Lindsey v. FBI, No. 16-2032, 2017 WL 4179886 (D.D.C. Sept. 20, 2017) (Kollar-Kotelly, J.)

Lindsey v. FBI, No. 16-2032, 2017 WL 4179886 (D.D.C. Sept. 20, 2017) (Kollar-Kotelly, J.)

Re:  Request for records concerning contact between third party foreign national and government officials

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

• Exemptions 6 & 7(C), Glomar:  "The Court finds that the affidavit submitted by Defendant in support of its Glomar response rests on a flawed interpretation of Plaintiff's FOIA request, and does not respond to certain information in the record suggesting that the third-party privacy rights at issue have been substantially diminished by public acknowledgments of the allegedly private facts."  First, the court explains that "[d]efendant cannot summarily conclude that contacts related to [one particular] incident categorically fall outside of Plaintiff's FOIA request, when the plain language of that request seeks records of all contacts with U.S. officials."  Second, the court finds that "the fact that the government has not acknowledged a potentially personal piece of information, does not mean that the third-party's acknowledgment of that information has no bearing on the private-public interest balancing test underlying the FOIA exemptions at issue."  "Rather, this circuit has held that the third-party's acknowledgment has a substantial effect on that balance."  The court notes that "there is record evidence that [the third party] has publicly acknowledged contacts with United States officials[]" and "[d]efendant's concession that the 'U.S. government has had [an] official, public interaction with [the third party] regarding a criminal complaint' – is a posit[i]on on which Defendant must substantially elaborate if it intends to continue to pursue a categorical Glomar response in this matter."  "Nor can the Court simply conclude that there is no public interest in the subject-matter of Plaintiff's FOIA request, given the substantial record evidence of media reports from credible news agencies regarding [the third party's] alleged diplomatic efforts."  "Even a modicum of public interest may suffice to warrant disclosure, if public acknowledgments by [the third party] have vitiated the claimed privacy interests in this matter."  "Accordingly, the Court shall provide Defendant an opportunity to either supplement its affidavit in support of its Glomar response, or to otherwise proceed in a manner consistent with its obligations under FOIA (e.g., by piercing the Glomar veil and conducting a search for relevant, nonexempt materials)."