Prop. of the People, Inc. v. DOJ, No. 17-1728, 2021 WL 6105680 (D.D.C. Dec. 23, 2021) (Sullivan, J.)

Prop. of the People, Inc. v. DOJ, No. 17-1728, 2021 WL 6105680 (D.D.C. Dec. 23, 2021) (Sullivan, J.)

Re:  Request for investigative and non-investigative files of former congressperson, Dana Rohrabacher of California

Disposition:  Denying plaintiffs' motion for summary judgment

• Exemption 7(C), The "Glomar" Response:  "[D]espite the public interest in understanding an agency's investigatory process into Russia's influence in the 2016 presidential election and the FBI's counterintelligence efforts, the Court concludes that the public interest fails to outweigh Congressman Rohrabacher's privacy interest in nondisclosure."  The court relates that, in a prior opinion, "[t]he Court first turned to Congressman Rohrabacher's privacy interest and found that he has 'more than a de minimis privacy interest in the contents of any FBI investigative records.'"  "The Court next turned to whether disclosure would advance the public interest, and found that the public interest in the case was 'significant.'"  "[T]he Court . . . acknowledged that Plaintiffs had, during the course of the litigation, 'shifted their focus to the SCO's investigation into Russia's influence in the 2016 presidential election and the FBI's counterintelligence efforts' and had asked the Court to 'require the FBI to exclude from its Glomar response any records which link [Congressman] Rohrabacher to Russian counterintelligence matters.'"  "In view of this shift, the Court stated that Plaintiffs had demonstrated that there is a public interest in 'how the FBI handled the issue of threats posed by Russian intelligence to the U.S. political system.'"  "The Court concluded that '[c]learly, 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.'"  "The next step in the Court's inquiry was to balance the significant interests on both sides of the scale."  "However, the Court declined to weigh the balance due to the 'level of generality,' and instead directed DOJ to submit a Vaughn index."  "The Court . . . now consider[s] anew the merits of the parties' arguments regarding the balance of the competing interests."  "First, it is significant to this analysis that Congressman Rohrabacher has not publicly confirmed that he was the subject of an investigation outside of the two meetings."  "According to Plaintiffs, Congressman Rohrabacher acknowledged through statements to the media that:  (1) the 2012 meeting occurred; (2) the 2012 meeting 'had focused on his contact with one member of the Russian Foreign Ministry' who was in fact 'an intelligence officer' he had met during a congressional delegation to Moscow; (3) the FBI had informed him during the meeting that Russia had 'targeted [him] to be recruited as an agent' and that Moscow 'looked at [him] as someone who could be influenced'; and (4) he felt that 'Russian intelligence' had been 'after [him] since [he] was a teenager.'"  "In addition, Congressman Rohrabacher's spokesperson confirmed that he was the member of Congress who had attended a March 2013 meeting about Ukraine."  "These statements, however, do not diminish Congressman Rohrabacher's privacy interests in the broad manner that Plaintiffs assert."  "While his privacy interest in the 2012 and 2013 meetings 'evaporated' once he publicly acknowledged his involvement, . . . his statements do not disclose that he was ever the target of an FBI investigation outside of his association with the two events."  "Despite his statements to the media, Mr. Rohrabacher therefore has more than a de minimis privacy interest in the existence of any FBI investigative records outside of the two meetings he has publicly acknowledged."  "And, as this Court has explained, this privacy interest remains despite Congressman Rohrabacher's status as a former public official."  "Second, although the Court has previously concluded that there existed a public interest in any records because disclosure could shed light on 'how the FBI handled the issue of threats posed by Russian intelligence to the U.S. political system,' . . . this finding also was not based upon the public acknowledgment of an investigation by the FBI or Congressman Rohrabacher."  "Thus, despite the accounts provided by the articles, the FBI's 'own official acknowledgment that it had investigated [Congressman Rohrabacher] would [still] carry an added and material stigma' notwithstanding other entities' acknowledgment of investigations."