Buzzfeed, Inc. v. DOJ, No. 17-0900, 2018 WL 4623035 (D.D.C. Sept. 26, 2018) (Jackson, J.)

Buzzfeed, Inc. v. DOJ, No. 17-0900, 2018 WL 4623035 (D.D.C. Sept. 26, 2018) (Jackson, J.)

Re:  Request for records concerning aerial surveillance program

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Exemption 7(A), Glomar:  "[T]he Court finds, based upon its review of both the public and the classified declarations, that the FBI has supplied sufficient information to support its claim that revealing whether or not records exist 'could reasonably be expected to interfere with enforcement proceedings.'"  The court relates that "the FBI argues that acknowledging the existence of responsive records would mean revealing its ownership and use of the aircraft in particular locations."  The court finds that "[t]his would enable individuals involved in criminal activity to track planes, learn where the FBI is conducting an investigation, and alter their behavior to avoid detection or interrupt or impede ongoing law enforcement investigations."  "And denying the existence of records could signal to criminals that certain planes are not FBI planes and certain routes are free from FBI surveillance."
   
• Exemption 7(E), Glomar:  "The Court agrees with the agency ["that the FBI has plainly established the applicability of Exemption 7(E)"].  The court finds that "[p]ublic awareness that the FBI uses airplanes, or even, press speculation that certain planes are FBI planes, is not the same as, and does not give rise to the same risk as, the FBI's own confirmation of its use of specific aircraft, and that admission would be inherent in confirming the existence of records responsive to plaintiffs' request."  "The declarations provided by the FBI 'demonstrate logically' why confirming the existence of responsive records poses a risk of circumvention of the law."
   
• Waiver:  "Based on the Court's review of the full record, plaintiffs have not met [the] burden [of "point[ing] to a record in the public domain in which the FBI, or a related agency within DOJ, acknowledged the existence of 'flight logs' and 'evidence logs' in connection with the specific twenty-seven planes listed in the FOIA reques"]."