v. U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). The agency here relies on FOIA Exemption 1 to justify the redactions.3 That exemption protects against disclosing matters that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). Conversely, Exemption 1 cannot apply to information that has been declassified. No one disputes that “the President, as head of the Executive Branch, has broad declassification authority.” New York Times Co. v. CIA, 314 F. Supp. 3d 519, 526 (S.D.N.Y. 2018) (citing Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988)). The question here is whether President Trump exercised that authority with respect to the Pages. Because the agency is asserting Exemption 1 with respect to the Pages, it bears the burden of showing that the President did not declassify the Pages in full.4 Defendant asserts that “[t]here is no presidential declassification order, and the President has publicly indicated that he is not requiring declassification at this time, much less full disclosure.” See Def.’s Opp’n to Pl.’s Mot., ECF No. 43 [hereinafter Def.’s Opp’n], at 1. To support its position, Defendant relies on legal arguments, and not sworn declarations. To start,
3 Defendant’s assertion of Exemption 3 is predicated entirely on Exemption 1. See Def.’s Mot., Decl. of David M. Hardy, ECF No. 40-1, ¶¶ 68–72. For ease of reference, the court refers to both as “Exemption 1.” 4 By phrasing the issue in this way, the court does not mean to suggest that in every Exemption 1 case the agency must prove the record was not declassified. This question arises in this case only because of the President’s public declassification announcement of these specific documents.
3

Case 1:17-cv-00597-APM Document 51 Filed 07/30/19 Page 4 of 6

Defendant insists that the Press Release is, “indisputably, a statement from the press secretary, not an order from the President.” Id. at 3. That argument, however, ignores the plain text of the Press Release. It says that the President “directed . . . the Department of Justice . . . to provide for the immediate declassification” of the Pages. Press Release (emphasis added). The Release’s use of the word “direct” suggests that the President ordered the Department of Justice to declassify the Pages.5 And, while it is true that the Press Release is a statement of the Press Secretary, and not the President, see Def.’s Opp’n at 3, Defendant offers no reason to believe that the Press Release inaccurately conveys the President’s “directive.” Thus, contrary to what Defendant says, it would appear that the President did make “his intentions clear . . . to declassify information.” Id.
Next, Defendant contends the Pages were not declassified because the Press Release is “ambiguous as to what the President may have directed.” Def.’s Opp’n at 3. That argument has it precisely backwards. The agency bears the burden to show that Exemption 1 applies. It cannot carry that burden by suggesting that a potential declassification order is ambiguous. Rather, the agency must dispel any ambiguity. In this case, that means Defendant must establish that the Pages were not declassified in full. Defendant has not done so.
Additionally, Defendant argues that, whatever was meant by the Press Release, the President later “made clear . . . that he had not ordered the documents declassified.” Id. Defendant points to a tweet from the President four days after the Press Release, stating:
I met with the DOJ concerning the declassification of various UNREDACTED documents. They agreed to release them but stated that so doing may have a perceived negative impact on the Russia probe . . . Therefore, the Inspector General has been asked to review these documents on an expedited basis . . . In the end I can always declassify if it proves necessary.

5 One common definition of “direct” is “[t]o give an order to; command.”

See

https://www.thefreedictionary.com/directed.

4

Case 1:17-cv-00597-APM Document 51 Filed 07/30/19 Page 5 of 6
Def.’s Opp’n at 3–4. Defendant maintains that this tweet makes “crystal clear” that the President did not declassify documents relating to the Russia probe. Id. at 4. Far from it. The tweet only injects ambiguity as to the President’s intentions. The tweet does not identify the documents to which the President is referring, let alone refer to the Pages, and it leaves unclear whether the President rescinded the directive announced in the Press Release. Ultimately, as Defendant concedes, the tweet is “fac[ially] equivocal” about the President’s instructions to the Department of Justice. Id. at 4.
The court in New York Times Company observed that “the courts are [not] in a position to decide whether a President’s statements, absent an unequivocal declaration that [he] is declassifying information, have the effect of declassifying secret information.” New York Times Company, 314 F. Supp. 3d at 527 (cleaned up). On its face, the Press Release would appear to be such an “unequivocal declaration.” But the President’s subsequent tweets and the agency’s insistence that there is no declassification order render what seems to be unequivocal less so. Defendant should have provided some clarification about what instructions the Department of Justice received concerning the “declassification” of the Pages’ contents. But none of the declarations submitted by Defendant even mention the Press Release. Therefore, on the present record, the court cannot find that Defendant’s withholding of information from the Pages was proper under FOIA Exemption 1.
III. Alternatively, Defendant contends that, even if it has not met its burden as to Exemption 1, it has asserted other exemptions, namely, Exemptions 7(D) or 7(E), which Plaintiffs have not challenged and serve as an independent ground to affirm the agency’s withholdings. See Def.’s Opp’n at 5 (citing to the Pages, which list the alternative exemptions). It is true that Plaintiffs have
5

Case 1:17-cv-00597-APM Document 51 Filed 07/30/19 Page 6 of 6
not challenged the factual basis for either Exemption 7(D) or 7(E). But that does not resolve the issue. There still remains a genuine dispute of material fact about the agency’s authority to invoke those Exemptions.
The President “directed” the Department of Justice “to provide for the immediate declassification” of the Pages. Did the President narrowly mean only to “declassify” the Pages, or did he more broadly intend to release the Pages in full, without redactions? To be sure, the Press Release refers only to “immediate declassification” and is silent as to the other applicable exemptions. But why would the President order declassification of the Pages, if the agency could still rely on other already-asserted exemptions to withhold the very same material? Such an order would not result in any additional public information. And it would not promote the “transparency” that the Press Release identified as a reason for the President’s action. The court cannot presume that the President’s declassification order was meant to have no practical effect. For that reason, there remains a genuine dispute of material fact as to whether the agency here has the authority to rely on Exemptions 7(D) and 7(E).
IV. The court, therefore, denies the parties’ motions for summary judgment. Defendant may submit an additional declaration and renew its motion for summary judgment by August 30, 2019. Any supplemental declaration should provide information about (1) the effect, if any, the Press Release and the President’s subsequent tweets (including the meeting referenced in the tweets) had on the classification status of the Pages, and (2) whether the agency is authorized to assert Exemptions 7(D) and 7(E) to shield portions of the Pages from disclosure.

Dated: July 30, 2019

Amit P. Mehta United States District Court Judge
6

 
 Case 1:17-cv-00597-APM Document 53 Filed 09/13/19 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

*

THE JAMES MADISON PROJECT, *

et al.,

*

*

Plaintiffs,

*

*

v.

* Civil Action No. 17-597 (APM)

*

DEPARTMENT OF JUSTICE,

* (ORAL ARGUMENTS REQUESTED)

*

Defendant.

*

*

* * * * * * * * * * * * **

PLAINTIFFS' OPPOSITION TO

DEFENDANT’S RENEWED MOTION FOR SUMMARY JUDGMENT

Case 1:17-cv-00597-APM Document 53 Filed 09/13/19 Page 2 of 14
Table of Contents
BACKGROUND ................................................................................................................ 1 ARGUMENT ...................................................................................................................... 3
THE WEINSHEIMER DECLARATION DOES NOT DEMONSTRATE THAT DOJ RECEIVED AUTHORIZED INSTRUCTIONS THAT THE ORDER HAD BEEN RESCINDED OR OTHERWISE POSTPONED AS A MATTER OF LAW................ 3 THERE REMAINS A GENUINE ISSUE OF MATERIAL FACT IN DISPUTE REGARDING THE ABILITY OF DOJ TO ASSERT OTHER EXEMPTIONS IN ORDER TO JUSTIFY WITHHOLDING THE PAGES ................................................ 9 CONCLUSION................................................................................................................. 10

Case 1:17-cv-00597-APM Document 53 Filed 09/13/19 Page 3 of 14
Table of Authorities
Cases Citizens for Responsibility & Ethics in Wash. v. Nat’l Indian Gaming Comm’n, 467 F.
Supp. 2d 50 (D.D.C. 2006) ............................................................................................. 7 Holcomb v. Powell, 433 F.3d 889 (D.C. Cir. 2006) ........................................................... 9 Judicial Watch, Inc. v. Dep’t of Commerce, 34 F. Supp. 2d 28 (D.D.C. 1998) ................. 8 Judicial Watch, Inc. v. Dep’t of State, 344 F. Supp. 3d 77 (D.D.C. 2018)......................... 7 Sussman v. United States Marshals Serv., 494 F.3d 1106 (D.C. Cir. 2007) ...................... 6 The James Madison Project, et al. v. Dep’t of Justice, 2019 U.S Dist. LEXIS 126575
(D.D.C. Jul. 30, 2019).....................................................................................2-4, 7, 9-10 United States v. Valencia, 2018 U.S. Dist. LEXIS 200564 (W.D. Tex. Nov. 27, 2018) ... 4
Other Authorities https://www.whitehouse.gov/briefings-statements/statement-press-secretary-34/ (last
accessed September 3, 2019) .......................................................................................... 3

Case 1:17-cv-00597-APM Document 53 Filed 09/13/19 Page 4 of 14
BACKGROUND The Plaintiffs, The James Madison Project (“JMP”) and Brad Heath (“Heath”) (hereinafter referred to jointly as “Plaintiffs”), brought this action under the Freedom of Information Act (“FOIA”) to accomplish what had never before been done: namely, to secure the lawful disclosure of records memorializing the application for and issuance of orders for surveillance by the Foreign Intelligence Surveillance Court (“FISC”). In the context of this present case, the specific potential targets of surveillance originally at issue in the Plaintiffs’ underlying FOIA requests were President Donald J. Trump (“President Trump”), his presidential campaign, his private company, or his associates. The factual background with respect to how this litigation unfolded – including the unprecedented disclosure by the defendant Department of Justice (“DOJ”) of four applications made to the FISC to authorize the surveillance of Carter W. Page (“Mr. Page”) – has already been well-documented for this Court by both parties, see Dkt. #5 (First Amended Complaint)(filed April 15, 2017); Dkt. #40 (Defendant’s Statement of Material Facts in Support of Defendants’ Motion for Summary Judgment) (filed October 19, 2018); Dkt. #52 (Supplemental Statement of Material Facts in Support of Defendant’s Renewed Motion for Summary Judgment)(filed August 30, 2019), and the Plaintiffs have no desire to further burden it with details regarding which it is already well aware.1
1 The Plaintiffs respectfully incorporate the Government’s two statements of material facts herein by reference, subject to the caveat – as done previously, see Dkt. #42 at *2 (filed November 9, 2018) – that the Plaintiffs are only incorporating the statements to the extent they do not constitute legal characterizations or conclusions regarding the appropriateness of DOJ’s invocations of particular FOIA exemptions.

Case 1:17-cv-00597-APM Document 53 Filed 09/13/19 Page 5 of 14
In its Memorandum Opinion issued on July 30, 2019, this Court denied both parties respective motions for summary judgment with respect to a particular issue: the 21 pages of one FISC application for authorization for surveillance of Mr. Page (the “Pages”). See The James Madison Project, et al. v. Dep’t of Justice, 2019 U.S Dist. LEXIS 126575 (D.D.C. Jul. 30, 2019). This Court specifically made two conclusions: (1) that DOJ had failed to sufficiently clarify the legal impact of President Trump’s September 17, 2018, press release ordering the declassification of the Pages (the “Order”), as well as President Trump’s subsequent tweets possibly rescinding the declassification; and (2) that DOJ had failed to sufficiently explain the authority of DOJ to still invoke other exemptions to justify withholding the Pages in light of the existence of the Order. Id., 2019 U.S. Dist. LEXIS 126575 at *2, *6, *8.2
DOJ has now filed a Renewed Motion for Summary Judgment (“Renewed Motion”), complete with a declaration from G. Bradley Weinsheimer (“Weinsheimer Declaration”) that seeks to fill in the gaps identified by this Court in its recent ruling. However, for the reasons set forth in detail below, the Weinsheimer Declaration fails to sufficiently resolve the factual disputes for purpose of summary judgment.
Accordingly, this Court should deny DOJ’s Renewed Motion without prejudice and authorize limited discovery.
2 This Court has not yet ruled on the extent to which DOJ’s remaining redactions and/or withholdings that the Plaintiffs are challenging were appropriate as a matter of law. Presumably, that is a matter this Court will address once the dispute over the Pages is resolved.
2

Case 1:17-cv-00597-APM Document 53 Filed 09/13/19 Page 6 of 14
ARGUMENT
I. THE WEINSHEIMER DECLARATION DOES NOT DEMONSTRATE THAT DOJ RECEIVED AUTHORIZED INSTRUCTIONS THAT THE ORDER HAD BEEN RESCINDED OR OTHERWISE POSTPONED AS A MATTER OF LAW
The Order could not have been clearer in its instructions, and bears repeating it in its
entirety if only for the sake of factual accuracy.
At the request of a number of committees of Congress, and for reasons of transparency, the President has directed the Office of the Director of National Intelligence and the Department of Justice (including the FBI) to provide for the immediate declassification of the following materials: (1) pages 10-12 and 17-34 of the June 2017 application to the FISA court in the matter of Carter W. Page; (2) all FBI reports of interviews with Bruce G. Ohr prepared in connection with the Russia investigation; and (3) all FBI reports of interviews prepared in connection with all Carter Page FISA applications.
In addition, President Donald J. Trump has directed the Department of Justice (including the FBI) to publicly release all text messages relating to the Russia investigation, without redaction, of James Comey, Andrew McCabe, Peter Strzok, Lisa Page, and Bruce Ohr.
https://www.whitehouse.gov/briefings-statements/statement-press-secretary-34/
(last accessed September 3, 2019)(emphasis added).
This Court previously stated that, contrary to claims by DOJ, “…[i]t would appear
that the President did make ‘his intentions clear … to declassify information.’”
See The James Madison Project, 2019 U.S. Dist. LEXIS 126575 at *5. Nowhere within
the four corners of the Weinsheimer Declaration, however, does the Government ever
address whether the Order was treated by DOJ as a declassification order from the outset.
The Weinsheimer Declaration instead makes three points: (a) that DOJ did not receive
what it views to be a “declassification order” separate from the Order itself; (b) that in
subsequent discussions with unidentified White House personnel DOJ was purportedly
3

Case 1:17-cv-00597-APM Document 53 Filed 09/13/19 Page 7 of 14
informed that there was no order requiring “immediate declassification or disclosure” of the Pages; and (c) that DOJ did not receive a separate “declassification order” in its meeting with President Trump. See Dkt. #52-1 at ¶¶4-5.
The Weinsheimer Declaration quite simply fails to address the initial threshold question raised by this Court in its previous ruling, namely what basis in law DOJ had for contending the Order was anything other than a declassification order. See The James Madison Project, 2019 U.S. Dist. LEXIS 126575 at *4-*5. The Weinsheimer Declaration points to no citation or source of authority demonstrating why a separate document distinct from the Order itself was required for purposes of concluding that a “declassification order” had been issued and required implementation. Declaration of Bradley P. Moss at ¶9 (dated September 13, 2019)(“Moss Decl.”), attached as Exhibit “1”. Ironically, it is the Government that has previously argued successfully that President Trump’s mere tweets, to say nothing of an official White House press release from the president, can carry the force of law. See United States v. Valencia, 2018 U.S. Dist. LEXIS 200564, *18 (W.D. Tex. Nov. 27, 2018)(concluding that nothing beyond President’s tweets was needed to legally demonstrate Matthew Whitaker had been appointed by President Trump as acting Attorney General of United States in compliance with legal restrictions imposed by 5 U.S.C. § 3346).
Therefore, from the outset, the Plaintiffs respectfully submit DOJ failed to provide this Court with clarity regarding why the Order, in and of itself, does not qualify as a declassification order as a matter of law. Consequently, it is the Plaintiffs’ position that, as a matter of law, the Order qualified as a declassification order.
4

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To explain why the Order was not implemented, the Weinsheimer Declaration vaguely references consultations with unidentified White House personnel. Dkt. #52-1 at ¶5. The description of those consultations leaves much to be desired. The Weinsheimer Declaration does not provide this Court with any substantive insight into the identities and/or positions of the White House personnel, including to what extent those individuals provided DOJ with any basis to conclude they (the White House personnel) had been delegated the authority to convey that the Order did not require immediate implementation. Moss Decl. at ¶10.
This lack of clarity is particularly important in the present case. This was not a mere incident of subordinate Executive Branch personnel working to flesh out broad policy guidance from the President of the United States. The Order was a declassification order from no less an authority than President Trump himself directing the relevant agencies to immediately declassify the Pages (among other things). Absent a proper delegation of authority from President Trump (or his designee), the White House personnel referenced in the Weinsheimer Declaration lacked any basis to convey to DOJ that the Order did not require immediate implementation. To conclude otherwise would be to accept an explanation from the Government that unidentified bureaucratic officials in the White House overrode the Constitutional authority of President Trump to order the immediate declassification of classified information. The Plaintiffs are willing to assume for the moment the Government is not seriously suggesting to this Court that the unidentified White House officials broke the law and defied President Trump’s Article II powers.
5

Case 1:17-cv-00597-APM Document 53 Filed 09/13/19 Page 9 of 14
But even if these unidentified individual White House personnel held some type of delegation of authority from President Trump, the Weinsheimer Declaration still unequivocally fails to explain what that delegation was or if the relevant DOJ officials ever asked the White House personnel for relevant documentation or descriptions of the delegation of authority. Moss Decl. at ¶10. Again, the Plaintiffs are forced to reiterate the constitutional sensitivity of the discussions referenced in the Weinsheimer Declaration, and why this was not just another routine meeting of government officials in which their respective authority was not of particular importance. This was a meeting to coordinate the implementation of a declassification order issued by the Commander in Chief himself. If the White House personnel were going to inform DOJ personnel the Order did not require what it clearly stated was required – namely, the immediate declassification of the Pages – then logic and the presumption of regularity, see Sussman v. United States Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007), would suggest DOJ personnel asked for an explanation of the White House personnel’s respective authority to contravene the Order and the White House personnel provided DOJ with something more substantive than their stated word. Moss Decl. at ¶11.
To permit anything less than clarification from the Government regarding those discrepancies would be to conclude that what the Weinsheimer Declaration describes is unidentified bureaucrats contravening and obstructing the Article II authority of the president of the United States with respect to declassification of the Pages. Moss Decl. at ¶11. That is a factual scenario this Court should not sanction.
6

Case 1:17-cv-00597-APM Document 53 Filed 09/13/19 Page 10 of 14
The follow up question obviously becomes how this Court should require such clarification. The Plaintiffs respectfully submit the present case satisfies the circumstances of those rare FOIA cases in which limited discovery is appropriate due to the absence of good faith by the Government in the sufficiency of its sworn pleadings presented to this Court, see Citizens for Responsibility & Ethics in Wash. v. Nat’l Indian Gaming Comm’n, 467 F. Supp. 2d 50, 56 (D.D.C. 2006)(identifying material conflict in agency affidavits as exception to rule that such affidavits are accorded presumption of good faith), as well as evidence of misconduct by the government in its response. See Judicial Watch, Inc. v. Dep’t of State, 344 F. Supp. 3d 77, 80 (D.D.C. 2018) (authorizing discovery with respect to manner in which State Department and former Secretary of State Clinton’s personal staff handled maintenance of records on a personal e-mail server).
The Government has already had not one but two separate occasions in which to respond to a specific challenge to its description of the impact of the Order. The Plaintiffs directly challenged the Government’s description in their original opposition to DOJ’s Motion for Summary Judgment, see Dkt. #42 at *8-*9, but the Government declined to supplement their original sworn declarations with anything beyond legal arguments in a reply brief, see Dkt. #43. This Court specifically highlighted the lack of supplemental sworn declarations in its ruling denying DOJ’s previous motion for summary judgment. See The James Madison Project, 2019 U.S. Dist. LEXIS 126575 at *4, *7. To remedy that deficiency, the Government provided the Weinsheimer Declaration: however, for the reasons just outlined above, supra at 4-6, that supplemental pleading still does not satisfy the Government’s legal burden. Instead, the Weinsheimer Declaration paints a picture of
7

Case 1:17-cv-00597-APM Document 53 Filed 09/13/19 Page 11 of 14
what at best can only be described as bureaucratic confusion regarding the legal
implications of the Order upon its issuance, and which at worst memorializes unidentified
bureaucrats obstructing the constitutional authority of the president of the United States.
The Plaintiffs respectfully submit that the Government should not be permitted to
delay this proceeding further in order to formulate yet another sworn declaration to once
again provide only a slightly greater amount of detail. Instead, the sensitivities of this
legal issue and the public interest in ensuring that procedures for implementing
declassification orders direct from the President of the United States warrants authorizing
limited discovery by the Plaintiffs. Moss Decl. at ¶15.
This discovery need not be overly invasive nor extensive, and more than likely will
be confined to a narrow set of document production requests and depositions.
Specifically, the Plaintiffs propose the following:
1) The release of any records provided to DOJ at the meetings referenced in the Weinsheimer Declaration that memorialized instructions, guidance or directions from President Trump (or his designee) to the unidentified White House personnel regarding their authority to convey that the Order did not have to be implemented; and/or
2) Depositions of relevant DOJ personnel who attended the meetings referenced in the Weinsheimer Declaration for the strict purpose of addressing the threshold question of the extent to which DOJ confirmed the White House personnel had the lawful authority to convey the instructions that ran contrary to the mandate of the Order.
Moss Decl. at ¶16.3
3 It is plausible there may be issues of classification and privilege that will have to be addressed to protect legitimate interests of the U.S. Government. See Judicial Watch, Inc. v. Dep’t of Commerce, 34 F. Supp. 2d 28, 41 (D.D.C. 1998)(appointing magistrate judge to closely supervise discovery). However, this discovery is not seeking the substantive contents of the discussions referenced in the Weinsheimer Declaration but rather only confirmation that the relevant officials in the discussions had the authority to provide guidance that contradicted the requirements of the Order regarding declassification.
8

Case 1:17-cv-00597-APM Document 53 Filed 09/13/19 Page 12 of 14
Absent this clarification through discovery, a genuine issue of material fact remains in dispute regarding the status of the Order that precludes granting summary judgment to the Government. II. THERE REMAINS A GENUINE ISSUE OF MATERIAL FACT IN DISPUTE
REGARDING THE ABILITY OF DOJ TO ASSERT OTHER EXEMPTIONS IN ORDER TO JUSTIFY WITHHOLDING THE PAGES In its previous ruling, this Court also identified the need for the Government to provide greater clarity (through a sworn declaration) with respect to the basis or bases upon which it was relying upon other exemptions – Exemption 3, Exemption 7(D) and Exemption 7(E) – to continue withholding the Pages (whether in whole or in part) even if the Order was construed as nullifying the Exemption 1 invocation. See The James Madison Project, 2019 U.S. Dist. LEXIS 126575 at *8. The Weinsheimer Declaration, once again, simply does not satisfy that requirement in any way, shape or form. The sole reference to the issue is the assertion that Mr. Weinsheimer is not aware of any “order, guidance, policy or other facts” that prevent DOJ from invoking other exemptions. See Dkt. #52-1 at ¶5. That was not the question posed to DOJ by this Court, however: the ambiguity laid bare by the Order was why this Court should view the Order’s requirement for immediate declassification of the Pages as simultaneously not actually demanding release of the Pages subsequent to that declassification. See The James Madison Project, 2019 U.S. Dist. LEXIS 126575 at *8. The Weinsheimer Declaration’s statement does not clear up that ambiguity, and the burden is on DOJ (as the movant party) to demonstrate the absence of a genuine issue of material fact in dispute. See Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006).
9

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The inclusion of “legal spin” by DOJ on possible alternative explanations for why the Order would not necessarily have been meant to require public release of the Pages, see Dkt. #52 at *5, cannot serve as a substitute for factual explanations in a sworn declaration, as this Court has already warned the Government once before in this litigation. See The James Madison Project, 2019 U.S. Dist. LEXIS 126575 at *4. Were DOJ personnel informed by the White House (or President Trump directly) that the declassification of the Pages was only designed to facilitate broader information sharing within the Executive Branch, with Congress, and with other governmental entities and partners? Moss Decl. at ¶13. That certainly may be the case, but the Weinsheimer Declaration is silent on the issue.
This continued discrepancy represents a genuine issue of material fact that needs to be clarified, preferably through the limited discovery outlined above, before this Court can render a determination on summary judgment.
CONCLUSION For the foregoing reasons, DOJ’s Renewed Motion for Summary Judgment should be denied without prejudice and this Court should authorize limited discovery.
10

Case 1:17-cv-00597-APM Document 53 Filed 09/13/19 Page 14 of 14

Date: September 13, 2019

Respectfully submitted,
/s/ ________________________ Bradley P. Moss, Esq. D.C. Bar #975905 Mark S. Zaid, Esq. D.C. Bar #440532 Mark S. Zaid, P.C. 1250 Connecticut Avenue, N.W. Suite 700 Washington, D.C. 20036 (202) 454-2809 (202) 330-5610 fax Brad@MarkZaid.com Mark@MarkZaid.com
Attorneys for the Plaintiffs

11

Case 1:17-cv-00597-APM Document 53-1 Filed 09/13/19 Page 1 of 8
EXHIBIT 1

Case 1:17-cv-00597-APM Document 53-1 Filed 09/13/19 Page 2 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

*

THE JAMES MADISON PROJECT, *

et al.,

*

*

Plaintiffs,

*

*

v.

*

Civil Action No. 17-597 (APM)

*

DEPARTMENT OF JUSTICE,

*

*

Defendant.

*

*

* * * * * * * * * * * * **

RULE 56(d) DECLARATION OF BRADLEY P. MOSS, ESQ.

The undersigned hereby declares as follows:

1. I am a person over eighteen (18) years of age and competent to testify. I am

making this Declaration on personal knowledge. This Declaration is submitted in support

of the Plaintiffs’ Opposition to the Defendant’s Renewed Motion for Summary Judgment.

2. I am one of the attorneys for the plaintiffs The James Madison Project and Brad

Heath (hereinafter referred to collectively as the “Plaintiffs”) in this matter, along with

my firm’s Managing Partner, Mark S. Zaid (“Mr. Zaid”). I am admitted to practice law in

the State of Illinois and the District of Columbia, as well as the U.S. Court of Appeals for

the D.C. Circuit and the United States District Courts for the District of Columbia,

District of Maryland and the Northern District of Illinois. I have been litigating cases

involving the federal government, including with respect to the Freedom of Information

Act (“FOIA”), since 2007. I also actively represent individuals associated with or within

the intelligence, law enforcement or military communities in administrative proceedings.

Both Mr. Zaid and I hold U.S. Government security clearances, granted by the

Case 1:17-cv-00597-APM Document 53-1 Filed 09/13/19 Page 3 of 8
Department of Justice, for the purpose of representing specific clients, some of whose affiliation to the U.S. Government is a classified fact.
3. In support of its Renewed Motion for Summary Judgment (“Motion”), see Dkt. #52 (filed August 30, 2019), the defendant Department of Justice (“DOJ”) provided a sworn declaration from G. Bradley Weinsheimer (“Weinsheimer Declaration”) to respond to the mandate set forth in this Court’s memorandum opinion, issued on July 30, 2019. See Dkt. #52-1 (filed August 30, 2019). For the reasons outlined below, the Weinsheimer Declaration simply fails to satisfy the factual disputes identified by this Court.
The Declassification Order 4. On September 17, 2018, President Donald J. Trump (“President Trump”) exercised his constitutional authority to order the immediate declassification of twentyone specific pages (“the Pages”) from the 412-page production of FISA records released in this litigation and that relate to Carter W. Page (“Mr. Page)”. https://www.white house.gov/briefings-statements/statement-press-secretary-34/ (last accessed September 10, 2019). The Pages are derived from the June 2017 FISC application regarding Mr. Page. President Trump’s order was memorialized in a White House press release (the “Order”). 5. President Trump did issue a two-part tweet on September 21, 2018, in which he stated that the Department of Justice had agreed to release an unspecified number of documents subject to the Order. President Trump further noted, however, that due to concerns raised about the “Russia probe” and by unidentified “Allies”, he was asking the Inspector General (“OIG”) to review an unspecified set of documents on an expedited
2

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basis. https://www.vox.com/2018/9/21/17886720/trump-russia-declassification-ordertweets-mueller (last accessed September 10, 2019).
6. There is no evidence in the written record demonstrating that the documents at issue in the two-part tweet on September 21, 2018, overlap with the Pages subject to the Order.
7. In the Weinsheimer Declaration, DOJ provided some more details about what transpired “behind the scenes” in the aftermath of the issuance of the Order. The Weinsheimer Declaration states that unidentified White House officials met with unidentified DOJ officials (and Mr. Weinsheimer) regarding the impact of the Order. The Weinsheimer Declaration claims that White House personnel informed DOJ “there was no order requiring immediate declassification or disclosure of [the Carter Page documents].” See Dkt. #52-1 at ¶5. The Weinsheimer Declaration further claims that no separate “declassification order” was ever received by DOJ independent of the Order itself.
8. The Weinsheimer Declaration does not provide any factual or legal basis, however, for concluding that the consultations described should be construed as overruling or otherwise nullifying the declassifying impact of the Order.
9. First, the Weinsheimer Declaration fails to address why the Order, on its own, does not qualify as a declassification order. The text of the Order was clear and unequivocal in expressing the order from President Trump that the Pages be immediately declassified. The Government at no point, in either the Weinsheimer Declaration or in its Motion, provides any authoritative basis to conclude that the Order does not, as a matter of law, qualify as a declassification order. The Government certainly does not explain on
3

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what basis it believes a separate “declassification order” is required and has to be submitted to DOJ independent of the issuance of the Order. It certainly may be the case that has been routinely done in the past for purposes of documentation but that it may be a common practice does not render it legally obligatory.
10. Even if the Government could rectify that threshold question, the Weinsheimer Declaration provides no information regarding the authority of the White House personnel to convey to DOJ that the Order was not a declassification order and/or that there was no requirement for immediate declassification. Did President Trump delegate authority to the White House officials to state that the Order did not, in fact, have to be implemented (at least not immediately)? Did DOJ secure clarification from White House personnel regarding any such delegation of authority, or did they merely take their word for it?
11. These are not trivial questions. To the contrary, they strike at the heart of one of the legal questions still unresolved in the present case, namely the authority of bureaucrats in the White House and the DOJ to take actions that appear to conflict with the clear instructions of the Commander in Chief. It is entirely possible that President Trump (or his authorized designee) did in fact delegate necessary authority to the White House officials in question, and that authority was properly explained to DOJ. Until such time, however, as the Government verifies that in a sworn declaration, there remains a genuine issue of material fact in dispute regarding the legal basis for concluding the Order was nullified or otherwise postponed.
4

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The Other Exemptions Invoked 12. The Weinsheimer Declaration separately tries to address this Court’s question regarding the Government’s ability to invoke Exemption 3 Exemption 7(C), Exemption 7(D) and Exemption 7(E) to withhold some or all of the Pages. See Dkt. #521 at ¶5. Once again, the Weinsheimer Declaration fails to live up to the standard set forth in the case law, to say nothing of that set by this Court. 13. The Weinsheimer Declaration simply provides nothing in the way of factual information to resolve why this Court should construe the Order’s declassification requirement as not also indicating that the Pages should be released subsequent to that declassification. Although the Government posits some plausible explanations in their Motion, see Dkt. #52 at *5, those explanations are noticeably absent from the Weinsheimer Declaration itself. This Court already made clear once before the need for the Government to resolve these factual disputes in sworn declarations, not in legal pleadings, and the Weinsheimer Declaration’s factual deficiencies do not satisfy that burden. Limited Discovery 14. The Plaintiffs respectfully submit that limited discovery, consisting most likely of document production and depositions, is warranted at this juncture. The Government has already had two bites at the proverbial apple to resolve these factual disputes through the submission of sworn declarations. This Court rejected the Government’s first attempt and, for the reasons outlined above, the Plaintiffs submit that the Government still has not sufficiently corrected the deficiencies previously identified by this Court. With due respect, the Government should not be afforded a third chance.
5

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15. The Plaintiffs particularly wish to reiterate the intense public interest in the information at issue in the present case. The disclosure by DOJ of the Foreign Intelligence Surveillance Act (“FISA”) applications targeting Mr. Page was unprecedented and was due specifically to the initiation of the present case and similar FOIA cases brought by other FOIA plaintiffs. Media interest in the debate over declassification of the remaining portions of the FISA applications remains ongoing, including with remarks by President Trump himself indicating he want to ultimately see much (if not all) of the documentation declassified and released. https://www.washington examiner.com/news/trump-says-everything-will-be-declassified (last accessed September 12, 2019). That the Plaintiffs are being forced to pry this information out of the Government bit by bit is contrary to the spirit and purpose of the FOIA.
16. The scope of the anticipated discovery need not be extensive. The Plaintiffs would particularly seek to secure the following, which could afford this Court sufficient information to render a determination with prejudice.
1) Records provided to DOJ at the meetings referenced in the Weinsheimer Declaration that memorialized instructions, guidance or directions from President Trump (or his designee) to the unidentified White House personnel regarding their authority to convey to DOJ that the Order did not have to be implemented;
2) Depositions of the relevant DOJ personnel who attended the meetings referenced in the Weinsheimer Declaration for the strict purpose of addressing the threshold question of the extent to which DOJ confirmed the White House personnel had the lawful authority to convey the instructions that ran contrary to the mandate of the Order.
17. It is entirely possible that the information sought in that discovery would ultimately demonstrate as a matter of fact and law that the Government is entitled to summary judgment. However, absent that information, there remain genuine issues of material fact in dispute that prohibit this Court from ruling in the Government’s favor.
6

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Case 1:17-cv-00597-APM Document 53-2 Filed 09/13/19 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

*

THE JAMES MADISON PROJECT, *

et al.,

*

*

Plaintiffs,

*

*

v.

*

Civil Action No. 17-597 (APM)

*

DEPARTMENT OF JUSTICE,

*

*

Defendant.

*

*

* * * * * * * * * * * * **

RESPONSE TO DEFENDANT’S STATEMENT OF MATERIAL FACTS

IN SUPPORT OF DEFENDANT’S RENEWED MOTION

FOR SUMMARY JUDGMENT

Pursuant to Local Rule 7.1 (h), the plaintiffs The James Madison Project and

Brad Heath (referred to jointly as “Plaintiffs”) respectfully respond to the defendant

Department of Justice’s Statement of Material Facts in Support of Defendant’s Renewed

Motion for Summary Judgment.

40. The Plaintiffs dispute this statement, as it implicates a legal conclusion at issue in

the present case.

41. The Plaintiffs do not dispute the recitation of these statements, except to the

extent they constitute legal conclusions or characterizations regarding the extent to which

the White House press release constituted a declassification order and/or that the White

House personnel had the authority to convey that the White House press release had been

rescinded as a matter of law with respect to declassification.

Case 1:17-cv-00597-APM Document 53-2 Filed 09/13/19 Page 2 of 2
42. The Plaintiffs do not dispute the recitation of these statements, except to the extent they constitute legal conclusions or characterizations regarding the extent to which the White House press release constituted a declassification order and/or that the White House press release had been rescinded as a matter of law with respect to declassification.
43. The Plaintiffs dispute this statement. Date: September 13, 2019
Respectfully submitted, /s/
___________________ Bradley P. Moss, Esq. D.C. Bar #975905 Mark S. Zaid, Esq. D.C. Bar #440532 Mark S. Zaid, P.C. 1250 Connecticut Avenue, N.W. Suite 700 Washington, D.C. 20036 (202) 454-2809 (202) 330-5610 fax Brad@MarkZaid.com Mark@MarkZaid.com Attorneys for the Plaintiffs
2

Case 1:17-cv-00597-APM Document 53-3 Filed 09/13/19 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE JAMES MADISON PROJECT, et al.,
Plaintiffs, v.
DEPARTMENT OF JUSTICE, Defendant.
* * * * * * *

* * * * * * * * * * * * * * ORDER

Civil Action No. 17-597 (APM) * * * **

Upon consideration of Defendant’s Renewed Motion for Summary Judgment, and the

entire record herein, it is this ______ day of _________________ 2019, hereby

ORDERED, that Defendant’s Motion is denied.

_________________________________________ UNITED STATES DISTRICT JUDGE

 
 Case 1:17-cv-00597-APM Document 64 Filed 03/13/20 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

*

THE JAMES MADISON PROJECT, *

et al.,

*

*

Plaintiffs,

*

*

v.

* Civil Action No. 17-597 (APM)

*

DEPARTMENT OF JUSTICE,

*

*

Defendant.

*

*

* * * * * * * * * * * * **

PLAINTIFFS' PARTIAL MOTION FOR RECONSIDERATION

Case 1:17-cv-00597-APM Document 64 Filed 03/13/20 Page 2 of 7
BACKGROUND The Plaintiffs, The James Madison Project (“JMP”) and Brad Heath (“Heath”) (hereinafter referred to jointly as “Plaintiffs”), bring this partial Motion for Reconsideration pursuant to Federal Rules of Civil Procedure 59(e)(“Rule 59(e) Motion”) and with respect to this Court’s Memorandum Opinion, issued on March 3, 2020 (“2020 Opinion”). See The James Madison Project v. Dep’t of Justice, 2020 U.S. Dist. LEXIS 36303 (D.D.C. Mar. 3, 2020). In its 2020 Opinion, this Court granted summary judgment to the defendant, Department of Justice (“DOJ”), with respect to two issues: (1) the 21 pages of DOJ’s original production that the Plaintiffs argued had been declassified by way of the press release issued on behalf of President Donald J. Trump (hereinafter referred to as the “Declassification Dispute”); and (2) the appropriateness of the redactions and withholdings applied to the production as a whole (“Remaining Pages”). Id.1 It is only the latter issue that is the subject of this Rule 59(e) Motion. With all due respect, it is the Plaintiffs’ contention that this Court erred in its determination the Plaintiffs had conceded or otherwise abandoned their opportunity to contest the redactions and withholdings in the Remaining Pages. For the reasons outlined below, this Court should grant the Rule 59(e) Motion, vacate in part its 2020 Opinion with respect to the Remaining Pages and issue a supplemental memorandum opinion adjudicating the appropriateness of the redactions and withholdings in the Remaining Pages. DOJ opposes the Plaintiff’s requested relief.
1 To clarify, there were 412 pages of records that DOJ released in whole or in part as part of this action, and 186 pages that were withheld in their entirety. See Dkt. No. 42 at *3 (filed November 9, 2018). Only 21 pages were at issue in the competing cross-motions for summary judgment regarding the Declassification Dispute. Id. at *4.

Case 1:17-cv-00597-APM Document 64 Filed 03/13/20 Page 3 of 7
ARGUMENT Motions to alter or amend a judgment under Rule 59(e) lie within the discretion of the Court. See Mercy Gen. Hosp. v. Azar, 410 F. Supp. 3d 63, 70 (D.D.C. 2019). Although Rule 59(e) motions are “disfavored”, and the movant party bears the burden of establishing “extraordinary circumstances” warranting relief, see Niedermeier v. Office of Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001), such motions can be granted if there is a need to correct a clear error or prevent manifest injustice. See Anyanwutaku v. Moore, 151 F.3d 1053, 1057-58 (D.C. Cir. 1998); see also Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)(applying “abuse of discretion” standard for appellate review of a denial of a Rule 59(e) motion). A motion for reconsideration under Rule 59(e) can only be filed after the court’s entry of a final judgment, and the filing of a proper motion under Rule 59(e) stops the appeal clock until after the motion is decided. See Cobell v. Jewell, 802 F.3d 12, 19 (D.C. Cir. 2015). With due respect, this Court’s 2020 Opinion – which was a final, appealable order – includes a clear error that requires correction by way of this Rule 59(e) Motion. Subsequent to the release (in part) of the 412 pages (as well as withholding in full of the other 186 pages) at issue in this action, DOJ filed a Motion for Summary Judgment (“2018 Motion”).2 See Dkt. No. 40 (dated October 19, 2018). In the 2018 Motion, DOJ argued that information had been redacted and/or withheld in full in reliance upon Exemptions 1, 3, 6, 7(A), 7(C), 7(D) and 7(E). See id. at *15-*32. In their memorandum in opposition to the 2018 Motion, and separate and distinct from their cross-motion
2 These pages were not implicated by the Government’s continued refusal to confirm or deny the existence or non-existence of other responsive records. See Dkt. No. 40 at *32. That “Glomar response” is no longer in dispute.
2

Case 1:17-cv-00597-APM Document 64 Filed 03/13/20 Page 4 of 7
regarding the Declassification Dispute, the Plaintiffs outlined the basis for their argument that summary judgment was not warranted with respect to the Government’s redactions and/or withholdings of the Remaining Pages. See Dkt. No. 42 at *10-*14 (filed November 9, 2018). Specifically, the Plaintiffs alleged that the public statements of President Donald J. Trump had called into question the good faith bases of the Government’s redactions and/or withholdings. Id. The Government responded to these arguments in its reply brief in support of their 2018 Motion. See Dkt. No. 43 at *8-*12 (filed November 30, 2018).
In a Memorandum Opinion, issued July 30, 2019, this Court focused on the Declassification Dispute, and specifically noted that the 21 pages were the “sole contested issue in the parties’ cross-motions for summary judgment”. See The James Madison Project v. Dep’t of Justice, 2019 U.S. Dist. LEXIS 126575 at *2 (D.D.C. Jul. 30, 2019)(“2019 Opinion”). With the benefit of hindsight, and particularly given this Court’s confusion expressed in the 2020 Opinion, the Plaintiffs realize that they may have misconstrued the nature of this Court’s meaning with that sentence. As a simple factual matter, this Court’s statement was accurate, as the 21 pages were the extent of the Declassification Dispute that required competing cross-motions for summary judgment. Consequently, the Plaintiffs believed in good faith that this Court’s decision to rule only upon that narrow matter, and ultimately require supplemental briefing to resolve the Declassification Dispute, was a practical decision by this Court to address the more abstract and novel constitutional question surrounding presidential declassification before returning to and ultimately addressing the properly-briefed matter of the Remaining Pages.
3

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Again, with hindsight, it may have been advisable for the Plaintiffs to have more forcefully sought clarification from this Court after the issuance of the 2019 Opinion. However, it was arguably reasonable for the Plaintiffs to have construed the 2019 Opinion in the manner in which they did, especially since the parties had still properly briefed out the legal issue surrounding the Remaining Pages in their respective pleadings. There was no identifiable reason for the Plaintiffs to have concluded that this Court believed the only issue left in this action was the Declassification Dispute.
Furthermore, the Plaintiffs respectfully dispute the rationale by which this Court interpreted the Plaintiffs’ statements in their prior pleadings. This Court stated in its 2020 Opinion that it concluded the only issue remaining in this action was the Declassification Dispute based upon the Plaintiffs’ statement they had “confined their Cross-Motion for Partial Summary Judgment (“Cross-Motion”), as well as their Memorandum in Opposition to the Defendant’s Motion for Summary Judgment, strictly to the legal appropriateness of the redactions and withholdings made to the documents that have been produced as part of this litigation.” See The James Madison Project, 2020 U.S. Dist. LEXIS 36303 at *9. With all due respect, that statement in no way stipulates to the idea that the 21 pages subject to the Declassification Dispute were all that remained at issue. The Plaintiffs’ statement clearly outlined how their challenges, as outlined in the crossmotion and the memorandum in opposition, concerned the redactions and withholdings “made to the documents that have been produced as part of this litigation.” Id.
There were 412 pages produced (in whole or in part), and 186 pages withheld in their entirety, as part of this litigation: not merely the 21 pages at issue in the Declassification Dispute. The Plaintiffs properly and distinctly addressed the narrow Declassification
4

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Dispute in a partial cross-motion for summary judgment, while also separately addressing the legal appropriateness of the redactions and withholdings made to the entirety of Government’s production in their memorandum in opposition. See Dkt. No. 41 at *3-*7 (filed November 9, 2018)(cross-motion); Dkt. No. 42 at *10-*14 (memorandum in opposition). The Plaintiffs did exactly what they were supposed to do given the different legal issues before them: they cross-moved for summary judgment in their favor with respect to the Declassification Dispute, which they argued was a strictly legal matter, and they opposed the Government’s summary judgment pleading regarding the redactions and withholdings to the Remaining Pages, as they were only contending that the Government had not yet met its burden warranting that relief.
It is unclear what more this Court expected the Plaintiffs to have done in this situation.3 Given the reasonable interpretation by the Plaintiffs of the meaning of this Court’s 2019 Opinion, the Plaintiffs only addressed the Declassification Dispute in the subsequent pleadings both parties filed in 2019 and that were adjudicated by this Court in its 2020 Opinion. The Plaintiffs had no reasonable basis to conclude this Court had, for all intents and purposes, overlooked the dispute over the Remaining Pages.
Respectfully, these circumstances more than sufficiently meet the standard of “clear error” that warrant granting the Plaintiffs’ Rule 59(e) Motion. See Firestone, 76 F.3d at 1209. This is not a situation where the Plaintiffs are seeking to relitigate an adjudicated matter, see Estate of Gaither ex rel. Gaither v. District of Columbia, 771 F. Supp. 2d 5, 10 (D.D.C. 2011), as the Plaintiffs are not seeking a second bite at the proverbial apple. The Plaintiffs merely seek a supplemental memorandum opinion adjudicating the legal
3 To the best of the undersigned’s recollection, there were no status conferences or hearings in this matter subsequent to the parties filing their respective pleadings in 2018.
5

Case 1:17-cv-00597-APM Document 64 Filed 03/13/20 Page 7 of 7
dispute surrounding the Remaining Pages that the parties both properly briefed back in 2018 and that the Plaintiffs reasonably believed had been held in abeyance pending resolution of the Declassification Dispute.
It was clearly erroneous for this Court to construe that issue as conceded or abandoned given the existence of properly filed pleadings by both parties, and this Court should grant the Plaintiffs’ Rule 59(e) Motion as a result.
CONCLUSION For the foregoing reasons, this Court should grant the Rule 59(e) Motion, vacate in part its 2020 Opinion with respect to the Remaining Pages and issue a supplemental memorandum opinion adjudicating the appropriateness of the redactions and withholdings in the Remaining Pages. Date: March 13, 2020
Respectfully submitted, /s/
________________________ Bradley P. Moss, Esq. D.C. Bar #975905 Mark S. Zaid, Esq. D.C. Bar #440532 Mark S. Zaid, P.C. 1250 Connecticut Avenue, N.W. Suite 700 Washington, D.C. 20036 (202) 454-2809 (202) 330-5610 fax Brad@MarkZaid.com Mark@MarkZaid.com Attorneys for the Plaintiffs
6

Case 1:17-cv-00597-APM Document 64-1 Filed 03/13/20 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE JAMES MADISON PROJECT et al.,
Plaintiffs, v.
DEPARTMENT OF JUSTICE Defendant.
* * * * * * *

* * * * * * * * * * * * * * ORDER

Civil Action No. 17-597 (APM) * * * **

Upon consideration of the Plaintiffs’ Partial Motion for Reconsideration, and the

entire record herein, it is this ______ day of _________________ 2020, hereby

ORDERED, that plaintiffs’ Motion is granted; and

ORDERED, that this Court’s Memorandum Opinion, issued March 3, 2020, is

vacated in part.

_________________________________________ UNITED STATES DISTRICT JUDGE

 
 Case 1:17-cv-00597-APM Document 52 Filed 08/30/19 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF JUSTICE, )

)

Defendant.

)

)

Case No. 17-597-APM

DEFENDANT’S RENEWED MOTION FOR SUMMARY JUDGMENT

Defendant United States Department of Justice (“DOJ”) hereby moves for summary

judgment pursuant to Fed. R. Civ. P. 56(b) and Local Rule 7(h) for the reasons stated in the

previously submitted memoranda of points and authorities, statement of material facts, and

supporting declarations and exhibits, and in the ex parte, in camera submission, as well as the

attached supplemental memorandum of points and authorities, supplemental statement of

material facts, and declaration.

Dated: August 30, 2019

Respectfully Submitted,

HASHIM MOOPPAN Principal Deputy Assistant Attorney General

MARCIA BERMAN Assistant Branch Director Federal Programs Branch

/s/Amy E. Powell AMY E. POWELL Trial Attorney, Federal Programs Branch Civil Division, Department of Justice 150 Fayetteville St., Suite 2100 Raleigh, NC 27601 Phone: 919-856-4013 Email: amy.powell@usdoj.gov

Case 1:17-cv-00597-APM Document 52 Filed 08/30/19 Page 2 of 12 Attorneys for Defendants
1

Case 1:17-cv-00597-APM Document 52 Filed 08/30/19 Page 3 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF JUSTICE, )

)

Defendant.

)

)

Case No. 17-597-APM

SUPPLEMENTAL STATEMENT OF MATERIAL FACTS IN SUPPORT OF DEFENDANT’S RENEWED MOTION FOR SUMMARY JUDGMENT

As required by Local Civil Rule 7(h)(1), and in support of the Renewed Motion for

Summary Judgment, Defendants hereby make the following supplemental statement of material

facts as to which there is no genuine issue. This is intended to supplement the previously filed

statement and other summary judgment materials.

40. DOJ has not received at any time a declassification order related to the materials

remaining at issue in this case. See Declaration of G. Bradley Weinsheimer, dated August 30,

2019, ¶¶ 4-5.

41. After the press secretary statement was issued, personnel from the Office of the

Deputy Attorney General consulted with personnel in the White House about the matters

discussed in that statement, including potential declassification of certain documents related to

the Carter Page FISA applications and orders. In connection with those consultations, DOJ was

informed that there was no order requiring immediate declassification or disclosure of those

documents. Id.

42. On May 23, 2019, the President delegated to the Attorney General the authority to

declassify documents as part of his ongoing review of intelligence activities relating to the

2

Case 1:17-cv-00597-APM Document 52 Filed 08/30/19 Page 4 of 12

campaigns in the 2016 Presidential election and certain related matters. To this point, the Attorney General has not exercised that declassification authority over the materials at issue in this case. Weinsheimer Decl. ¶ 5.
43. There is no order, guidance, policy, or other facts that currently prevent the Department from asserting other FOIA Exemptions over the redacted portions of the documents at issue now. Id. ¶ 5.

Dated: August 30, 2019

Respectfully Submitted,
HASHIM MOOPPAN Principal Deputy Assistant Attorney General
MARCIA BERMAN Assistant Branch Director Federal Programs Branch
/s/Amy E. Powell AMY E. POWELL Trial Attorney, Federal Programs Branch Civil Division, Department of Justice 150 Fayetteville St., Suite 2100 Raleigh, NC 27601 Phone: 919-856-4013 Email: amy.powell@usdoj.gov

3

Case 1:17-cv-00597-APM Document 52 Filed 08/30/19 Page 5 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF JUSTICE, )

)

Defendant.

)

)

Case No. 17-597-APM

DEFENDANT’S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF DEFENDANT’S RENEWED MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

Pursuant to the Opinion and Order dated July 30, 2019, ECF No. 51 (hereinafter, the

“Opinion”), Defendant United States Department of Justice (“DOJ”) submits this supplemental

memorandum in support of its renewed motion for summary judgment. The Court raised

questions about whether, as a factual matter, the President had declassified or ordered disclosure

of 21 pages of the acknowledged Carter Page FISA materials, and directed DOJ to submit a

declaration regarding whether those pages were declassified and whether the agency is

authorized to continue to assert other exemptions with respect to these pages. The Supplemental

Declaration of G. Bradley Weinsheimer, dated August 30, 2019, establishes that the President

has not ordered the declassification or disclosure of these pages. Defendant is therefore entitled

to summary judgment.

BACKGROUND

The procedural background of this matter is set forth fully in previous filings, which are

fully incorporated here, see ECF Nos. 40, 43, 46, 48, 49, and summarized in the Opinion, see

ECF No. 51. Defendant will not repeat all of this background here, but in general, this matter

arises from FOIA requests submitted to the Federal Bureau of Investigation (“FBI”) and DOJ’s

Case 1:17-cv-00597-APM Document 52 Filed 08/30/19 Page 6 of 12
National Security Division (“NSD”) on March 6, 2017, in which Plaintiffs sought records related to specific individuals and organizations allegedly subject to surveillance under the Foreign Intelligence Surveillance Act (“FISA”). See Third Declaration of David Hardy, dated October 19, 2018, ECF No. 40-1, ¶ 6 (citing 1st Hardy Decl., ECF No. 13-3, ¶ 5 & Exhibit A (FOIA Request)); Declaration of Patrick N. Findlay, dated October 19, 2018, ECF No. 40-3, ¶ 4 & Exhibit A (FOIA Request). DOJ maintained a Glomar response in part, but NSD and the FBI searched for the acknowledged FISA applications and orders related to Carter Page. On July 20, 2018, DOJ and the FBI released all responsive, non-exempt and reasonably segregable information subject to FOIA – releasing 412 pages with redactions and withholding 186 pages in full. 3rd Hardy Decl. ¶¶ 4, 134-35; Findlay Decl. ¶¶ 9-12; see also https://vault.fbi.gov/d1release/d1-release. As set forth in previous filings, the 412 released pages reflect information properly redacted under Exemptions 1, 3, 6, 7(A), 7(C), 7(D), 7(E). The withheld in full pages from the FISA applications and orders were properly withheld pursuant to Exemptions 1, 3, 7(A) and 7(E).
As set forth in the Opinion, “Defendant’s continued redaction of 21 of the 412 pages is the sole contested issue in the parties’ cross-motions for summary judgment.” Opinion, at 2. This issue arises because of a White House press secretary statement that the President had “directed” ODNI and DOJ “to provide for the immediate declassification of . . . pages 10-12 and 17-34 of the June 2017 application to the FISA court in the matter of Carter W. Page.” Id.; see also Press Release, White House Press Secretary (Sept. 17, 2018), https://www.whitehouse.gov/briefings-statements/statement-press-secretary-34/. The press release was followed by two tweets from the President’s twitter account:
I met with the DOJ concerning the declassification of various UNREDACTED documents. They agreed to release them but stated that so doing may have a perceived negative impact on the Russia probe. Also, key Allies’ called to ask
1

Case 1:17-cv-00597-APM Document 52 Filed 08/30/19 Page 7 of 12
not to release. Therefore, the Inspector General . . . has been asked to review these documents on an expedited basis. I believe he will move quickly on this (and hopefully other things which he is looking at). In the end I can always declassify if it proves necessary. Speed is very important to me - and everyone! https://twitter.com/realDonaldTrump/status/1043146627576258561; https://twitter.com/realDonaldTrump/status/1043148165883416576. DOJ explained that the press secretary statement was not a declassification order, that it was superseded by the subsequent tweets, that DOJ was not aware of any other presidential declassification order, and that in any event, DOJ could redact the same information on the basis of other exemptions, regardless of whether or not they were classified. Def.’s Combined Mem. in Opp’n to Pls.’ Mot. for Summ. J. & Reply in Supp. of Def.’s Mot. for Summ. J., ECF No. 44 at 3. The Court found that it could not grant summary judgment because of two ambiguities in the record. First, the Court explained that because of the press secretary statement, the burden was on DOJ to establish that the President did not declassify these pages. Opinion at 3 & n.4. The Court found that DOJ did not meet this burden because it did not provide in its declarations (as opposed to its legal argument) “clarification about what instructions the Department of Justice received concerning the ‘declassification’ of the Pages’ contents.” Id. at 5. Thus, the Court could not “find that Defendant’s withholding of information from the Pages was proper under FOIA Exemption 1.” Id. Second, the Court found that, in light of the press release, there was also a “genuine dispute of material fact about the agency’s authority” to invoke other Exemptions because even though the press release only speaks about “declassification,” the Court questioned why the President would have ordered declassification only to have the same material withheld under another FOIA exemption. Id. at 6.
2

Case 1:17-cv-00597-APM Document 52 Filed 08/30/19 Page 8 of 12
In light of these ambiguities, the Court denied the parties’ cross-motions for summary judgment and invited Defendant to renew its motion and file a supplemental declaration explaining: “(1) the effect, if any, the Press Release and the President’s subsequent tweets (including the meeting referenced in the tweets) had on the classification status of the Pages, and (2) whether the agency is authorized to assert Exemptions 7(D) and 7(E) to shield portions of the Pages from disclosure.” Opinion, at 6.
ARGUMENT I. The President Did Not Order Declassification or Disclosure of the
Information at Issue. With this memorandum, DOJ submits a declaration from G. Bradley Weinsheimer, an Associate Deputy Attorney General in the Office of the Deputy Attorney General (“ODAG”). The Weinsheimer Declaration addresses the issues raised in the Opinion, and confirms in a sworn declaration DOJ’s previous explanations. As explained there, “DOJ did not receive a declassification order related to the materials at issue in this case. After the press secretary statement was issued, ODAG personnel, including me [Mr. Weinsheimer], consulted with personnel at the White House about the matters discussed in that statement, including potential declassification of certain documents related to the Carter Page FISA applications and orders.” Weinsheimer Decl. ¶ 4. Mr. Weinsheimer explains that “[i]n connection with those consultations, DOJ was informed that there was no order requiring immediate declassification or disclosure of those documents.” Id. ¶ 5. “DOJ also did not receive any order to declassify the materials at issue in this case during the meeting the President referenced in his tweet, or at any time.” Id.1
1 Nor has the Attorney General declassified these materials: “On May 23, 2019, the President delegated to the Attorney General the authority to declassify documents as part of his ongoing review of intelligence activities relating to the campaigns in the 2016 Presidential election and
3

Case 1:17-cv-00597-APM Document 52 Filed 08/30/19 Page 9 of 12
DOJ maintains that the press release describing a direction to “provide for immediate declassification” was ambiguous at best. See Poulsen v. Dep’t of Def., 373 F. Supp. 3d 1249, 1279 (N.D. Cal. 2019) (“The President’s September 2018 ‘declassification’ directive was not an ‘order’ from the President covering this material, just a statement from the White House asking the executive agencies to undertake a review and further justify the redactions.”); ECF 43, at 3-4. The President has previously clearly declassified and disclosed information when he wished to do so. See, e.g., 3rd Hardy Decl. ¶ 19 (describing declassification of the Nunes Memorandum); February 2, 2018 Letter from White House Counsel, https://intelligence.house.gov/uploadedfiles/memo_and_white_house_letter.pdf (explaining that memorandum was declassified “in light of the significant public interest in the memorandum,” and attaching the memorandum for public release). DOJ has now clarified, however, that DOJ did not receive a declassification order with respect to the Carter Page FISA pages either before or after the press secretary statement. Although the President did delegate declassification authority to the Attorney General, to date, the Attorney General has not exercised that declassification authority to declassify the materials remaining at issue in this case. Weinsheimer Decl. ¶ 5.
DOJ is therefore entitled to summary judgment on its Exemption 1 withholdings. II. DOJ Has Properly Asserted Other Exemptions as Well. The press secretary statement does not affect the applicability of other exemptions, and redactions based on other exemptions continue to be proper as well, including Exemptions 3, 6 and 7(C), 7(D), and 7(E). ECF No. 43, at 5. The Court acknowledged that the press secretary statement only refers to declassification, not other applicable FOIA exemptions, but questioned
certain related matters. To this point, the Attorney General has not exercised that declassification authority over the materials at issue in this case.” Weinsheimer Decl. ¶ 5.
4

Case 1:17-cv-00597-APM Document 52 Filed 08/30/19 Page 10 of 12
why the President would order declassification if the agency could just rely on other exemptions to withhold the same material. Opinion at 6. As an initial matter, declassification without disclosure to the public could be done to facilitate broader information sharing within the Executive Branch, with Congress, and with other governmental entities and partners, or to facilitate future public disclosure when other claimed exemptions expire or fall by the wayside. In any event, Mr. Weinsheimer answers the Court’s question of whether the agency is authorized to assert other exemptions over the pages by attesting that he is “not aware of any order, guidance, policy, or other facts that would prevent the Department from asserting other FOIA Exemptions over the redacted portions of the documents at issue here.” Weinsheimer Decl. ¶ 5.
Defendants further note that the Opinion misidentified the exemptions remaining at issue in addition to Exemption 1, which are not limited to 7(D) and 7(E). Although those remain at issue in these pages, Exemptions 3, 6 and 7(C) remain at issue as well. The Court assumed that Exemption 3 “is predicated entirely on Exemption 1,” but that is not the case. Opinion at 3 n.3. In asserting Exemption 3, DOJ relied on Section 102A(i)(1) of the National Security Act of 1947, as amended (now codified at 50 U.S.C. § 3024(i)(1)), which requires the Director of National Intelligence to “protect intelligence sources and methods from unauthorized disclosure.” Invocation of the National Security Act therefore shares one factual predicate with Exemption 1, which was invoked specifically with respect to intelligence sources and methods. See 3rd Hardy Decl. ¶ 69 (“Those same intelligence sources and methods [protected by Exemption 1] are also exempt here under Exemption (b)(3). Specifically, their disclosure is prohibited pursuant to the National Security Act of 1947, as amended.”). But sharing a factual predicate does not mean that Exemption 3 hinges on whether the information meets the Exemption 1 requirements and is actually classified. The declassification of information protected by Exemption 1 would not make that information any less about intelligence sources
5

Case 1:17-cv-00597-APM Document 52 Filed 08/30/19 Page 11 of 12

and methods, does not automatically authorize disclosure, and would not remove the protections

of the National Security Act. Nothing in the press release, tweets, or any other public statement

even suggests that the redacted information would not disclose intelligence sources and methods.

And it is well settled that Exemption 3 and the National Security Act provide broader protection

for intelligence sources and methods than Exemption 1, which has additional requirements. See

generally CIA v. Sims, 471 U.S. 159, 167 (1985); Gardels v. CIA, 689 F.2d 1100, 1106-07 (D.C.

Cir. 1982).

Moreover, DOJ continues to protect the private information of individuals who are not

Carter Page. FBI asserted Exemptions 6 and 7(C) to protect private information of four

categories of individuals; this assertion was withdrawn only with respect to information about

Carter Page. See 3rd Hardy Decl. ¶¶ 92-111 (invoking 6 and 7(C) with respect to other

individuals as well); ECF No. 43 at 12 (explaining that the privacy waiver from Carter Page

means that the FBI cannot claim Exemptions 6 and 7(C) over Carter Page’s private information).

A review of the coded redactions on the pages at issue shows that at least one of these categories

remains at issue in these specific pages – a third-party source coded as (b)(6)-4 on p. 23 of the

June 2017 FISA application. See https://vault.fbi.gov/d1-release/d1-release (p. 314 of the release

pdf); 3rd Hardy Decl. ¶ 34 (explaining codes), ¶¶ 110-11 (explaining these redactions).

Accordingly, the Court should grant the Defendant’s renewed motion for summary

judgment on the grounds of other exemptions as well.

CONCLUSION

For the foregoing reasons, as well as the reasons set forth in the briefing on Defendants’

most recent motion for summary judgment, the Court should grant the Government’s renewed

motion for summary judgment.

Dated: August 30, 2019

Respectfully Submitted, 6

Case 1:17-cv-00597-APM Document 52 Filed 08/30/19 Page 12 of 12
HASHIM MOOPAN Principal Deputy Assistant Attorney General MARCIA BERMAN Assistant Director, Federal Programs Branch /s/Amy E. Powell AMY E. POWELL Trial Attorney, Federal Programs Branch Civil Division, Department of Justice 150 Fayetteville St, Suite 2100 Raleigh, NC 27601 Phone: 919-856-4013 Email: amy.powell@usdoj.gov
7

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Case 1:17-cv-00597-APM Document 52-2 Filed 08/30/19 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF JUSTICE, )

)

Defendant.

)

)

Case No. 17-597-APM

[PROPOSED] ORDER ON DEFENDANT’S RENEWED MOTION FOR SUMMARY JUDGMENT
Having considered the submissions of the parties, the Court hereby ORDERS that the Defendant’s Renewed Motion for Summary Judgment is GRANTED.

U.S. DISTRICT COURT JUDGE

 
 Case 1:17-cv-00597-APM Document 65 Filed 03/26/20 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF JUSTICE, )

)

Defendant.

)

)

Case No. 17-597-APM

DEFENDANT’S MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR RECONSIDERATION

INTRODUCTION

The Court should reject the Plaintiffs’ belated attempt to resurrect arguments they

previously abandoned. The Court’s July 2019 conclusion that the “sole contested issue” was the

disputed pages allegedly declassified was a reasonable reading of Plaintiffs’ submissions at the

time. See Dkt. 51 (“July 2019 Op.”). And Plaintiffs thereafter abandoned the argument by

failing to raise it in response to Defendants’ renewed motion for summary judgment. In any

event, Plaintiffs have had ample opportunity since July 2019 to correct the record or seek

reconsideration but failed to do so. Finally, to the extent the Court entertains Plaintiffs’ request

for adjudication of the other pages, it can do so in summary fashion –the Government’s

declarations were more than adequate to meet Defendants’ burden with respect to the remaining

pages.

BACKGROUND

The Court fully set forth the background of this FOIA case in its July 2019 Opinion and

in the Final Opinion issued March 3, 2020. See generally Dkt. 51, 62. In brief, Plaintiffs sought

documents related to alleged FISA surveillance of the Trump Campaign. Id. Defendant DOJ

moved for summary judgment as to both its partial Glomar response, and its processing and

Case 1:17-cv-00597-APM Document 65 Filed 03/26/20 Page 2 of 7
release of the redacted FISA applications and orders related to Carter Page. Id. Plaintiffs’ opposition and cross-motion argued primarily: (1) that 21 pages had been declassified by the President; and (2) that the Government’s redactions lacked a good faith basis. See Dkt. 41, 42. The first argument relied on a White House press release related to those specific 21 pages, and on posts on the President’s twitter feed. See Dkt. 42, at 4-10. The latter argument was made vaguely, without reference to particular redactions or even the declarations, instead relying on additional tweets by the President, id. at 10-14, and it was unclear whether Plaintiffs were challenging the sufficiency of the Government’s case only with respect to the 21 pages at issue in (1). The Government responded to both arguments. See Dkt. 43. Plaintiffs’ reply brief focused narrowly only on the 21 disputed pages, and mentioned the “bad faith” argument only in passing in support of its position as to the 21 pages. See Dkt. 45, at 5 n.3.
The Court interpreted Plaintiffs’ argument as narrowed to the twenty-one pages that Plaintiffs argued were declassified. In the July 2019 opinion, the Court referred to these 21 pages at the “sole contested issue” and denied summary judgment solely on the basis of the lack of information about the alleged declassification. Dkt. 51. The Court denied both motions for summary judgment, but allowed Defendant to submit a renewed motion and an additional declaration. Id. Defendants filed a new motion for summary judgment that incorporated previous filings by reference, see Dkt. 52, and that motion was fully briefed, see Dkt. 53, 55. The parties then filed additional notices and reports with the Court, including about the ongoing declassification review of the FISA applications. See Dkt. 56, 57, 60, 61.1 In their response to
1 As set forth in Defendant’s status report, DOJ has not yet completed its subsequent declassification review of the Page FISA applications as a result of the OIG Report, but that review does not affect this Court’s review of the previously made redactions. See Dkt. 57. The review is likely to be further extended as a result of the response to the COVID-19 pandemic, including the temporary suspension of operations at the FBI’s Record/Information Dissemination Section, which is coordinating review of these records.
2

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Defendant’s status report about that ongoing review, Plaintiffs raised for the first time (as a “housekeeping matter”) their position that the July 2019 Opinion was wrong and that they never abandoned their claim for the other pages beyond the 21 pages that were the focus of the Plaintiffs’ first round of briefing. See Dkt. 60.
On March 3, 2020, the Court granted Defendant’s renewed motion for summary judgment. See Dkt. 62. With respect to Plaintiffs’ “housekeeping matter,” the Court explained:
Plaintiffs had every opportunity to oppose and cross-move as to any and all issues raised in Defendant’s original motion for summary judgment, or as to any other issue they wished. They chose instead to contest only one discrete issue. Plaintiffs cannot now revive what they long ago abandoned. Dkt. 62, at 6-7. Plaintiffs now bring this motion to reconsider that conclusion, arguing that they never intended to abandon their claim for the remainder of the pages processed in response to their FOIA request.
ARGUMENT I. Reconsideration is an Extraordinary Remedy.
Rule 59(e) is an “extraordinary measure” permitting reconsideration of a final judgment. Leidos, Inc. v. Hellenic Republic, 881 F.3d 213, 217 (D.C. Cir. 2018). “Under Rule 59(e), the court may grant a motion to amend or alter a judgment under three circumstances only: (1) if there is an ‘intervening change of controlling law’; (2) if new evidence becomes available; or (3) if the judgment should be amended in order to ‘correct a clear error or prevent manifest injustice.’” Id. (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam)). Rule 59(e) “may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” Leidos, Inc., 881 F.3d at 217 (quoting Exxon Shipping v. Baker, 554 U.S. 471, 486 n.5 (2008). It is “not a vehicle to present a new legal theory that was available prior to judgment.” Patton Boggs LLP v. Chevron
3

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Corp., 683 F.3d 397, 403 (D.C. Cir. 2012); Koch v. Clayton, No. 12-CV-01934 (APM), 2017 WL 2389921, at *1 (D.D.C. June 1, 2017) (“The moving party may not rely on a Rule 59(e) motion to present facts or argument upon which the court has already ruled or to present for the first time arguments or theories that could and should have been raised previously.”).
“To constitute ‘clear error’ within the meaning of Rule 59(e), courts have required ‘a very exacting standard.’” Slate v. Am. Broad. Companies, Inc., 12 F. Supp. 3d 30, 35 (D.D.C. 2013). “[T]o be clearly erroneous, a decision must strike [a court] as more than just maybe or probably wrong; it must ... strike [the court] as wrong with the force of a five-week-old, unrefrigerated dead fish.” Id. (quoting Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988)). Similarly, manifest injustice “does not exist where ... a party could have easily avoided the outcome, but instead elected not to act until after a final order had been entered.” Ciralsky v. CIA, 355 F.3d 661, 665 (D.C. Cir. 2004). “[M]anifest injustice” requires “at least (1) a clear and certain prejudice to the moving party that (2) is fundamentally unfair in light of governing law.” Mohammadi v. Islamic Republic of Iran, 947 F. Supp. 2d 48, 78 (D.D.C. 2013), aff’d, 782 F.3d 9 (D.C. Cir. 2015). II. Plaintiffs Have Not Shown Clear Error in the March 2020 Opinion.
Plaintiffs cannot show error, much less “clear error” or “manifest injustice,” because the Court correctly concluded that Plaintiffs abandoned these arguments about the other pages long ago. It is, at best, questionable as to whether Plaintiffs ever made an argument that Defendants’ submissions were inadequate beyond the 21 disputed pages. The “bad faith” argument was separately treated in Plaintiffs’ briefs on summary judgment, see Dkt. 41, 42, at 10-14 (in both briefs), but it was not clear whether the alleged “bad faith” applied to all records at issue or just the 21 pages in the previous section. In reply, Plaintiffs seemed to clarify, or perhaps to narrow their arguments – they failed to answer any of the arguments made by Defendants in response to
4

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the “bad faith” argument and focused exclusively on the 21 pages. Dkt. 47. It is thus entirely reasonable that the Court concluded, in July 2019, that the “sole contested issue” was the redactions in the 21 disputed pages mentioned in the White House press release. Dkt. 51, at 2.
Even if that is incorrect, and Plaintiffs never intended to so narrow their claims during the briefing prior to July 2019, the Court certainly reasonably concluded that Plaintiffs’ failure to raise the alleged error immediately after July 2019, or even in response to the renewed motion to dismiss, was sufficient to constitute abandonment. On August 30, 2019, Defendant moved for summary judgment as to all issues in the case; if this were truly an issue, Plaintiffs should have raised it then in opposition. But they mention those pages only in a confusing footnote. See Dkt. 53, at 2 n.2 (“This Court has not yet ruled on the extent to which DOJ’s remaining redactions and/or withholdings that the Plaintiffs are challenging were appropriate as a matter of law.”). The statement in that footnote is incorrect; the Court had already identified the 21 pages as the “sole contested issue.” Dkt. 51, at 2. And a footnote is not to sufficient to preserve the alleged issue that was explained, for the first time in supplemental briefing on tangential issues, nearly six months after the supposed error, and after substantive briefing was completed on the renewed motion. See Dkt. 62, at 7 (citing Hayes v. District of Columbia, 923 F. Supp. 2d 44, 51 (D.D.C. 2013) (treating a claim as conceded when the plaintiff did not “specifically dispute the defendant’s argument” regarding the claim in her opposition); Valles-Hall v. Ctr. For Nonprofit Advancement, 481 F. Supp. 2d 118, 140 (D.D.C. 2007) (deeming abandoned claims not raised by the plaintiff in her revised opposition to the defendant’s summary judgment motion); Brodie v. Burwell, No. 15-322 (JEB), 2016 WL 3248197, at *14 (D.D.C. June 13, 2016) (treating as abandoned a claim that a party only mentions “in passing” in his opposition motion)).
Plaintiffs’ explanation to the contrary is unconvincing. They explain their belief that “this Court’s decision to rule only upon that narrow matter, and ultimately require supplemental
5

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briefing to resolve the Declassification Dispute, was a practical decision by this Court to address the more abstract and novel constitutional question surrounding presidential declassification before returning to and ultimately addressing the properly-briefed matter of the Remaining Pages.” Dkt. 64, at 3. But that theory finds no support in the July 2019 opinion, which specifically identifies that 21 pages as the “sole contested issue in the parties’ cross-motions for summary judgment.” Dkt. 51, at 2. Plaintiffs could not have plausibly read that statement as a “practical” decision to resolve the declassification issue first. And Defendant’s renewed motion for summary judgment was clearly made for complete summary judgment, not partial summary judgment as to a narrow issue. Dkt. 52. Nor does Plaintiffs’ theoretical bifurcated handling of the case make any sense because the propriety of the redactions as to other pages does not turn upon the declassification issue. In any case, even if Defendant is incorrect, and Plaintiffs’ confusion was perfectly reasonable, the Court did not commit “clear error” under Rule 59(e). Defendants moved for summary judgment as to all issues in August 2019, and Plaintiffs did not raise this issue in response. It is accordingly abandoned.
Plaintiffs also express confusion as to “what more this Court expected the Plaintiffs to have done in this situation.” Dkt. 64, at 5. But Plaintiffs could have moved to reconsider the July 2019 opinion, or at a minimum, they could have raised this issue in response to Defendant’s renewed motion for summary judgment. They did not. And the Court has not committed clear error by refusing to allow the claim’s resurrection. III. Defendants Are Entitled to Summary Judgment.
Even if the Court were to reach the issue, Defendants are entitled to summary judgment. Plaintiffs’ vague complaints that the Defendants’ declarations may have been made in bad faith are insufficient to raise a genuine dispute of material fact. See generally Dkt. 41, 42, at 10-14. As set forth in Defendant’s opposition, agency declarants are entitled to a presumption of good
6

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faith, and Plaintiffs failed to challenge any particular statement in the Hardy or Findlay

declarations. See generally Dkt. 43, at 8-12. Rather, even in their own motion for summary

judgment, Plaintiffs have wholly conceded the applicability of the government’s claimed

exemptions in general. Plaintiffs cannot therefore manufacture an issue of material fact as to the

processing in general by relying on generalized, vague allegations based on no personal

knowledge. In their motion for summary judgment, Plaintiffs relied on two tweets that they

claim reflect the President’s criticism of the redactions, but these vague and nonspecific tweets,

based on no personal knowledge and not commenting on the precise issues presented to the

Court, are insufficient to overcome the presumption. Dkt. 43, at 9-11. Accordingly the Court’s

decision granting summary judgment for the Government was entirely correct.

CONCLUSION

For the foregoing reasons, the Court should deny Plaintiffs’ motion for reconsideration.

Dated: March 26, 2020

Respectfully Submitted,

ETHAN P. DAVIS Principal Deputy Assistant Attorney General

MARCIA BERMAN Assistant Director, Federal Programs Branch

/s/Amy E. Powell AMY E. POWELL Trial Attorney, Federal Programs Branch Civil Division, Department of Justice 150 Fayetteville St, Suite 2100 Raleigh, NC 27601 Phone: 919-856-4013 Email: amy.powell@usdoj.gov

7

 
 Case 1:17-cv-00597-APM Document 67 Filed 05/04/20 Page 1 of 3

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

THE JAMES MADISON PROJECT, et al., )

)

Plaintiffs,

)

)

v.

)

Case No. 17-cv-00597 (APM)

)

UNITED STATES DEPARTMENT OF

)

JUSTICE,

)

)

Defendant.

)

_________________________________________ )

ORDER

In its Memorandum Opinion entered on March 3, 2020, the court found that Plaintiffs had

abandoned any challenge to those portions withheld from the remaining 391 pages of the Carter

Page FISA warrant application. See Mem. Op., ECF No. 62, at 6–7. Plaintiffs now ask the court

to reconsider that decision, asserting that they in fact challenged those withholdings and the court

simply did not reach their argument. See Pls.’ Partial Mot. for Recons., ECF No. 64. Having re-

reviewed both rounds of the parties’ summary judgment briefs, the court agrees with Plaintiffs.

They did contest the withholdings made to the 391 pages in their opposition to Defendant’s initial

motion for summary judgment. See Pls.’ Opp’n to Def.’s Mot. for Summ. J., ECF No. 42

[hereinafter Pls.’ Opp’n], at 10–14. And, although Plaintiffs merely noted that challenge in a

footnote in response to Defendant’s renewed motion for summary judgment, see Pls.’ Opp’n to

Def.’s Renewed Mot. for Summ. J., ECF No. 53, at 2 n.2—Plaintiffs would have done better to

highlight their argument in the text—the court nevertheless will consider the challenge preserved.

The court therefore proceeds to the merits.

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Plaintiffs argue that the court should reject Defendant’s withholdings from the 391 pages, because two tweets from the President “cast[] doubt on the good faith bases for the redactions and withholdings made by the Government.” See Pls.’ Opp’n at 12. In the first, the President tweeted: “Congratulations to @JudicialWatch and @TomFitton on being successful in getting the Carter Page FISA documents. As usual they are ridiculously heavily redacted but confirm with little doubt that the Department of ‘Justice’ and FBI misled the courts. Witch Hunt Rigged, a Scam!”1 In the second tweet, he stated: “It was classified to cover up misconduct by the FBI and the Justice Department in misleading the Court by using this Dossier in a dishonest way to gain a warrant to target the Trump Team. This is a Clinton Campaign document. It was a fraud and a hoax designed to target Trump....”2 Neither tweet causes the court to doubt the agency’s declarations in this case.
The President’s tweets amount to little more than “[a] mere assertion of bad faith [that] is not sufficient to overcome a motion for summary judgment.” Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (quoting Assassination Archives & Research Ctr. v. CIA, 177 F.Supp.2d 1, 8 (D.D.C. 2001)). Although Plaintiffs tout that the tweets “come[] from the highest governmental authority,” Pls.’ Opp’n at 12, neither tweet reveals any personal knowledge on the part of the President with respect to the actual withholdings and the exemptions invoked. Cf. James Madison Project v. Dep’t of Justice, 302 F. Supp. 3d 12, 35 (D.D.C. 2018) (“But it does not follow that just because a tweet is an ‘official’ statement of the President that its substance is necessarily grounded in information contained in government records.”). The President’s statement that the disclosed records are “ridiculously heavily redacted” does not undermine the validity of the declarants’ invocation of Exemptions 1 and 3. And his insistence
1 Donald J. Trump (@realDonald Trump), TWITTER (July 22, 2018, 6:28 AM), https://twitter.com/realDonaldTrump/status/1020978929736265729 (last visited May 4, 2020). 2 Donald J. Trump (@realDonald Trump), TWITTER (July 23, 2018, 6:52 AM), https://twitter.com/realDonaldTrump/status/1021347230022807552 (last visited May 4, 2020).
2

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that the records were “classified to cover up government misconduct” is unsupported and, without more, cannot overcome the national security justifications put forward in the detailed affidavits submitted by Defendant. See Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011) (“Because courts lack the expertise necessary to second-guess such agency opinions in the typical national security FOIA case, we must accord substantial weight to an agency’s affidavit concerning the details of the classified status of [a] disputed record.” (cleaned up)).
For the foregoing reasons, Plaintiffs’ Motion for Reconsideration, ECF No. 64, is granted, and Defendant’s Motions for Summary Judgment, ECF Nos. 40, 52, are granted as to the remaining 391 pages of the Carter Page FISA application.
This is a final, appealable order.

Dated: May 4, 2020

Amit P. Mehta United States District Court Judge

3

 
 Case 1:17-cv-00597-APM Document 41 Filed 11/09/18 Page 1 of 22

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

*

THE JAMES MADISON PROJECT, *

et al.,

*

*

Plaintiffs,

*

*

v.

*

Civil Action No. 17-597 (APM)

*

DEPARTMENT OF JUSTICE,

*

*

Defendant.

*

*

* * * * * * * * * * * * **

PLAINTIFFS' CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

NOW COME the plaintiffs The James Madison Project and Brad Heath, by and

through undersigned counsel, to respectfully move for partial summary judgment

pursuant to Fed. R. Civ. P. 56(c). The Court is respectfully referred to the attached

Statement of Material Facts as to Which There is No Genuine Dispute and Memorandum

of Points and Authorities. A proposed order is also attached.

Case 1:17-cv-00597-APM Document 41 Filed 11/09/18 Page 2 of 22

Date: November 9, 2018

Respectfully submitted,
/s/ ________________________ Bradley P. Moss, Esq. D.C. Bar #975905 Mark S. Zaid, Esq. D.C. Bar #440532 Mark S. Zaid, P.C. 1250 Connecticut Avenue, N.W. Suite 700 Washington, D.C. 20036 Brad@MarkZaid.com Mark@MarkZaid.com
Attorneys for the Plaintiffs

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Table of Contents
FACTUAL BACKGROUND ............................................................................................. 1
ARGUMENT ...................................................................................................................... 2
STANDARD OF REVIEW ............................................................................................ 2
THE PLAINTIFFS ARE ENTITLED TO PARTIAL SUMMARY JUDGMENT WITH RESPECT TO REDACTIONS MADE TO 21 PAGES IN THE JUNE 2017 FISC APPLICATION OR, ALTERNATIVELY, TO LIMITED DISCOVERY TO RESOLVE ANY GENUINE ISSUES OF MATERIAL FACT IN DISPUTE REGARDING THE CURRENT STATUS OF THE PRESIDENT’S DECLASSIFICATION ORDER .................................................................................... 3
The President’s Declassification Order Remains In Effect ........................................ 3
Alternatively, If Partial Summary Judgment Is Not Currently Warranted For The Plaintiffs, Limited Discovery Is Justified To Determine The Current Status Of The Order ........................................................................................................................... 8
AT A MINIMUM, SUMMARY JUDGMENT IN FAVOR OF THE GOVERNMENT IS NOT WARRANTED AT THIS TIME WITH RESPECT TO THE REDACTIONS AND WITHHOLDINGS MADE TO THE RELEASED RECORDS ......................... 10
THERE IS A GENUINE ISSUE OF MATERIAL FACT IN DISPUTE REGARDING THE GOOD FAITH BASIS OF THE GOVERNMENT’S REDACTIONS AND WITHHOLDINGS................................................................ 10
THE PLAINTIFFS HAVE PROVIDED A PRIVACY WAIVER FROM CARTER PAGE THAT WARRANTS RECONSIDERATION OF APPLICABLE PRIVACY REDACTIONS ......................................................................................................... 14
THERE IS A GENUINE ISSUE OF MATERIAL FACT IN DISPUTE REGARDING THE EXTENT TO WHICH THE GOVERNMENT HAS MET ITS SEGREGABILITY OBLIGATIONS ....................................................................... 15
CONCLUSION................................................................................................................. 16

Case 1:17-cv-00597-APM Document 41 Filed 11/09/18 Page 4 of 22
Table of Authorities
Cases 100Reporters LLC v. Dep’t of Justice, 248 F. Supp. 3d 115 (D.D.C. 2017).............. 15, 16 Am. Immigration Council v. Dep’t of Homeland Sec., 950 F. Supp. 2d 221 (D.D.C.
2013) ............................................................................................................................. 16 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .................................................. 2, 3 Church of Scientology, Inc. v. Turner, 662 F.2d 784 (D.C. Cir. 1980)............................ 10 Davidson v. Dep’t of State, 206 F. Supp. 3d 178 (D.D.C. 2016) ..................................... 11 DiBacco v. Army, 795 F.3d 178 (D.C. Cir. 2015)............................................................ 11 Gardels v. CIA, 689 F.2d 1100 (D.C. Cir. 1982).............................................................. 11 Graff v. FBI, 822 F. Supp. 2d 23 (D.D.C. 2011) ......................................................... 14-15 Hall & Assocs. LLC v. EPA, 315 F. Supp. 3d 519 (D.D.C. 2018)................................... 12 Hayden v. NSA, 608 F.2d 1381 (D.C. Cir. 1979)............................................................. 11 Hodge v. FBI, 703 F.3d 575 (D.C. Cir. 2013) .................................................................. 15 Holcomb v. Powell, 433 F.3d 889 (D.C. Cir. 2006) ........................................................... 2 James Madison Project, et al., v. Dep’t of Justice, 2018 U.S. Dist. LEXIS 152807
(D.D.C. Sept. 7, 2018) ................................................................................................ 6, 7 James Madison Project, et al., v. Dep’t of Justice, et al., 302 F. Supp. 3d 12 (D.D.C.
2018) ............................................................................................................................... 5 Kimberlin v. Dep’t of Justice, 139 F.3d 944 (D.C. Cir. 1998) ......................................... 15 King v. Dep’t of Justice, 830 F.2d 210 (D.C. Cir. 1987)............................................ 10, 11 Lam Lek Chong v. DEA, 929 F.2d 729 (D.C. Cir. 1991)................................................. 16 Landmark Legal Found. v. EPA, 959 F. Supp. 2d 175 (D.D.C. 2013)............................. 12 Mead Data Cent., Inc. v. Dep’t of the Air Force, 566 F.2d 242 (D.C. Cir. 1977) ............ 16 PHE, Inc. v. Dep’t of Justice, 983 F.2d 248 (D.C. Cir. 1993) .......................................... 11

Case 1:17-cv-00597-APM Document 41 Filed 11/09/18 Page 5 of 22
Pub. Citizen Health Research Group v. FDA, 185 F.3d 898 (D.C. Cir. 1999)................... 2 Roseberry-Andrews v. Dep’t of Homeland Sec., 299 F. Supp. 3d 9 (D.D.C. 2018) ........ 16 Sheridan v. Office of Pers. Mgmt., 278 F. Supp. 3d 11 (D.D.C. 2017)............................ 15 Trump v. Hawaii, 2018 U.S. LEXIS 4026 (U.S. June 26, 2018)...................................... 13 Voinche v. FBI, 412 F. Supp. 2d 60 (D.D.C. 2006) ........................................................... 9 Wheeler v. CIA, 271 F. Supp. 2d 132 (D.D.C. 2003)......................................................... 9
Other Authorities https://oig.justice.gov/about/ (last accessed October 23, 2018) ......................................... 7 https://twitter.com/realDonaldTrump/status/10213472300 22807552 (last accessed
October 23, 2018) ......................................................................................................... 12 https://twitter.com/realDonaldTrump/status/1020978929 736265729 (last accessed
October 23, 2018) ......................................................................................................... 12 https://www.usatoday.com/story/news/2018/07/21/fbi-releases-carter-page-fisa-
records/813984002/ (last accessed October 22, 2018) ................................................... 3 https://www.vox.com/2018/9/21/17886720/trump-russia-declassification-order-tweets-
mueller (last accessed October 22, 2018) ................................................................. 5, 13 https://www.whitehouse.gov/briefings-statements/statement-press-secretary-34/ (last
accessed October 22, 2018) ...................................................................................... 4, 12
Rules Fed. R. Civ. P. 56 ................................................................................................................ 2
ii

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The Plaintiffs, The James Madison Project (“JMP”) and Brad Heath (“Heath”) (hereinafter referred to jointly as “Plaintiffs”), brought this action under the Freedom of Information Act (“FOIA”) to secure the lawful disclosure of records held by the defendant Department of Justice (“DOJ”). The underlying FOIA requests specifically sought copies of any orders issued by the Foreign Intelligence Surveillance Court (“FISC”) authorizing surveillance of President Donald J. Trump (“President Trump”), his presidential campaign, his private company, or his associates, as well as any relevant applications for orders submitted to the FISC and minimization procedures issued by the FISC.
Presently before this Court for consideration is DOJ’s Motion for Summary Judgment (“Motion”). Upon review of the Government’s Motion and its supporting sworn declarations, the Plaintiffs have chosen to concede the adequacy of the searches conducted, as well as the Government’s Glomar responses with respect to the existence or non-existence of responsive records other than those already produced. The Plaintiffs have confined their Cross-Motion for Partial Summary Judgment (“Cross-Motion”), as well as their Memorandum in Opposition to the Defendant’s Motion for Summary Judgment, strictly to the legal appropriateness of the redactions and withholdings made to the documents that have been produced as part of this litigation.
For the reasons set forth in detail below, this Court should grant the Plaintiffs’ Cross-Motion and deny DOJ’s Motion in part.
FACTUAL BACKGROUND The convoluted drama underlying the factual background of this proceeding was largely set forth in two documents: the First Amended Complaint, see Dkt. #5 at ¶¶7-32

Case 1:17-cv-00597-APM Document 41 Filed 11/09/18 Page 7 of 22
(filed April 15, 2017), and the Statement of Material Facts in Support of Defendant’s Motion for Summary Judgment, see Dkt. #40 (filed October 19, 2018)(“Statement of Material Facts”).
In the interest of not repeating information already set forth before this Court in DOJ’s Statement of Material Facts, the Plaintiffs incorporate that document herein by reference. However, the Plaintiffs are only incorporating the factual statements in relation to paragraphs 1-9 and 11, and only to the extent that they do not constitute legal characterizations and conclusions regarding the adequacy of DOJ’s searches for responsive records or the appropriateness of its invocations of particular FOIA exemptions.
ARGUMENT I. STANDARD OF REVIEW
Summary judgment pursuant to FRCP 56 should be awarded to a movant if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In evaluating the appropriateness of summary judgment, the Court must view the evidence in the light most favorable to the non-moving party, Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006), accepting the non-moving party’s evidence as true and drawing “all justifiable inferences” in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the Court need not rely on any “conclusory allegations unsupported by factual data,” Pub. Citizen Health Research Group v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (internal quotation marks and citations omitted), and should only find that “there is a
2

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genuine issue for trial” where “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson, 477 U.S. at 249 (citation omitted). II. THE PLAINTIFFS ARE ENTITLED TO PARTIAL SUMMARY JUDGMENT
WITH RESPECT TO REDACTIONS MADE TO 21 PAGES IN THE JUNE 2017 FISC APPLICATION OR, ALTERNATIVELY, TO LIMITED DISCOVERY TO RESOLVE ANY GENUINE ISSUES OF MATERIAL FACT IN DISPUTE REGARDING THE CURRENT STATUS OF THE PRESIDENT’S DECLASSIFICATION ORDER A. The President’s Declassification Order Remains In Effect This litigation presents an arguably-unprecedented legal scenario regarding the impact of a presidential declassification order that was issued while the present case was already in briefing. The undersigned are not aware of any previous case that has presented a court with this particular situation. On July 20, 2018, DOJ produced 412 pages of records memorializing four separate applications to the Foreign Intelligence Surveillance Court (“FISC”) for authorization to conduct surveillance of Carter W. Page (“Mr. Page”). https://www.usatoday.com/story/ news/2018/07/21/fbi-releases-carter-page-fisa-records/813984002/ (last accessed October 22, 2018). This was the first time the U.S. Government had ever released to the public FISC records regarding surveillance of a specific individual. As the Government states in its opening brief, see Defendant’s Memorandum of Points and Authorities in Support of Defendant’s Motion for Summary Judgment at 1531 (Dkt. #40)(filed October 19, 2018)(“Def’s Memo”), redactions were applied relying upon Exemptions 1, 3, 6 and 7 and 186 pages were withheld in their entirety in reliance upon Exemption 1, 3 and 7. If the present case had proceeded in a manner similar to most routine FOIA litigation, the briefing on this matter would be simpler and limited only to the question of the legal sufficiency of the Government’s affidavit(s) with respect to
3

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those redactions and withholdings. Alas, nothing in the era of President Trump is ever simple or routine.
On September 17, 2018, President Trump exercised his constitutional authority to order the immediate declassification of 21 specific pages (“the Pages”) from the 412-page production. https://www.whitehouse.gov/briefings-statements/statement-press-secretary34/ (last accessed October 22, 2018). The Pages are derived from the June 2017 FISC application regarding Mr. Page.
To date, that official declassification order (“the Order”) by President Trump has not been rescinded in any clear or explicit manner. On its own and as a matter of law, the Order nullifies the ability of the Government to justify redactions from the Pages and warrants summary judgment in favor of the Plaintiffs with respect to the Pages.
The Government nonetheless seeks to sidestep this problem by merely arguing (without citation) that President Trump “… [l]ater indicated he was no longer requiring immediate declassification of these documents at this time.” See Def’s Memo at 8 n.5. This appears to be a reference to a pair of tweets (consolidated into one body of text below) issued by President Trump on September 21, 2018, in which he stated the following:
I met with the DOJ concerning the declassification of various UNREDACTED documents. They agreed to release them but stated that so doing may have a perceived negative impact on the Russia probe. Also, key Allies’ called to ask not to release. Therefore, the Inspector General [] has been asked to review these documents on an expedited basis. I believe he will move quickly on this (and hopefully other things which he is looking at). In the end, I can always declassify if it proves necessary. Speed is very important to me – and everyone!
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https://www.vox.com/2018/9/21/17886720/trump-russia-declassification-order-tweetsmueller (last accessed October 22, 2018).1
The language of these tweets poses several problems for the Government and its attempt to argue to this Court that the Order is no longer in effect.
The reference by President Trump to “various UNREDACTED documents” makes little logical sense, at least in the context of the Pages, as they all contain some manner of redactions (with the exception of page 30 of the June 2017 FISC application, which was released without redactions). Unredacted documents would not, by their very nature, require declassification as there would be nothing to declassify nor redactions to remove.
The president’s lack of clarity aside, the very next sentence in his two-part tweet states that DOJ conveyed to President Trump it would release the documents that are the subject of the Order. This statement unequivocally demonstrates that DOJ has informed President Trump that any redactions will be removed. This was not merely President Trump engaging in the type of political commentary as to what he “hopes” will happen or what he “believes” should happen that this Court has previously found insufficiently exacting, for example, for the purpose of an official disclosure. See James Madison Project, et al., v. Dep’t of Justice, et al., 302 F. Supp. 3d 12, 35 (D.D.C. 2018)(finding President Trump’s descriptions of “Steele Dossier” as “phony” or “fake” as insufficient to even create genuine issue of material fact in dispute). Nor does the statement leave it open to interpretation whether President Trump is actually relying upon government information in making his assertion. See id. at 35 (“But it does not follow that just because a tweet is an ‘official’ statement of the President that its substance is necessarily
1 The grammar and syntax errors made in these tweets issued by the Commander-in-Chief have been left “as is” for the sake of factual and historical accuracy.
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grounded in information contained in government records.”); see also James Madison Project, et al., v. Dep’t of Justice, 2018 U.S. Dist. LEXIS 152807, *23 (D.D.C. Sept. 7, 2018)(“…[I]t is imperative that both the context and substance of the official disclosures ‘leave no doubt’ as to [whether responsive records exist.]”).2
To the contrary, President Trump makes it explicitly clear that in his discussions with DOJ he was informed that the documents subject to the Order will in fact be declassified and released. This reflects official confirmation that President Trump and DOJ officials discussed the declassification and agreed on a course of action that would lead to the release of, among other things, the Pages.
Nothing in the remainder of the two-part tweet or in the entirety of the written record for that matter constitutes a rescission of the Order or, alternatively, even a postponement of the impact of the Order. The Government certainly has not produced any written orders or directives from President Trump or DOJ stating that the Order has been rescinded or its impact postponed. The two sworn affidavits submitted by the Government in support of its Motion, see Third Declaration of David M. Hardy (Dkt. #40-1)(filed October 19, 2018)(“Hardy Decl.”); Declaration of Patrick M. Findlay (Dkt. #40-3)(filed October 19, 2018)(“Findlay Decl.”), both of whom are government officials far below the level of the President and therefore cannot overrule his position, contain no reference to any documentation indicating any change to the impact of the Order either.
2 Respectfully, the Plaintiffs are not conceding the legal validity of the analysis in the cited rulings by this Court or its brethren, U.S. District Court Judge Amy Berman Jackson. However, as neither of those rulings have yet to be reviewed on the merits by the appellate courts and therefore remain valid and current case law, the Plaintiffs are relying upon those analyses for purposes of the present case.
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The entirety of the Government’s claim that the Order is effectively “on hold” appears to be factually premised on nothing more than President Trump’s two-part tweet. The tweets certainly do not specifically say that the Order has been rescinded or put on hold. The only thing they say is that President Trump has asked the Office of the Inspector General to review an unspecified set of documents “on an expedited basis.”
That assertion is too thin a reed upon which to hang the Government’s defense. Even if the OIG had the authority to conduct a review of the appropriateness of the various redactions (and there is no indication that the OIG is the proper office to conduct such a review),3 this vague assertion by President Trump (without any particular timeframe) simply cannot alone satisfy the Government’s evidentiary burden here to demonstrate that the Order is no longer in effect (or at least in effect with respect to the Pages in particular). President Trump’s tweets do not specify whether the “expedited review” being conducted by the OIG relates to the Pages specifically or rather to the other categories of information and records that were also subject to the Order (such as reports of interviews with DOJ official Bruce G. Ohr or reports of interviews prepared in connection with FISC applications targeting Mr. Page). What is good for the goose is good for the gander, see James Madison Project, 2018 U.S. Dist. LEXIS 152807 at *23 (referencing need to meet matching and specificity requirements for official disclosures), and DOJ cannot point to any specific or exacting official statements in the record that demonstrates OIG is reviewing the Pages in particular.
3 The OIG’s mandate is typically limited to matters involving misconduct in DOJ programs and personnel, as well as audits of DOJ programs. https://oig.justice.gov/about/ (last accessed October 23, 2018). Unless the review is to reassure President Trump that redactions and withholdings made were not the result of improper political bias, the OIG does not appear to be the proper forum for conducting this review. Nor is there any evidence the OIG is actually conducting a review.
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Indeed, it would defy logic to believe that OIG is currently conducting an overlapping review of the Pages (and, hypothetically, could conclude some redactions were inappropriate) while at the same time the Government is expending time and resources to argue before this Court that all of the redactions in the Pages are justified. If the OIG’s “expedited review” did relate to the Pages, it is more than plausible to imagine that the review would be finished before the current briefing even concluded, let alone before this Court has a chance to issue a ruling. The undersigned find it unlikely that the Government has chosen to risk disrupting the briefing process in this case for a second time due to external events and can only reasonably surmise (as the written record would seem to confirm) that the OIG’s review is not of the Pages.
If the Government wishes to produce actual evidence demonstrating that the Order has been rescinded or otherwise postponed with respect to the Pages, it is certainly within its discretion and authority to do so. Until such time as that evidence is provided, however, this Court should conclude that the President’s Order remains in effect (at least with respect to the Pages) and that partial summary judgment in favor of the Plaintiffs is warranted with respect to the Pages.
B. Alternatively, If Partial Summary Judgment Is Not Currently Warranted For The Plaintiffs, Limited Discovery Is Justified To Determine The Current Status Of The Order
Even if this Court were to conclude that partial summary judgment is not warranted at this time in favor of the Plaintiffs with respect to the Pages, it borders on axiomatic that the Government has failed to demonstrate the absence of a genuine issue of material fact in dispute justifying summary judgment in its favor on the same matter. As previously explained, supra at 6-7, the Government has provided no evidence beyond
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President Trump’s two-part tweet to suggest that the Order has been stayed, particularly with respect to the Pages.
These circumstances more than reasonably justify authorizing supplemental declarations or limited discovery to resolve the material fact in dispute. Although FOIA actions are typically resolved without the need for discovery, see Wheeler v. CIA, 271 F. Supp. 2d 132, 139 (D.D.C. 2003), it has been permitted when there is evidence of bad faith or other tangible evidence that an exemption claimed by the agency is inappropriate. See Voinche v. FBI, 412 F. Supp. 2d 60, 72 (D.D.C. 2006).
In the present case, limited discovery is justified given the existence of the Order requiring the declassification and release of the Pages and the Government’s argument (without sufficient evidence) that the Order does not currently remain in effect as a matter of law. Discovery would be confined to answering the following questions: (1) has President Trump (or his appropriate designee) specifically informed the appropriate DOJ officials – whether in writing or verbally – that the Order can be considered as rescinded or otherwise postponed with respect to the Pages; (2) does the OIG’s review encompass the appropriateness of the redactions made in the Pages and, if so, what is the timeframe for a completion of that review; and (3) if President Trump (or his appropriate designee) has not specifically given instructions that the Order can considered as rescinded or otherwise postponed, and the OIG’s review does not encompass the Pages, upon what basis is DOJ concluding that the Order remains in effect with respect to the Pages? Declaration of Bradley P. Moss at ¶7 (dated November 9, 2018)(“Moss Decl.”), attached as Exhibit “1”.
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Absent this clarification, whether through supplemental agency declarations or limited discovery, a genuine issue of material fact remains in dispute regarding the status of the Order and its impact upon the redactions found in the Pages. III.AT A MINIMUM, SUMMARY JUDGMENT IN FAVOR OF THE
GOVERNMENT IS NOT WARRANTED AT THIS TIME WITH RESPECT TO THE REDACTIONS AND WITHHOLDINGS MADE TO THE RELEASED RECORDS In the event this Court concludes that the Order is not in effect or otherwise has no legal relevance to the current pleadings, the Plaintiffs nonetheless respectfully submit that summary judgment still is not warranted at this time with respect to the various redactions and withholdings made to the responsive records processed and released by the Government. A. THERE IS A GENUINE ISSUE OF MATERIAL FACT IN DISPUTE
REGARDING THE GOOD FAITH BASIS OF THE GOVERNMENT’S REDACTIONS AND WITHHOLDINGS “The significance of agency affidavits in a FOIA case cannot be underestimated.” King v. Dep’t of Justice, 830 F.2d 210, 218 (D.C. Cir. 1987). The rationale behind this well-established axiom is clear and apparent given that in FOIA cases “the agency alone possesses knowledge of the precise content of documents withheld,” thereby forcing both the FOIA requester and the court to “rely upon the agency’s representations for an understanding of the material sought to be protected.” Id. In order to withhold information an agency must provide “a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.” Id. at 219. Vague or conclusory explanations by the agency will not suffice. See also Church of Scientology, Inc. v. Turner, 662 F.2d 784, 787 (D.C. Cir. 1980)(“We have consistently
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maintained that vague, conclusory affidavits, or those that merely paraphrase the words of a statute, do not allow a reviewing judge to safeguard the public’s right of access to government records.”). Rather, specificity is paramount. See Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982).
The burden of demonstrating that the material in question was properly withheld commonly requires the preparation of a detailed Vaughn Index, which must “show specifically and clearly that the requested materials fall into the category of documents” that Congress has exempted. Hayden v. NSA, 608 F.2d 1381, 1390 (D.C. Cir. 1979); see also PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 250 (D.C. Cir. 1993)(“[A]n affidavit that contains merely a ‘categorical description of redacted material coupled with a categorical indication of anticipated consequences of disclosure is clearly inadequate.’”), quoting King, 830 F.2d at 224; King, 830 F.2d at 225 (“The measure of a Vaughn Index is its descriptive accuracy, and we are willing to accept innovations in its form so long, but only so long, as they contribute to that end.”).
In its pleadings, the Government laid out its arguments and justifications for why redactions and withholdings relying upon Exemptions 1, 3, 6 and 7 should be upheld by this Court. See Def’s Memo at 15-32. However, despite having been put on notice by the Plaintiffs, see Dkt. #36 (joint status report)(filed July 24, 2018), the Government made no effort to proactively address the “bad faith” suggestions made by President Trump in the wake of the release of responsive records in this FOIA action.
Summary judgment may not be warranted when an agency’s declaration is contradicted by evidence of possible agency bad faith. See DiBacco v. Army, 795 F.3d 178, 196 (D.C. Cir. 2015); see also Davidson v. Dep’t of State, 206 F. Supp. 3d 178, 202
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(D.D.C. 2016)(allegations of bad faith can place the credibility of an agency declaration in doubt and warrant further evidentiary inquiry). To be sure, an earnestly held but mistaken view of the law typically (but not exclusively) will not ultimately suffice to demonstrate agency bad faith on the merits. See Hall & Assocs. LLC v. EPA, 315 F. Supp. 3d 519, 545 (D.D.C. 2018). However, for the purpose of resolving the initial indication of a material fact in dispute, evidence of wrongdoing or bad faith can suffice to justify limited discovery. See Landmark Legal Found. v. EPA, 959 F. Supp. 2d 175, 184 (D.D.C. 2013)(authorizing limited discovery to resolve possible factual questions of possible bad faith by agency in how it conducted searches for records).
In the present case, the Plaintiffs can more than sufficiently demonstrate the existence of evidence coming from the highest government authority – namely, President Trump – casting doubt on the good faith bases for the redactions and withholdings made by the Government.
Within 48 hours of the public disclosure of the responsive records in this action, President Trump described the specific redactions in the records as “ridiculous” and repeated remarks claiming that the classified redactions in particular were done to “…[c]over up misconduct by the FBI and the Justice Department in misleading the Court …”. https://twitter.com/realDonaldTrump/status/1020978929 736265729 (last accessed October 23, 2018); https://twitter.com/realDonaldTrump/ status/10213472300 22807552 (last accessed October 23, 2018). President Trump subsequently issued the Order that stated he was directly overriding the specific redaction determinations in the Pages, https://www.whitehouse.gov/briefings-statements/statement-press-secretary-34/
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(last accessed October 22, 2018), and has since stated that the OIG is conducting a review of an unspecified set of the records. https://www.vox.com/2018/9/21/17886720/trumprussia-declassification-order-tweets-mueller (last accessed October 22, 2018).
To the best of the undersigned’s knowledge, there is no precedent for a sitting President of the United States to so publicly question the good faith bases for redactions and withholdings put in place by his own Executive Branch agencies in a FOIA action. This reality requires this Court to look for guidance from a similar legal dilemma faced by the judiciary in the era of President Trump with respect to how much value to apply to the president’s public commentary.
The U.S. Supreme Court recently expressed a willingness to consider the relevance and materiality of official presidential statements that conflict with the legal justifications separately made by the Executive Branch to support policy determinations. See Trump v. Hawaii, 2018 U.S. LEXIS 4026, *55 (U.S. June 26, 2018). Although the Supreme Court ultimately upheld the policy at issue in that litigation – President Trump’s travel ban, commonly referred to as the “Muslim ban” – it did so only after determining that the Government had sufficiently demonstrated through the written record that the policy’s formulation and implementation was facially legitimate irrespective of President Trump’s separate inflammatory rhetoric and commentary. See id., 2018 U.S. LEXIS 4026 at *53, *57 (referencing multi-agency review process that developed “Muslim ban”).
The Trump ruling could serve as a roadmap for this Court in the present case. The sufficiency of factual evidence that existed in Trump does not currently exist in an analogous fashion to the present FOIA action. The Government has provided no evidence to rebut or otherwise address the official statements by President Trump decrying the
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redactions as “ridiculous”. Nor has the Government provided evidence to rebut President Trump’s suggestion that political bias (not facially legitimate national security and policy considerations) served as the justification for the redaction and withholding determinations. The Government has similarly provided no evidence to address the relevance of the OIG’s apparent ongoing review of the appropriateness of the redactions and withholdings. All three of these factors are relevant evidentiary considerations that conflict with and contradict the good faith bases for the Government’s redaction and withholdings. Moss Decl. at ¶10.
It may come to pass that the Government can ultimately demonstrate that the redactions and withholding determinations were done properly and independent of any perceived political bias that would undermine the presumptive good faith bases for the Government’s actions. Until the factual dispute underlying that issue has been resolved, however, summary judgment is not yet warranted for the Government.
B. THE PLAINTIFFS HAVE PROVIDED A PRIVACY WAIVER FROM CARTER PAGE THAT WARRANTS RECONSIDERATION OF APPLICABLE PRIVACY REDACTIONS
In its Motion, the Government notes that it redacted “certain personal information” about Page that was contained in the responsive records. See Def’s Memo at 29-30. The Government relied upon FOIA Exemptions 6 and 7(C) as the legal bases for these redactions. Id.
Privacy redactions can be overcome if a FOIA requester can do one of the following: (1) provide proof of death; (2) demonstrate an overriding public interest in disclosure of the responsive records; or (3) provide a privacy waiver from the third party. See Graff v.
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FBI, 822 F. Supp. 2d 23, 36-37 (D.D.C. 2011). Upon review of the Motion, the Plaintiffs secured a signed privacy waiver from Mr. Page and provided it to Government counsel. Moss Decl. at ¶13.
Accordingly, summary judgment is not currently warranted for the Government with respect to these particular privacy redactions and should be denied without prejudice.
C. THERE IS A GENUINE ISSUE OF MATERIAL FACT IN DISPUTE REGARDING THE EXTENT TO WHICH THE GOVERNMENT HAS MET ITS SEGREGABILITY OBLIGATIONS
The Plaintiffs further submit that the Government has not sufficiently demonstrated it complied with FOIA’s segregability requirements. At a minimum, the Plaintiffs respectfully requests that this Court conduct an in camera review of at least a random sampling (if not the entirety) of the 598 pages at issue to satisfy for itself that the segregability requirements have been met as a matter of law.
The requirement regarding segregability obligates agencies to divulge all portions of documents that are not specifically exempted by statute from disclosure. See Kimberlin v. Dep’t of Justice, 139 F.3d 944, 950 (D.C. Cir. 1998), cert. denied, 525 U.S. 891 (1998). “The agency is ‘entitled to a presumption that [it] complied with the obligation to disclose reasonably segregable material,’ but that does not excuse the agency from carrying its evidentiary burden to fully explain its decisions on segregability.” 100Reporters LLC v. Dep’t of Justice, 248 F. Supp. 3d 115, 165 (D.D.C. 2017), quoting Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013)(alteration in original); see also Sheridan v. Office of Pers. Mgmt., 278 F. Supp. 3d 11, 20 (D.D.C. 2017) (requiring agencies to provide a “detailed justification” for non-segregability).
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In making a determination as to segregabilty, a district court judge may examine the contents of agency records in camera. See 100Reporters LLC, 248 F. Supp. 3d at 166. “The decision whether to perform in camera inspection is left to the ‘broad discretion of the trial court judge.’” Lam Lek Chong v. DEA, 929 F.2d 729, 735 (D.C. Cir. 1991).
The Government has provided little beyond standard, boilerplate assertions that a document-by-document and line-by-line review was conducted and that no reasonably segregable non-exempt information could be released. See Hardy Decl. at ¶134. The courts have expressed skepticism at such conclusory claims in the past and have been hesitant to accept such attestations without additional information. See Mead Data Cent., Inc. v. Dep’t of the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977) (“[U]nless the segregability provision of the FOIA is to be nothing more than a precatory precept, agencies must be required to provide the reasons behind their conclusions in order that they may be challenged by FOIA plaintiffs and reviewed by the courts.”); see also Roseberry-Andrews v. Dep’t of Homeland Sec., 299 F. Supp. 3d 9, 34 (D.D.C. 2018) (finding conclusory claims regarding segregability to be insufficient); Am. Immigration Council v. Dep’t of Homeland Sec., 950 F. Supp. 2d 221, 248 (D.D.C. 2013)(finding similar conclusory language insufficient).
Absent additional clarifying details, the Plaintiffs respectfully submit that at least some measure of in camera review by this Court is warranted prior to rendering a determination on the Defendant’s Motion. See Moss Decl. at ¶¶15-16.
CONCLUSION For the foregoing reasons, DOJ’s Motion for Summary Judgment should be denied in part and the Plaintiffs’ Cross-Motion for Partial Summary Judgment should be granted.
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Date: November 9, 2018

Respectfully submitted,
/s/ ________________________ Bradley P. Moss, Esq. D.C. Bar #975905 Mark S. Zaid, Esq. D.C. Bar #440532 Mark S. Zaid, P.C. 1250 Connecticut Avenue, N.W. Suite 700 Washington, D.C. 20036 (202) 454-2809 (202) 330-5610 fax Brad@MarkZaid.com Mark@MarkZaid.com
Attorneys for the Plaintiffs

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EXHIBIT 1

Case 1:17-cv-00597-APM Document 41-1 Filed 11/09/18 Page 2 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

*

THE JAMES MADISON PROJECT, *

et al.,

*

*

Plaintiffs,

*

*

v.

*

Civil Action No. 17-597 (APM)

*

DEPARTMENT OF JUSTICE,

*

*

Defendant.

*

*

* * * * * * * * * * * * **

RULE 56(d) DECLARATION OF BRADLEY P. MOSS, ESQ.

The undersigned hereby declares as follows:

1. I am a person over eighteen (18) years of age and competent to testify. I am

making this Declaration on personal knowledge. This Declaration is submitted in support

of the Plaintiffs’ Cross-Motion for Partial Summary Judgment, as well as in support of

the Memorandum of Points and Authorities in Opposition to the Defendant’s Motion for

Summary Judgment.

2. I am one of the attorneys for the plaintiffs The James Madison Project and Brad

Heath (hereinafter referred to collectively as the “Plaintiffs”) in this matter, along with

my firm’s Managing Partner, Mark S. Zaid (“Mr. Zaid”). I am admitted to practice law in

the State of Illinois and the District of Columbia, as well as the U.S. Court of Appeals for

the D.C. Circuit and the United States District Courts for the District of Columbia,

District of Maryland and the Northern District of Illinois. I have been litigating cases

involving the federal government, including with respect to the Freedom of Information

Act (“FOIA”), since 2007. I also actively represent individuals associated with or within

Case 1:17-cv-00597-APM Document 41-1 Filed 11/09/18 Page 3 of 7
the intelligence, law enforcement or military communities in administrative proceedings. Both Mr. Zaid and I hold U.S. Government security clearances, granted by the Department of Justice, for the purpose of representing specific clients, some of whose affiliation to the U.S. Government is a classified fact.
The Declassification Order 3. On September 17, 2018, President Donald J. Trump (“President Trump”) exercised his constitutional authority to order the immediate declassification of twentyone specific pages (“the Pages”) from the 412-page production of FISA records released in this litigation and that relate to Carter W. Page (“Mr. Page)”. https://www.white house.gov/briefings-statements/statement-press-secretary-34/ (last accessed October 22, 2018). The Pages are derived from the June 2017 FISC application regarding Mr. Page. 4. Since the issuance of the declassification order (the “Order”), neither President Trump nor any authorized U.S. Government official have made public, official statements indicating that the Order no longer remains in effect. 5. President Trump did issue a two-part tweet on September 21, 2018, in which he stated that the Department of Justice had agreed to release an unspecified number of documents subject to the Order. President Trump further noted, however, that due to concerns raised about the “Russia probe” and by unidentified “Allies”, he was asking the Inspector General (“OIG”) to review an unspecified set of documents on an expedited basis. https://www.vox.com/2018/9/21/17886720/trump-russia-declassification-ordertweets-mueller (last accessed October 22, 2018).
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6. There is no evidence in the written record demonstrating that the documents at issue in the two-part tweet on September 21, 2018, overlap with the Pages subject to the Order. Nowhere within the four corners of the two supporting declarations submitted by DOJ in support of its Motion for Summary Judgment, see Dkt. #40-1; Dkt. #40-3, is there any reference to any documentation or authoritative sources of information indicating that the Order no longer remains in effect. The entirety of the evidence supporting DOJ’s contention that the Order is not currently in effect consists merely of President Trump’s two-part tweet on September 21, 2018.
7. At a minimum, the Plaintiffs have provided more than sufficient evidence of a genuine issue of material fact in dispute regarding whether the Order remains in effect, particularly with respect to the Pages. Supplemental information – whether through additional agency declarations or limited discovery – is necessary to address the following questions: (a) has President Trump (or his appropriate designee) specifically informed the appropriate DOJ officials – whether in writing or verbally – that the Order can be considered as rescinded or otherwise postponed with respect to the Pages; (b) does the OIG’s review encompass the appropriateness of the redactions made in the Pages and, if so, what is the timeframe for a completion of that review; and (c) if President Trump (or his appropriate designee) has not specifically given instructions that the Order can considered as rescinded or otherwise postponed, and the OIG’s review does not encompass the Pages, upon what basis is DOJ concluding that the Order remains in effect with respect to the Pages?
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Good Faith Basis for Redactions and Withholdings 8. DOJ provided two sworn declarations in support of their Motion for Summary Judgment. See Dkt. #40-1; Dkt. #40-3. The Third Declaration of David M. Hardy (“Hardy Declaration”) specifically addressed the justifications for the redactions and withholdings made to the 598 pages of responsive records. Dkt. #40-1. 9. In a status report filed with this Court four months ago, see Dkt. #36 (filed July 24, 2018), the Plaintiffs notified DOJ that the Plaintiffs intended to challenge the good faith basis of the redactions and withholdings. Specifically, the Plaintiffs indicated they would raise before this Court the question of whether the President’s public disparagement of the legitimacy of the redactions and withholdings sufficiently undermined the good faith justifications otherwise put forth by the Government. Despite that advance warning, the Hardy Declaration makes no reference to this issue at all. The Hardy Declaration similarly makes no reference to the relevance of President Trump’s subsequent further actions questioning the legitimacy of the redactions and withholdings, namely the issuance of the Order and the subsequent initiation of an “expedited review” by the OIG. 10. By themselves, the President’s official statements and official actions raise a genuine issue of material fact in dispute regarding the good faith basis for DOJ’s redactions and withholdings. What evidence can DOJ provide to specifically rebut President Trump’s description of the redactions as “ridiculous”? What evidence can DOJ provide to specifically counter President Trump’s promotion of commentary stating that the redactions and withholdings are due to political bias, particularly in light of the “expedited review” that President Trump has since ordered to be conducted by the OIG?
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11. At a minimum, additional clarification is needed from DOJ addressing these questions before this Court can conclude that summary judgment is warranted in favor of DOJ.
The Carter Page Privacy Redactions 12. At various points in the responsive records released as part of this litigation, the Government redacted what it has identified as “certain personal information” regarding Page in reliance upon privacy FOIA Exemptions 6 and 7(C). 13. The undersigned coordinated with Page’s private counsel and secured an executed privacy waiver from Page waiving his rights with respect to the redaction of that “certain personal information”. The undersigned has provided Government counsel with that privacy waiver. Segregability 14. The Plaintiffs respectfully submit that the Hardy Declaration’s language regarding segregability is too conclusory and lacking in detail. The Hardy Declaration provides this Court with nothing more than boilerplate language stating that no reasonably segregable non-exempt information could be released. These types of boilerplate descriptions have been viewed skeptically by courts in the past and should be done so here as well. 15. Of particular significance is the complete withholding of 186 pages of responsive records, including the minimization orders that would have accompanied each of the four FISC applications produced in part by DOJ as part of this litigation. Is DOJ truly arguing that no part of those minimization orders can be released in part? It may be the case that the DOJ’s argument can eventually meet the legal threshold to answer that question in the affirmative but, in its current form, the Hardy Declaration simply fails to meet the
5

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Case 1:17-cv-00597-APM Document 41-2 Filed 11/09/18 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

*

THE JAMES MADISON PROJECT, *

et al.,

*

*

Plaintiffs,

*

*

v.

*

Civil Action No. 17-597 (APM)

*

DEPARTMENT OF JUSTICE,

*

*

Defendant.

*

*

* * * * * * * * * * * * **

PLAINTIFFS’ STATEMENT OF

MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE DISPUTE

Pursuant to Local Rule 7.1 (h), the plaintiffs The James Madison Project and

Brad Heath (referred to jointly as “Plaintiffs”) respectfully submit the following

Statement of Material Facts as to Which There is No Genuine Dispute.

1. By letters dated March 6, 2017, the Plaintiffs submitted FOIA requests to the

Federal Bureau of Investigation (“FBI”) and the Department of Justice’s National

Security Division, respectively. In each of the FOIA requests, the Plaintiffs sought three

categories of records: (a) a copy of any order(s) by the Foreign Intelligence Surveillance

Court (“FISC”) authorizing surveillance of and/or collection of information concerning

the Trump Organization, President Trump, President Trump’s campaign for the

presidency, or people associated with President Trump; (b) a complete copy of any

application(s) to the Foreign Intelligence Surveillance Court seeking authorization of

and/or collection of information concerning the Trump Organization, President Trump,

President Trump’s campaign for the presidency, or people associated with President

Trump; and (c) a copy of any minimization procedures issued by the Foreign Intelligence

Case 1:17-cv-00597-APM Document 41-2 Filed 11/09/18 Page 2 of 4
Surveillance Court and that applied to any order(s) issued that fell within the scope of categories (a) or (b). First Amended Complaint at ¶¶13-14, 22-23 (Dkt. #5).
2. In February 2018, President Donald J. Trump (“President Trump”) authorized the declassification and release of two competing memoranda authored by the Majority and the Minority members of the House Permanent Select Committee on Intelligence. Those two memoranda are commonly referred to as the “Nunes Memo” and the “Schiff Memo”, respectively. Both memoranda revealed the existence of multiple FISA warrant applications targeting Carter W. Page (“Mr. Page”). See Dkt. #40-1 at ¶¶17, 19, 20-22.
3. On July 20, 2018, the Department of Justice (“DOJ”) and the FBI released 412 pages of responsive materials derived from four separate FISA warrant applications targeting Mr. Page. See id. at ¶4.
4. On September 17, 2018, President Trump exercised his constitutional authority to order the immediate declassification of 21 specific pages (“the Pages”) from the 412-page production. The Pages are derived from the June 2017 FISC application regarding Mr. Page. https://www.whitehouse.gov/briefings-statements/statement-press-secretary34/ (last accessed October 22, 2018).
5. To date, that official declassification order (“the Order”) by President Trump has not been rescinded in any clear or explicit manner.
6. President Trump did issue a two-part tweet on September 21, 2018, in which he stated the following:
I met with the DOJ concerning the declassification of various UNREDACTED documents. They agreed to release them but stated that so doing may have a perceived negative impact on the Russia probe. Also, key Allies’ called to ask not to release. Therefore, the Inspector General [] has been asked to review these documents on an expedited basis. I believe he will move quickly on this (and hopefully other things which he is
2

Case 1:17-cv-00597-APM Document 41-2 Filed 11/09/18 Page 3 of 4
looking at). In the end, I can always declassify if it proves necessary. Speed is very important to me – and everyone! https://www.vox.com/2018/9/21/17886720/trump-russia-declassification-order-tweetsmueller (last accessed October 22, 2018). 7. Nowhere within the four corners of President Trump’s September 21, 2018, twopart tweet does he clearly or explicitly state that the Order has been rescinded or its implementation otherwise placed on hold. President Trump’s two-part tweet states that unidentified documents will be released but that similarly-unspecified documents are first being subject to expedited review by the “Inspector General”. 8. Nowhere within the two-part tweet does President Trump identify which set of documents (if not all of them) that were subject to the Order are being reviewed by the Inspector General. Nowhere within the two-part tweet does President Trump identify which set of documents (if not all of them) that were subject to the Order the DOJ has already agreed to release. 9. The Government has not produced any evidence beyond President Trump’s twopart tweet to demonstrate that the Order has been rescinded or otherwise placed on hold, whether in general or specifically with respect to the Pages. 10. The Order remains in effect as a matter of law and requires compliance with its instruction to immediately declassify and release the Pages.
3

Case 1:17-cv-00597-APM Document 41-2 Filed 11/09/18 Page 4 of 4

Date: November 9, 2018

Respectfully submitted,
/s/ ___________________ Bradley P. Moss, Esq. D.C. Bar #975905 Mark S. Zaid, Esq. D.C. Bar #440532 Mark S. Zaid, P.C. 1250 Connecticut Avenue, N.W. Suite 700 Washington, D.C. 20036 (202) 454-2809 (202) 330-5610 fax Brad@MarkZaid.com Mark@MarkZaid.com
Attorneys for the Plaintiffs

4

Case 1:17-cv-00597-APM Document 41-3 Filed 11/09/18 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE JAMES MADISON PROJECT, et al.,
Plaintiffs, v.
DEPARTMENT OF JUSTICE, Defendant.
* * * * * * *

* * * * * * * * * * * * * * ORDER

Civil Action No. 17-597 (APM) * * * **

Upon consideration of Plaintiffs’ Memorandum in Opposition to Defendant’s Motion

for Summary Judgment and in Support of Plaintiffs’ Cross-Motion for Partial Summary

Judgment, and the entire record herein, it is this ______ day of _________________

2018, hereby

ORDERED, that plaintiffs’ Cross-Motion is granted; and

ORDERED, that defendant’s Motion is denied in part.

_________________________________________ UNITED STATES DISTRICT JUDGE

 
 Case 1:17-cv-00597-APM Document 5 Filed 04/15/17 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE JAMES MADISON PROJECT

*

1250 Connecticut Avenue, NW

*

Suite 200

*

Washington, D.C. 20036

*

*

and

*

*

BRAD HEATH

*

Gannett Satellite Information Network, LLC *

d/b/a USA TODAY

*

7950 Jones Branch Drive

*

McLean, Virginia 22102

*

*

Plaintiffs,

* Civil Action No. 17-597 (CKK)

*

v.

*

*

DEPARTMENT OF JUSTICE

*

950 Pennsylvania Avenue, NW

*

Washington, D.C. 20530-0001

*

*

Defendant.

*

*

* * * * * * * * * * * *

COMPLAINT

This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et seq.,

as amended, seeking production of records responsive to a request submitted by the plaintiffs

The James Madison Project and Brad Heath to the defendant Department of Justice (as well as its

subordinate entities).

JURISDICTION

1. This Court has both subject matter jurisdiction over this action and personal jurisdiction

over the defendant pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331.

Case 1:17-cv-00597-APM Document 5 Filed 04/15/17 Page 2 of 8
VENUE 2. Venue is appropriate under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391.
PARTIES 3. Plaintiff The James Madison Project (“JMP”) is a non-partisan organization established in 1998 to promote government accountability and the reduction of secrecy, as well as educating the public on issues relating to intelligence and national security. It maintains a website at www.JamesMadisonProject.org. 4. Plaintiff Brad Heath (“Heath”) is an Investigative Reporter for USA TODAY, writing primarily about law and criminal justice, and is a representative of the news media. 5. Defendant Department of Justice (“DOJ”) is an agency within the meaning of 5 U.S.C. § 552 (e), and is in possession and/or control of the records requested by the plaintiffs that are the subject of this action. DOJ controls – and consequently serves as the proper party defendant for litigation purposes for – the Federal Bureau of Investigation (“FBI”) and the DOJ National Security Division (“DOJ NSD”).
FACTUAL BACKGROUND 6. This lawsuit is brought under the Freedom of Information Act (“FOIA”) and seeks the production to the American public of information resolving whether there was an order issued by the Foreign Intelligence Surveillance Court (“FISC”) authorizing surveillance of and/or collection of information implicating President Donald J. Trump (“President Trump”), as well as his campaign and transition team. 7. On March 4, 2017, President Trump sent out a four-part post on Twitter accusing former President Barack Obama’s Administration of a “Nixon/Watergate” effort to “tap” the phones of President Trump and/or his associates during the 2016 presidential campaign. President Trump
2

Case 1:17-cv-00597-APM Document 5 Filed 04/15/17 Page 3 of 8
suggested the surveillance was unlawful. https://www.washingtonpost.com /politics/trumpaccuses-obama-of-nixonwatergate-wiretap--but-offers-no-evidence/2017 /03/04/1ddc35e6-011411e7-8ebe-6e0dbe4f2bca_story.html?hpid=hp_hp-top-table-main_ trumpwiretap-8pm%3A homepage%2Fstory&tid=a_inl&utm_term=.23f02d72f083 (last accessed March 6, 2017).
8. President Trump’s accusations have prompted a series of additional disclosures about intelligence matters related to the 2016 election. The Chairman of the House Permanent Select Committee on Intelligence, Devin Nunes (“Chairman Nunes”), specifically disclosed the existence of surveillance authorized under FISA. https://www.washingtonpost.com /powerpost/house-intelligence-chair-says-its-possible-trumps-communications-wereintercepted/2017/03/22/f45e18ba-0f2d-11e7-9b0d-d27c98455440_story.html?utm_term =.677004ae4431 (last accessed April 3, 2017). Beyond that, FBI Director James Comey has testified that the government’s investigation of possible Russian meddling in the 2016 election includes an examination of “any attempts to coordinate” with President Trump’s campaign. https://www.yahoo.com/news/fbi-director-james-comeys-big-133850143.html (last accessed March 20, 2017); http://www.usatoday.com/story/news/politics/2017/03/20/james-comey-trumpwiretapping-house-intelligence-committee/99382304/ (last accessed March 20, 2017). To the extent the veracity of the President’s allegations has been challenged – Chairman Nunes, for example, has stated that there was never any “physical wiretap” of Trump Tower. https://www.yahoo.com/news/house-intelligence-chief-says-no-031221432.html (last accessed March 20, 2017) – it has only deepened the public’s interest in establishing their truth or falsity.
9. President Trump has called upon Congress to investigate the matter, and has declined to retract his claim. http://www.cnbc.com/2017/03/05/trump-administration-calls-for-probewhether-obama-abused-investigative-authority.html (last accessed March 15, 2017). Press
3

Case 1:17-cv-00597-APM Document 5 Filed 04/15/17 Page 4 of 8
Secretary Sean Spicer has sought to clarify President Trump’s tweets by suggesting that the comments were referencing surveillance in general. http://abcnews.go.com/Politics/spicer-trumptalking-general-surveillance-wiretapping-tweets/story?id=46101282 (last accessed March 20, 2017). President Trump, however, has continued to publicly suggest he was the target of “wiretapping” ordered by the prior administration. http://www.cnn.com/2017/03/17/ politics/donald-trump-angela-merkel/ (last accessed April 3, 2017).
10. Chairman Nunes has publicly stated that a “source” within the intelligence community showed him “dozens” of reports that allegedly reflect incidentally collected communications between members of President Trump’s transition team and foreign targets. Chairman Nunes further stated that the information was based on a FISA warrant. President Trump, in response to those disclosures by Chairman Nunes, stated that he felt that meant his original comments were right. http://www.foxnews.com/politics/2017/03/23/trump-basks-in-nunes-surveillance-news-sothat-means-im-right.html (last accessed April 3, 2017). Later media reports indicated that Chairman Nunes received this information from two White House officials with whom he met on the White House grounds so that he could have access to specific classified systems on which the information resided. http://www.thedailybeast.com /articles/2017/03/30/things-go-from-bad-toworse-for-devin-nunes-and-team-trump.html (last accessed April 3, 2017). Press Secretary Sean Spicer has confirmed that Chairman Nunes reviewed the classified information on the White House grounds. http://www.msn.com/en-ca/news/politics/trump%E2%80%99s-white-housestruggles-to-get-out-from-under-russia-controversy/ar-BBz8CPn (last accessed April 3, 2017).
11. The comments of President Trump and Press Secretary Sean Spicer constitute prior official disclosure of the existence of surveillance orders issued by the FISC and that authorized collection of information that, at a minimum, incidentally implicated President Trump and/or his
4

Case 1:17-cv-00597-APM Document 5 Filed 04/15/17 Page 5 of 8
associates. This lawsuit ultimately will seek to determine the circumstances in which specific surveillance/collection orders were issued by the FISC.
COUNT ONE (FBI) 12. The plaintiffs JMP and Heath (referred to jointly as “the Requesters”) repeat and reallege paragraphs 6 through 10 above, inclusive. 13. By letter dated March 6, 2017, the Requesters submitted to the FBI a FOIA request. 14. The FOIA request specifically sought the following records:
1) A copy of any order(s) by the Foreign Intelligence Surveillance Court (“FISC”) authorizing surveillance of and/or collection of information concerning the Trump Organization, President Trump, President Trump’s campaign for the presidency, or people associated with President Trump;
2) A complete copy of any application(s) to the FISC seeking authorization for surveillance of and/or collection of information concerning the Trump Organization, President Trump, President Trump’s campaign for the presidency, or people associated with President Trump; and
3) A copy of any minimization procedures issued by the FISC and that applied to any order(s) issued that fall within the scope of categories #1 or 2.
15. The Requesters noted that the scope of the search should be construed to include all types of applications for “orders” or “warrants” regarding which the FISC is authorized to issue, including but not limited to, an order authorizing surveillance of an “agent of a foreign power” or an order authorizing the collection of “business records” through Section 215 of the USA Patriot Act. The Requesters stated that the FBI could limit the timeframe of its search from June 1, 2016, up until the date of acceptance of the request.
16. The Requesters pre-emptively asserted that President Trump’s public comments constitute prior official disclosure of the existence of at least one, if not more, FISA warrants. The Requesters argued that as a result they would dispute any legal claim justifying a refusal to
5

Case 1:17-cv-00597-APM Document 5 Filed 04/15/17 Page 6 of 8
confirm or deny the existence or non-existence of responsive records, as well as any legal claim justifying withholdings or redactions based exclusively upon Exemption 1, as implicating classified information. The FOIA request also explained that the Requesters were seeking expedited processing.
17. By letter dated March 20, 2017, the FBI granted expedited processing. The FBI designated the request as Request No. 1368992-000.
18. On April 4, 2017, the Requesters initiated this litigation on behalf of the FBI. At the time of the filing of the Complaint, no substantive response had yet been received by the Requesters from the FBI, and the Requesters had therefore constructively exhausted all required administrative remedies.
19. Approximately six hours after the initiation of this litigation, the FBI issued a response to the Requesters. In that response, the FBI stated that it could not confirm or deny the existence of responsive records, as doing so would trigger harm to national security interests under Exemptions (b)(1) and (b)(3). As this substantive response was issued after the initiation of the litigation, the Requesters are not obligated to file an administrative appeal.
20. The Requesters have a legal right under the FOIA to obtain the information they seek, and there is no legal basis for the denial by the FBI of said right.
COUNT TWO (DOJ NSD) 21. The Requesters repeat and reallege paragraphs 6 through 10 above, inclusive. 22. By letter dated March 6, 2017, the Requesters submitted a FOIA request to DOJ NSD. 23. The Requesters repeat and reallege paragraphs 14 through 16, as the scope of the request and issues such as categorical privacy rights and expedited processing were addressed in similar fashion in the request to DOJ NSD as they were addressed in the request to the FBI.
6

Case 1:17-cv-00597-APM Document 5 Filed 04/15/17 Page 7 of 8
24. By e-mail dated March 17, 2017, DOJ NSD issued a substantive response in which it refused to confirm or deny the existence of responsive records. It designated the request as FOIA/PA #17-094.
25. The Requesters timely filed an administrative appeal. 26. By letter dated April 12, 2017, the DOJ Office of Information Policy denied the Requesters’ appeal. 27. The Requesters have a legal right under the FOIA to obtain the information they seek, and there is no legal basis for the denial by the DOJ NSD of said right. WHEREFORE, plaintiffs The James Madison Project and Brad Heath pray that this Court: (1) Orders the defendant federal agencies to disclose the requested records in their entirety and make copies promptly available to the plaintiffs; (2) Award reasonable costs and attorney’s fees as provided in 5 U.S.C. § 552 (a)(4)(E) and/or 28 U.S.C. § 2412 (d); (3) expedite this action in every way pursuant to 28 U.S.C. § 1657 (a); and (4) grant such other relief as the Court may deem just and proper.
7

Case 1:17-cv-00597-APM Document 5 Filed 04/15/17 Page 8 of 8

Date: April 15, 2017

Respectfully submitted,
/s/ __________________________ Bradley P. Moss, Esq. D.C. Bar #975905 Mark S. Zaid, Esq. D.C. Bar #440532 Mark S. Zaid, P.C. 1250 Connecticut Avenue, N.W., Ste. 200 Washington, D.C. 20036 (202) 454-2809 (202) 330-5610 fax Brad@MarkZaid.com Mark@MarkZaid.com
Attorneys for Plaintiffs

8

 
 Case 1:17-cv-00597 Document 1 Filed 04/04/17 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE JAMES MADISON PROJECT

*

1250 Connecticut Avenue, NW

*

Suite 200

*

Washington, D.C. 20036

*

*

and

*

*

BRAD HEATH

*

Gannett Satellite Information Network, LLC *

d/b/a USA TODAY

*

7950 Jones Branch Drive

*

McLean, Virginia 22102

*

*

Plaintiffs,

* Civil Action No. 17-597

*

v.

*

*

DEPARTMENT OF JUSTICE

*

950 Pennsylvania Avenue, NW

*

Washington, D.C. 20530-0001

*

*

Defendant.

*

*

* * * * * * * * * * * *

COMPLAINT

This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et seq.,

as amended, seeking production of records responsive to a request submitted by the plaintiffs

The James Madison Project and Brad Heath to the defendant Department of Justice (as well as its

subordinate entity).

JURISDICTION

1. This Court has both subject matter jurisdiction over this action and personal jurisdiction

over the defendant pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331.

Case 1:17-cv-00597 Document 1 Filed 04/04/17 Page 2 of 7
VENUE 2. Venue is appropriate under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391.
PARTIES 3. Plaintiff The James Madison Project (“JMP”) is a non-partisan organization established in 1998 to promote government accountability and the reduction of secrecy, as well as educating the public on issues relating to intelligence and national security. It maintains a website at www.JamesMadisonProject.org. 4. Plaintiff Brad Heath (“Heath”) is an Investigative Reporter for USA TODAY, writing primarily about law and criminal justice, and is a representative of the news media. 5. Defendant Department of Justice (“DOJ”) is an agency within the meaning of 5 U.S.C. § 552 (e), and is in possession and/or control of the records requested by the plaintiffs that are the subject of this action. DOJ controls – and consequently serves as the proper party defendant for litigation purposes for – the Federal Bureau of Investigation (“FBI”).
FACTUAL BACKGROUND 6. This lawsuit is brought under the Freedom of Information Act (“FOIA”) and seeks the production to the American public of information resolving whether there was an order issued by the Foreign Intelligence Surveillance Court (“FISC”) authorizing surveillance of and/or collection of information implicating President Donald J. Trump (“President Trump”), as well as his campaign and transition team. 7. On March 4, 2017, President Trump sent out a four-part post on Twitter accusing former President Barack Obama’s Administration of a “Nixon/Watergate” effort to “tap” the phones of President Trump and/or his associates during the 2016 presidential campaign. President Trump suggested the surveillance was unlawful. https://www.washingtonpost.com /politics/trump-
2

Case 1:17-cv-00597 Document 1 Filed 04/04/17 Page 3 of 7
accuses-obama-of-nixonwatergate-wiretap--but-offers-no-evidence/2017 /03/04/1ddc35e6-011411e7-8ebe-6e0dbe4f2bca_story.html?hpid=hp_hp-top-table-main_ trumpwiretap-8pm%3A homepage%2Fstory&tid=a_inl&utm_term=.23f02d72f083 (last accessed March 6, 2017).
8. President Trump’s accusations have prompted a series of additional disclosures about intelligence matters related to the 2016 election. The Chairman of the House Permanent Select Committee on Intelligence, Devin Nunes (“Chairman Nunes”), specifically disclosed the existence of surveillance authorized under FISA. https://www.washingtonpost.com /powerpost/house-intelligence-chair-says-its-possible-trumps-communications-wereintercepted/2017/03/22/f45e18ba-0f2d-11e7-9b0d-d27c98455440_story.html?utm_term =.677004ae4431 (last accessed April 3, 2017). Beyond that, FBI Director James Comey has testified that the government’s investigation of possible Russian meddling in the 2016 election includes an examination of “any attempts to coordinate” with President Trump’s campaign. https://www.yahoo.com/news/fbi-director-james-comeys-big-133850143.html (last accessed March 20, 2017); http://www.usatoday.com/story/news/politics/2017/03/20/james-comey-trumpwiretapping-house-intelligence-committee/99382304/ (last accessed March 20, 2017). To the extent the veracity of the President’s allegations has been challenged – Chairman Nunes, for example, has stated that there was never any “physical wiretap” of Trump Tower. https://www.yahoo.com/news/house-intelligence-chief-says-no-031221432.html (last accessed March 20, 2017) – it has only deepened the public’s interest in establishing their truth or falsity.
9. President Trump has called upon Congress to investigate the matter, and has declined to retract his claim. http://www.cnbc.com/2017/03/05/trump-administration-calls-for-probewhether-obama-abused-investigative-authority.html (last accessed March 15, 2017). Press Secretary Sean Spicer has sought to clarify President Trump’s tweets by suggesting that the
3

Case 1:17-cv-00597 Document 1 Filed 04/04/17 Page 4 of 7
comments were referencing surveillance in general. http://abcnews.go.com/Politics/spicer-trumptalking-general-surveillance-wiretapping-tweets/story?id=46101282 (last accessed March 20, 2017). President Trump, however, has continued to publicly suggest he was the target of “wiretapping” ordered by the prior administration. http://www.cnn.com/2017/03/17/ politics/donald-trump-angela-merkel/ (last accessed April 3, 2017).
10. Chairman Nunes has publicly stated that a “source” within the intelligence community showed him “dozens” of reports that allegedly reflect incidentally collected communications between members of President Trump’s transition team and foreign targets. Chairman Nunes further stated that the information was based on a FISA warrant. President Trump, in response to those disclosures by Chairman Nunes, stated that he felt that meant his original comments were right. http://www.foxnews.com/politics/2017/03/23/trump-basks-in-nunes-surveillance-news-sothat-means-im-right.html (last accessed April 3, 2017). Later media reports indicated that Chairman Nunes received this information from two White House officials with whom he met on the White House grounds so that he could have access to specific classified systems on which the information resided. http://www.thedailybeast.com /articles/2017/03/30/things-go-from-bad-toworse-for-devin-nunes-and-team-trump.html (last accessed April 3, 2017). Press Secretary Sean Spicer has confirmed that Chairman Nunes reviewed the classified information on the White House grounds. http://www.msn.com/en-ca/news/politics/trump%E2%80%99s-white-housestruggles-to-get-out-from-under-russia-controversy/ar-BBz8CPn (last accessed April 3, 2017).
11. The comments of President Trump and Press Secretary Sean Spicer constitute prior official disclosure of the existence of surveillance orders issued by the FISC and that authorized collection of information that, at a minimum, incidentally implicated President Trump and/or his
4

Case 1:17-cv-00597 Document 1 Filed 04/04/17 Page 5 of 7
associates. This lawsuit ultimately will seek to determine the circumstances in which specific surveillance/collection orders were issued by the FISC.
COUNT ONE (FBI) 12. The plaintiffs JMP and Heath (referred to jointly as “the Requesters”) repeat and reallege paragraphs 6 through 10 above, inclusive. 13. By letter dated March 6, 2017, the Requesters submitted to the FBI a FOIA request. 14. The FOIA request specifically sought the following records:
1) A copy of any order(s) by the Foreign Intelligence Surveillance Court (“FISC”) authorizing surveillance of and/or collection of information concerning the Trump Organization, President Trump, President Trump’s campaign for the presidency, or people associated with President Trump;
2) A complete copy of any application(s) to the FISC seeking authorization for surveillance of and/or collection of information concerning the Trump Organization, President Trump, President Trump’s campaign for the presidency, or people associated with President Trump; and
3) A copy of any minimization procedures issued by the FISC and that applied to any order(s) issued that fall within the scope of categories #1 or 2.
15. The Requesters noted that the scope of the search should be construed to include all types of applications for “orders” or “warrants” regarding which the FISC is authorized to issue, including but not limited to, an order authorizing surveillance of an “agent of a foreign power” or an order authorizing the collection of “business records” through Section 215 of the USA Patriot Act. The Requesters stated that the FBI could limit the timeframe of its search from June 1, 2016, up until the date of acceptance of the request.
16. The Requesters pre-emptively asserted that President Trump’s public comments constitute prior official disclosure of the existence of at least one, if not more, FISA warrants. The Requesters argued that as a result they would dispute any legal claim justifying a refusal to
5

Case 1:17-cv-00597 Document 1 Filed 04/04/17 Page 6 of 7
confirm or deny the existence or non-existence of responsive records, as well as any legal claim justifying withholdings or redactions based exclusively upon Exemption 1, as implicating classified information. The FOIA request also explained that the Requesters were seeking expedited processing.
17. By letter dated March 20, 2017, the FBI granted expedited processing. The FBI designated the request as Request No. 1368992-000.
18. To date, no substantive response has been received by the Requesters from the FBI. The Requesters have constructively exhausted all required administrative remedies.
19. The Requesters have a legal right under the FOIA to obtain the information they seek, and there is no legal basis for the denial by the FBI of said right. WHEREFORE, plaintiffs The James Madison Project and Brad Heath pray that this Court:
(1) Orders the defendant federal agency to disclose the requested records in their entirety and make copies promptly available to the plaintiffs;
(2) Award reasonable costs and attorney’s fees as provided in 5 U.S.C. § 552 (a)(4)(E) and/or 28 U.S.C. § 2412 (d);
(3) expedite this action in every way pursuant to 28 U.S.C. § 1657 (a); and (4) grant such other relief as the Court may deem just and proper.
6

Case 1:17-cv-00597 Document 1 Filed 04/04/17 Page 7 of 7

Date: April 4, 2017

Respectfully submitted,
/s/ __________________________ Bradley P. Moss, Esq. D.C. Bar #975905 Mark S. Zaid, Esq. D.C. Bar #440532 Mark S. Zaid, P.C. 1250 Connecticut Avenue, N.W., Ste. 200 Washington, D.C. 20036 (202) 454-2809 (202) 330-5610 fax Brad@MarkZaid.com Mark@MarkZaid.com
Attorneys for Plaintiffs

7

 
 Case 1:17-cv-00597-APM Document 62 Filed 03/03/20 Page 1 of 7

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

THE JAMES MADISON PROJECT, et al., )

)

Plaintiffs,

)

)

v.

)

Case No. 17-cv-00597 (APM)

)

UNITED STATES DEPARTMENT OF

)

JUSTICE,

)

)

Defendant.

)

_________________________________________ )

MEMORANDUM OPINION

At issue in this case are 21 of 412 pages responsive to a Freedom of Information Act

(“FOIA”) request that concerns an application made to the U.S. Foreign Intelligence Surveillance

Court regarding Carter Page. Before the court is Defendant U.S. Department of Justice’s (“DOJ”)

Renewed Motion for Summary Judgment. For the reasons that follow, the court grants

Defendant’s motion.

I.

The relevant facts are set forth in the court’s previous opinion, see Mem. Op. and Order

from July 30, 2019, ECF No. 51 [hereinafter Mem. Op.], so the court only summarizes them here.

In March 2017, Plaintiffs The James Madison Project and Brad Heath submitted a FOIA request

to DOJ for, among other things, orders by or applications to the U.S. Foreign Intelligence

Surveillance Court concerning the Trump Organization, President Trump, President Trump’s

campaign, or people associated with President Trump. See Def.’s Mot. for Summ. J., ECF No. 40

[hereinafter Def.’s Mot.], Def.’s Stmt. of Material Facts, ECF No. 40 at 1–11 [hereinafter Def.’s

Facts], ¶ 1; see also Pls.’ Mot. for Summ. J., ECF No. 41 [hereinafter Pls.’ Mot.], at 2

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(incorporating Defendant’s facts). Defendant released 412 pages, which constituted “all responsive, non-exempt and reasonably segregable information subject to FOIA,” including any Foreign Intelligence Surveillance Act (“FISA”) applications related to Carter Page. See Def.’s Facts ¶ 11; see also Pls.’ Mot. at 2. The released pages were heavily redacted and identified a range of FOIA exemptions to justify the withholdings. See https://vault.fbi.gov/d1-release/d1release (last visited February 24, 2020).
Plaintiffs disputed Defendant’s redaction of 21 of the 412 pages (“the Pages”) based on post-disclosure events. See Pls.’ Mot. at 1. Nearly two months after releasing the 412 pages, the White House issued a Press Release stating that President Trump had “directed the Office of the Director of National Intelligence and the Department of Justice (including the FBI) to provide for the immediate declassification of the following materials: (1) pages 10-12 and 17-34 of the June 2017 application to the FISA court in the matter of Carter W. Page.” See Press Release, White House Press Secretary (Sept. 17, 2018), https://www.whitehouse.gov/briefingsstatements/statement-press-secretary-34/ (last visited February 24, 2020) [hereinafter Press Release]; see also Pls.’ Mot. at 4. Notwithstanding the Press Release, Defendant continued to withhold the Pages pursuant to Exemptions 1, 3, 6, 7(A), 7(C), 7(D), and 7(E). See Def.’s Mot. at 13.
The parties moved for summary judgment. See Def.’s Mot.; Pls.’ Mot. With respect to Exemption 1, Plaintiffs argued that the Press Release reflected a presidential order to declassify the referenced Pages in full. See Pls.’ Mot. at 4. Defendant countered that there had been “no presidential declassification order, and the President has publicly indicated that he is not requiring declassification at this time, much less full disclosure.” See Def.’s Opp’n to Pls.’ Mot., ECF No.
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43 [hereinafter Def.’s Opp’n], at 1.1 Further, Defendant insisted that the Press Release is, “indisputably, a statement from the press secretary, not an order from the President.” Id. at 3.
The court denied both motions for summary judgment, but allowed Defendant to submit a renewed motion and an additional declaration providing information about “(1) the effect, if any, the Press Release and the President’s subsequent tweets (including the meeting referenced in the tweets) had on the classification status of the Pages, and (2) whether the agency is authorized to assert [other Exemptions] to shield portions of the Pages from disclosure.” Mem. Op. at 6. Defendant accepted the court’s invitation, and now pending is Defendant’s Renewed Motion for Summary Judgment. Def.’s Renewed Mot. for Summ. J., ECF No. 52 [hereinafter Def.’s Renewed Mot.].
II. In a FOIA case, “the agency bears the burden of justifying its decision to withhold requested information.” King v. U.S. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). Here, the agency withheld the Pages pursuant to Exemption 1, which protects against disclosures that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant
1 Defendant’s later argument relied on presidential tweets coming four days after the Press Release. The two tweets were as follows:
I met with the DOJ concerning the declassification of various UNREDACTED documents. They agreed to release them but stated that so doing may have a perceived negative impact on the Russia probe. Also, key Allies’ [sic] called to ask not to release. Therefore, the Inspector General . . . has been asked to review these documents on an expedited basis. I believe he will move quickly on this (and hopefully other things which he is looking at). In the end I can always declassify if it proves necessary. Speed is very important to me – and everyone! Donald J. Trump (@realDonald Trump), TWITTER (Sept. 21, 2018, 10:35 AM), https://twitter.com/realdonaldtrump/status/1043146627576258561; Donald J. Trump (@realDonaldTrump), TWITTER (Sept. 21, 2018, 10:41 AM), https://twitter.com/realdonaldtrump/status/1043148165883416576.
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to such Executive order.” 5 U.S.C. § 552(b)(1). Exemption 1 cannot apply to information that has been declassified.
A. In its previous opinion, the court found that the Press Release was ambiguous as to whether it had the effect of a declassification order. Mem. Op. at 4. Recognizing that “[t]he agency bears the burden to show that Exemption 1 applies” and to “dispel any ambiguity,” the court afforded Defendant an opportunity to “establish that the Pages were not declassified in full.” Id. Defendant has now done so. With its renewed motion, Defendant submitted a declaration from G. Bradley Weinsheimer, an Associate Deputy Attorney General in the Office of the Deputy Attorney General (“ODAG”) at the DOJ. Decl. of G. Bradley Weinsheimer, ECF No. 52-1 [hereinafter Weinsheimer Decl.]. In that declaration, Weinsheimer affirms that “[a]fter the press secretary statement was issued, ODAG personnel, including [Weinsheimer], consulted with personnel at the White House about the matters discussed in that statement, including potential declassification of certain documents related to the Carter Page FISA applications and orders,” and “DOJ did not receive at any time a declassification order related to the materials remaining at issue in this case.” Id. ¶ 4; see also id. ¶ 5 (stating that, during the consultations with the White House, the “DOJ was informed that there was no order requiring immediate declassification or disclosure of those documents”). Further, Weinsheimer explains, in May 2019, the President delegated to the Attorney General of the United States the authority to “declassify documents as part of his ongoing review of intelligence activities relating to the campaigns in the 2016 Presidential election and certain related matters,” and to date, “the Attorney General has not exercised that declassification authority over the materials at issue in this case.” Id. ¶ 5.
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After reviewing the Weinsheimer Declaration, the court is satisfied that Defendant has met its burden of establishing that the Press Release from September 17, 2018, did not constitute or reflect a presidential order to declassify the Pages. Accordingly, the Pages were properly withheld pursuant to Exemption 1. See 5 U.S.C. § 552(b)(1).2
B. Plaintiffs try to avoid this conclusion by asserting that the Weinsheimer Declaration fails to explain why the Press Release itself “does not qualify as a declassification order as a matter of law,” Pls.’ Opp’n to Def.’s Renewed Mot., ECF No. 53 [hereinafter Pls.’ Opp’n to Renewed Mot.], at 4, and “does not demonstrate that DOJ received authorized instructions that the [Press Release] had been rescinded or otherwise postponed as a matter of law,” id. at 3 (cleaned up). This argument misses the point. Plaintiffs assume that the Press Release is, in fact, as a declassification order and that it is Defendant’s job to prove otherwise, or alternatively, to prove that the order was rescinded. But the court never held that the Press Release was a declassification order or its equivalent. To the contrary, the court observed that the Press Release’s text “suggests” it might be or “would appear” to be a declassification order or reflect one, but ultimately found the Press Release and the events that followed to be ambiguous. See Mem. Op. at 4–6. For that reason, the court ordered the DOJ to “provide information about [ ] the effect, if any, the Press Release and the President’s subsequent tweets . . . had on the classification status of the Pages.” Id. at 6. DOJ’s declaration now makes clear that the Press Release was not a declassification order.3 See Weinsheimer Decl. Plaintiffs’ protestations to the contrary, which lack any evidentiary support, therefore ring hollow.
2 Except as discussed below, Plaintiffs do not dispute that the withheld material from the Pages satisfies the requirements of Exemption 1. 3 Because the court is satisfied that the DOJ has properly withheld the Pages at issue pursuant to Exemption 1, it need not address whether the DOJ was entitled to withhold the Pages pursuant to any other statutory exemptions. See Def.’s Renewed Mot. at 4–6; Pls.’ Opp’n to Renewed Mot. at 9–10.
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III. In a supplemental filing, Plaintiffs state that the Pages are not the only documents that remain in dispute in this litigation. They write: “[T]he Plaintiffs did not concede the appropriateness of the remainder of the redactions and/or withholdings made by the government with respect to the other 391 pages of the Page FISA warrants.” Pls.’ Resp. to Def.’s Status Report, ECF No. 60. That is news to the court. On October 19, 2018, Defendant filed a comprehensive motion for summary judgment that defended its search; its withholding and redaction of records based on Exemptions 1, 3, 6, 7(A), 7(C), 7(D), and 7(E); and its invocation of a Glomar response as to other records. See generally Def.’s Mot. Plaintiffs opposed Defendant’s motion and filed a partial cross-motion for summary judgment. Pls.’ Mot.; Pls.’ Opp’n to Def.’s Mot. for Summ. J., ECF No. 42 [hereinafter Pls.’ Opp’n]. In their papers, Plaintiffs stated:
Upon review of the Government’s Motion and its supporting sworn declarations, the Plaintiffs have chosen to concede the adequacy of the searches conducted, as well as the Government’s Glomar responses . . . . The Plaintiffs have confined their Cross-Motion for Partial Summary Judgment (“Cross-Motion”), as well as their Memorandum in Opposition to the Defendant’s Motion for Summary Judgment, strictly to the legal appropriateness of the redactions and withholdings made to the documents that have been produced as part of this litigation. Pls.’ Mot. at 1; Pls.’ Opp’n at 1 (same). As a consequence of Plaintiffs having “confined” their arguments, the court wrote in its earlier opinion that “Defendant’s continued redaction of 21 of the 412 pages is the sole contested issue in the parties’ cross-motions for summary judgment.” See Mem. Op. at 2 (emphasis added). Plaintiffs never sought to disabuse the court of the notion that the “sole contested issue” pertained to redaction of the Pages—until now. Thus, it is for the first time in their supplemental filing, submitted after the second round of summary judgment
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briefing closed and permitted by the court only to address new developments, that Plaintiffs suggest that there is more left to resolve in this case. There is not. Plaintiffs had every opportunity to oppose and cross-move as to any and all issues raised in Defendant’s original motion for summary judgment, or as to any other issue they wished. They chose instead to contest only one discrete issue. Plaintiffs cannot now revive what they long ago abandoned. See Hayes v. District of Columbia, 923 F. Supp. 2d 44, 51 (D.D.C. 2013) (treating a claim as conceded when the plaintiff did not “specifically dispute the defendant’s argument” regarding the claim in her opposition); Valles-Hall v. Ctr. For Nonprofit Advancement, 481 F. Supp. 2d 118, 140 (D.D.C. 2007) (deeming abandoned claims not raised by the plaintiff in her revised opposition to the defendant’s summary judgment motion); Brodie v. Burwell, No. 15-322 (JEB), 2016 WL 3248197, at *14 (D.D.C. June 13, 2016) (treating as abandoned a claim that a party only mentions “in passing” in his opposition motion). Therefore, having resolved the sole remaining issue in the second summary judgment motion, the court considers this matter closed.
IV. For the foregoing reasons, the court grants Defendant’s Renewed Motion for Summary Judgment, ECF No. 52, and enters judgment in favor of Defendant. A separate, final order accompanies this Memorandum Opinion.

Dated: March 3, 2020

Amit P. Mehta United States District Court Judge

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