James Madison Project v. DOJ, No. 17-00144, 2018 WL 294530 (D.D.C. Jan. 4, 2018) (Mehta, J.)

James Madison Project v. DOJ, No. 17-00144, 2018 WL 294530 (D.D.C. Jan. 4, 2018) (Mehta, J.)

Re: Requests for two-page synopsis of "'Trump Dossier'" and records concerning dossier

Disposition: Granting defendants' motion for summary judgment; denying plaintiffs' cross-motion for partial summary judgment

• Exemptions 1 Glomar, Exemption 3, Glomar & Waiver:  First, "the court concludes that the FBI properly issued a Glomar response to ["Plaintiffs' request for a copy of the Synopsis"]."  The court finds that "none of the statements [made by President Trump or former FBI Director Comey] expressly reference the Synopsis."  The court explains that "though related, the Dossier and the Synopsis are distinct records, and none of President Trump's statements or tweets acknowledge the existence of the Synopsis, let alone that he received a copy of it from the FBI."  "Therefore, there has been no express recognition of the Synopsis' existence by either the President or any other official acting on behalf of the FBI."  The court further explains that "the official acknowledgement standard is not [a] 'surely the agency must have it' standard."  "The official statements themselves must 'leave no doubt' that the agency possesses the requested records."  Second, the court finds similarly with regard to plaintiff's request for "any 'final determinations' about the accuracy of the allegations contained in Synopsis or any investigative files relating to a 'final determination.'"  The court finds that "none of [President Trump's] cited statements refer to purported 'final determinations' about the Synopsis's factual contentions, as distinct from the factual contentions in the Dossier."  "That distinction makes a difference[.]"  Additionally, the court rejects plaintiff's argument that "because even presidential tweets are 'official statements of the President of the United States,' . . . the court must presume that, when he addresses the public, the President is properly discharging his official duties and relying on 'official U.S. Government information' to do so."  "So, according to Plaintiffs, when the President tweets that the Dossier is 'discredited' or 'fake,' absent contrary evidence, the court should presume that the President's tweet is based on record information presented by the FBI or the Intelligence Community."  The court finds that "[t]he presumption of regularity applies to a public official's discharge of official duties, not to his or her uttering of official statements[,]" and "it does not follow that just because a tweet is an 'official' statement of the President that its substance is necessarily grounded in information contained in government records."