Cable News Network, Inc. v. FBI, No. 17-1167, 2019 WL 2408644 (D.D.C. June 7, 2019) (Boasberg, J.)

Cable News Network, Inc. v. FBI, No. 17-1167, 2019 WL 2408644 (D.D.C. June 7, 2019) (Boasberg, J.)

Re:  Request for "Comey Memos"

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's cross-motion for summary judgment

• Exemption 3:  "The Court will sustain Defendant’s withholdings here."  The court relates that "[a]s its statutory basis for withholding here, the FBI rests on Section 102A(i)(1) of the National Security Act of 1947, codified at 50 U.S.C. § 3024(i)(1)[,]" "which provides that '[t]he Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure,' id., 'prohibit[s]' the disclosure of the redacted information and thus 'leaves no discretion' to the Bureau."  "Having reviewed both the Government's rationale and the unredacted Memos, the Court concludes that the FBI has met its minimal burden.  At issue here are several redactions whose disclosure – as described in the Bureau's publicly filed affidavit – would reveal whether the FBI used information from 'confidential intelligence sources' and the 'reliability of that information,' as well as the Bureau's possible reliance on particular intelligence methods to gather other material."  Responding to plaintiff's objection, the court finds that "the 'National Security Act does not require the [agency] to find that disclosure of the information would be expected to harm national security.'"  "All that is necessary is that 'the withheld material relates to intelligence sources and methods.'"
   
• Exemption 1:  First, regarding "redactions concern[ing] Comey's recounting of a conversation with President Trump concerning former National Security Advisor Michael Flynn[,]" the court finds that "the Bureau has provided no line of reasoning linking the disclosure of these redactions to any harm to the United States' relations with a foreign country or leader and a consequent harm to national security."  "The redacted information, the FBI says, contains '[r]eferences to foreign countries or foreign leaders that reflect the relative importance attached by the President to contacts from one over another.'"  The court credits plaintiff's argument that "in this case, the released information makes clear that [the] redactions . . . reference only positive interactions with the United States' foreign partners."  However, the court also finds that "the deficiency evident in Defendant's declaration does not extend to [one] redaction . . . ."  "Given the statement and context, the Court has no trouble following the link offered by the FBI between disclosure and harm to national security."  "Although Plaintiff points out that 'President Trump has insulted any number of foreign countries and leaders using far sharper language,' . . . that does not diminish the logical likelihood that an additional statement could cause additional harm."  "The plausible connection is evident."
  
  Second, "[t]he Court will . . . permit the FBI to keep secret the text that lies beneath redaction 20."  The court relates that "the redacted sentence contains 'a reference about the President's observation about responding to a question he was asked about Russian President Putin.'"  "[T]his information garnered the higher 'Secret' classification."  "The FBI determined, therefore, that its disclosure could be expected to cause 'serious damage' — as opposed to merely 'damage' — to national security."  The court finds that "the FBI has offered a 'logical connection' linking disclosure to a consequent harm to national security."  "It requires little explanation to establish that most confidential observations about a foreign leader – other than those that are patently laudatory, which may require additional justification – could plausibly harm relations with that leader's country and thus adversely affect national security."
  
  "Finally, the last of the redactions occur in a description of a discussion between the two men concerning foreign leaders."  "The redactions, the FBI contends, contain 'information reflecting the President's impressions of specific foreign leaders.'"  The court relates that "the FBI applied the lower 'Confidential' classification to this material."  "The Court fails to see, quite simply, how the redacted information contains anything about Trump's 'impressions of specific foreign leaders.'"  The court finds that "because the Bureau has offered no other concrete explanation for its withholding, once this proffered rationale collapses, it is left with only abstract and conclusory statements about national security untethered to the specific information withheld."  "As for [certain other similar] redactions . . . , however, the story is different."  "The FBI's justification for the possible harm to national security that could result from sharing impressions of foreign leaders applies to this information."