Heritage Found. v. DOJ, No. 23-1148, 2024 WL 1856418 (D.D.C. Apr. 29, 2024) (Boasberg, C.J.)

Heritage Found. v. DOJ, No. 23-1148, 2024 WL 1856418 (D.D.C. Apr. 29, 2024) (Boasberg, C.J.)

Re:  Request for records concerning “communications regarding . . . a former Assistant Special Agent in Charge of the FBI’s Washington Field Office, who has (whether fairly or not) come under congressional and media scrutiny over allegations of partisan bias and other misconduct”

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 7, Threshold:  The court holds that “the universe of documents that would be responsive to each part of the FOIA request potentially encompasses both law-enforcement and non-law-enforcement records.”  “In reliance on the accompanying declaration of the FBI’s Section Chief of the Record/Information Dissemination Section, . . . DOJ here asserts that Exemption 7 applies because any records responsive to Plaintiffs’ two specifications ‘would have been created and maintained during the performance of a non-Senior Executive Service (SES) FBI employee’s official duties and likely would pertain to the oversight of investigative matters under the employee’s purview.’”  “According to Plaintiffs, however, this assumes – without warrant – that the only possible responsive records are those that show [the former Assistant Special Agent in Charge] doing his job (i.e., with respect to law-enforcement investigations targeting others) or show the FBI investigating [the former Assistant Special Agent in Charge] himself for illegal conduct.”  “They maintain, however, that ‘the call of the Request . . . sweeps much more broadly and clearly brings in administrative records’ that were not created (and would not subsequently be compiled) as part of any particular investigation into illegal misconduct.”  The court finds that “[plaintiffs] have a point.”  “With regard to Specification 1[, the portion of plaintiff’s request for email communication containing certain terms], it is not apparent why no records could possibly exist that were compiled for an administrative purpose or that pertain exclusively to an internal, disciplinary matter and yet contain the requested search terms.”  “Plaintiffs, to be sure, fashioned those terms primarily to capture records related to the specific misconduct set forth in the background section of their FOIA request letter – which they insinuate may constitute violations of federal law.”  “The Court also credits [defendant’s] averment that any records of an investigation into such misconduct (and any records reflecting misconduct that were collected in connection with such an investigation) would qualify as law-enforcement records.”  “The problem for [defendant’s] position, however, is that Plaintiffs’ request conceivably embraces records outside that category.”  “If their internal-best-practices and FBI-email hypotheticals are any indication, Plaintiffs are holding out hope that some documents compiled for an administrative purpose may nevertheless contain stray references to [the former Assistant Special Agent in Charge’s] alleged misconduct.”  “They also imagine that their proposed Boolean searches might capture evidence of impropriety falling beneath the threshold for a violation of law or agency policy that the FBI would investigate, . . . unlawful conduct by [the former Assistant Special Agent in Charge] that the Agency simply chose not to investigate, or casual email exchanges reflecting on Senator Grassley’s letters.”  “Absent further elaboration in either of [defendant’s] declarations as to why such records could not exist – even accounting for the special deference to which the FBI is entitled as a law-enforcement agency – the Court simply cannot assume that all documents responsive to Specification 1 would necessarily constitute law-enforcement records.”
  
  “Specification 2[, communications between the former Assistant Special Agent in Charge and the news media,] likewise sweeps more broadly than the Government thinks.”  “[Defendant] explains that, under FBI policy, except for the head of a Field Office (which would be the Assistant Director in Charge or Special Agent in Charge) or a Public Affairs Officer she has designated, all FBI personnel are prohibited from ‘communicat[ing] with the media on behalf of the FBI or regarding FBI matters’ absent explicit authorization.”  “Therefore, he infers, any potential communications between [the former Assistant Special Agent in Charge] and the news media ‘would have been created in the course of [the former Assistant Special Agent in Charge’s] law enforcement duties,’ thus rendering them law-enforcement records.”  “An unstated premise of this syllogism, however, is that [the former Assistant Special Agent in Charge] would have been explicitly authorized to communicate with the media only for a law-enforcement purpose . . . .”  “Absent supporting detail, the Court cannot assume that the premise is true.”
   
• Exemption 6; Exemption 7(C):  The court first notes that “[e]ven in Glomar cases where public interests other than revealing government misconduct are asserted, the D.C. Circuit and other courts in this district have considered how the possible contents of responsive records might weigh in favor of disclosure.”  “The public may have an interest in confirming whether responsive records exist precisely because of the information such records might contain.”
  
  Regarding the portions of plaintiff’s request concerning the former Assistant Special Agent in Charge’s “‘alleged girlfriend’” the court finds that “[t]he Government has identified multiple privacy interests . . . that are implicated here.”  “First, as a third party not employed with the FBI, ‘mere confirmation’ that her name appears in the agency’s law-enforcement records could ‘engender comment and speculation and carries a stigmatizing connotation.’”  “Second, regardless of the nature of the records at issue, it could function as an acknowledgment by the FBI that a ‘connection’ exists between her and [the former Assistant Special Agent in Charge] — particularly in view of Plaintiffs’ allegations and the public reporting on which they rely.”  “These are each valid and substantial privacy interests.”  “Nor is there any countervailing public interest to tip the scales in favor of disclosure.”  “If the only public interest is in learning more about the whistleblower allegations relayed to Senator Grassley and summarized in the FOIA request, then, at least with respect to documents referencing [this third party], there is no public interest to speak of.”  “Plaintiffs have put forward no evidence that there are any whistleblower allegations concerning her.”  “Left with nothing against which to balance [this third party’s] privacy interests, the Court finds that confirming that her name or her putative Twitter handle appears in FBI records (whether law-enforcement or not) would constitute a clearly unwarranted invasion of her personal privacy.” 
  
  “The balancing of interests as to the parts of the FOIA request concerning [the former Assistant Special Agent in Charge] alone – i.e., communications containing his name and the word ‘whistleblower’ or communications between him and news media – is not nearly so simple.”  “On the privacy-interest front, [the former Assistant Special Agent in Charge] has an interest similar to [the former Assistant Special Agent in Charge’s “‘alleged girlfriend’].”  “He, too, would be affected by any implied confirmation that a connection exists between him and her.”  “Additionally, confirming that [the former Assistant Special Agent in Charge’s] name appears anywhere in the FBI’s records with the word ‘whistleblower’ or that he has communicated with the news media would tend to associate him with the specific allegations of misconduct set out in the FOIA request.”  “This would ‘create[ ] [a] significant “risk of subjecting that agent to undeserved embarrassment and attention.”’”  “Plaintiffs ‘concede’ that these interests are ‘sufficient to trigger balancing.’”  “They point, however, to numerous factors that they believe diminish their weight in the analysis.”  “First, they maintain that his privacy interest is reduced by the fact that he held public office.”  “This is undoubtedly true.”  “But his interest is not thereby erased completely.”  “His residual privacy interest remains strong to the extent that the existence of responsive records would lend credence to the whistleblowers’ (and Plaintiffs’) allegations that he abused his power or even suggest that the FBI received complaints about or investigated the matter.”  “Second, Plaintiffs emphasize that [the former Assistant Special Agent in Charge] was a ‘senior level supervisor who ran some of the most significant cases in the entire FBI and the subject of massive press attention,’ and he had a ‘role in supervising high level cases involving the former President, Donald J. Trump.’”  “This too reduces his privacy interest somewhat because in taking on ‘supervisory responsibility,’ [the former Assistant Special Agent in Charge] accepted a role implicating ‘increased public interest in how [his field office’s] policies and priorities were both set and implemented by [him] and the individuals under his direction.’”  “The Government parries this point by insisting that [the former Assistant Special Agent in Charge] was a ‘non-SES’ employee who did not head the field office in which he worked.”  “The key issue, however, is his ‘supervisory responsibility,’ not his title.”  “Plaintiffs’ third contention is that the allegations against [the former Assistant Special Agent in Charge] ‘have been repeatedly and publicly discussed as part of widely publicized Congressional oversight,’ such that confirming that there are responsive records would have a marginal impact.”  “The Court agrees that the same considerations exist here and further diminish [the former Assistant Special Agent in Charge’s] privacy interest.”  “But, again, they do not extinguish it . . . .”  “Indeed, the Court is mindful that any government employee can be dragged into the spotlight based on bad-faith (or just unfounded) accusations of misconduct, and weighing this factor too heavily in the FOIA private-interest analysis may generate perverse incentives.”  “The last of Plaintiffs’ factors (contrary to the old expression) is the least persuasive.”  “They point out that [the former Assistant Special Agent in Charge], through his lawyer, ‘publicly acknowledged’ that his ‘social media posts are under the investigation of the Office of Special Counsel.’”  “This all may be true, but it is also not particularly relevant.”  “[The Office of Special Counsel (“OSC”)] is not DOJ or the FBI.”  “Neither [the former Assistant Special Agent in Charge] nor the latter two agencies (from which Plaintiffs seek records) have acknowledged any investigation by them into his social-media posts, as occurred in cases where such public acknowledgement reduced a third party’s privacy interest.”  “Nor has [the former Assistant Special Agent in Charge] acknowledged an investigation by anyone into the myriad misconduct accusations leveled by the whistleblowers and presented by Plaintiffs as reasons for disclosure.”  “In short, [the former Assistant Special Agent in Charge’s] privacy interests survive but in weakened form.”
  
  “The outlook for Plaintiffs’ public-interest arguments is similarly mixed.”  “Plaintiffs’ only asserted public interest is in understanding ‘the manner in which the DOJ carries out substantive law enforcement policy,’ . . . which they imagine would be evident in the news-media communications of ‘a high-supervisory official.’”  “Beyond this generic statement, however, they have offered no representation about what they expect to see in [the former Assistant Special Agent in Charge’s] news-media communications (if any exist) that would be of specific interest to the public – as is typically necessary.”  “To the extent Plaintiffs mean to suggest that [the former Assistant Special Agent in Charge’s] news-media communications may evince misconduct, they have offered no evidence whatsoever to support that claim.”  “Barring such evidence, the public interest is nil.”  Regarding the portions of plaintiff’s request which “sought records containing the terms ‘[the former Assistant Special Agent in Charge]’ and ‘whistleblower,’” the court relates that “Plaintiffs’ asserted public interest here is (once again) in ‘learning more about the highly credible whistleblower allegations.’”  “Plaintiffs, having no independent evidence to corroborate these misconduct allegations, rely entirely on the credibility of the sources reporting them.”  “As to the [Washington ]Post article [cited by plaintiffs], they have not bothered to explain why the Court should credit it.”  “As to the Grassley letters, on the other hand, they have submitted a declaration by the Chief Counsel of [plaintiff’s] Oversight Project attesting (based on his prior experience as a staffer on a different committee) that Congressional Committee staff ‘must be careful’ in vetting whistleblower complaints and ‘should, and oftentimes do,’ inform whistleblowers that lying to Congress is a felony.”  “It also highlights Grassley’s ‘decades-long track record of advocating for, and working with whistleblowers, and conducting nonpartisan oversight,’ and offers the opinion that his staff likely ‘thoroughly vetted the whistleblower allegations his office received concerning [the former Assistant Special Agent in Charge].’”  The letters that issue “express[ed] alarm over [the former Assistant Special Agent in Charge’s] seemingly partisan activities on social media – including sharing or liking posts and news articles that were critical of Republicans.”  “[They] also outlined ‘troubling allegations’ that Grassley had received from whistleblowers, who claimed that [the former Assistant Special Agent in Charge] opened investigations ‘in a manner appearing to benefit the political aims and objectives of a select few Justice Department and FBI officials’ based upon unverified and biased media reports and that he improperly discredited negative information regarding Hunter Biden that could have been a predicate for further investigation.”  “The Court is persuaded that the congressional whistleblowers’ assertions (as relayed in Grassley’s 2022 letters) are sufficient to warrant a belief by a reasonable person that misconduct might have occurred – but barely.”  “Despite Plaintiffs’ urging, the Court does not regard Grassley’s summary of those allegations as the ‘functional[ ] equivalent’ of a sworn statement — in truth, they are hearsay.”  “Even taking that summary at face value, it is troublingly light on details necessary to assess whether [the former Assistant Special Agent in Charge] did anything wrong.”  “And Grassley’s letter – issued on his own behalf – certainly does not carry the weight it might have had if it were issued by a bipartisan congressional committee.”  However, the court finds that “the claims of political bias (as wide-ranging and uncorroborated as they mostly are) find some concrete support in the OSC’s recent conclusion that [the former Assistant Special Agent in Charge] violated the Hatch Act by retweeting a post from a partisan organization, sharing a seemingly partisan article.”
  
  “To recap, [the former Assistant Special Agent in Charge] retains a diminished privacy interest in confirming whether documents responsive to Specification 1, Subpart C and Specification 2 of the FOIA request exist.”  “There is, further, a meager public interest in the former but none at all in the latter.”  “The Court, consequently, finds that the FBI’s Glomar response was appropriate as to Specification 2 under both Exemptions 6 and 7(C) to the extent that any responsive records are law-enforcement records.”  “As to Subpart C, the Court also concludes that [the former Assistant Special Agent in Charge’s] residual privacy interest outweighs the modest public interest but not by much.”  “Because that suffices to withhold information under Exemption 7(C) but not Exemption 6, the FBI’s Glomar response was appropriate only to the extent that it covered law-enforcement records.”
  
  “On to the final item, which can be dispensed with quickly.”  “Documents responsive to Subpart D of Specification 1 – that is, containing the terms ‘[the former Assistant Special Agent in Charge]’ and ‘Grassley’ – were categorically withheld in full under Exemptions 6 and 7(C).”  “Plaintiffs have conceded that the FBI properly interpreted this subpart as seeking ‘records created in response to Senator Grassley’s letters.’”  “[The former Assistant Special Agent in Charge’s] privacy interests with respect to these records are the same as they were with respect to Subpart C and Specification 2 – somewhat diminished but not eliminated.”  “The asserted public interest here, however, is in ‘[u]nderstanding how the Department responds to high-profile Congressional investigation by a Senator well known for investigative integrity and vigor.’”  “If Plaintiffs mean that the interest resides in how DOJ responds to high-profile congressional investigations in general (regardless of what they are about), then the records at issue are a mere data point.”  “That may be a cognizable interest, but its weight here is minimal.”  “If they mean, instead, that the interest is in how DOJ responded to Grassley’s investigation into [the former Assistant Special Agent in Charge], then its weight ultimately depends on the alleged misconduct that was the subject of his inquiries.”  “It is no more compelling, therefore, than the public interest in Subpart C – that is, extant but relatively minimal.”  “The balance of interests either way is the same:  [the former Assistant Special Agent in Charge’s] privacy interest predominates slightly.”  “All responsive law-enforcement records were thus properly withheld under Exemption 7(C), but responsive non-law-enforcement records were not.”