Property of the People v. DOJ, No. 17-1193, 2018 WL 1912857 (D.D.C. Apr. 23, 2018) (Boasberg, J.)

Property of the People v. DOJ, No. 17-1193, 2018 WL 1912857 (D.D.C. Apr. 23, 2018) (Boasberg, J.)

Re:  Request for records concerning Donald John Trump prior to day he announced his candidacy for president

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

• Exemption 7(C), Glomar:  The court holds that "the Government comes close to justifying its Glomar response but ultimately claims no cigar."  "The Court concludes that it has not yet justified its sweeping Glomar response for two categories of responsive records: (1) non-investigative records related to Donald Trump and (2) records that mention Trump 'in the context of his official capacity as chief executive of specific organizations.'"  For the first category, the court rejects defendant's argument that "[p]laintiffs 'provided no evidence to the FBI that there might be non-law enforcement FBI records on Trump.'"  The court finds that "[t]hat may be so, but for FOIA purposes, it is irrelevant."  "Contrary to Defendant's (uncited) assertions, there is no requirement that Plaintiffs provide evidence that such records exist."  The court also rejects as "conclusory" defendant's argument "that the agency could only locate administrative or personnel files by asking 'every FBI office and the more than 35,000 employees of the FBI to conduct searches for any non-investigative records bearing the name of Donald John Trump.'"  The court also finds that "it is not self-evident that Trump retains a privacy interest in at least certain administrative files."  Regarding the second category of record, the court finds that "[t]he Government . . . never says ["that it has previously released all documents mentioning Trump 'in the context of his official capacity as chief executive of specific organizations'"] expressly, thereby leaving a question of fact as to whether it has processed all such records."  The court relates that "the Government concedes Exemption 7(C) would not apply to ["records relating to Trump's actions in his 'official capacity' as chief executive of a corporation"]."
  
  At the same time, it affirms that Defendant may at least issue a narrow Glomar response as to most law-enforcement records.   "[T]he Court concludes that despite his public position (and celebrity status), Trump has at least some privacy interest in whether his name appears in investigative records from 1946 to 2015."  And as for the public interest, the court finds that "[t]he request here . . . seeks only documents that predate his time in government and thus necessarily cannot ferret out 'secr[et]' actions taken by Trump in his official capacity."  The court finds that "[t]he purpose of FOIA, after all, is 'to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny,' . . . ; it is not to play up palace intrigue."
   
• Waiver & Exemption 7(C), Glomar:  Concerning plaintiffs' waiver argument, "[t]he Court . . . holds that the FBI has waived its Glomar response only with respect to those exact records previously released."  The court finds that "the only publicly available information is that the FBI has certain, previously released records about Trump."  "The 'specific information at issue,' . . . is whether the FBI might have 'additional records about Mr. Trump.'"  "The public hasn't a clue on that question, and the Bureau is entitled to keep the answer a secret."