Lindsey v. Federal Bureau of Investigation , 271 F. Supp. 3d 1 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DAVID AUSTIN LINDSEY,
Plaintiff,
v.
Civil Action No. 16-2032 (CKK)
FEDERAL BUREAU OF
INVESTIGATION,
Defendant.
MEMORANDUM OPINION AND ORDER
(September 20, 2017)
This Freedom of Information Act (“FOIA”) matter concerns Plaintiff’s request to
Defendant Federal Bureau of Investigation (“FBI”) for the disclosure of “all FBI records
of contact between Imad Hage and U.S. Government officials.” Hardy Decl., Ex. A.
According to Plaintiff, his FOIA request stems from “information that was reported in
several national news articles . . . that a Lebanese national, identified as Mr. Imad Hage,
had attempted to serve as a diplomatic intermediary . . . between the United States and
Iraq.” Lindsey Decl. ¶ 4. Plaintiff further contends that these “news reports indicate that
the FBI conducted an investigation of Mr. Hage, following [an] incident at Dulles Airport
in [January 2003], and that this FBI investigation included FBI contacts with U.S. officials
involved with Mr. Hage’s diplomatic efforts.” Id.
Plaintiff submitted his FOIA request on May 18, 2016. Hardy Decl. ¶ 6. Defendant
denied that request on June 23, 2016, issuing a privacy Glomar response stating that
“absent express authorization and consent from the third-party individual whose records
are sought, the FBI can neither confirm nor deny the existence of any records responsive
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to plaintiff[’]s request, and informed plaintiff that if such records were to exist, they would
be exempt from disclosure pursuant to FOIA Exemptions (b)(6) and (b)(7)(C).” Id. ¶ 9.
Plaintiff’s administrative appeal of that decision was denied on September 5, 2016, leading
to the present action.
Pending before the Court are the parties’ cross-motions for summary judgment.
ECF Nos. 10, 11. 1 Because the Court finds that Defendant’s affidavit is not sufficient to
warrant summary judgment on the basis of its Glomar response, the Court shall deny both
motions without prejudice. In subsequent proceedings, Defendant may submit an amended
affidavit, or choose to pierce the Glomar veil, and conduct a search for relevant, non-
exempt records that are responsive to Plaintiff’s FOIA request.
I. LEGAL STANDARD
Congress enacted FOIA to “pierce the veil of administrative secrecy and to open
agency action to the light of public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352,
361 (1976) (citation omitted). Congress remained sensitive to the need to achieve balance
between these objectives and the potential that “legitimate governmental and private
interests could be harmed by release of certain types of information.” FBI v. Abramson,
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The Court’s consideration has focused on the following documents:
• Mem. of P&A in Supp. of Def.’s Mot. for Summ. J., ECF No. 10-1 (“Def.’s
Mem.”);
• Pl.’s Mem. in Opp’n to Def.’s Mot. for Summ. J., and in Supp. of Pl.’s Mot. for
Summ. J., ECF Nos. 11, 12 (“Pl.’s Mem.”);
• Def.’s Reply in Supp. of Def.’s Mot. for Summ. J. and Opp’n to Pl.’s Mot. for
Summ. J., ECF Nos. 13, 14 (“Def.’s Reply Mem.”);
• Pl.’s Reply Mem. in Supp. of Pl.’s Mot. for Summ. J., ECF No. 15 (“Pl.’s Reply
Mem.”);
• Decl. of David M. Hardy, ECF No. 10-3 (“Hardy Decl.”);
• Decl. of David Austin Lindsey, ECF No. 11-2 (“Lindsey Decl.”).
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456 U.S. 615, 621 (1982). To that end, FOIA “requires federal agencies to make
Government records available to the public, subject to nine exemptions.” Milner v. Dep't
of Navy, 562 U.S. 562, 562 (2011). Ultimately, “disclosure, not secrecy, is the dominant
objective of the Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976). For this reason,
the “exemptions are explicitly made exclusive, and must be narrowly construed.” Milner,
562 U.S. at 565 (citations omitted).
When presented with a motion for summary judgment in this context, the district
court must conduct a “de novo” review of the record, which requires the court to “ascertain
whether the agency has sustained its burden of demonstrating the documents requested . .
. are exempt from disclosure under the FOIA.” Multi Ag Media LLC v. U.S. Dep’t of
Agriculture, 515 F.3d 1224, 1227 (D.C. Cir. 2008) (citation omitted). The burden is on the
agency to justify its response to the plaintiff’s request. 5 U.S.C. § 552(a)(4)(B). “An agency
may sustain its burden by means of affidavits, but only if they contain reasonable
specificity of detail rather than merely conclusory statements, and if they are not called into
question by contradictory evidence in the record or by evidence of agency bad faith.” Multi
Ag Media, 515 F.3d at 1227 (citation omitted). “If an agency’s affidavit describes the
justifications for withholding the information with specific detail, demonstrates that the
information withheld logically falls within the claimed exemption, and is not contradicted
by contrary evidence in the record or by evidence of the agency’s bad faith, then summary
judgment is warranted on the basis of the affidavit alone.” Am. Civil Liberties Union v.
U.S. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted).
“Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation
to the exemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep’t of
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State, 641 F.3d 504, 509 (D.C. Cir. 2011) (citation omitted). Summary judgment is proper
when the pleadings, the discovery materials on file, and any affidavits or declarations
“show[ ] that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
An agency also has the burden of detailing “what proportion of the information in
a document is non-exempt and how that material is dispersed throughout the document.”
Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977).
Any nonexempt information that is reasonably segregable from the requested records must
be disclosed. Oglesby v. U.S. Dep’t of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996).
II. DISCUSSION
A. The Relevant Law Under FOIA
In this case, the FBI issued a Glomar response, indicating that it could neither
confirm nor deny the existence of any documents responsive to Plaintiff’s FOIA request.
This type of response is appropriate in “certain cases, [where] merely acknowledging the
existence of responsive records would itself cause harm cognizable under a FOIA
exception.” People for the Ethical Treatment of Animals v. NIH, 745 F.3d 535, 540 (D.C.
Cir. 2014) (“PETA”) (internal quotation marks and original alteration omitted). “[T]o the
extent the circumstances justify a Glomar response, the agency need not conduct any
search for responsive documents or perform any analysis to identify segregable portions of
such documents.” Id.
A Glomar response “is proper if the fact of the existence or nonexistence of agency
records falls within a FOIA exemption.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007).
“When addressing an agency’s Glomar response, courts must accord ‘substantial weight’
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to agency determinations.” Sea Shepherd Conservation Soc’y v. IRS, 208 F. Supp. 3d 58,
89 (D.D.C. 2016) (citing Gardels v. CIA, 689 F.2d 1100, 1104 (D.C. Cir. 1982)).
Consequently, in such cases, “courts may grant summary judgment on the basis of agency
affidavits that contain reasonable specificity of detail rather than merely conclusory
statements, and if they are not called into question by contradictory evidence in the record
or by evidence of agency bad faith.” Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926, 931
(D.C. Cir. 2012) (internal quotation marks omitted). “The supporting affidavit must justify
the Glomar response based on general exemption review standards established in non-
Glomar cases.” Id. (internal quotation marks omitted). Ultimately, “an agency’s
justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or
‘plausible.’” Id. (citation omitted).
The FBI’s Glomar response is predicated on FOIA Exemptions 6 and 7(C), and
stems from the FBI’s “long standing policy . . . to neither confirm nor deny the existence
of records . . . where a requester seeks access to information regarding a third party but
fails to provide a privacy waiver from the third party or proof of death of that third party.”
Def.’s Mem. at 9. Exemption 6 exempts from disclosure “personnel and medical files and
similar files the disclosure of which would constitute a clearly unwarranted invasion of
personal privacy.” 5 U.S.C. § 552(b)(6). Exemption 7(C) exempts from disclosure “records
or information compiled for law enforcement purposes, but only to the extent that the
production of such law enforcement records or information . . . could reasonably be
expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. §
552(b)(7)(C).
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Exemption 6 is not limited to “a narrow class of files containing only a discrete
kind of personal information[,]” but was “intended to cover detailed Government records
on an individual which can be identified as applying to that individual.” U.S. Dep’t of State
v. Washington Post Co., 456 U.S. 595, 602 (1982). Fundamentally, “Exemption 6 is
designed to protect personal information in public records.” Multi Ag Media, 515 F.3d at
1228 (internal quotation marks omitted). Assuming that the records at issue are of the type
that fall within the ambit of Exemption 6, “the court must then determine whether their
disclosure would constitute a clearly unwarranted invasion of personal privacy, which
requires balancing the privacy interest that would be compromised by disclosure against
any public interest in the requested information.” Wisdom v. U.S. Tr. Program, --- F. Supp.
3d ---, No. CV 15-1821 (JEB), 2017 WL 3842117, at *8 (D.D.C. Sept. 1, 2017) (internal
quotation marks omitted). In order for the exemption to apply, the Court must determine
that the “disclosure of the files would compromise a substantial, as opposed to de minimis,
privacy interest, because if no significant privacy interest is implicated FOIA demands
disclosure.” Multi Ag Media, 515 F.3d at 1229 (internal quotation marks and alterations
omitted). On the other side of the equation, “the only relevant public interest in disclosure
to be weighed . . . is the extent to which disclosure would serve the core purpose of the
FOIA, which is contributing significantly to public understanding of the operations or
activities of the government.” U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510 U.S.
487, 495 (1994) (internal quotation marks and alterations omitted).
The same balancing test applies to Exemption 7(C). However, “Exemption 7(C) is
more protective of privacy than Exemption 6 and thus establishes a lower bar for
withholding material.” Prison Legal News v. Samuels, 787 F.3d 1142, 1147 n.5 (D.C. Cir.
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2015) (internal quotation marks omitted). That is because “Exemption 7(C)’s privacy
language is broader than the comparable language in Exemption 6 in two respects.” U.S.
Dep’t of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 756 (1989).
“First, whereas Exemption 6 requires that the invasion of privacy be ‘clearly unwarranted,’
the adverb ‘clearly’ is omitted from Exemption 7(C). . . . Second, whereas Exemption 6
refers to disclosures that ‘would constitute’ an invasion of privacy, Exemption 7(C)
encompasses any disclosure that ‘could reasonably be expected to constitute’ such an
invasion.” Id. In the context of Exemption 7(C), this circuit has recognized that
“individuals have a strong interest in not being associated unwarrantedly with alleged
criminal activity.” Stern v. FBI, 737 F.2d 84, 91 (D.C. Cir. 1984).
Furthermore, to withhold documents pursuant to Exemption 7(C), the agency must
make a threshold showing that the “the records were compiled for a law enforcement
purpose.” Pinson v. U.S. Dep’t of Justice, --- F. Supp. 3d ---, No. CV 12-1872 (RC), 2017
WL 1247773, at *13 (D.D.C. Mar. 29, 2017) (internal quotation marks omitted). “A court’s
review of this threshold question is ‘necessarily deferential,’ but is ‘not vacuous.’” Id.
(citing Pratt v. Webster, 673 F.2d 408, 418 (D.C. Cir. 1982)). Not every document
compiled by a law enforcement agency, such as the FBI, is compiled for a law enforcement
purpose. Vymetalik v. FBI, 785 F.2d 1090, 1095 (D.C. Cir. 1986) (“FBI records are not law
enforcement records simply by virtue of the function that the FBI serves”). “To establish a
law enforcement purpose, [the FBI’s] declarations must establish (1) a rational nexus
between the investigation and one of the agency’s law enforcement duties; and (2) a
connection between an individual or incident and a possible security risk or violation of
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federal law.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 926 (D.C.
Cir. 2003) (internal quotation marks omitted).
B. Application to Plaintiff’s FOIA Request
The Court finds that the affidavit submitted by Defendant in support of its Glomar
response rests on a flawed interpretation of Plaintiff’s FOIA request, and does not respond
to certain information in the record suggesting that the third-party privacy rights at issue
have been substantially diminished by public acknowledgments of the allegedly private
facts.
As an initial matter, Defendant appears to have drawn a narrow reading of
Plaintiff’s FOIA request, which seeks the disclosure of “all FBI records of contact between
Imad Hage and U.S. government officials.” Hardy Decl. ¶ 5 (citing Ex. A). Defendant
contends that Plaintiff stated in correspondence and administrative filings that his request
pertained only to “alleged back channel negotiations” between Mr. Hage and government
officials. Def.’s Reply Mem. at 2. For example, in his appeal letter, Plaintiff stated that his
“request sought records from the FBI concerning contact between Imad Hage and U.S.
government officials related to back channel Iraqi peace proposals.” Hardy Decl., Ex. F.,
at 3. Apparently, based on this and similar statements from Plaintiff, Defendant has taken
the position that it need not disclose records to the extent they relate to a 2003 incident
involving Mr. Hage at Dulles Airport. Id. at 7 n.4 (“The U.S. government has had [an]
official, public interaction with Mr. Hage regarding a criminal complaint filed against him
in 2003. The charges were dismissed in 2004. That interaction has no bearing on this FOIA
litigation.”).
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Defendant’s position is contrary to the law of this circuit. An agency must “construe
a FOIA request liberally.” Nation Magazine, Washington Bureau v. U.S. Customs Serv.,
71 F.3d 885, 890 (D.C. Cir. 1995). And a FOIA requestor does not abandon the full scope
of his request merely by showing a heightened interest in some documents over others.
LaCedra v. Exec. Office for U.S. Attorneys, 317 F.3d 345, 348 (D.C. Cir. 2003) (“The
drafter of a FOIA request might reasonably seek all of a certain set of documents while
nonetheless evincing a heightened interest in a specific subset thereof. We think it
improbable, however, that a person who wanted only the subset would draft a request that
. . . first asks for the full set.”). Here, Plaintiff has plainly asked for “FBI records of contact
between Imad Hage and U.S. government officials,” without qualification as to the types
of contact. True, the record indicates that Plaintiff has a particular interest in diplomatic
contacts, but even on this point, Defendant’s position is dubious. Defendant seeks to
distinguish contacts related to the 2003 Dulles Airport incident from the diplomatic
incidents in which Plaintiff has shown a heightened interest. But from Plaintiff’s
perspective, which is supported by citations to credible news media, the Dulles Airport
incident was part-and-parcel of the alleged diplomatic contacts. Lindsey Decl. ¶ 4 (“These
news reports indicate that the FBI conducted an investigation of Mr. Hage, following a
January 28, 200[3] incident at Dulles Airport, and that this FBI investigation included
contacts with U.S. officials involved with Mr. Hage’s diplomatic efforts); id., Ex. B, James
Risen and Eric Lichtblau, A Region Inflamed: Back Channels; U.S. Opens Firearms
Charge Against Iraq-U.S. Contact, N.Y. TIMES, Dec. 11, 2003 (“Mr. Hage’s lawyer in New
York, said the timing made it appear that the charges were ‘an attempt to discredit my
client’ because of his role as a contact with Iraq.”). The Court offers no view on whether
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or not the Dulles Airport incident was, in fact, related to the alleged diplomatic contacts.
But Defendant cannot summarily conclude that contacts related to the Dulles Airport
incident categorically fall outside of Plaintiff’s FOIA request, when the plain language of
that request seeks records of all contacts with U.S. officials.
Defendant’s reasoning in support of its Glomar response suffers from a similar,
narrow reading of Plaintiff’s FOIA request. As noted above, a Glomar response is
appropriate where the disclosure of the very fact that documents do or do not exist would
trigger a FOIA exemption. Here, Defendant premised its Glomar response on Mr. Hage’s
“substantial privacy interest in not being associated with FBI records.” Hardy Decl. ¶ 17.
Defendant found it noteworthy that “while Mr. Hage has publicly stated [that] he was
involved with alleged peace proposals, Plaintiff has not provided evidence that Mr. Hage
publicly stated that he had contact with the FBI regarding the proposal[s].” Id. ¶ 19. Even
more important, in Defendant’s view, is the fact that “Plaintiff has not shown that the FBI
has ever officially acknowledged any interaction between it – or any other Government
agency/official – and Mr. Hage.” Id. (emphasis in original).
This line of analysis requires some unpacking. First, it misconstrues the
significance of the “public acknowledgment” doctrine to this case. Under that doctrine, if
an “agency has officially acknowledged the existence of [a] record, the agency can no
longer use a Glomar response, and instead must either: (1) disclose the record to the
requester or (2) establish that its contents are exempt from disclosure and that such
exemption has not been waived.” Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011).
Here, there may be records fitting that description, given Defendant’s acknowledgement
that the “government has had [an] official, public interaction with Mr. Hage regarding a
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criminal complaint filed against him in 2003.” Hardy Decl., at 7 n.4. The record is not
sufficiently clear on this point, given Defendant’s decision to exclude that “official, public
interaction” from the scope of its FOIA response.
Regardless, the fact that the government has not acknowledged a potentially
personal piece of information, does not mean that the third-party’s acknowledgment of that
information has no bearing on the private-public interest balancing test underlying the
FOIA exemptions at issue. Rather, this circuit has held that the third-party’s
acknowledgment has a substantial effect on that balance. Citizens for Responsibility &
Ethics in Washington v. U.S. Dep’t of Justice, 746 F.3d 1082, 1092 (D.C. Cir. 2014)
(“DeLay’s obvious privacy interest in keeping secret the fact that he was the subject of an
FBI investigation was diminished by his well-publicized announcement of that very fact.”);
Nation Magazine, 71 F.3d at 896 (D.C. Cir. 1995) (“Perot’s decision to bring information
connecting himself with such efforts into the public domain differentiates his privacy
interest from the interest of unnamed SafeCard witnesses who did not voluntarily divulge
their identities; these public disclosures effectively waive Perot’s right to redaction of his
name from documents on events that he has publicly discussed.”).
Plaintiff’s original FOIA request referenced a CNN video interview of Mr. Hage in
which he stated that there were “reporters who got access to memos and documentations
and e-mails passed from me to people at the Pentagon and/or Richard Perle [a member of
the Defense Policy Board, an independent group that advises Defense Secretary Donald
Rumsfeld].” Intermediary: Iraq talks deserved a chance, CNN (Nov. 7, 2003),
http://www.cnn.com/2003/US/11/07/ cnna.hage/. Consequently, there is record evidence
that Mr. Hage has publicly acknowledged contacts with United States officials.
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Furthermore, the FOIA request cited a New York Times article in which Mr. Hage appears
to have acknowledged that FBI agents detained him at Dulles Airport in January 2003.
James Risen, The Struggle for Iraq: Diplomacy; Iraq Said to Have Tried to Reach Last-
Minute Deal to Avert War, N.Y. TIMES (Nov. 6, 2003),
http://www.nytimes.com/2003/11/06/world/struggle-for-iraq-diplomacy-iraq-said-have-
tried-reach-last-minute-deal-avert.html?mcubz=1 (“In January he had been briefly
detained by the F.B.I. at Dulles Airport in Washington when a handgun was found in his
checked luggage. [Mr. Hage] said he did not believe it was a security violation because it
was not in his carry-on luggage, and the authorities allowed him to leave after a few
hours.”). And as already discussed, Defendant has conceded that the government had an
“official, public interaction with Mr. Hage” in 2003.
The ultimate question with respect to Defendant’s Glomar response is whether the
disclosure of the fact that there are documents in FBI’s possession that are responsive to
Plaintiff’s FOIA request would itself constitute an invasion of privacy sufficient to trigger
Exemption 6 or 7(C). As already demonstrated, there is substantial factual matter in the
record suggesting that Mr. Hage has already publicly acknowledged that he, to some
degree, had interactions with the FBI, and that he had diplomatic contacts with U.S.
officials. In response, Defendant seems to rest on the fact that “Plaintiff has not provided
evidence that Mr. Hage publicly stated that he had contact with the FBI regarding the
[alleged diplomatic] proposals.” Hardy Decl. ¶ 19. But that draws too fine a line. First,
Plaintiff’s request concerns any contacts with U.S. officials, whether they are related to
diplomatic proposals or not. Second, the request does not necessarily seek documents
regarding contacts with the FBI. Even if Mr. Hage did not have direct contacts with the
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FBI regarding his alleged diplomatic entreaties to U.S. officials, records of Mr. Hage’s
alleged efforts may still be in the possession of the FBI, perhaps collected as part of the
“official, public interaction” that the FBI had with Mr. Hage. How the disclosure of such
documents would impose upon Mr. Hage’s privacy interests—given (i) his apparent public
acknowledgement that he had an interaction with the FBI and diplomatic contacts with
U.S. officials, and (ii) Defendant’s concession that the “U.S. government has had [an]
official, public interaction with Mr. Hage regarding a criminal complaint”—is a positon on
which Defendant must substantially elaborate if it intends to continue to pursue a
categorical Glomar response in this matter.
Nor can the Court simply conclude that there is no public interest in the subject-
matter of Plaintiff’s FOIA request, given the substantial record evidence of media reports
from credible news agencies regarding Mr. Hage’s alleged diplomatic efforts. Even a
modicum of public interest may suffice to warrant disclosure, if public acknowledgments
by Mr. Hage have vitiated the claimed privacy interests in this matter. Accordingly, the
Court shall provide Defendant an opportunity to either supplement its affidavit in support
of its Glomar response, or to otherwise proceed in a manner consistent with its obligations
under FOIA (e.g., by piercing the Glomar veil and conducting a search for relevant, non-
exempt materials).
III. CONCLUSION AND ORDER
For the foregoing reasons, Defendant’s [10] Motion for Summary Judgment and
Plaintiff’s [11] Motion for Summary Judgment are DENIED WITHOUT PREJUDICE.
The parties shall proceed in a manner consistent with this Memorandum Opinion, and shall
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file a Joint Status Report by NOVEMBER 17, 2017, updating the Court on how they
intend to proceed, and proposing a schedule for such further proceedings.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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