Leopold v. DOJ, No. 17-2819, 2022 WL 4598596 (D.D.C. Sept. 30, 2022) (Mehta, J.)

Leopold v. DOJ, No. 17-2819, 2022 WL 4598596 (D.D.C. Sept. 30, 2022) (Mehta, J.)

Re:  Request for records concerning list of 152 news articles allegedly containing leaks of classified national security information

Disposition:  Denying defendant’s motion for summary judgment; denying plaintiff’s motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court relates that “NSD argues it ‘provided Plaintiffs with a final determination letter’ . . . and that Plaintiffs failed thereafter to file an administrative appeal before they filed suit . . . .”  “Rather than challenge the legal premise, NSD attacks Plaintiffs’ assertion of non-receipt.”  “First, NSD argues that Plaintiffs waived any argument of non-receipt through a single line in a Joint Status Report filed by the parties.”  “The court is unconvinced.”  “First, the Joint Status Report[, which states that “‘Defendant issued a final response to [Plaintiffs FOIA] request on August 9, 2017,’”] does not concede receipt or waive the defense of non-receipt.”  “Plaintiffs had already stated in both the Complaint and in email correspondence between the parties that [plaintiff] had not received a final determination from NSD.”  “Finally, accepting Leopold's attestation of non-receipt is not at odds with the presumption of regularity.”  “The court has no reason to doubt that DOJ issued a final determination letter; the sole question is whether Leopold received it.”  “And he says he did not.”
   
• Procedural Requirements, Searching for Responsive Records:  “The court . . . agrees with Defendant that NSD did not misconstrue Plaintiffs’ request.”  The court relates that “Plaintiffs complain that rather than adhering to their ‘broad “any and all” request,’ NSD unduly cabined it to ‘the context of an Intelligence Community (IC) element having referred to NSD an allegation of an authorized disclosure of classified information to the news media,’ what are known as ‘crimes reports.’”  The court credits defendant’s search location explanation “that any responsive records . . . would be found, if at all, only in the context of an intelligence community referral contained in a crimes report.”
  
  Regarding the portion of plaintiff’s request requesting “‘directives, memos, [and] announcements’ sent to the entirety of DOJ in 2017 about the 152 articles and ‘leaks, insider threats, [or] disclosure of classified information,’” the court finds that “[defendant] does not explain why NSD would not have any responsive records.”  “Rather, [it] simply states that ‘as just one component, [NSD] does not issue directives, memos, or announcements to the entire DOJ workforce.’”  “But, of course, [this portion] does not ask solely for records that NSD ‘issue[d]’ to the ‘entire DOJ workforce.’”  “Fairly construed, it also sought responsive all-workforce documents that NSD would have received.”  “[Defendant] makes clear that NSD did not conduct a search for any such records.”  “NSD’s sole proffered justification for directing Plaintiffs elsewhere is a departmental regulation that informs requesters that DOJ ‘has a decentralized system for responding to FOIA requests . . . .  To make a request for records of the Department, a requester should write directly to the FOIA office of the component that maintains the records being sought.’”  “But that regulation is simply instructional.”  “It does not require a person to make a request only to the DOJ component that originated a responsive record.”  “The following sentence of the regulation makes its instructional nature clear:  ‘A request will receive the quickest possible response if it is addressed to the FOIA office of the component that maintains the records sought.’”  “The regulation does not relieve NSD from the obligation to search for records responsive to [this portion] of Plaintiffs’ FOIA request.”
   
• Exemption 1:  The court holds that defendant “does not identify any Section 1.4 category that is particular to the crimes reports, as opposed to NSD records generally.”  The court relates that “[defendant] states that ‘[c]lassified information in NSD records is frequently, though not exclusively, classified under section 1.4(c) of Executive Order 13526 which covers intelligence activities, sources, and methods.’”   “While [defendant] cites to one of the Classification Categories, it is not for the responsive records but for ‘[c]lassified information in NSD records’ in general.”  “Furthermore, [defendant] undercuts even that minimal offering by later writing that ‘the particular reason a piece of information that was provided to a reporter might have been classified could span the entirety of the reasons information is classified under Executive Order 13526.’”  “This language does speak more directly to the requested records, but it is premised on equivocal language that ‘the particular reason . . . could span’ the full roster of reasons available under the Executive Order.”  “Thus, [defendant] fails to affirmatively state that the crimes reports ‘fall[ ] within one or more of the categories of information listed in section 1.4.’”
  
  Additionally, the court finds that “[defendant] states that the fact of NSD possession of specific, IC-referred crimes reports ‘could provide hostile foreign powers operationally valuable information about United States intelligence activities’ based on whatever classified information was in the articles.”  “Under [the] Circuit’s deferential standard, this is enough to satisfy the requirement than an original classification authority deem[s] unauthorized disclosure reasonably harmful to national security.”  “Even Plaintiffs concede as much.”  “Yet nowhere in the relevant part of [defendant’s] Declaration does he take the next required step and ‘identify or describe the damage.’”  “Here, [defendant] does not go beyond saying that adversaries may gain ‘operationally valuable information.’”  “It is not for the court to surmise what harm might befall the United States if such information ended up in the wrong hands; the burden is NSD’s.”
   
• Exemption 1, Glomar Response & Exemption 7(A):  The court holds that “NSD’s justification for invoking Glomar does not measure up for either Exemption 1 or 7(A).”  “As part of its reliance on Exemption 1, NSD argues that ‘[c]onfirming the existence [of] “any crimes reports related to the cited articles” is a confirmation of the existence of particular crimes reports.’”  “And NSD similarly justifies its reliance on Exemption 7(A) by explaining that ‘acknowledg[ing] the existence of a related crimes report would necessarily confirm the existence or non-existence of a[ ] related investigation.’”  “These abbreviated justifications do not ‘plausibly’ or ‘logically’ explain how the mere acknowledgement of the existence of crimes reports in response to this particular FOIA request would disclose the existence of leaked classified intelligence (Exemption 1) or an ongoing law enforcement investigation (Exemption 7(A)).”  The court finds that “this case does not involve an information request about a specific individual or subject matter.”  “Rather, Plaintiffs request crimes reports, media leak questionnaires, and correspondence relating to 152 articles on a variety of subject matters spanning the course of 16 years.”  “It is not clear to the court how divulging the existence (and nothing more) of a crimes report, for instance, would tell the public anything about whether there was any classified information in one of the 152 articles or that there is an ongoing leak investigation regarding any particular article.”  Additionally, regarding Exemption 7(A), the court finds that, “here, the key law NSD cites as a legal predicate for opening any of these investigations, 18 U.S.C. § 798, has a five-year statute of limitations.”  “Therefore, it may be that, as a matter of law, there can be no ‘prospective’ law enforcement proceeding with respect to many of the articles, particularly the 27 cited from the first year of each of the Bush and Obama administrations.”  “Presumably, any prosecution of a leaker relating to those articles would be time barred.”  “It therefore cannot be true that acknowledging the existence of any crimes report would reveal an ongoing law enforcement investigation as to those articles.”  “The court therefore remains unconvinced by the justification of NSD’s Glomar response even as to Exemption 7(A).”