Jud. Watch, Inc. v. DOJ, No. 21-01216, 2022 WL 2828987 (D.D.C. July 20, 2022) (Lamberth, J.)

Jud. Watch, Inc. v. DOJ, No. 21-01216, 2022 WL 2828987 (D.D.C. July 20, 2022) (Lamberth, J.)

Re:  Request for communications between FBI and financial institutions regarding transaction data for account holders who made purchases in Washington, D.C., Maryland and/or Virginia on January 5, 2021 and/or January 6, 2021, as part of FBI’s investigation into U.S. Capitol attack

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Exemption 7(E):  “[The] Court finds that the Glomar response was justified under FOIA Exemption 7(E).”  The court finds that “DOJ has met Exemption 7(E)’s requirements here.”  “It asserts that disclosing these records ‘would enable investigative subjects to circumvent similar and currently used techniques.’”  “Furthermore, it asserts a specific danger to its investigation of January 6, since disclosure of the existence of responsive documents would either enable ‘compensating measures’ or, if the FBI acknowledged that there are no records, would show a gap in the investigative process.” 
  
  The court relates that “[plaintiff] confronts the DOJ’s position on two grounds:  (1) that the FBI’s use of financial records is commonly known and thus the DOJ’s asserted harm is not substantiated; and (2) that the FBI’s activities, if they exist, were improper and thus cannot be exempted.”  “The Court is unpersuaded by [plaintiff’s] avenues of attack.”  First, the court relates that “DOJ concedes that its January 6 investigation is common knowledge.”  “It also concedes that it is commonly known that ‘the FBI might seek financial transaction records as part of a criminal investigation.’”  “However, [the court finds that] public awareness that the FBI sometimes uses financial records as an investigative technique is not the same as public awareness about whether and how the technique is being used in a specific investigation.”  “The risk plausibly exists for future wrongdoers who, through disclosure of these records, would learn about how the FBI obtains, or does not obtain, financial transaction information in investigations like this one.”  “And it also plausibly exists for individual subjects in the January 6 investigation, who would be motivated by the FBI’s answer to employ ‘compensating measures.’”  “Both hazards suggest that disclosure would reduce the effectiveness of the FBI’s techniques for this and future investigations.”
  
  “[Plaintiff’s] second argument is a bold contention:  that the FBI has engaged in improper behavior sufficient to deny use of Exemption 7(E).”  “[Plaintiff] gives scant evidence for this argument.”  “It cites an opinion piece on the Fox News website along with (what appears to be) the public-comment section for the article.”  “The article does not provide any detail about this claim’s source, nor does [plaintiff] provide any underlying evidence.”  The court finds that “that article, with unclear sourcing, cannot overcome the presumption of good faith and regularity.”
  
  Regarding plaintiff’s official acknowledgment arguments, the court takes them in turn and first finds that “[the online] article [cited by plaintiff] is not an official acknowledgment because there is no evidence that the information in it was endorsed or otherwise supplied by the government.”  “Speculation in a news article, without more, does not constitute official acknowledgment.”  “Second, the submitted statements by FBI agents in specific January 6 cases do not constitute an official acknowledgment.”  The court finds that “[plaintiff’s] official acknowledgment argument fails because the cited materials do not specifically acknowledge that the FBI has communicated with financial institutions to obtain any financial records.”  “The statements reference financial documents, but do not state that the FBI obtained them through communications with financial institutions.”  “The statements only establish that the agent reviewed financial records related to the case.”  “Those financial records could have been obtained by any number of law enforcement agencies and later reviewed by the FBI agent.”  “The statements, by themselves, do not establish that there are ‘records of FBI communications seeking financial transaction records,’ . . . much less communications about financial transaction records as part of a January 6 investigation.”  “Because the statements fail to specifically acknowledge the existence of the records sought by Judicial Watch, they cannot pierce Glomar.”  Third, the court relates that “[plaintiff’s] final argument is that the government’s response to a prior set of FOIA requests by [another individual], [which asked for “financial data obtained for some investigation or investigations between December 5, 2020 and February 6, 2021,”] establishes an official acknowledgment.”  The court finds that “[the other] request[s] encompassed financial information that could cover many investigations.”  “The FBI’s response thus constitutes an acknowledgment that it has responsive records for some investigation or investigations between December 5, 2020 and February 6, 2021.”  “However, [plaintiff] requested information on the FBI’s alleged collection of financial transaction records for an investigation into January 6.”  “This scope differs from [the other] requests, which were not tailored to any specific investigation.”  “Nor does [the other requester’s] requested multi-month time period directly align with [plaintiff’s] request for communications concerning purchases made on ‘January 5, 2021 and/or January 6, 2021.’”  “Therefore, the response to [the other] request[s] do[] not necessarily or specifically acknowledge that there are responsive records for [plaintiff’s] FOIA request.”