Project for Priv. & Surveillance Accountability, Inc. v. DOJ, No. 21-2362, 2022 WL 4547531 (D.D.C. Sept. 29, 2022) (Contreras, J.)

Project for Priv. & Surveillance Accountability, Inc. v. DOJ, No. 21-2362, 2022 WL 4547531 (D.D.C. Sept. 29, 2022) (Contreras, J.)

Re:  Request for records concerning communications between FBI and Congress concerning unmasking of members of Congress

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Exemption 1, Waiver of Exemption 1 Protection:  The court holds that “neither [a] Memo . . . nor the . . . Procedures [highlighted by plaintiff] waives the FBI’s Glomar response.”  “The Court considers the . . . Memo first.”  “The . . . Memo is a declassified document that provides ‘a list of identities of any officials who submitted requests to the National Security Agency at any point between 8 November 2016 and 31 January 2017, to unmask the identity of former National Security Advisor, Lieutenant General Michael T. Flynn (USA-Ret).’”  “The . . . Memo cannot constitute public acknowledgement for the simple reason that disclosures about General Flynn say nothing about the unmasking of members of Congress.”  Regarding the “‘publicly available’ congressional unmasking procedures,” the court finds that “upon closer inspection, none of [plaintiff’s] evidence shows that the FBI has acknowledged possessing [the requested] information.”  “At best, the existence of the procedures, coupled with the DNI’s statement that congressional unmasking occurs ‘on occasion,’ reveal that members of the Intelligence Community engage in congressional unmasking – but not necessarily the FBI in particular.”  “Second, assuming (without granting) that the . . . Procedures reveal that the FBI engages in congressional unmasking, they do not confirm that the FBI possesses communications with Congress about this activity.”  “To the contrary, the . . . Procedures specify that the DNI’s Office of Legislative Affairs – not the originating agency – ‘will notify appropriate congressional staff that a dissemination of unmasked congressional identity information has taken place.’”  “Of course, the . . . Procedures do not rule out the possibility that the FBI possesses communications with Congress concerning congressional unmasking – but that is beside the point.”  “[Plaintiff’s] burden is to show that these procedures confirm that the FBI possesses such information, and it has not met it.”
   
• Exemption 1, Glomar Response & Exemption 3:  The court relates that “the FBI’s Glomar response can be organized into two categories of documents:  (1) FISA-obtained or -derived ‘operational documents’ which reveal the FBI's operations, any fruits of such operations, and/or any resulting congressional unmasking; and (2) ‘policy documents’ which discuss congressional unmasking as a matter of legislative interest, policy, or oversight.”  The court finds that “[t]he FBI’s Glomar response as to ‘operational documents’ is justified by FOIA Exemptions 1 and 3.”  The court relates that “[the FBI’s] declarant . . . has original classification authority and determined that disclosing whether this information exists would reveal classified information.”  “[The FBI’s declarant] represents that this information is under the control of the United States, a point [plaintiff] does not dispute.”  “He claims that this information is protected by E.O. 13,526 § 1.4(c), which covers ‘intelligence activities’ and ‘intelligence sources or methods.’”  “According to [the FBI’s declarant], disclosing the existence of this information jeopardizes national security because it would ‘reveal the intelligence community’s interest, or lack of interest, in the implicated individuals’ and also ‘reveal[ ] strengths, weaknesses, and gaps in intelligence coverage.’”  “Indeed, by acknowledging that it possesses or does not possess these ‘operational documents,’ the FBI would ‘confirm or refute the FBI’s reliance’ on this ‘particular intelligence activity or method.’”  “Finally, [the FBI’s declarant] assures the Court that the withholding of this information is not for unlawful purposes but rather to protect national security.”  “The Court finds the FBI's explanation logical and plausible.”  The court relates that “[plaintiff] argues that a search is required because the FBI’s Glomar response could rest in part on information that should be declassified and [is] therefore ineligible for Exemption 1’s protection.”  The court finds that “[plaintiff’s] argument is creative, but the Court need not reach it because Exemption 3 provides an independent basis to support the FBI’s Glomar response as to any declassified documents.”  “That is because information need not be classified to fall within Exemption 3’s protection.” 
  
  “The FBI’s Glomar response is also justified under Exemption 3.”  “Here, the FBI’s Glomar response with respect to the ‘operational documents’ is permitted by section 102A(i)(1) of the National Security Act of 1947, 50 U.S.C. § 3024.”  “Section 102A(i)(1) provides that the DNI shall ‘protect intelligence sources and methods from unauthorized disclosure.’”  “[T]he requested information plainly falls within the statute.”  “Here, for the same reasons described in detail above, confirming or denying the existence of any ‘operational documents’ would reveal the FBI’s intelligence sources and methods concerning congressional unmasking.”  “Revealing their existence or absence would allow a foreign adversary to draw inferences about the FBI’s operations, any fruits of such operations, and/or any resulting congressional unmasking, and therefore endanger national security.”  “The Court once again finds the FBI’s explanation logical and plausible.”
  
  However, the court also finds that “[t]he circumstances here do not justify the FBI’s Glomar response over the ‘policy documents.’”  “It is difficult to see how the FBI’s ‘policy documents’ would be necessarily protected under FOIA Exemptions 1, 3, 6, 7(C), and 7(E), which the FBI claims supports its blanket Glomar response.”  “Unlike with ‘operational documents,’ acknowledging the mere existence of ‘policy documents’ would not necessarily reveal sensitive information about the FBI’s intelligence activities, sources, or methods under Exemptions 1 and 3.”  “At most, their existence would show Congress’s interest in this field but not necessarily uncover anything about the FBI’s activities or capabilities.”  “Nor would ‘policy documents’ be necessarily protected under Exemptions 6 and 7(C) because policy-level discussions would not necessarily single out individuals and thereby implicate individual privacy rights.”  “Finally, the existence of ‘policy documents’ would not necessarily disclose any law enforcement procedure, technique, or guideline that would risk circumvention of the law under Exemption 7(E), because acknowledging the existence of congressional inquiries would not necessarily reveal anything about the FBI’s operations themselves, nor would it necessarily enable a wrongdoer to break the law or avoid detection.”  “‘Because there exists a category of responsive documents for which a Glomar response would be unwarranted, [the FBI’s] assertion of a blanket Glomar response . . . cannot be sustained.’”  “The FBI must conduct a search for ‘policy documents.’”