Eddington v. DOJ, No. 19-1991, 2022 WL 218562 (D.D.C. Jan. 25, 2022) (Pan, J.)

Eddington v. DOJ, No. 19-1991, 2022 WL 218562 (D.D.C. Jan. 25, 2022) (Pan, J.)

Re:  Request for records concerning third-party individual   

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

• Waiver & Discretionary Disclosure:  "[Plaintiff] argues that the DOJ cannot properly invoke a Glomar response . . . because the government has already publicly acknowledged the existence of a counterterrorism investigation and surveillance of [the third-party individual]."  "[Plaintiff] identifies three main sources of information that he alleges constituted official acknowledgments that responsive records exist:  (1) evidence in the Bivens lawsuit filed by [the third-party individual]; (2) a statement from an FBI media spokesperson that the FBI interviewed [the third-party individual] in Nairobi; and (3) statements made by the FBI and the State Department to [the third-party individual's] family, [plaintiff], and [a U.S. Representative]."  As to the first source of information, the court finds that "[t]he general facts discussed in the D.C. Circuit opinion, however, do not contain any acknowledgment by the government that the [National Security Division ("NSD")] investigated [the third-party individual] or considered prosecuting him for a terrorism-related offense."  As to the second source of information, "[t]he statement that FBI agents interviewed [the third-party individual] in Nairobi does not prove that the NSD is in possession of any records memorializing those interviews."  As to the third source of information, the court notes that "general statements about [the third-party individual] and his detention are not enough to constitute an official acknowledgment that either the Office of Intelligence or the Counterterrorism Section of the NSD investigated [the third-party individual]."     
  
  "[Plaintiff fails to] point to a specific, official acknowledgment that the NSD investigated [the third-party individual] for terrorism-related activities. . . ."  "Indeed, it appears that no such acknowledgement has ever been made:  [Defendant's declarant] asserts that he is 'unaware of [the DOJ] having ever disclosed publicly any information that would confirm or deny whether [the third-party individual] was a subject of an investigation or otherwise related to an investigation that involved [the Counterterrorism Section].'"  The court finds that "[plaintiff's] numerous contentions do not support a conclusion that there has been an official disclosure of the specific information sought in his FOIA request."
   
• Exemption 1, Glomar Response:  "There is no genuine dispute that the existence or non-existence of records in the Office of Intelligence was classified information under Exemption 1."  "The information meets the four requirements enumerated in Executive Order 13,526 for a record to be deemed classified . . . ."  "Accordingly, the existence or non-existence of records in the Office of Intelligence is a fact that the DOJ properly classified, and the agency's Glomar response relying on Exemption 1 was appropriate."
   
• Exemption 7(A), Glomar Response:  "[T]he Court agrees with the DOJ that confirming or denying the existence of records in the hands of the NSD would reveal whether prosecutors investigated [the third-party individual] for terrorism-related offenses; and that this could provide insight into the information that the government has at its disposal as it attempts to prevent and prosecute terrorism crimes."  "[A]s discussed . . . the Court rejects [plaintiff's] contention that the DOJ publicly acknowledged a terrorism-related investigation of [the third-party individual] by the NSD."
   
• Exemption 6 & 7(C), Glomar Response:  "The DOJ argues that [the third-party individual's] privacy interests are substantially implicated because the Counterterrorism Section has never confirmed or denied the existence of an investigation into [the third-party individual]; and confirming or denying the existence of such records might associate [the third-party individual] with such an investigation, subjecting him to stigma."  "[Plaintiff] insists that the asserted privacy concerns are greatly diminished by the publicly available information about [the third-party individual's] treatment by the government and [the third-party individual's] own statements about his experience."  "But [plaintiff] is asking for records concerning a third party[.]"  The court relates that "[plaintiff] is not in a position to waive [the third-party individual's] right to privacy with respect to the requested records."  "Any response to [plaintiff's] request could risk associating [the third-party individual] with an official terrorism investigation, which has not been previously acknowledged.  Because [plaintiff] does not 'have consent to disclosure' from [the third-party individual], . . . the privacy interests implicated are still substantial."
  
  Plaintiff argues that "there is a substantial public interest in knowing the DOJ's role in the detention of a Muslim-American citizen in the wake of 9/11, and in understanding whether the DOJ participated in violating a U.S. citizen's Fourth and Fifth Amendment rights."  "While [plaintiff] may be correct that there are public interests in the disclosure of such documents, he is incorrect that they outweigh the substantial privacy interests present in this case."  "As discussed, . . . the DOJ has not made an official acknowledgement of any terrorism investigation of [the third-party individual]."  "Thus, [the third-party individual] retains a substantial privacy interest that goes to the heart of Exemption 7(C)."  "The Court therefore concludes that [the third-party individual's] privacy interests outweigh any public interest in disclosure . . . , and that the DOJ appropriately invoked Exemption 7(C) in making its Glomar response."