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 request made under the Freedom of Information Act (“FOIA”) 

for documents concerning the infamous “Trump Dossier,” a “collection of memoranda prepared 

by former British intelligence operative Christopher Steele during the 2016 presidential election 

concerning then-candidate Donald J. Trump.” James Madison Project 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. Steele. When the FBI failed to timely respond, Judicial Watch filed 

suit. The FBI ultimately refused to confirm or deny the existence 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 requested documents, the Court will 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 dossier on then-candidate Donald 

Trump. James Madison Project, 2018 WL 294530, at *1. The dossier allegedly includes 
2 

“allegations that the government of Russia possesses compromising personal and financial 

information about President Trump.” Id. The question of who commissioned and paid for the 

Trump Dossier has been a subject of much contention in media and political circles. 

On February 28, 2017, the Washington Post reported that the FBI had once intended to 

pay Steele to continue looking into 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 report. 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, employee, or 

representative of the FBI and Steele. 

2. Any and all records regarding, concerning, or related to the proposed, planned, 

or actual payment of any funds to Steele and/or his company Orbis Business 

Intelligence. 

3. Any and all records produced in preparation for, during, or pursuant to any 

meetings or telephonic conversations between any official, employee, or 

representative of the FBI and Steele and/or any employee or representative of 

his company Orbis Business Intelligence. 

Hardy Decl. Ex. A, at 1. 

 When the FBI failed to respond to this request in a timely fashion, Judicial Watch filed 

suit under FOIA against the Department of Justice, the parent agency of the FBI. See Compl. 

¶¶ 7, 11. That same day, on May 16, 2017, the FBI issued a letter 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/politics/fbi-once-planned-to-pay-former-british-spy-whoauthored-controversial-trump-dossier/2017/02/28/896ab470-facc-11e6-9845-

576c69081518_story.html?utm_term=.db8d68d38f3c.
3 

response to Judicial Watch’s request, refusing to confirm or deny the existence of any responsive 

documents on the basis of six separate FOIA exemptions. Hardy Decl. Ex. C, at 1. The parties 

subsequently filed briefs for summary judgment. 

II. Legal Standard 

Congress enacted FOIA “to promote the ‘broad disclosure of Government records’ by 

generally requiring federal agencies to make their records available to the public on request.” 

DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (citation omitted). But Congress also 

recognized that legitimate governmental and privacy interests could 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 narrowly construed, and the agency has the burden of justifying any 

withholding it makes. DiBacco, 795 F.3d at 183–84. 

The courts have also recognized that “[i]n certain cases, merely acknowledging the 

existence of” records responsive to a FOIA request “would itself ‘cause harm cognizable under 

[a] FOIA exception.’” People for the Ethical Treatment of Animals v. NIH (“PETA”), 745 F.3d 

535, 540 (D.C. Cir. 2014) (citation omitted) (second alteration in original). When such situations 

arise, an agency may refuse to 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 within a FOIA exception.” Id. 

(citation omitted). In assessing 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 Soviet 

submarine for U.S. intelligence analysis. PETA, 745 F.3d at 540. 
4 

An agency may not issue a Glomar response, however, if it has already publicly 

acknowledged the existence of the records sought. American Civil Liberties Union v. CIA 

(“ACLU”), 710 F.3d 422, 427 (D.C. Cir. 2013). A plaintiff bears the burden of proving such 

public acknowledgment. Id. To meet this burden, a plaintiff in 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. Circuit’s decision in ACLU). 

III. Analysis 

The FBI has asserted six separate FOIA exemptions that it contends justifies its Glomar

response.3

 Judicial Watch does not challenge the applicability 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 expected to interfere with law enforcement proceedings.” Pl.’s 

Mem. P. & A. Opp’n Def.’s Mot. Summ. J. (“Pl.’s MSJ”) at 5. Even if that were so, at least 

three of the six exemptions asserted—Exemptions 1, 3, and 6—do not require that the release of 

documents would interfere with ongoing investigations. See 5 U.S.C. § 552(b)(1), (3), (6). In 

 

3

 The six exemptions are: Exemption 1 (which protects classified documents), Exemption 

3 (which protects documents exempted from disclosure by certain statutes), Exemption 6 (which 

protects personnel and similar files whose disclosure would constitute an unwarranted invasion 

of personal privacy), Exemption 7(A) (which protects law enforcement records whose disclosure 

would interfere in an ongoing enforcement proceeding), Exemption 7(C) (which protects law 

enforcement records whose disclosure would constitute an unwarranted invasion of personal 

privacy), and Exemption 7(D) (which protects law enforcement records whose disclosure could 

be expected to disclose the identity of a confidential source). Hardy Decl. ¶ 14; see 5 U.S.C. 

§ 552(b). 
5 

any event, the Department has provided a detailed affidavit from an FBI employee that 

sufficiently justifies all of the asserted exemptions. See generally Hardy Decl. 

Instead, Judicial Watch mainly argues that the FBI has publicly acknowledged the 

requested records’ existence, thereby defeating its Glomar response. Pl.’s MSJ at 3–5. As 

evidence of public acknowledgment, Judicial Watch points exclusively to an October 21, 2017 

tweet from President Trump’s personal Twitter account that reads: “Officials behind the now 

discredited ‘Dossier’ plead the Fifth. 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 responsive to its FOIA request. Id. at 4–5.4

As noted, a plaintiff must “pinpoint an agency record that both matches the plaintiff’s 

request and has been publicly and officially acknowledged by the agency.” Moore, 666 F.3d at 

1333. Clearly, this tweet does not publicly and officially acknowledge the existence of any

documents related to the first and third parts of Judicial Watch’s FOIA request—which sought 

records of communication between the FBI and Mr. Steele and records produced in preparation 

for any meetings or conversations between the FBI and Mr. Steele, see Hardy Decl. Ex. A. The 

tweet makes no reference to any meetings or communications between the FBI and Steele. As 

such, it does not constitute a public acknowledgment of the existence of any documents within 

the scope of the first and third parts of Judicial Watch’s request. 

Nor does it constitute an official acknowledgment of any documents within the scope of 

the second part of Judicial Watch’s request, which seeks documents related to “the proposed, 

 

4

 While the public acknowledgment must come from the specific agency the FOIA 

request is made to, the D.C. Circuit has stated that an acknowledgment of records’ existence by a 

parent agency—such as the President as head of the Executive Branch—is imputed to its 

component agencies. See ACLU, 710 F.3d at 429 n.7.
6 

planned, or actual payment of any funds to Mr. Steel and/or Orbis Business Intelligence,” Hardy 

Decl. Ex. A, at 1. Given the Washington Post story that inspired Judicial Watch’s FOIA request, 

the FBI has consistently and reasonably interpreted that request as seeking documents related to 

payments by the FBI to Mr. Steel or his company. See Hardy Decl. ¶¶ 19–21, 41; Def.’s Mem. 

P. & A. Supp. Mot. Summ. J. at 7–8; Def.’s Mem. Opp’n Pl.’s Cross-Mot. Summ. J. at 4–5. 

Judicial Watch has never contested this characterization of its FOIA request before the FBI or in 

this Court. While the President’s tweet could arguably suggest that the FBI has some records 

concerning who paid for the Trump Dossier, it does not acknowledge that there are records that 

the FBI paid for it. Because Judicial Watch must point to a public acknowledgment 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 acknowledgment of the existence of any specific records 

responsive to Judicial Watch’s request (as reasonably construed by the FBI), the FBI’s assertion 

of a Glomar response was appropriate in this case. The Court will therefore grant the 

Department’s motion for summary judgment and deny Judicial Watch’s cross motion. A 

separate Order shall accompany this Memorandum Opinion. 

 

 

 CHRISTOPHER R. COOPER 

 United States District Judge 

Date: February 5, 2018