Judicial Watch, Inc. v. Dep't of State, No. 18-300, 2019 WL 1166757 (D.D.C. Mar. 13, 2019) (Kelly, J.)

Judicial Watch, Inc. v. Dep't of State, No. 18-300, 2019 WL 1166757 (D.D.C. Mar. 13, 2019) (Kelly, J.)

Re:  Request for records concerning requests by former Ambassador to United Nations Samantha Power for intelligence reports related to Russia's attempts to influence 2016 presidential election and other associated matters

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

• Exemption 1:  The court holds that "State has more than cleared this bar . . . ."  "According to [defendant], the existence or nonexistence of records relating to Plaintiff's request is a fact exempted from disclosure by Exemption 1 because that fact 'is currently and properly classified under Section 1.4(c) of' Executive Order 13526, which pertains to intelligence activities, intelligence sources and methods, and cryptology."  "Moreover, '[a]cknowledging the existence or nonexistence of responsive records would disclose information that . . . is currently and properly classified' under Section 1.2(a)(3) of that same Executive Order, 'because it could reasonably be expected to reveal information about' those same topics 'that would cause identifiable and describable damage to the national security.'"
   
• Exemption 3:  The court holds that "State may withhold the existence or nonexistence of responsive records under Exemption 3 because that information satisfies the criteria in the statute."  "For those same reasons, the Court agrees that State's Glomar response is justified on that basis as well."  The court explains that "the Director of National Intelligence has, under his authority in Section 102A(i)(1) of the National Security Act of 1947, as amended, 50 U.S.C. § 3024(i)(1), 'ordered the heads of Intelligence Community elements, including the Secretary of State, to "[p]rotect national intelligence and intelligence sources, methods and activities from unauthorized disclosure."'"
   
• Waiver:  "[T]o the extent that Plaintiff asserts that State has somehow waived its right to claim these exemptions because of these media reports, [the court finds that] an agency may only waive its FOIA rights though '"official and documented" disclosure' of the information at issue."