Raw Story v. DOD, No. 23-2514, 2024 WL 4346214 (D.D.C. Sept. 30, 2024) (Alikhan, J.)

Raw Story v. DOD, No. 23-2514, 2024 WL 4346214 (D.D.C. Sept. 30, 2024) (Alikhan, J.)

Re:  Request for records concerning investigation of former Marine and alleged neo-Nazi

Disposition:  Denying defendant’s motion for summary judgment; granting plaintiff’s cross-motion for summary judgment

• Procedural Requirements, “Agency Records” & Proper FOIA Requests:  The court notes that, “[a]s a preliminary matter, the parties disagree about the scope of [plaintiff’s] FOIA request.”  “[Plaintiff] argues that the Navy is reading its FOIA request ‘too narrowly.’” “[Plaintiff] contends that Defendants view the FOIA request as ‘seek[ing] only records of [the] Navy’s own investigation’ into [the subject],’ when, in fact, ‘the request seeks records of any agency’s investigation into [the subject], be it Navy’s or [one by the Department of Justice (‘DOJ’)].’” “Defendants respond that [plaintiff] is challenging their characterization of the scope of the FOIA request ‘for the first time in this litigation’ and assert that [plaintiff’s] ‘attempt to split the requested records into two distinct categories [regarding] a NCIS investigation or a Department of Justice investigation . . . is inappropriate.’”  “However, Defendants also maintain that ‘NCIS’s response would be proper under either interpretation.’”  “The court concludes that [plaintiff] has the better of the argument.”  “As noted, [plaintiff] seeks (1) ‘memoranda, emails, correspondence or other documents referencing classified materials found on the hard drive of [the subject] following his arrest in or around Boise, Idaho on or about Oct. 20, 2020’; (2) ‘memoranda, emails, correspondence or other documents referencing an investigation into potential [criminal] violations . . . through a review of devices seized from [the subject]’; and (3) ‘confirmation that the investigation into potential [criminal] violations . . . by [the subject] is closed or remains open.’”  “The language of this request, read plainly, makes clear that [plaintiff] is not limiting its request to records generated by the Navy, but is instead seeking any responsive records in the Navy’s possession, regardless of which agency generated them.”  “Defendants appear to suggest that responsive DOJ documents in the Navy’s possession may not count as ‘agency records’ within the meaning of the FOIA statute.”  “That is plainly not so.”  “To the extent that Defendants have arguments about whether the Navy has obtained or controls responsive records in its possession that were generated by DOJ, that is not a basis for a Glomar response under the FOIA exemptions they have invoked.”
• Exemption 1, Glomar Response:  The court holds that “Defendants have not logically or plausibly asserted that responsive documents in their possession pertaining to Navy and DOJ investigations into [the subject] are actually and properly classified, nor that acknowledging their very existence or non-existence would cause harm to national security.”  “For these reasons, their Glomar response under Exemption 1 fails.”  “Because Defendants argue that their Glomar response is ‘proper under either interpretation’ of [plaintiff’s] FOIA request, . . . – that is, whether it pertains only to records generated within the Navy or includes records of other agency investigations in the Navy's possession and control – the court will analyze Defendants’ Glomar response as it applies to all documents in their possession, regardless of which agency generated them.” “[Defendant] asserts that a Glomar response ‘under FOIA Exemption 1 is justified in this case because, by the very terms of the FOIA request, [plaintiff] seeks records referencing “classified materials,”’ and therefore, ‘if any responsive records exist, the classification requirements of Executive Order 13526 have already been satisfied.’”  “In response, [plaintiff] contends that Defendants have failed to produce evidence that the records – if they exist – are ‘either actually or properly classified’ and are instead simply assuming that all records referring to classified information are themselves actually and properly classified.” “The court cannot accept Defendants’ contention that a responsive record’s mere reference to classified material means that the record itself is necessarily classified.”  “And as it pertains to DOJ’s investigation into [the subject], DOJ has made public statements about it, which demonstrates that information about its existence is not classified.”  “Thus, while there may be an argument under Exemption 1 for withholding certain actually and properly classified documents in Defendants’ possession related to a DOJ investigation, Exemption 1 does not provide a basis for a Glomar response refusing to confirm or deny the existence of a DOJ investigation.”
  
  “While Defendants have not made the requisite showing that the fact of the existence of responsive records is itself actually classified, given the deference owed to the executive on national security matters, the court still considers whether ‘disclosure “could reasonably be expected” to harm national security.’”  “Defendants also fall short on invoking national security as a basis for their Glomar response.” “[Defendant’s] declaration offers less than one paragraph to substantiate Defendants’ assertion that even acknowledging the existence of responsive records would constitute a threat to national security.”  “[Defendant’s] statements strike the court as vague and conclusory statements that could apply to any NCIS investigation.”
   
• Exemption 6; Exemption 7(C):  Regarding the privacy interests at issue, the court finds that “[b]ecause the existence of the DOJ investigation is already public information, it is difficult to see how [the subject’s] privacy interests could be significantly impacted by Defendants’ disclosure of records confirming what is already in the public domain.”  “This is especially the case because [the subject] now stands convicted of charges stemming from the DOJ investigation.”  “[W]hile an argument for withholding specific documents related to a DOJ investigation could be made under Exemptions 6 and 7(C), a Glomar response refusing to confirm or deny the existence of responsive records in Defendants’ possession regarding a now-public DOJ investigation cannot be supported.”  “As for a possible Navy investigation, the court agrees with the parties that [the subject] has a greater-than-de-minimis privacy interest in the release of information that confirms the existence or non-existence of an investigation that has not been publicly acknowledged by [the subject] or the Navy.”
  
  Regarding the public interests at issue, “[t]he court agrees with [plaintiff] that there is substantial public interest in the requested records.”  “Here, ‘disclosure of the requested records would likely reveal a great deal about law enforcement policy,’ . . . including how Defendants handle investigations related to the mishandling of classified information and how the ‘military is addressing extremism in its ranks.’”  “Thus, disclosure would offer the public visibility into Defendants’ ‘performance of [their] statutory duties’ and would further let citizens know ‘what their government is up to.’”
  
  “After balancing [the subject’s] privacy interest against the public’s interest in knowing how DOJ and the Navy are investigating the mishandling of classified information and extremism in the military’s ranks, the court finds that [the subject’s] privacy interest is outweighed.” “[The subject’s] privacy interest in the confirmation of the existence or nonexistence of the already-public DOJ investigation is ‘more than a de minimis privacy interest,’ but not ‘much more,’ because it has already resulted in a public – and indeed, publicized – conviction.”  “This diminished privacy interest therefore cannot overcome the ‘significant public interest’ in disclosures related to ‘[m]atters of substantive law enforcement policy.’”  “[The subject’s] privacy interest in the disclosure of the existence or nonexistence of a Navy investigation is comparatively stronger.” “However, it is Defendants’ ‘burden to sustain a Glomar response,’ . . . through ‘[a]ffidavits [that] contain “reasonable specificity of detail rather than merely conclusory statements[]”’ . . . .”  “Defendants’ declarant . . . correctly acknowledges that ‘members of the public are likely to draw adverse inferences from the mere fact that an individual is mentioned in the files of a criminal law enforcement agency,’ . . . but she fails to explain the extent to which [the subject] would be additionally stigmatized by a Navy investigation given the pre-existing public scrutiny of his previous investigation and conviction.”  “The vague and conclusory statements offered regarding [the subject’s] privacy interests cannot sustain a Glomar response against the ‘weighty public interest’ in ‘she[dding] light on [Defendants’] performance of [their] statutory duties.’”
  
  “Independent of their Glomar argument, Defendants assert that they may categorically withhold any records responsive to [plaintiff’s] FOIA request under Exemptions 6 and 7(C).”  “Defendants’ asserted categorical exemption to ‘all responsive record[s][]’ . . . in their possession is clearly not ‘sufficiently distinct’ for the ‘court to determine whether [Exemptions 6 and 7(C)] are properly applied.’” “Indeed, the court does not understand how Defendants can claim a categorical exemption for records it has not yet searched for and identified. Instead, now that the court has dispensed with Defendants’ Glomar response, Defendants must acknowledge the existence of responsive records, review them, and offer evidence that the records fall into a category covered by FOIA Exemptions 6 and 7(C).”  “Such a showing need not necessarily reveal the specifics of responsive documents, but it must suffice to convince the court that a categorical exemption is appropriate.”  “Upon review of the requested documents, Defendants may again attempt to assert a categorical response, if one is warranted.”  “But it may not disguise a Glomar response in the costume of a categorial exemption.”