Prop. of the People, Inc. v. DOJ, No. 17-1728, 2019 WL 4644572 (D.D.C. Sept. 24, 2019) (Sullivan, J.)

Prop. of the People, Inc. v. DOJ, No. 17-1728, 2019 WL 4644572 (D.D.C. Sept. 24, 2019) (Sullivan, J.)

Re:  Request for files of former congressman who publicly confirmed that FBI warned him that Russian spies were attempting to recruit him

Disposition:  Granting in part and denying in part defendant's renewed motion for summary judgment; granting in part, denying in part, and holding in abeyance in part plaintiffs' cross-motion for summary judgment

• Exemption 7(C), Glomar:  "The Court . . . directs DOJ to submit a Vaughn index."  The court relates that "[t]he parties disagree about whether 'there exists a [narrow] category of responsive documents for which a Glomar response would be unwarranted[.]'"  "In this case, the Court observes that the FBI's partial Glomar response does not categorically withhold all responsive records."  "The FBI has searched for responsive records regarding [the] Congressman['s] . . . public statements, . . . and the FBI has invoked Glomar as to the existence or non-existence of any other records."  "[T]he Court . . . finds that [the] Congressman . . . has a more than a de minimis privacy interest in the contents of any FBI investigative records."  However, "[t]he Court is persuaded that Plaintiffs have demonstrated that there is a significant public interest in the requested records."  "As the briefing makes clear, Plaintiffs seek the FBI's records concerning [the] Congressman . . . to discover 'how the FBI handled the issue of threats posed by Russian intelligence to the U.S. political system[.]'"  "'Clearly, the American public has a right to know about the manner in which its representatives are conducting themselves and whether the government agency responsible for investigating and, if warranted, prosecuting those representatives for alleged illegal conduct is doing its job.'"  However, regarding the balancing of these issues, "[a]t this juncture, the Court cannot balance the competing interests at this level of generality."
   
• Litigation Considerations, Adequacy of Search:  First, the court holds that "the FBI's 'unpublicized temporal limitation of its searches' was improper."  "The FBI did not communicate the cutoff date during its negotiations with Plaintiffs, provide a justification to Plaintiffs, or afford Plaintiffs with an opportunity to object to the cutoff date at the early stages of the litigation."  "The Court expresses no view on the propriety of the FBI's practice of employing cutoff dates, . . . but the FBI’s failure to give Plaintiffs advance notice of the cutoff date was inconsistent with D.C. Circuit precedent."  Second, "[t]he Court . . . finds that the FBI's declarations fail to provide this Court with sufficient information to conclude that the FBI's search was 'reasonably calculated to uncover all relevant documents.'"  The court takes issue with defendant's failure to address certain reasonable leads put forth by plaintiffs.  Additionally, regarding some searches, the court finds that, "'consistent with this Circuit's precedent, [the FBI] shall identify the search terms that the staff members in [the various] offices used to search their electronic records, as well as the reason for any differences in the record systems they searched.'"  "The FBI 'shall also clarify how staff members searched their desks, file cabinets, file drawers and file rooms for nonelectronic records.'"
   
• Litigation Considerations, Vaughn Index/Declaration:  "[T]he Court . . . finds that [defendant's] declarations meet the requirements under Rule 56."  The court relates that "[b]oth declarants aver that they are 'familiar with the procedures followed by the FBI in responding to requests for information from its files' and that they are 'aware of the FBI's response to Plaintiffs' FOIA request for records relating to [the] Congressman . . . .'"  The court finds that "'[w]hile the [affidavit] might have provided this necessary information in a more direct and clear manner – e.g., by using the tried-and-true recitation of a "familiarity with the documents in question" – the language he has used nonetheless presents a sufficient approximation to satisfy Rule 56's requirements here.'"