Leopold v. DOJ, No. 16-1827, 2018 WL 1384124 (D.D.C. Mar. 19, 2018) (Howell, C. J.)

Leopold v. DOJ, No. 16-1827, 2018 WL 1384124 (D.D.C. Mar. 19, 2018) (Howell, C. J.)

Re: Requests for "'how'" FBI and Secret Service "'referenced or discussed internally'" two statements made in July and August 2016 by then-Republican presidential candidate Donald Trump, and third statement made in July 2016 by New Hampshire state legislator

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

• Procedural Requirements, Searching for Responsive Records:  The court holds that "the FBI reasonably interpreted the Russia Reward Request."  The court explains that, "[i]n the plaintiffs' view, the FBI's interpretation of the Russia Reward Request was too narrow since the reference in the request to 'investigative files' was prefaced by the word 'including,' and thereby indicated that the 'request was not limited solely to investigative files and thus would include records beyond Special Counsel Muller's [sic] investigative files.'"  "The FBI does not dispute that, 'taken literally and divorced from context, the plain text of these requests, standing alone, would call for non-investigative records (to the extent they exist).'"  "Yet, the FBI has credibly explained that such a literal construction of this request 'as seeking more than law enforcement records' would be 'overly broad, unduly burdensome, and inadequate to describe the records sought,' such that the FBI 'would have been unable to craft a reasonable search for such non-investigative records.'"  Notably, the court relates that "subject matter experts from the National Security and Cyber Law Branch . . . of the FBI's Office of General Counsel . . ., 'who were already familiar with the relevant records,' . . . were called upon to conduct a 'manual search and review of the entirety of the relevant investigative files' before 'confirm[ing]' that all responsive records were now part of the Special Counsel's investigation[.]"  "Moreover, the plaintiffs' suggested non-exhaustive list of potential locations for searches illustrates the broad scope of the request as to non-investigative records without providing 'a sufficient description of the records sought to permit a search.'"
   
• Exemption 7(A):  The court holds that, "[i]n this case, the FBI has amply established that the investigative materials now part of the Special Counsel's investigation were 'compiled for law enforcement purposes,' . . . and are 'part of an active, ongoing counterintelligence investigation,' . . . such that production of these records 'could reasonably be expected to interfere with enforcement proceedings[.]'"  "As the agency's declarant explains, disclosure of any specific records 'would reveal non-public information about the nature and scope of the pending investigation, the extent to and manner in which the comment fit within (or was deemed irrelevant to) the larger investigation as a whole (if at all), the relative significance of the comment (or lack thereof) to the investigation, and so on.'"  Responding to plaintiff's argument, the court finds that, "[i]n this case, the FBI has provided a sufficient explanation . . . to render the categorical withholding permissible."  Specifically, the court relates that "[t]he agency then withheld records 'on a categorical basis,' . . . because even a Vaughn index or other precise description of the records being withheld would 'reveal non-public information about the targets and scope of the investigation' which 'could reasonably be expected to' interfere with it[.]"  "In lieu of specific information about each withheld record, the agency describes for each type of responsive record, how disclosure could interfere with the Special Counsel's investigation and any prospective enforcement proceedings."
   
• Exemption 7(A), Glomar:  The court holds that "the FBI properly issued a Glomar response[.]"  The court finds that "[t]he agency affidavit sufficiently explains why disclosure of the Glomar fact would result in the type of harm Exemption 7(A) protects against."  "Specifically, requiring the FBI to respond to the Second Amendment Request with a substantive report would effectively reveal whether or not the agency instituted an investigation of then-candidate Trump's 'Second Amendment people' comment, which 'some interpreted as [ ] threatening another presidential candidate.'"  The court further explains that, "[i]f an investigation related to then-candidate Trump's 'Second Amendment people' statement did exist, any confirmation in response to the plaintiffs' FOIA request 'could reasonably be expected to interfere with enforcement proceedings,' . . . because disclosure 'would tip off subjects and persons of investigative interest, thus giving them the opportunity to take defensive actions to conceal their criminal activities, elude detection, and suppress and/or fabricate evidence.'"  "'It would also expose any potential witnesses or sources to harassment, intimidation, or coercion.'"
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "the Secret Service properly withheld the disputed records."  The court relates that "defendants explain that the Exemption 5 withholdings . . . cover 'pre-decisional deliberations between subordinates and supervisors regarding how to respond (if [a]t all) to media inquiries concerning the public comments that are the subject of Plaintiffs' Second Amendment request.'"  "Similarly, the defendants explain that the redactions on the remaining disputed pages 'protect the deliberative process that was used to determine what particular course of criminal investigative or protective action, if any, was to be taken in response to the public comments that were the subject of both of Plaintiffs' FOIA requests,' and similarly 'contain the pre-decisional opinions and thoughts of a variety of Secret Service employees . . . about how the Secret Service should respond (if at all) to potential threats or perceived threats to Secret Service protectees,' which opinions and thoughts 'played a part in the process by which specific decisions were made' in response."  The court finds that "[r]eview of the redacted text on each of those pages confirms that this material is indeed pre-decisional and deliberative, and protected from disclosure under Exemption 5."  Additionally, the court finds that, "[w]hile some of the redacted material is '"factual" in form,' the D.C. Circuit has held that Exemption 5 is nonetheless applicable if that material 'reflect[s] an agency's preliminary positions or ruminations about how to exercise discretion on some policy matter' or would 'reveal an agency's or official's mode of formulating or exercising policy-implicating judgment,' . . . and the redacted material meets that standard."
   
• Exemption 7(E):  The court holds that "the Secret Service has adequately explained the disputed redactions under . . . Exemption 7(E)."  The court relates that "[t]he Secret Service explains that the material redacted under Exemption 7(E) . . . 'relate[s] to certain specific techniques that the Secret Service uses in order to both detect and investigate potentially threatening comments,' as well as 'internal analysis,' the release of which 'would reveal the techniques used' for threat assessment."  "According to the agency, release of the information 'would offer would-be violators of the law a powerful road map,' . . . which 'would enable the targets of those methods and techniques to avoid detention and to develop countermeasures against the Secret Service's use of such methods and procedures[.]'"  The court finds that "[t]his explanation 'demonstrate[s] logically how the release of th[at] requested information might create a risk of circumvention of the law.'"