Judicial Watch, Inc. v. CIA, No. 17-397, 2019 WL 4750245 (D.D.C. Sept. 29, 2019) (Chutkan, J.)

Judicial Watch, Inc. v. CIA, No. 17-397, 2019 WL 4750245 (D.D.C. Sept. 29, 2019) (Chutkan, J.)

Re:  Request for records concerning "investigation of retired Gen. Michael Flynn's communications with Russian Ambassador to the United States Sergey Kislyak between October 1, 2016 and the present"

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

• Exemption 7(A):  "[T]he court grants summary judgment to the FBI on this issue."  The court relates that "Plaintiff does not contest, nor could it reasonably, the FBI's representation that the requested documents were compiled for a law enforcement purpose, and that the enforcement proceedings are ongoing."  "Instead, Plaintiff contends that because some information about the Flynn investigation has been made public, there must be records that are releasable, and therefore asks this court to order the FBI to provide a document-by-document justification for its withholdings."  "The court finds that the FBI has satisfied the requirements for employing the categorical approach in lieu of the document-by-document approach Plaintiff seeks."  "[Defendant's] declaration 'explains how the specific risks entailed in premature disclosure of one category of document might differ from risk of disclosure of the other,' . . . and 'allows the court to trace a rational link between the nature of the document[s] and the alleged likely interference . . . .'"  The court finds that "[a]warding the appropriate level of deference to the FBI, the court accepts its representation that providing document-by-document justification would reveal sensitive and closely-held information to not only the requestors and the general public, but also to present and future targets, witnesses, and subjects of the investigation."  "Equipped with information regarding the targets, scope, focus, and investigative techniques, certain individuals would be able to readily interfere with the FBI's investigation and prosecution."
   
• Exemptions 1 & 3, Glomar:  "[T]he court grants summary judgment on this issue."  The court relates that "the sole issue before the court is whether there has been an official acknowledgment of the CIA or Treasury's involvement in the Flynn investigation."  The court analyzes "three public remarks – two Presidential tweets and one White House statement" and finds that "each public remark fails to meet the “official acknowledgement” standard for the same reason: while the remarks may serve as acknowledgement of an FBI investigation, they do not lead to the same inference regarding an investigation conducted by the CIA or Treasury."  The court relates that "Plaintiff provides no information suggesting that CIA or Treasury are conducting an investigation; rather it simply asserts that because the FBI is investigating Flynn, '[i]t would simply be malfeasance if either agency did not have such files.'"  This assertion does not overcome the fact that no official acknowledgement matches the records Plaintiff seeks, and there is no evidence that the information is in the public domain."