Jud. Watch, Inc. v. DOJ, No. 22-5209, 2023 WL 4397354 (D.C. Cir. July 7, 2023) (per curiam)

Jud. Watch, Inc. v. DOJ, No. 22-5209, 2023 WL 4397354 (D.C. Cir. July 7, 2023) (per curiam)

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:  Affirming district court’s grant of defendant’s motion for summary judgment and denial of requester’s cross-motion for summary judgment

• Exemption 7(E): “[The Court of Appeals for the District of Columbia Circuit] uphold[s] the Agency’s Glomar response under 7(E).”  The court relates that “the FBI claims in an affidavit that establishing the existence or nonexistence of communications between the Agency and financial institutions would ‘trigger foreseeable harm to a variety of circumvention of the law interests’ by ‘provid[ing] key pieces of information about the FBI’s investigative focus, or lack thereof, into its investigation of the Capitol riot on January 6, 2021.’”  “In addition, the Agency claims that confirming or denying the existence of responsive records ‘would reveal the types of investigative techniques or procedures being employed, or not employed, as well as [show] how the FBI is applying investigative resources, or not, in furtherance of its investigations.’”  “In the aggregate, the FBI alleges that this information, with any other piece of information, ‘could provide potential investigative targets insight into who may or may not be under investigative interest . . . thereby decreasing the effectiveness of the FBI investigation(s) and increasing the vulnerability and effectiveness of specific investigatory tools at the FBI’s disposal.’”  The court finds that “[t]he FBI’s affidavit clearly demonstrates how ‘such disclosure could reasonably be expected to risk circumvention of the law.’”  The court explains that “[it has] said that ‘the exemption looks not just for circumvention of the law, but for a risk of circumvention; not just for an actual or certain risk of circumvention, but for an expected risk; not just for an undeniably or universally expected risk, but for a reasonably expected risk; and not just for certitude of a reasonably expected risk, but for the chance of a reasonably expected risk.’”  “Given the low bar to meet 7(E) and that [the court] “accord[s] substantial weight[,]’ . . . to the FBI’s affidavit detailing potentially classified information, the FBI has logically demonstrated how the release of alleged communications between the FBI and the financial institutions might risk circumvention of the law.”  “Further, the Agency’s reasons for providing a Glomar response are logical and plausible.”

• Waiver and Discretionary Disclosure, Waiver:  The Court of Appeals for the District of Columbia Circuit holds that “[the requester] fails to meet its burden under the public acknowledgement exception.”  First, the court finds that “[the requester’s] argument that the FBI agents’ affidavits in the criminal cases publicly disclosed the information requested in its FOIA request fails.”  “[The requester’s] request for records of any ‘communications between the FBI and any financial institution, . . . in which the FBI sought transaction data for those financial institutions’ [customers] who made purchases in Washington, D.C., Maryland, and/or Virginia’ to use in its investigation of the January 6th events, . . . is not ‘as specific as the information’ disclosed in the Agents’ affidavits . . . .”  “The FBI agents did not disclose that the Agency itself either ‘communicated’ with financial institutions or ‘sought’ financial records from financial institutions.”  “The FBI agents only noted that the financial institutions ‘provided’ financial records, . . . but it is not clear to whom the institutions ‘provided’ the records.”  “Similarly, while an agent stated that he reviewed financial records that were ‘[s]ubpoena[ed],’ . . . the agent did not specifically state that the FBI subpoenaed the records from a financial institution.”  “Several federal and non-federal law enforcement entities investigated the January 6th events, and one of those other agencies could have subpoenaed the records.”  “Or the FBI could have subpoenaed the records from the suspect's employer, accountant, parent, or spouse.”  “Without the level of specificity that the public acknowledgment exception requires, detailing that the FBI ‘sought’ financial records for the purpose of investigating the January 6th events, and that the FBI ‘communicat[ed]’ with financial institutions for the same, [the requester] fails to meet its burden.”
  
  Second, the court finds that “[the requester] claims that the FBI waived its right to invoke a Glomar response because it did not assert a Glomar response to another individual’s FOIA request seeking ‘forms [that the FBI] issued to each financial institution to obtain financial data during the period December 5, 2020 through February 6, 2021.’”  “Specifically, the FBI’s response to the FOIA request stated that the information requested was ‘categorically denied as it is located in an investigative file[.]’”  “But again, the FBI did not publicly acknowledge that it sought or communicated with the financial institutions for the purpose of investigating the January 6th events.”  “Although the FBI notes that it ‘obtained’ responsive records and that those records were ‘located’ in an investigative file, it does not specifically state that the Agency ‘sought’ or ‘communicat[ed]’ with the financial institutions to receive those records for investigative purposes.”  “Additionally, even though the FBI arguably discloses that it ‘sent a form to a financial institution’ seeking financial data, . . . it pertains to a much broader date range and wider geographic area and therefore fails to ‘match’ the scope of the Glomar response at issue here.”