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Judicial Watch • Daily Caller v DOJ Comey Memos Cross MSJ 01830

Daily Caller v DOJ Comey Memos Cross MSJ 01830

Daily Caller v DOJ Comey Memos Cross MSJ 01830

Page 1: Daily Caller v DOJ Comey Memos Cross MSJ 01830

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Number of Pages:6

Date Created:December 20, 2017

Date Uploaded to the Library:December 21, 2017

Tags:Exner, Daily Caller MSJ and Reply, 01830, Caller, daily, MSJ, cross, memos, action, Comey, Civil, defendants, justice, Hillary Clinton, defendant, filed, State Department, plaintiff, document, FBI, records, DOJ, department, FOIA


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Case 1:17-cv-01167-JEB Document Filed 12/21/17 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
__________________________________________
CABLE NEWS NETWORK, INC.,
Plaintiff,
FEDERAL BUREAU INVESTIGATION,
Defendant.
__________________________________________)
GANNETT SATELLITE INFORMATION
NETWORK, LLC, d/b/a USA TODAY, al.
Plaintiffs,
DEPARTMENT JUSTICE,
Defendant.
__________________________________________)
JUDICIAL WATCH, INC.,
Plaintiff,
UNITED STATES DEPARTMENT JUSTICE,
Defendant.
__________________________________________)
FREEDOM WATCH, INC.,
Plaintiff,
UNITED STATES DEPARTMENT JUSTICE
and FEDERAL BUREAU INVESTIGATION,
Defendants.
__________________________________________)
Civil Action No. 17-1167-JEB
Civil Action No. 17-1175-JEB
Civil Action No. 17-1189-JEB
Civil Action No. 17-1212-JEB
Case 1:17-cv-01167-JEB Document Filed 12/21/17 Page
__________________________________________
THE DAILY CALLER NEWS
FOUNDATION,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
__________________________________________)
Civil Action No. 17-1830-JEB
THE DAILY CALLER NEWS FOUNDATION REPLY SUPPORT ITS CROSS-MOTION FOR SUMMARY JUDGMENT
Defendants opposition and supplemental declaration generally fail clarify remedy
their initial insufficiencies with respect the adequacy their search for responsive records and the claim that all Comey Memos are properly being withheld pursuant Exemption 7(A).1
Defendants still have not provided sufficient evidence for the Court conduct its novo
review for Plaintiff The Daily Caller News Foundation engage effective advocacy.
Citizens for Responsibility Ethics Washington U.S. Department Justice, 955 Supp. (D.D.C. 2013). For this reason alone, DCNF Cross-Motion for Summary Judgment
should granted and Defendants should ordered produce all Comey Memos DCNF.2
Defendants have not demonstrated the search was adequate.
Defendants continue argue they conducted adequate search for all records
responsive DCNF FOIA request. Their evidence? Nothing more than because say so.
Defendants have now demonstrated information contained within one more memos
was classified according the proper procedure. clear, DCNF does not challenge the withholdings pursuant Exemptions
7(C), and 7(E) the extent they are limited select information described the Hardy
Declaration.
-2-
Case 1:17-cv-01167-JEB Document Filed 12/21/17 Page
Second Declaration David Hardy The FBI confident that has identified and
located the entire collection documents comprising the Comey Memos. Such evidence insufficient. Hayden National Security Agency, 608 F.2d 1381, 1384 (D.C. Cir. 1979)
declaration will not suffice the agencys claims are conclusory, merely reciting statutory
standards, they are too vague sweeping.
Defendants also complain that there evidence bad faith missed documents
here. Defs Opp. not know that. Based former Director Comey testimony,
there are least five and many nine records responsive DCNF request. For the
Court and DCNF know whether there bad faith missed records, Defendants must identify
the number records they located and are withholding.3 Without such showing, the Court and
DCNF must rely nothing more than Defendants because say statements.
The Comey Memos were not compiled for law enforcement purposes.
Defendants concede the Comey Memos were not originally compiled for law
enforcement purposes. See Defs Opp. 10-11. They also shift their justification for
withholding the records. Defendants now argue the records are being properly withheld because
they are the Special Counsel files. Id. 11. Such claim not supported either the
facts the law.
First, indisputable that Director Comey authored the records not for law enforcement
purposes but for administrative and institutional purposes. testified, knew that there might
come day when would need record what happened, not just defend myself, but minimum, the Court should review the Comey Memos camera determine
whether all responsive records have been located. This can easily accomplished
comparing the memos the very public testimony Director Comey.
-3-
Case 1:17-cv-01167-JEB Document Filed 12/21/17 Page
defend the FBI and and our integrity institution and the independence our
investigation. Exhibit DCNF Mem. 33.
Second, the Comey Memos were not stored the Central Records System, which the
system records that ordinarily and routinely stores investigative files. See Majid Federal
Bureau Investigation, 2017 U.S. Dist. LEXIS 44929, **12-13 (D.D.C. March 28, 2017). They
were stored with archived, administrative files. Hardy Decl. 62.
Third, response DCNF FOIA request, the FBI searched for and located the records archived, administrative files. Id. The Justice Department did not search for and locate them the Special Counsel files. Id.
Fourth, Defendants rely exclusively Exner U.S. Department Justice, 902 Supp.
240 (D.D.C. 1995) for the proposition that the fact that copies the memos are filed former
Director Comey files irrelevant. Id. 10-11. However, the Exner case, the FOIA
requester sought records from the FBI about investigation. Exner, 902 Supp. 241.
addition, [t]he records were located investigatory file, number 92-3267, the FBI. Id.
242. Exner simply has bearing this case whatsoever. The records issue this case
were located archived, administrative files.
Simply put, the Comey Memos requested DCNF were not compiled even recompiled for law enforcement purposes. Had DCNF requested the Comey Memos from the
Special Counsel files, Defendants claim would more plausible. But did not. Allowing
government agency withhold record every time that same record stored another
-4-
Case 1:17-cv-01167-JEB Document Filed 12/21/17 Page
agency investigative file would cause FOIA become more withholding statute than
disclosure statute. Environmental Protection Agency Mink, 410 U.S. 73, (1973). much information about Comey Memos already public.
Whether analyzed under harm analysis the official acknowledgment doctrine, one
fact clear: Director Comey, the memos author, has publicly testified about the contents the
records responsive this case. Defendants not dispute that. Instead, they argue, [A]s long the Comey Memos themselves not enter the public domain, there will remain much that
uncertain about their exact contents, including the level detail the memos, the extent
which they corroborate Mr. Comey testimony, and the extent which they contain
information that was not the subject his testimony. Defs Opp. 15-16.
However, Director Comey identified the number records, when the records were
created, and why wrote them. has also revealed the subject the records, the content
the records, and even quoted from portions the records. Very little, any, information about
the Comey Memos and the information contained within them remains secret. addition, Defendants still have not disputed, disavowed, even disagreed with any
Director Comey testimony. Defendants merely assert measure uncertainty the
veracity the information exists. Defs Opp. 16. Yet, they not demonstrate
uncertainty. their position Director Comey lied under oath? so, where the evidence?
Similarly, Defendants argue, [e]ven where former government official authored the
document question, that former official has power waive any applicable FOIA
For example, Defendants position would have allowed the State Department withhold
all former Secretary State Hillary Clinton emails response hundreds FOIA requests
simply because another agency, the FBI, also possessed all her emails during its investigation
into the mishandling classified information. Tellingly, the State Department, well the
Justice Department that represented it, did not make such tenuous argument.
-5-
Case 1:17-cv-01167-JEB Document Filed 12/21/17 Page
exemption behalf the agency. Id. (citing Rush U.S. Department State, 748
Supp. 1548, 1556 (S.D. Fla. 1990)). However, that case, the author the records sought their
disclosure through FOIA and argued could waive any claims privilege because was their
author. Id. Here, DCNF not arguing Director Comey waived sought waive Exemption
7(A). DCNF simply arguing, because Director Comey has publicly revealed substantial
information about the memos well portions the memos themselves, Director Comey
testimony unique. cannot compared cases concerning leaks and unapproved
disclosures information. DCNF Mem. 13.
Since Director Comey testified under oath about actions took while FBI director, the
Court, minimum, should compare the information contained within the memos with the
written and oral testimony Director Comey. The Court could then make informed decision
about what, any, information remains secret and whether such information should withheld.
The Court could then also the best position order the production the Comey Memos
containing the information already the public domain.
WHEREFORE, DCNF respectfully requests the Court grant its Cross-Motion for
Summary Judgment.
Dated: December 21, 2017
Respectfully submitted,
/s/ Michael Bekesha
Michael Bekesha
D.C. Bar No. 995749
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for The Daily Caller
News Foundation
-6-