UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC. , Plaintiff,

v. U.S. DEPARTMENT OF JUSTICE , Defendant. Case No. 17-cv-0916 (CRC)

MEMORANDUM OPINION This case involves another requ est made under the Freedom of In formation Act (“FOIA”) for documents concerning the infam ous “Trump Dossier,” a “colle ction of memoranda prepared by former British intelligence ope rative Christopher Steele dur ing the 2016 presidential election concerning then-candidate Donald J. Trump.” James Madison Proj ect v. Dep’t of Justice, 2018 WL 294530, at *1 (D.D.C. Jan. 4, 2018), appeal docketed (Jan. 25, 2018). Judicial Watch, Inc. submitted a FOIA request to the Federal Bureau of Investigation for documents related to the FBI’s relationship with Mr. Steel e. When the FBI failed to tim ely respond, Judicial Watch filed suit. The FBI ultimately refused t o confirm or deny the existe nce of any such documents, issuing a so-called “ Glomar response.” Both parties have now moved for summary judgment. Because the FBI’s Glomar response was proper and Judicial Watch has failed to carry its burden to show public acknowledgment of the re quested documents, the Court wil l grant the Department’s motion and deny Judicial Watch’s.

I. Background As reported extensively by the media, during the 2016 election former British intelligence operative Christopher Steele compiled a 35-page do ssier on then-candidate Donald Trump. James Madison Projec t, 2018 WL 294530, at *1. The doss ier allegedly includes2 “allegations that the government of Russia possesses compromisi ng personal and financial information about President Trump.” Id. The question of who c ommissioned and paid for the Trump Dossier has been a subjec t of much contention in media an d political circles. On February 28, 2017, the Washington Post reported that the FB I had once intended to pay Steele to continue looking int o ties between then-candidate Trump and the Russian government. 1 The story concluded that the FBI did not pay Steele and noted that the FBI declined to comment on the repor t. Eight days later, on March 8, 2017, plaintiff Judicial Watch, Inc. filed a FOIA request with the FBI seeking three categories of documents related to the Post story: 1. Any and all records of communication between any official, empl oyee, or representative of t he FBI and Steele.
2. Any and all records regarding, con cerning, or related to the pr oposed, planned, or actual payment of any funds to Steele and/or his company Orb is Business Intelligence.
3. Any and all records produced in preparation for, during, or pur suant to any meetings or telephonic conversati ons between any official, empl oyee, or representative of the FBI and Steele and/or any employee or rep resentative of his company Orbis Business Intelligence. Hardy Decl. Ex. A, at 1. When the FBI failed to respond t o this request in a timely fas hion, Judicial Watch filed suit under FOIA against the Depar tment of Justice, the parent a gency of the FBI. See Compl. ¶¶ 7, 11. That same day, on May 16, 2017, the FBI issued a let ter that asserted a Glomar

1 See Tom Hamburger & Rosalind S. Helderman, FBI Once Planned to Pay Former British Spy who Authored Controversial Trump Dossier , Wash. Post (Feb. 28, 2017), https://www.washingtonpost.com/po litics/fbi-once-planned-to-pay -former-british-spy-whoauthored-controversial-trump-dossier/2017/02/28/896ab470-facc-1 1e6-9845- 576c69081518_story.html?utm_term=.db8d68d38f3c.3 response to Judicial Watch’s req uest, refusing to confirm or de ny the existence of any responsive documents on the basis of six sep arate FOIA exemptions. Hardy Decl. Ex. C, at 1. The parties subsequently filed briefs for summary judgment.

II. Legal Standard Congress enacted FOIA “to promot e the ‘broad disclosure of Gove rnment records’ by generally requiring federal agenc ies to make thei r records avai lable to the public on request.” DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (citat ion omitted). But Congress also recognized that legitimate govern mental and priv acy interests c ould be harmed by the release of documents and thus carved out nine exemptions from FOIA’s reach . See 5 U.S.C. § 552(b). These exemptions are to be narro wly construed, and the agency h as the burden of justifying any withholding it makes. DiBacco, 795 F.3d at 183–84. The courts have also recognized t hat “[i]n certain cases, merel y acknowledging the existence of” records responsiv e to a FOIA request “would itsel f ‘cause harm cognizable under [a] FOIA exception.’” People for the Ethical Treatment of Anim als v. NIH (“PETA”), 745 F.3d 535, 540 (D.C. Cir. 2014) (citation o mitted) (second alteration in original). When such situations arise, an agency may refuse t o confirm or deny the existence of any responsive records by issuing what is known as a “ Glomar response.” Id. 2 A Glomar response is appropriate “if the fact of the existence or nonexistence of agency records falls w ithin a FOIA exception.” Id. (citation omitted). In as sessing the validity of a Glomar response, the Court can rely on agency affidavits. Id.

2 This name is derived from the CIA’s refusal to confirm or deny records related to the Hughes Glomar Explorer , a ship used in a classified CIA project to raise a sunken Sov iet submarine for U.S. intelligence analysis. PETA, 745 F.3d at 54 0.4 An agency may not issue a Glomar response, however, if it has already publicly acknowledged the existence of t he records sought. American Civ il Liberties Union v. CIA (“ACLU”), 710 F.3d 422, 427 (D.C. Cir . 2013). A plaintiff bear s the burden of proving such public acknowledgment. Id. To meet this burden, a plaintiff i n a Glomar case “must pinpoint an agency record that both matches the plaintiff’s request and has been publicly and officially acknowledged by the agency.” Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011); see also James Madison Project, 2018 WL 294530, at **5–6 (continuing to apply this specificity requirement after the D.C. C ircuit’s decision in ACLU).

III. Analysis The FBI has asserted six separat e FOIA exemptions that it conte nds justifies its Glomar
response. 3 Judicial Watch does not challe nge the applic ability of any of these exemptions, except for a brief argument that the Department has failed to “ demonstrate the production of the records could reasonably be expect ed to interfere with law enfo rcement proceedings.” Pl.’s Mem. P. & A. Opp’n Def.’s Mot. S umm. J. (“Pl.’s MSJ”) at 5. Ev en if that were so, at least three of the six exempti ons asserted—Exemptions 1, 3, and 6—do not require that the release of documents would interfere wit h ongoing investigations. See 5 U .S.C. § 552(b)(1), (3), (6). In

3 The six exemptions are: Exemp tion 1 (which protects classified documents), Exemption 3 (which protects documents exempted from disclosure by certain statutes), Exemption 6 (which protects personnel and similar f iles whose disclosure would con stitute an unwarranted invasion of personal privacy), Exemption 7( A) (which protects law enforc ement records whose disclosure would interfere in an ongoing enf orcement proceeding), Exemptio n 7(C) (which protects law enforcement records whose disclosure would constitute an unwarr anted invasion of personal privacy), and Exemption 7(D) (wh ich protects law enforcement re cords whose disclosure could be expected to disclose the ident ity of a confidential source). Hardy Decl. ¶ 14; see 5 U.S.C. § 552(b).5 any event, the Department has pr ovided a detailed affidavit fro m an FBI employee that sufficiently justifies all of t he asserted exemptions. See gen erally Hardy Decl. Instead, Judicial Watch mainly a rgues that the FBI has publicly acknowledged the requested records’ existen ce, thereby defeating its Glomar response. Pl.’s MSJ at 3–5. As evidence of public acknowledgment, Judicial Watch points exclus ively to an October 21, 2017 tweet from President Trump’s pe rsonal Twitter account that read s: “Officials behind the now discredited ‘Dossier’ plead the F ifth. Justice Department and/ or FBI should immediately release who paid for it.” Pl.’s MSJ at 4. Judicial Watch argues that this tweet acknowledged the existence of records responsiv e to its FOIA request. Id. at 4– 5. 4 As noted, a plaintiff must “pinpo int an agency record that both matches the plaintiff’s request and has been publicly a nd officially acknowledged by th e agency.” Moore, 666 F.3d at 1333. Clearly, this tweet does not publicly and officially ack nowledge the existence of any documents related to the first a nd third parts of Judicial Watc h’s FOIA request—which sought records of communication betwee n the FBI and Mr. Steele and rec ords produced in preparation for any meetings or conversati ons between the FBI and Mr. Steel e, see Hardy Decl. Ex. A. The tweet makes no reference to any meetings or communications betw een the FBI and Steele. As such, it does not constitute a publ ic acknowledgment of the exi stence of any documents within the scope of the first and third p arts of Judicial Watch’s requ est. Nor does it constitute an offi cial acknowledgment of any docume nts within the scope of the second part of Judicial Watch ’s request, which seeks docume nts related to “the proposed,

4 While the public acknowledgmen t must come from the specific ag ency the FOIA request is made to, the D.C. Circu it has stated that an acknowl edgment of records’ existence by a parent agency—such as the Presid ent as head of the Executive Br anch—is imputed to its component agencies. See ACLU, 710 F.3d at 429 n.7.6 planned, or actual payment of a ny funds to Mr. Steel and/or Orb is Business Intelligence,” Hardy Decl. Ex. A, at 1. Given the Washington Post story that inspired Judic ial Watch’s FOIA request, the FBI has consistently and reas onably interpret ed that reques t as seeking documents related to payments by the FBI to Mr. Steel or his compa ny. See Hardy Decl. ¶¶ 19–21, 41; De f.’s Mem. P. & A. Supp. Mot. Summ. J. at 7–8; Def.’s Mem. Opp’n Pl.’s Cro ss-Mot. Summ. J. at 4–5. Judicial Watch has never contes ted this characterization of its FOIA request before the FBI or in this Court. While the President ’s tweet could arguably suggestthat the FBI has some records concerning who paid for the Trump Dossier, it does not acknowle dge that there are records that
the FBI paid for it. Because Judicial W atch must point to a public ac knowledgment of the specific records it seeks, see, e.g., Moore, 666 F.3d at 1333, this tweet is insufficient to constitute public acknowledgment. Since there has been no public ack nowledgment of the existence of any specific records responsive to Judicial Watch’s r equest (as reasonably construed by the FBI), the FBI’s assertion of a Glomar response was appropriate in this case. The Court will therefo re grant the Department’s motion for summa ry judgment and deny Judicial Watc h’s cross motion. A separate Order shall accom pany this Memorandum Opinion.

CHRISTOPHER R. COOPER United States District Judge Date: February 5, 2018