ACLU of Mass. v. CIA, No. 22-11532, 2023 WL 3394485 (D. Mass. May 11, 2023) (Casper, J.)

ACLU of Mass. v. CIA, No. 22-11532, 2023 WL 3394485 (D. Mass. May 11, 2023) (Casper, J.)

Re:  Request for records concerning alleged standing order issued by former President Donald J. Trump regarding declassification of documents

Disposition:  Denying defendants’ motion for summary judgment; granting plaintiff’s cross-motion for summary judgment to extent it seeks to have defendants confirm or deny existence of records responsive to plaintiff’s FOIA requests

• Exemption 7, Threshold; Exemption 7(A); Waiver and Discretionary Disclosure, Waiver:  The court relates that “[plaintiff] challenges the propriety of Defendants’ Glomar responses and the substance of [the FBI’s] affidavit through three inter-related arguments:  (1) Defendants have not shown that they compiled the requested records for law enforcement purposes; (2) Defendants’ have not shown that disclosure of the existence or nonexistence of the Alleged Declassification Standing Order and other responsive documents is reasonably likely to interfere with enforcement proceedings; and (3) the existence of responsive records has been officially acknowledged by Trump.”  The court relates that “Defendants [CIA, the Office of the Director of National Intelligence (“ODNI”), DOD, and NSA] responded to the requests outside the statutory timeframe, by issuing Glomar responses based upon the FBI’s determination, made in consultation with Special Counsel Smith’s office, that confirming or denying the existence of responsive records could reasonably be expected to interfere with the FBI's criminal investigation.”
  
  Regarding Exemption 7’s threshold, the court relates that “[f]irst, [plaintiff] argues that, to the extent the Alleged Declassification Standing Order exists, it would have been a document of an inherently public nature and that no FOIA exemption ‘would have applied to the alleged order prior to the FBI’s initiating its investigation after the end of the Trump Administration.’”  “But [plaintiff] has not proffered any caselaw to suggest that an otherwise public document cannot become subject to the FOIA’s protection because of its eventual relevance to a law enforcement investigation or proceeding.”  “Second, [plaintiff] argues that [the FBI’s] explanation is insufficient because the FBI is not a defendant in this matter and [plaintiff] never requested documents from the FBI.”  “In other words, [plaintiff] argues that ‘the law does not say that pre-existing public records held by other agencies must vanish merely because they become of interest to the FBI, and [the] ACLUM has not sought any information from the files of the FBI itself.’”  “It proceeds to argue that there is no evidence in the record that any Defendant compiled the requested records for a law enforcement purpose; rather, to the extent any responsive records exist, those records were merely transmitted from the Executive Office of the President of the United States to the respective Defendant.”  “Furthermore, [plaintiff] argues that there is no evidence that any responsive records are ‘connected to any law enforcement purpose of ODNI, CIA, DoD, or NSA, or that these entities have any law enforcement duties relevant to this case.’”  “Finally, it argues that ‘[i]f this document exists and resides with multiple agencies, and if those agencies acquired it for reasons having nothing to do with [the] FBI’s law enforcement investigation, then those agencies’ possession of that document has nothing to do with the FBI’s law enforcement purpose’ and that, should the Court grant Defendants’ motion, it would grant the FBI the power to ‘erase a public document residing in the files of other departments or agencies simply by making a unilateral decision to open an investigation or to collect a copy of the document for an investigation,’ a ‘power [that] could easily be abused (including by future presidential administrations), and would be antithetical to the purpose of the statute.’”  The court considers the language of Exemption 7(A) and finds that “[t]his language does not appear to require the receiving agency to be the same agency that compiled the information for law enforcement purposes; rather, it requires that the information be compiled for law enforcement purposes.”  “This reading of the statutory language also appears consistent with the broader statutory framework, because the FOIA explicitly envisions consultation with non-party agencies.”  “As ‘[t]he principal purpose of Exemption 7(A) is to prevent disclosures which might prematurely reveal the government’s cases in court, its evidence and strategies, or the nature, scope, direction, and focus of its investigations, and thereby enable suspects to establish defenses or fraudulent alibis or to destroy or alter evidence,’ . . . [plaintiff’s] interpretation of the statute would appear ‘nonfunctional’ and limit Exemption 7’s ‘meaningful reach and application’ because any requester could bypass its application by submitting its request to certain agencies and not others.”  “At this juncture given the Glomar responses, however, even assuming arguendo that the FBI compiled the records for law enforcement purposes and the invocation of Exemption 7 by the Defendants on behalf of the FBI is proper, Defendants have not shown that merely confirming or denying the existence of the Alleged Declassification Standing Order and the other responsive documents is likely to interfere with law enforcement proceedings.”
  
  Regarding Exemption 7(A) specifically, the court relates that “Defendants submitted [the FBI’s] affidavit to justify their invocation of Exemption 7(A).”  “Of the eighteen paragraphs in [the FBI’s] affidavit, only one paragraph addresses how Defendants’ disclosure of the existence or nonexistence of the Alleged Declassification Standing Order could reasonably be expected to interfere with the FBI’s investigation and enforcement proceedings:  ‘If evidence regarding the existence or nonexistence of the “Alleged Declassification Standing Order” were disclosed at this stage of the FBI’s investigation, such a disclosure could reasonably be expected to hamper and interfere with the pending investigation.’”  “‘This is because confirmation or denial of whether CIA, ODNI, DoD, and/or NSA has the “Alleged Declassification Standing Order,” or documents that establish its existence, would disclose facts gathered during the course of the pending investigation that might lead persons of interest to alter their testimony; destroy, adulterate, or fabricate evidence; or refuse to cooperate with the government altogether.’”  “‘Any testimony gathered after the disclosure could thus be tainted, since each person the FBI interviewed thereafter would have the opportunity to mold his or her statements in light of the prematurely disclosed evidence.’”  “‘More than that, confirmation or denial of the existence or non-existence of responsive records would provide those intent on interfering with the investigation additional pieces of information necessary to target their behaviors to maximize the effect of any efforts to undermine the investigation.’”  “‘This, in turn, reasonably could be expected to severely hamper the FBI’s ability to ascertain the truth and, assuming there was a violation of the law, for the matter to be successfully prosecuted.’”  The court finds that “[s]uch explanation does not satisfy Defendants’ burden, particularly given the entirety of the record here.”  The court specifically notes that “[t]hree agencies – namely, the DHS, [the National Geospatial-Intelligence Agency (‘NGA’)], and [the National Reconnaissance Office (‘NRO’)] – already have responded to [plaintiff’s] FOIA requests and stated that they do not have any responsive records.”  “[The FBI’s] affidavit is silent as to how additional confirmation from Defendants would lead to any interference with the FBI’s investigation, where multiple other agencies have already disclosed the non-existence of responsive records in their respective possession.”  “[The FBI’s] affidavit is also silent as to whether any of the alleged interference or harm has already occurred in light of the DHS’s, NGA’s, and NRO’s disclosures.”  “While it is certainly true that ‘a third party agency’s disclosures cannot waive the asserting agency’s right to a Glomar response, . . . such disclosures may well shift the factual groundwork upon which a district court assesses the merits of such a response.’”  “The only response Defendants offer comes not in [the FBI’s] affidavit, but in their brief where they argue the DHS’s, NGA’s, and NRO’s disclosures are ‘without moment because [they do] not affect the harm to the investigation that would occur by revealing that any of Defendant agencies does or does not have records responsive to Plaintiff’s request.’”  “They go on to argue that any response from Defendants ‘would be significantly more informative—and therefore damaging to the investigation—than the isolated responses [the ACLUM] has received’ because Defendants comprise the head and majority of the intelligence community.”  “Even on this score, however, the NGA, NRO, and two elements of the DHS, the Office of Intelligence and Analysis and the U.S. Coast Guard Intelligence, are members of this intelligence community and the NGA, NRO, and DHS have already responded to [plaintiff’s] FOIA request without invoking Glomar or Exemption 7(A).”  “Defendants have proffered no reason as to why responses from these members of the intelligence community would be any less informative than responses from Defendants.”  “Defendants also emphasize that Defendants here include the head of the intelligence community, the ODNI, and the Department of Defense, where nine organizations of the intelligence community reside.”  “But there is no explanation as to why it must be an all-or-nothing approach.”  “In other words, if the potential harm is that the ODNI’s and DOD’s disclosure would be more informative than the disclosure of the DHS, NGA, and NRO, there is no explanation as to why the invocation of Glomar and Exemption 7(A) by certain other Defendants, like the CIA, is proper, especially where certain members of the intelligence community have already responded to [plaintiff’s] request.”  “Ultimately, the DHS’s, NGA’s, and NRO’s disclosures make Defendants’ and the FBI’s invocation of Glomar and Exemption 7(A) less logical or plausible, because the FBI never claimed that these disclosures interfered with its investigation.” 
  
  “Moreover, not only did the DHS, NGA, and NRO state that they do not have responsive records, but over a dozen former top Trump administration officials have denied the existence of the Alleged Declassification Standing Order.”  “These denials were issued publicly and to national news outlets, so to the extent the FBI is concerned that additional confirmation or denial from Defendants ‘might lead persons of interest to alter their testimony; destroy, adulterate, or fabricate evidence; . . . refuse to cooperate with the government altogether; . . . [or] to mold his or her statements in light of the prematurely disclosed evidence[;] . . . [or] provide those intent on interfering with the investigation additional pieces of information necessary to target their behaviors to maximize the effect of any efforts to undermine the investigation,’ it appears that such persons would already have access to that information.”  “Moreover, to the extent responsive records do exist, Trump has already asserted that the Alleged Declassification Standing Order exists on national television, a forum where such persons were likely to hear it.”  “Along these lines, it is not only Defendants and the FBI that have knowledge as to whether the order and other responsive records exist; that knowledge is also in Trump’s possession.”  “This further undermines Defendants’ invocation of Exemption 7(A) for their Glomar responses.”  The court finds that “[the FBI’s] affidavit offers no explanation as to how Defendants’ confirmation or denial of the existence or non-existence of responsive records would interfere with the FBI’s investigation where multiple other agencies (including members of the intelligence community), multiple, former Trump administration officials, and Trump himself have issued public statements on the subject.”  “Without such an explanation and in light of this contradictory evidence, the Court cannot conclude that Defendants’ invocation of Exemption 7(A) for their Glomar responses was logical or plausible.”