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Judicial Watch • DANIK v. DOJ Cross MSJ 01792

DANIK v. DOJ Cross MSJ 01792

DANIK v. DOJ Cross MSJ 01792

Page 1: DANIK v. DOJ Cross MSJ 01792

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Number of Pages:16

Date Created:May 29, 2018

Date Uploaded to the Library:June 04, 2018

Tags:01792, Danik, Hardy, McCabe, Hillary Clinton, FBI, DOJ, FOIA


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Case 1:17-cv-01792-TSC Document Filed 05/29/18 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JEFFREY DANIK,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
____________________________________)
Civil Action No. 17-1792 (TSC)
PLAINTIFF CROSS-MOTION FOR SUMMARY JUDGMENT
Plaintiff Jeffrey Danik, counsel and pursuant Rule 56(c) the Federal Rules
Civil Procedure, hereby cross-moves for summary judgment against Defendant U.S. Department Justice. grounds therefor, Plaintiff respectfully refers the Court the accompanying
Plaintiff Memorandum Points and Authorities Opposition Defendant Motion for
Summary Judgment and Support Plaintiff Cross-Motion for Summary Judgment and
Plaintiff Statement Undisputed Material Facts Support its Cross-Motion for Summary
Judgment.
Dated: May 29, 2018
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 Plaintiff
Case 1:17-cv-01792-TSC Document Filed 05/29/18 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JEFFREY DANIK,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
____________________________________)
Civil Action No. 17-1792 (TSC)
PLAINTIFF MEMORANDUM POINTS AND AUTHORITIES OPPOSITION DEFENDANT MOTION FOR SUMMARY JUDGMENT
AND SUPPORT PLAINTIFF CROSS-MOTION FOR SUMMARY JUDGMENT
Plaintiff Jeffrey Danik, counsel and pursuant Rule 56(c) the Federal Rules
Civil Procedure, respectfully submits this memorandum points and authorities opposition
Defendant U.S. Department Justice Motion for Summary Judgment and support
Plaintiff Cross-Motion for Summary Judgment. grounds thereof, Plaintiff states follows:
Introduction.
Defendant fails demonstrate conducted adequate search for all records responsive Plaintiff Freedom Information Act requests. Plaintiff retired, supervisory special
agent, who worked for the Federal Bureau Investigation for almost years. Plaintiff
understands the FBI numerous records systems and has working knowledge how the agency
responds FOIA requests. Based this experience, requested the FBI search specific
records systems for certain terms.
Plaintiff requested the FBI search two specific email systems and text messages for
certain search terms. The FBI however did not fully conduct such searches. First, Defendant
does not identify which email systems the FBI searched. The FBI may have searched one, both,
Case 1:17-cv-01792-TSC Document Filed 05/29/18 Page neither the systems identified Plaintiff. Defendant does not explain. Second, the FBI
did not search text messages. Nor does Defendant explain why the FBI did not search text
messages. Nor does Defendant demonstrate that the FBI was not required conduct such
searches that would burdensome so. Third, the FBI did not search for the
search terms because determined the terms are too broad too vague. However, Defendant
does not explain how the FBI made such determination. Nor does Defendant demonstrate how
the provided search terms resulted too burdensome results. Nor could it. The FBI never
conducted searches. Fourth, the FBI did not search for the terms related Dr. Jill McCabe
because, Defendant argues, any responsive records would protected personal privacy
protections. However, Defendant does not demonstrate Dr. McCabe personal privacy remains
intact after she personally acknowledged the existence records the Washington Post. short, Defendant fails demonstrate the FBI conducted adequate search for all
records responsive Plaintiff FOIA requests.1 Plaintiff therefore requests that Defendant
Motion for Summary Judgment denied and that Plaintiff Cross-Motion for Summary
Judgment granted.
II.
Factual Background.
Plaintiff does not dispute Defendant recitation facts related the processing
Plaintiff FOIA requests. See Memorandum Law Support Defendant Motion for
Summary Judgment Def Mem. 1-6.
Plaintiff longer challenges Defendant withholding information contained within
the records responsive Plaintiff FOIA requests.
-2-
Case 1:17-cv-01792-TSC Document Filed 05/29/18 Page
III.
Legal Standard. FOIA litigation, all litigation, summary judgment appropriate only when the
pleadings and declarations demonstrate that there genuine issue material fact and that the
moving party entitled judgment matter law. Anderson Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Fed. Civ. 56(c). reviewing motion for summary judgment under
FOIA, the court must view the facts the light most favorable the plaintiff. Weisberg U.S.
Department Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984).
IV.
Argument.
Defendant search declaration insufficient.
Defendant has not submitted reasonably detailed affidavit, setting forth the search
terms and the type search performed, and averring that all files likely contain responsive
materials (if such records exist) were searched. Oglesby U.S. Department Army, 920 F.2d
57, (D.C. Cir. 1990). The affidavit must least include the agency rationale for
searching certain locations and not others. James Madison Project U.S. Department
State, 2017 U.S. Dist. LEXIS 12176, (D.D.C. Jan. 30, 2017) (quoting Defenders Wildlife
U.S. Border Patrol, 623 Supp. 83, (D.D.C. 2009)). must also describe what records
were searched, whom, and through what processes. Defenders Wildlife, 623 Supp. 91. addition, affidavit containing nothing more than [c]onclusory assertions about the
agency thoroughness not sufficient. James Madison Project, 2017 U.S. Dist. LEXIS
12176 *6. both Plaintiff FOIA requests sought emails contained two specific records
systems: (1) the FBI internal unclassified email system known Intranet; and (2) the FBI
-3-
Case 1:17-cv-01792-TSC Document Filed 05/29/18 Page
external unclassified email system known internet caf IC. See Defendant Statement
Material Facts Which There Genuine Issue (on page and (on page 5).
Defendant however silent which records systems the FBI searched. David Hardy,
his declaration, simply testifies that the FBI searched electronic communications FBI
custodian former McCabe. Declaration David Hardy 29. the FBI only
searched one the two systems neither the systems identified Plaintiff, Defendant also
fails explain the FBI rationale for searching certain locations and not others. Defendant
declaration wholly insufficient. Plaintiff respectfully requests the Court order Defendant
identify which email systems the FBI searched and search any email systems identified
Plaintiff that have not already been searched.
The FBI failed search text messages.
There dispute Plaintiff also requested the FBI search the text messages any
official FBI-issued devices. See Def Stmt. (on page and (on page 5). Yet, Hardy
declaration completely silent with respect text messages. The only time the term text
texts appears the Hardy Declaration when Hardy testifies about what records Plaintiff
requested. Such silence simply unexplainable. addition, text messages exist, and the FBI can search for and produce text messages. February 2018, Defendant Office the Inspector General issued report entitled Report Investigation Certain Allegations Relating Former FBI Deputy Director Andrew
McCabe. the report, the Inspector General explicitly states reviewed text messages part its investigation. Report The OIG misconduct investigation included reviewing all
The report available https://oig.justice.gov/reports/2018/o20180413.pdf.
-4-
Case 1:17-cv-01792-TSC Document Filed 05/29/18 Page the INSD investigative materials well numerous additional documents, e-mails, text
messages, and OIG interview transcripts. (emphasis added). addition, throughout the report,
the Inspector General cites and quotes from text messages sent received McCabe. See id. After these conversations, McCabe sent text message Special Counsel stating: spoke both. Both understand that decision recusal will made until return and weigh in. approximately 12:06 p.m. October 27, 2016 McCabe texted Special Counsel
asking: Are you with wsj now. McCabe own text messages reflect that McCabe
was keenly interested learn about the results Special Counsel calls with Barrett.
The FBI failed conduct adequate search because did not search for text messages.
Defendant also fails demonstrate the FBI conducted adequate search because Defendant
does not explain justify why the FBI did not search for text messages even though Plaintiff
specifically sought them, and the FBI has the ability search and produce them. Plaintiff
therefore respectfully requests the Court order the FBI search text messages for records
responsive Plaintiff FOIA requests.
Defendant assertion that Plaintiff FOIA requests were too broad and/or
too vague incorrect.
Plaintiff requested the FBI search three, specific records systems for records containing different search terms. Hardy correctly identifies all search terms the chart paragraph his declaration. However, the FBI did not search for the search terms because
determined the terms too broad too vague. Hardy Decl. 30. Defendant entire
explanation why the FBI did not search follows:
The FBI determined many the search terms requested Plaintiff second
request were too broad vague. The lack specificity rendered the request
unduly burdensome for the FBI conduct search. Even the FBI were
-5-
Case 1:17-cv-01792-TSC Document Filed 05/29/18 Page
search the requested terms the custodians email systems, would require
dozens work hours scope through the sheer number results returned from
the searches, and searches beyond what the FBI has already conducted would
unduly burdensome.
Hardy Decl. 30. Simply put, this explanation does not satisfy Defendant burden. recent, unrelated FOIA case, Judge Lamberth addressed this very issue.
Mattachine Society Washington U.S. Department Justice, the FOIA requester sought
records containing specific search terms. 267 Supp. 218, 226-227 (D.D.C. 2017). Unlike this case, the FBI searched and located 5,500 records that contained one the search terms.
The FBI subsequently argued that reviewing those records would overly burdensome. The
Court however rejected the argument: evidence the overly burdensome nature these terms, the government
points the fact that the search term pervert alone returned over 5,500
Sentinel ECF hits, and that sifting through these hits determine which are
responsive and which are not would unduly burdensome. However, the FBI
has not reviewed any portion this search others like it, offers projections what the results might be, and does not estimate the number additional
hours, resources, funds make these searches rise level being undue
burden. The Government provides context which assess the volume
responses being disproportionately burdensome compared similar
requests. The FBI asking the Court declare that these searches would
unduly burdensome merely because the FBI suspects that they might so, and
that not sufficient.
Id. 227 (internal citations omitted). The same reasoning can applied here.
First, the FBI did not conduct any searches. simply asserts that the search terms
provided Plaintiff were too broad vague. Second, the FBI does not offer any projections
estimates what the results would conducted the searches. Third, does not estimate
the number hours, employees, resources would take review any results. Fourth, the
FBI provides framework guidelines what volume results request being undue
-6-
Case 1:17-cv-01792-TSC Document Filed 05/29/18 Page
burden. The FBI provides specificity whatsoever. The FBI asking the Court declare
that these searches would unduly burdensome merely because the FBI suspects that they
might so, and that not sufficient. Id. Plaintiff therefore respectfully requests the Court
order the FBI conduct searches using the search terms identified Plaintiff that the FBI
refused search.3
Defendant Glomar assertion improper.
Defendant also did not search for the search term Dr. Jill McCabe and its variants.
Defendant asserts was not required search for such terms pursuant FOIA Exemptions
and which are generally known the personal privacy exemptions.4 Such assertion
improper, however.
Under Exemption 7(C), agency may withhold investigatory records compiled for law
enforcement purposes, information which written would contained such records, but
only the extent that the production such records information would constitute
unwarranted invasion personal privacy. U.S.C. 552(b)(7)(C). More succinctly,
agency may withhold responsive records individual privacy interest outweighs the
public interest disclosure. Nation Magazine United States Customs Service, F.3d 885,
893 (D.C. Cir. 1995) (citing United States Department Justice Reporters Committee for course, the volume substantial and truly overly burdensome, the FBI could confer
with Plaintiff determine there any way narrow his requests limit the number hits
that need reviewed.
Plaintiff challenges both the claims Exemption and Exemption 7(C). Because the
analyses under Exemptions and 7(C) are very similar, Defendant considers them together.
Therefore, Plaintiff also considers them together when demonstrating Defendant has failed
satisfy its burdens under FOIA.
-7-
Case 1:17-cv-01792-TSC Document Filed 05/29/18 Page
Freedom the Press, 489 U.S. 749, 779 (1989) and Davis United States Department
Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992)).
Under Exemption 7(C), Glomar response may issued place statement
acknowledging the existence responsive records but withholding them, confirming
denying the existence the records would associate the individual named the request with
criminal activity. Nation Magazine, F.3d 893 (emphasis added); see also Pugh Federal
Bureau Investigation, 793 Supp. 226, 232 (D.D.C. 2011); Scales Executive Office
the United States Attorneys, Supp. 87, (D.D.C. 2009). other words, Glomar
response under Exemption 7(C) only proper substantive response the FOIA request
would, for the first time, associate individual with criminal activity.
First, Plaintiff has not requested records that would associate Dr. McCabe with criminal
activity. has asked for records related what action Dr. McCabe husband took with
respect potential conflict interest between her candidacy and her husband work the
FBI investigation former Secretary State Hillary Clinton use non-state.gov email
account. See Julia Manchester, FBI ruled McCabe had conflict interest Clinton probe:
docs, The Hill (Jan. 2018, available http://thehill.com/blogs/blog-briefingroom/news/367701-fbi-ruled-mccabe-had-no-conflict-of-interest-in-clinton-probe). The fact that
the records would not associate Dr. McCabe with criminal activity also confirmed
Defendant evidence. Hardy testified the FBI did not search the Central Records System, which
houses investigative files. See Hardy Decl. and 28.
Second, the FBI already confirms records related the subject matter issue
Plaintiff FOIA requests exist. its FOIA website, the FBI posted records that explicitly
-8-
Case 1:17-cv-01792-TSC Document Filed 05/29/18 Page
reference Dr. McCabe. See Deputy Director McCabe Ethical Guidance and Recusal Part (available https://vault.fbi.gov/deputy-director-mccabe-ethical-guidance-andrecusal/deputy-director-mccabe-ethical-guidance-and-recusal-part-01-of-01/view).
Third, Dr. McCabe herself has discussed the issue publicly. April 2018, Dr.
McCabe wrote op-ed about the very topic issue Plaintiff FOIA requests. See Jill
McCabe, The president attacked reputation. time set the record straight, The
Washington Post (Apr. 2018, available https://www.washingtonpost.com/opinions/jillmccabe-the-president-attacked-my-reputation-its-time-to-set-the-record-straight/2018/04/02/
e6bbcf66-366b-11e8-8fd2-49fe3c675a89_story.html). the piece, she not only explained that
her husband consulted with the ethics experts the FBI[,] she also stated that she want[s]
people know that the whole story that everything based just false and utterly absurd.
Id. other words, she has put the whole story the public sphere. Plaintiff FOIA requests
seek what Dr. McCabe wants: bring the whole story the public. Her Op-ed also
legally significant because this circuit has held that the third-party acknowledgment has
substantial effect the private-public interest balancing test underlying the personal privacy
exemptions. Lindsey Federal Bureau Investigation, 271 Supp. (D.D.C. 2017)
(citing Citizens for Responsibility Ethics Washington U.S. Department Justice, 746
F.3d 1082, 1092 (D.C. Cir. 2014) and Nation Magazine, Washington Bureau U.S. Customs
Service, F.3d 885, 896 (D.C. Cir. 1995)).
Unsurprisingly, Defendant declaration silent with respect the facts that Plaintiff
asked for records that would not associate Dr. McCabe with criminal activity, that the FBI has
already confirmed records related Dr. McCabe exist, and that Dr. McCabe herself has made
-9-
Case 1:17-cv-01792-TSC Document Filed 05/29/18 Page
public statements about the records issue. See Hardy Decl. 31. Each these factors
weigh heavily favor disclosure. Plaintiff therefore respectfully requests the FBI conduct
searches for the term Dr. Jill McCabe and its variants.5
Conclusion.
For the reasons stated above, Plaintiff respectfully requests Defendant Motion for
Summary Judgment denied and Plaintiff Cross-Motion for Summary Judgment granted.
Dated: May 29, 2018
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 Plaintiff course, after conducting such searches, Defendant could withhold records under the
personal privacy exemptions, appropriate.
Case 1:17-cv-01792-TSC Document Filed 05/29/18 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JEFFREY DANIK,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
____________________________________)
Civil Action No. 17-1792 (TSC)
PLAINTIFF RESPONSE DEFENDANT STATEMENT MATERIAL FACTS WHICH THERE GENUINE ISSUE
AND PLAINTIFF STATEMENT UNDISPUTED MATERIAL FACTS
SUPPORT ITS CROSS-MOTION FOR SUMMARY JUDGMENT
Plaintiff Jeffrey Danik, counsel and pursuant Local Civil Rule 7.1(h),
respectfully submits this response Defendant Statement Material Facts Which There Genuine Issue and Plaintiff Statement Undisputed Material Facts Support its
Cross-Motion for Summary Judgment:
Plaintiff Response Defendant Statement Material Facts Which
There Genuine Issue.
October 25, 2016 Freedom Information Act Request
Undisputed.
Undisputed.
Undisputed.
Undisputed.
Item One: Request Number NFP-61739/FOIAPA Appeal Number 1377487-000
Undisputed.
Undisputed.
Case 1:17-cv-01792-TSC Document Filed 05/29/18 Page
Undisputed.
Undisputed.
Undisputed.
Undisputed.
Undisputed.
Undisputed.
Undisputed.
Item Two: FOIAPA Request Number 1360635-000
Undisputed.
Items Three and Six: FOIAPA Request Number 1360639-000
Undisputed.
Undisputed.
Undisputed.
February 28, 2017 FOIA Request
Undisputed.
Undisputed.
Undisputed.
Undisputed.
Releases
Undisputed.
Undisputed.
Undisputed.
Undisputed.
-2-
Case 1:17-cv-01792-TSC Document Filed 05/29/18 Page
Undisputed.
II.
Undisputed.
Undisputed.
Plaintiff Statement Undisputed Material Facts Support its Cross-Motion
for Summary Judgment.
The FBI did not search text messages for records responsive Plaintiff FOIA
requests.
The FBI has possession text messages.
The FBI has the ability search text messages.
The FBI has the ability produce text messages. February 2018, Defendant Office the Inspector General issued report
entitled Report Investigation Certain Allegations Relating Former FBI Deputy
Director Andrew McCabe.
Plaintiff requested records that would not associate Dr. McCabe with criminal
activity.
The records Deputy Director McCabe Ethical Guidance and Recusal Part are publicly available the FBI website.
Dr. Jill McCabe published op-ed the Washington Post April 2018
entitled The president attacked reputation. time set the record straight.
-3-
Case 1:17-cv-01792-TSC Document Filed 05/29/18 Page
Dated: May 29, 2018
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 Plaintiff
-4-
Case 1:17-cv-01792-TSC Document 14-1 Filed 05/29/18 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JEFFREY DANIK,
Plaintiff,
U.S. DEPARTMENT JUSTICE,
Defendant.
____________________________________)
Civil Action No. 17-1792 (TSC)
[PROPOSED] ORDER
Upon consideration Plaintiff Opposition Defendant Motion for Summary
Judgment and Plaintiff Cross-Motion for Summary Judgment and the entire record herein,
hereby ORDERED that:
Defendant Motion for Summary Judgment denied; and
Plaintiff Cross-Motion for Summary Judgment granted. ORDERED.
DATE:________________
_______________________________
The Hon. Tanya Chutkan, U.S.D.J.