Lindsey v. FBI, No. 16-2032, 2020 WL 5593935 (D.D.C. Sept. 18, 2020) (Kollar-Kotelly, J.)

Lindsey v. FBI, No. 16-2032, 2020 WL 5593935 (D.D.C. Sept. 18, 2020) (Kollar-Kotelly, J.)

Re:  Request for certain records concerning foreign national

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

• Exemption 1:  "[T]he Court finds that Defendant's Glomar response here was justified under FOIA Exemption 1."  The court holds that "[i]t is plausible that either confirming or denying the existence, or non-existence, of any other records responsive to Plaintiff's request, which regards a foreign national, could reasonably be expected to damage intelligence sources and methods by revealing Defendant's investigative interests and priorities, which could be used by foreign intelligence actors in employing counterintelligence measures."  "Moreover, it is plausible that either confirming or denying the existence and/or non-existence of any other records responsive to Plaintiff's request could reasonably be expected to harm foreign relations [because "[defendant] asserts that this information, which includes information relating to confidential sources, 'is sensitive due 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 U.S. and certain foreign governments'"]."  "To the extent that any further justification is necessary, Defendant's Glomar response is 'amply justified by the in camera, ex parte declaration submitted by the FBI.'"
   
• Exemption 3:  "[T]he Court finds that [defendant's] Declaration and [its] In Camera, Ex Parte Declaration . . . have carried Defendant's burden of showing that Exemptions 1 and 3 justify its Glomar response."  The court relates that "Defendant here relies on the National Security Act of 1947 . . ., as amended by the Intelligence Reform and Terrorism Prevention Act of 2004 . . . ."  "Specifically, the NSA exempts 'intelligence sources and methods from unauthorized disclosure.'"  The court finds that " the [defendant's] Declaration provides that '[t]he FBI has found that any records responsive to Plaintiff's request that relate to FBI efforts to investigate threats to national security and/or gather foreign intelligence would, by their nature, be related to FBI intelligence sources and methods.'"  "Furthermore, as detailed above, the Declaration provides additional information regarding the harm that could reasonably be expected to damage intelligence sources and methods."
   
• Exemptions 6 & 7(C):  The court first notes that "[b]ecause Exemption 6 and Exemption 7(C) have different threshold requirements, the Court will consider Defendant’s Glomar response with respect to Exemption 7(C)."  The court first finds that "[defendant's] Declaration provides that 'any FBI records of contact between [the foreign national] and U.S. government officials, should such records exist, would logically be investigative in nature.'"  "This assertion is deserving of deference."  Second, "[t]he Court agrees with Defendant that [the foreign national] has a strong privacy interest here in not being associated with any FBI investigative records, if any such records were to exist."  Third, the court finds that "[p]laintiff has not really explained how public disclosure here would 'contribute significantly to public understanding of the operations or activities of the government.'"  The court relates that plaintiff only specified the "reasoning behind his FOIA request."  "Even if Plaintiff had done so, however, based upon the representations in the declarations submitted by Defendant, the Court finds that the public interest identified by Plaintiff is outweighed here by the particularly strong privacy interests outlined above."
  
  Responding to plaintiff's argument, the court finds that "[w]hile [the foreign national's] statements diminish his privacy interest in some respects, his statements do not diminish his privacy interests in the broad manner that Plaintiff asserts."  "Indeed, any diminishment is narrow:  Assuming that he made these statements to media sources, he stated that he played a role as an intermediary, potentially provided details regarding that role, and that he was detained at the airport and questioned by some law enforcement officials there."  "He does not necessarily, however, admit that he was a subject of investigative interest to the FBI following his detention at the airport or regarding his alleged role as an intermediary."  Additionally, the court finds that "[w]hile [the foreign national] states that he was questioned by the FBI (which, again, is disputed by Defendant here), he does not claim that he was further investigated by the FBI or that he was of investigative interest to the FBI prior to or following his detainment."
   
• Procedural Requirements, "Reasonably Segregable" Obligation:  The court holds that "despite Plaintiff's assertions, 'to the extent the circumstances justify a Glomar response, the agency need not conduct any search for responsive documents or perform any analysis to identify segregable portions of such documents.'"
   
• Litigation Considerations, Adequacy of Search:  First, the court notes that "Defendant issued a second Glomar response as to all records except the acknowledged records recording the January 2003 Dulles Airport incident."  The court finds that "Defendant's narrowed search was not the result of discussions with Plaintiff or a questionable interpretation of Plaintiff's request, . . . but instead a natural outgrowth of its second Glomar response."  "Accordingly, in light of Defendant's justified second Glomar response, this was not too narrow of a search."  Second, "[b]ased on Defendant's submitted declarations, the Court finds that the search conducted was sufficient."  The court finds that "Defendant searched its most comprehensive records systems using search terms related to [the foreign national], and in particular numerous variations on his name."  "It then used additional information from Plaintiff's submissions to determine whether records were responsive to Plaintiff's request."  "Its declaration asserts that it 'conducted a search reasonably calculated to locate records responsive to [the foreign national's] detainment at Dulles International Airport in January 2003.'"
   
• Litigation Considerations, In Camera Inspection:  The court holds that "[i]n camera review is not warranted here."  "Plaintiff 'points to no record evidence of bad faith.'"  Also, because "the agency declarations here described with sufficient detail the justifications for its search methodology, the Court finds that in camera review would be inappropriate here."