CNN, Inc. v. FBI, Nos. 17-1167, 17-1175, 17-1189, 17-1212, 17-1830, 2018 WL 692921 (D.D.C. Feb. 2, 2018) (Boasberg, J.)

 CNN, Inc. v. FBI, Nos. 17-1167, 17-1175, 17-1189, 17-1212, 17-1830, 2018 WL 692921 (D.D.C. Feb. 2, 2018) (Boasberg, J.)

Re: Request for "the so-called Comey Memos"

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

• Litigation Considerations, Adequacy of Search:  "The Court . . . sees no reason to doubt the Government's search effort."  The court "accepted [plaintiff's] invitation" and "review[ed] the Comey Memos in camera to determine whether all responsive records have been located."  Additionally, the court rejects plaintiff's complaint that "'the FBI did not conduct its search using the standard method of searching its Central Records System,'" and finds that "[w]hile querying an electronic database may be appropriate in the mine-run FOIA foray, the requests here center on a 'discrete set of extraordinarily high-profile' and easily identifiable records[.]"  "Allowing officials with 'relevant knowledge of these documents' to search for them . . . is thus 'reasonabl[e]' given the 'facts of [this] case.'"
   
• Exemption 7, Threshold:  The court holds that "the Special Counsel has 'gathered' or 'used' each of the Comey Memos for his investigation."  "That suffices to satisfy Section 7's threshold requirement."  The court rejects both of plaintiff's counter-arguments.  First, the court finds that defendant "compiled the documents before it invoked that exemption."  Second, the court finds "irrelevant" plaintiff's focus on the fact that "'the FBI searched for and located records in archived, administrative files,' rather than 'in the Special Counsel’s files.'"  The court finds that "[t]he fact that 'other copies exist in government files does not strip these documents – and the information they contain – of their exemption from disclosure.'"
   
• Exemption 7(A):  "[T]he Court is . . . fully convinced that disclosure 'could reasonably be expected to interfere' with that ongoing investigation."  The court makes this finding "after an in camera review of [defendant's] Declaration and the Memos themselves," as well as "an on-the-record proffer about the investigation" from "an attorney from the Office of Special Counsel."  Responding to plaintiff's argument, the court finds that "[w]hile Comey may have testified about some material in his Memos, he has never disseminated copies publicly."  "Until the Memos themselves enter the public domain, much remains uncertain about their contents[.]"
   
• Waiver:  The court rejects plaintiff's waiver arguments.  First, the court finds that "[Comey's] paraphrased statements do not necessarily 'match' any portion of his Memos, nor are they necessarily as 'specific' as the original."  "In any event, Comey no longer served as FBI Director when he testified and therefore lacked any authority to make official releases on that agency's behalf."  Second, the court holds that "Comey's limited disclosure to one friend, even if made in his official capacity, is insufficient to waive Exemption 7(A) protection."  The court finds that "Comey apparently never intended to do so in his official capacity; rather, at the time, he considered the Memos his 'own personal' recollections, which he 'felt free to share' '[a]s a private citizen.'"  "[T]he Director's entrustment of his then-personal Memos to a friend falls short of an 'official and documented disclosure.'"  "Comey's discretionary release of documents to a close friend is hardly analogous to the agency's release of information due to statutory obligation."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "The Court has reviewed the disputed documents in camera and confirmed that no portion is reasonably segregable."  The court holds that "releasing any portion would necessarily reveal their 'level of detail,' as well as the extent to which those records do – or do not – corroborate Comey's testimony or include any information omitted from that public account."
   
• Litigation Considerations, Discovery:  The court holds that, "[t]o the extent [that "[plaintiff's] request for discovery still stands"], the Court denies it."  "Plaintiff never makes clear exactly what it seeks in discovery, other than noting that the agency has 'failed to even provide a Vaughn index,' which would catalog the documents withheld."  "But the agency has now provided the Court with the actual Comey Memos, giving it all materials needed to evaluate Exemption 7(A)."  "Plaintiff has thus failed to identify any other documents that might be 'necessary to the litigation.'"