Schaerr v. DOJ, No. 21-5165, 2023 WL 3909471 (D.C. Cir. June 9, 2023) (Rao, J.)

Schaerr v. DOJ, No. 21-5165, 2023 WL 3909471 (D.C. Cir. June 9, 2023) (Rao, J.)

Re:  Requests for records concerning unmasking of members of former President’s campaign and transition team

Disposition:  Affirming district court’s grant of government’s motion for summary judgment                                                                                                 

• Exemption 1, Glomar:  The Court of Appeals for the District of Columbia Circuit relates that “[the requester] maintains that because FOIA permits only ‘the piecemeal withholding of specifically exempt information,’ an agency must identify responsive records prior to issuing a Glomar response.”  “The Agencies did not search their records, [the requester] says, so their Glomar responses cannot justify the withholding of any records.”  The court finds that “[the requester’s] demand for a record search cannot be reconciled with FOIA, its exemptions, or our cases permitting Glomar responses.”  The court relates that “an agency need not search its records before invoking Glomar.”  “[The court has] explained that no search is necessary because ‘the nature of a Glomar response’ is to ‘narrow[ ] the FOIA issue to the existence of records vel non.’”  “In the Glomar context, there are ‘no relevant documents for the court to examine other than the affidavits which explain the Agency’s refusal’ to confirm or deny the existence of responsive records.”  “The Agencies were not required to search for responsive records because they properly issued Glomar responses that cited an applicable FOIA exemption and explained with reasonable specificity the basis for their response.”
  
  The court relates that “[a]lthough the Agencies need not search for records, [the court] must assess whether the Agencies’ Glomar responses properly invoked FOIA Exemptions One and Three.”  “Each agency provided an affidavit averring the information [the requester] seeks is properly classified under Executive Order 13,526.”  “In their affidavits, the Agencies maintain that confirming or denying the existence of records related to upstreaming or unmasking would damage national security by disclosing agency priorities, capabilities, and methods.”  “Such disclosure would reveal whether the Agencies possess FISA-related intelligence on any of the 21 individuals named in [the requester’s] FOIA request.”  “Acknowledging the existence of such records would force the Agencies to disclose how they acquire, retain, and disseminate unmasking and upstreaming requests, ‘thereby revealing strengths, weaknesses, and gaps in intelligence coverage.’”  “And, as the FBI noted, our adversaries could use this information ‘to develop and implement countermeasures’ to avoid future detection.”  The court finds that “[t]he Agencies have more than plausibly explained why any responsive records would be classified and have provided credible reasons for classifying this information, including that unauthorized disclosure would damage national security and compromise intelligence sources and methods.”  “[The requester’s] generalized suggestion that some responsive records might have been improperly classified cannot overcome the substantial weight we afford to agency classification decisions.”
   
• Exemption 3:  The Court of Appeals for the District of Columbia Circuit relates that “[i]n their Glomar responses, five of the six agencies relied on the National Security Act of 1947, which ‘qualifies as a withholding statute under Exemption 3.’”  “The National Security Act provides that ‘[t]he Director of National Intelligence shall protect intelligence sources and methods.’”  “It also prohibits the unauthorized disclosure of such sources and methods.”  The court finds that “[it has] recognized that the mere acknowledgment of intelligence sources and methods may implicate the protections of the Act.”  “As [the court has] already explained, granting [the requester’s] request would force the Agencies to reveal potentially sensitive intelligence information, interfering with their ‘sweeping power to protect [their] intelligence sources and methods’ under the Act.”  “Divulging such information is ‘specifically exempted’ under the National Security Act and is therefore shielded from disclosure by FOIA Exemption Three.”
   
• Litigation Considerations, Vaughn Index/Declarations:  The Court of Appeals for the District of Columbia Circuit relates that “[the requester] contends the evidence of bad faith forecloses summary judgment for the Agencies based merely on their affidavits.”  The court holds that “[the requester’s] claims cannot succeed under [its] longstanding precedent.”  “[The requester] points to two instances of supposed ‘agency bad faith.’”  “First, he notes former United Nations Ambassador Samantha Power and her staff requested the unmasking of hundreds of persons, many of whom were members of President Trump’s campaign and transition team.”  “Second, [the requester] claims the Agencies illegally spied on President Trump’s campaign and transition team.”  “Taken together, [the requester] asserts, these past instances of malfeasance suggest the Agencies may be ‘improperly withholding information.’”  The court holds that “[e]ach of these allegations is either too generalized or too attenuated from the specific classification decisions at issue to constitute the kind of ‘tangible evidence of bad faith’ [the court has] required to overcome agency affidavits.”  “[The requester’s] assertions fall far short of presenting a substantial and material question as to the Agencies’ good faith in this case.”