DOJ Comey Memo MSJ 01167 01830 01189
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Case 1:17-cv-01167-JEB Document Filed 10/13/17 Page THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA CABLE NEWS NETWORK, INC., Plaintiff, Civil Action No. 1:17-cv-01167-JEB FEDERAL BUREAU INVESTIGATION, Defendant. GANNETT SATELLITE INFORMATION NETWORK, LLC, d/b/a USA TODAY, al., Civil Action No. 1:17-cv-01175-JEB Plaintiffs, DEPARTMENT JUSTICE, Defendant. JUDICIAL WATCH, INC., Plaintiff, Civil Action No. 1:17-cv-01189-JEB UNITED STATES DEPARTMENT JUSTICE, Defendant. FREEDOM WATCH, INC., Plaintiff, UNITED STATES DEPARTMENT JUSTICE and FEDERAL BUREAU INVESTIGATION, Defendants. Civil Action No. 1:17-cv-01212-JEB Case 1:17-cv-01167-JEB Document Filed 10/13/17 Page THE DAILY CALLER NEWS FOUNDATION, Civil Action No. 1:17-cv-01830-JEB Plaintiff, UNITED STATES DEPARTMENT JUSTICE, Defendant. DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT These consolidated actions arise under the Freedom Information Act FOIA U.S.C. 552. They involve FOIA requests for records memorializing conversations between former Director the Federal Bureau Investigation FBI James Comey, and President Donald Trump, referred the Comey Memos, well additional records. The FBI has withheld the Comey Memos full response plaintiffs FOIA requests. Defendants hereby move pursuant Federal Rule Civil Procedure for partial summary judgment their favor the Comey Memos. The reasons for this Motion are set forth the accompanying Memorandum Support Defendants Motion for Partial Summary Judgment, the Statement Material Facts Which There Genuine Dispute, the Declaration David Hardy, and the additional FBI declaration that defendants are seeking leave submit camera and parte. proposed order filed concurrently herewith. Case 1:17-cv-01167-JEB Document Filed 10/13/17 Page Dated: October 13, 2017 Respectfully submitted, CHAD READLER Acting Assistant Attorney General Civil Division MARCIA BERMAN Assistant Director, Civil Division /s/Carol Federighi CAROL FEDERIGHI Senior Trial Counsel United States Department Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, 20044 Phone: (202) 514-1903 Email: carol.federighi@usdoj.gov Counsel for Defendant Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA CABLE NEWS NETWORK, INC., Plaintiff, Civil Action No. 1:17-cv-01167-JEB FEDERAL BUREAU INVESTIGATION, Defendant. GANNETT SATELLITE INFORMATION NETWORK, LLC, d/b/a USA TODAY, al., Civil Action No. 1:17-cv-01175-JEB Plaintiffs, DEPARTMENT JUSTICE, Defendant. JUDICIAL WATCH, INC., Plaintiff, Civil Action No. 1:17-cv-01189-JEB UNITED STATES DEPARTMENT JUSTICE, Defendant. FREEDOM WATCH, INC., Plaintiff, UNITED STATES DEPARTMENT JUSTICE and FEDERAL BUREAU INVESTIGATION, Defendants. Civil Action No. 1:17-cv-01212-JEB Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page THE DAILY CALLER NEWS FOUNDATION, Plaintiff, Civil Action No. 1:17-cv-01830-JEB UNITED STATES DEPARTMENT JUSTICE, Defendant. MEMORANDUM SUPPORT MOTION FOR PARTIAL SUMMARY JUDGMENT Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page TABLE CONTENTS INTRODUCTION ...........................................................................................................................1 BACKGROUND ............................................................................................................................ FACTUAL BACKGROUND .......................................................................................................... II. THE FOIA REQUESTS AND RESPONSES ................................................................................. Cable News Network CNN Request (Case No. 17-1167) .............................. Gannett Satellite Info. Network, LLC, al. Requests (Case No. 17-1175) ............ Judicial Watch Request (Case No. 17-1189)............................................................ Freedom Watch Request (Case No. 17-1212) .......................................................... The Daily Caller Request (Case No. 17-1830)......................................................... ARGUMENT .................................................................................................................................. THE SEARCH FOR RESPONSIVE RECORDS WAS REASONABLE .................................... II. THE COMEY MEMOS ARE EXEMPT FROM DISCLOSURE PURSUANT FOIA EXEMPTION 7(A) ........................................................................................................................ Exemption 7(A) Applies the Comey Memos ........................................................ There Has Been Official Prior Disclosure the Comey Memos ................... Disclosure the Comey Memos Will Still Interfere with the Russia Investigation, Notwithstanding Mr. Comey Testimony ................................................................ III. PORTIONS THE RECORDS ARE EXEMPT FROM DISCLOSURE PURSUANT EXEMPTION ............................................................................................................................. III. PORTIONS THE RECORDS ARE EXEMPT FROM DISCLOSURE PURSUANT EXEMPTION ............................................................................................................................. IV. PORTIONS THE RECORDS ARE EXEMPT FROM DISCLOSURE PURSUANT EXEMPTION 7(E) ........................................................................................................................ Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page PORTIONS THE RECORDS ARE EXEMPT FROM DISCLOSURE PURSUANT EXEMPTIONS AND 7(C) ......................................................................................................... CONCLUSION ............................................................................................................................. Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page TABLE AUTHORITIES CASES PAGE(S) ACLU United States Department Defense, 628 F.3d 612 (D.C. Cir. 2011) ............................................................................................ 17, ACLU Department State, 878 Supp. 215 (D.C. Cir. 2012) ....................................................................................... Afshar United States Department State, 702 F.2d 1125 (D.C. Cir. 1983) ................................................................................................ Alyeska Pipeline Service Co. EPA, 856 F.2d 309 (D.C. Cir. 1988) ............................................................................................ 10, Ancient Coin Collectors Guild United States Department State, 641 F.3d 504 (D.C. Cir. 2011) .................................................................................................. Armstrong Executive Office the President, F.3d 575 (D.C. Cir. 1996) .................................................................................................... Bast United States Department Justice, 665 F.2d 1251 (D.C. Cir. 1981) ................................................................................................ Black United States Department Justice, F.Supp.3d (D.D.C., 2014) ............................................................................................... Blackwell FBI, 646 F.3d (D.C. Cir. 2011) .................................................................................................... Blanton Department Justice, Supp. (D.D.C. 1999) .............................................................................................. Campbell Department Health and Human Services, 682 F.2d 256 (D.C. Cir. 1982) ............................................................................................ 12, Center for National Security Studies United States Department Justice, 331 F.3d 918 (D.C. Cir. 2003) ...................................................................................... 13, 14, CIA Sims, 471 U.S. 159 (1985) ........................................................................................................ 24, Citizens for Responsibility and Ethics Washington United States Department Justice, 746 F.3d 1082 (D.C. Cir. 2014) ................................................................................................ iii Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page Cottone Reno, 193 F.3d 550 (D.C. Cir. 1999) .................................................................................................. Crooker Bureau Alcohol, Tobacco Firearms, 789 F.2d 64, (D.C. Cir. 1986) .............................................................................................. Davis Department Justice, 968 F.2d 1276 (D.C. Cir. 1992) ................................................................................................ DiBacco United States Army, 795 F.3d 178 (D.C. Cir. 2015) .................................................................................................. Dorsey Executive Office for United States Attorneys, 926 Supp. 253 (D.D.C. 2013) .......................................................................................... FBI Abramson, 456 U.S. 615 (1982) .............................................................................................................. Fitzgibbon CIA, 911 F.2d 755 (D.C. Cir. 1990) ...................................................................................... 17, 25, Gardels CIA, 689 F.2d 1100 (D.C. Cir. 1982) .......................................................................................... 23, Hayden National Security Agency, 608 F.2d 1381 (D.C. Cir. 1979) ................................................................................................ Hudson River Sloop Clearwater, Inc. Department the Navy, 891 F.2d 414 (2d Cir. 1989)...................................................................................................... John Doe Agency John Doe Corp., 493 U.S. 146 (1989) .............................................................................................................. Juarez Department Justice, 518 F.3d (D.C. Cir. 2008) .................................................................................................... Judicial Watch, Inc. FDA, 449 F.3d 141 (D.C. Cir. 2006) .................................................................................................. Judicial Watch, Inc. United States Department Justice, 306 Supp. (D.D.C. 2004) ............................................................................................ Kansi United States Department Justice, Supp. (D.D.C. 1998) .............................................................................................. Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page Larson Department State, 565 F.3d 857 (D.C. Cir. 2009) ............................................................................................ 23, Leadership Conference Civil Rights Gonzales, 404 Supp. 246 (D.D.C. 2005) ............................................................................................ Mapother Department Justice, F.3d 1533 (D.C. Cir. 1993) .................................................................................................... Maydak United States Department Justice, 218 F.3d 760 (D.C. Cir. 2000) .................................................................................................. McRae United States Department Justice, 869 Supp. 151 (D.D.C. 2012) .......................................................................................... Military Audit Project Casey, 656 F.2d 724 (D.C. Cir. 1981) ............................................................................................ 10, Moore Bush, 601 Supp. (D.D.C. 2009) .............................................................................................. Morley CIA, 508 F.3d 1108 (D.C. Cir. 2007) ................................................................................................ Muslim Advocates United States Department Justice, 833 Supp. (D.D.C. 2011) ............................................................................................ Muttitt Department State, 926 Supp. 284 (D.D.C. 2013) ............................................................................................ National Archives and Records Admininstration Favish, 541 U.S. 157 (2004) .................................................................................................................. Nation Magazine, Washington Bureau United States Customs Service, F.3d 885 (D.C. Cir. 1995) .............................................................................................. 29, New York Times Co. NASA, 920 F.2d 1002 (D.C. Cir. 1990) ................................................................................................ NLRB Robbins Tire Rubber Co., 437 U.S. 214 (1978) .................................................................................................................. Patino-Restrepo Department Justice, 246 Supp. 233 (D.D.C. 2017) .......................................................................................... Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page Perry Block, 684 F.2d 121 (D.C. Cir. 1982) .................................................................................................. Piper United States Department Justice, 294 Supp. (D.D.C. 2003) ............................................................................................ Pratt Webster, 673 F.2d 408 (D.C. Cir. 1982) .................................................................................................. Qui FBI, F.3d 1222 (D.C. Cir. 1996) .................................................................................................. Safecard Services, Inc. Securities and Exchange Commission, 926 F.2d 1197 (D.C. Cir. 1991) .......................................................................................... 10, Suzhou Yuanda Enterprise, Co. United States Customs and Border Protection, 404 Supp. (D.D.C. 2005) .............................................................................................. Swan Securities and Exchange Commission, F.3d 498 (D.C. Cir. 1996) .................................................................................................... United States Department the Air Force Rose, 425 U.S. 352 (1976) .................................................................................................................. United States Department Defense FLRA, 510 U.S. 487 (1994) .................................................................................................................. United States Department Justice Reporters Committee for Freedom the Press, 489 U.S. 749 (1989) ............................................................................................................ 29, United States Department State Washington Post Co., 456 U.S. 595 (1982) .................................................................................................................. Vazquez United States Department Justice, 887 F.Supp.2d 114 (D.D.C. 2012) ............................................................................................ Weisberg United States Department Justice, 705 F.2d 1344 (D.C. Cir. 1983) ................................................................................................ Wolf CIA, 473 F.3d 370 (D.C. Cir. 2007) ............................................................................................ 17, Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page STATUTES U.S.C. 552 ................................................................................................................................. U.S.C. 552(a)(4)(B) .................................................................................................................. U.S.C. 552(b) ............................................................................................................................ U.S.C. 552(b)(1) ..................................................................................................................... U.S.C. 552(b)(3) ..................................................................................................................... U.S.C. 552(b)(6) ..................................................................................................................... U.S.C. 552(b)(7)(A) ......................................................................................................... passim U.S.C. 552(b)(7)(C) ................................................................................................................ U.S.C. 552(b)(7)(E) ................................................................................................................ U.S.C. 533 ............................................................................................................................. U.S.C. 3024(i)(1) .............................................................................................................. REGULATIONS C.F.R. 600.4(a)........................................................................................................................ CONGRESSIONAL MATERIALS H.R. Rep. No. 1497, 89th Cong., Sess. (1966), reprinted 1966 U.S.C.C.A.N. 2416, 2423................................................................................................................................... EXECUTIVE ORDER Executive Order No. 13,526, Fed. Reg. 707 (Dec. 29, 2009) ...................................... 21, 22, vii Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page INTRODUCTION These consolidated actions arise under the Freedom Information Act FOIA U.S.C. 552. They involve FOIA requests for records memorializing conversations between then-Director the Federal Bureau Investigation FBI James Comey, and President Donald Trump, which this memorandum will refer the Comey Memos. The FBI, under the oversight Robert Mueller III, who has been appointed serve special counsel Special Counsel currently conducting investigation into the Russian government efforts influence the 2016 Presidential election. Although this investigation has been the subject intense public speculation and media reporting, order preserve the integrity the investigation, neither the FBI nor the Special Counsel has officially confirmed any details regarding the investigation. The Comey Memos issue these consolidated cases pertain this sensitive investigation. The FBI and the Special Counsel have determined that the disclosure these records the current time, while this sensitive and high-profile investigation remains ongoing, would reasonably expected adversely affect the integrity that investigation. Accordingly, the Comey Memos have been properly withheld full pursuant FOIA Exemption 7(A), which protects documents compiled for law enforcement purposes where their disclosure could reasonably expected interfere with enforcement proceedings. U.S.C. 552(b)(7)(A). The FBI has also properly withheld portions the responsive records pursuant Exemptions and they contain information that has been properly classified accordance with the operative Executive Order, some which also falls within the ambit section 102A(i)(1) the National Security Act 1947, U.S.C. 3024(i)(1). Information concerning Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page law enforcement techniques and procedures that have been used connection with the Russian interference investigation also being withheld pursuant FOIA Exemption 7(E). Finally, identifying information third parties mentioned the documents has been properly withheld pursuant Exemptions and 7(C), because the disclosure this personal information implicates significant privacy interests that are not outweighed any cognizable public interest disclosure. Accordingly, summary judgment should granted favor defendants FBI and the United States Department Justice. BACKGROUND FACTUAL BACKGROUND March 20, 2017, then-FBI Director James Comey confirmed public testimony before Congress that the FBI, part our counterintelligence mission, investigating the Russian government efforts interfere the 2016 presidential election, and that includes investigating the nature any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia efforts. Statement Before the House Permanent Select Committee Intelligence, available https://www.fbi.gov/news/testimony/hpsci-hearing-titled-russian-active-measuresinvestigation (last visited Oct. 12, 2017). added that [a]s with any counterintelligence investigation, this will also include assessment whether any crimes were committed. Id. Then-Director Comey declined say more regarding the scope focus the investigation during that public hearing, the investigation was still open and ongoing. Id. Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page Director Comey was terminated FBI Director May 2017. See, e.g., Compl. (No. 17-1167) (Dkt. No. 1); Declaration David Hardy, Section Chief, Record/Information Dissemination Section, Records Management Division, FBI Hardy Decl. 108 (submitted herewith). May 17, 2017, Deputy Attorney General Rod Rosenstein named former FBI Director Robert Mueller III Special Counsel oversee the Russia investigation. DOJ Order No. 3915-2017, Appointment Special Counsel Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17, 2017). Under the terms his appointment, Special Counsel Mueller authorized conduct the investigation confirmed then-FBI Director James Comey testimony before the House Permanent Select Committee Intelligence March 20, 2017, including (i) any links and/or coordination between the Russian government and individuals associated with the campaign President Donald Trump; and (ii) any matters that arose may arise directly from the investigation; and (iii) any other matters within the scope C.F.R. 600.4(a). Id. addition, [i]f the Special Counsel believes necessary and appropriate, the Special Counsel authorized prosecute federal crimes arising from the investigation these matters. Id. The Russia investigation ongoing. Hardy Decl. 66. further information about the subjects, scope, focus the investigation has been officially acknowledged the FBI, Special Counsel Mueller, any representative the Department Justice. Id. However, the complaints filed these consolidated cases indicate, there has been much media speculation and information provided unofficial sources circulating the public domain. June 2017, former Director Comey, then private citizen, testified under oath open session before the Senate Select Committee Intelligence SSCI See, e.g., Compl. Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page (No. 17-1167), (Dkt. No. 1). his Statement for the Record, released the public June 2017, former Director Comey outlined how had drafted contemporaneous memoranda after various meetings and conversations with President Trump which discussed matters pertaining the Russia investigation. https://www.intelligence.senate.gov/sites/default/files/ documents/os-jcomey-060817.pdf June Statement his live testimony June 2017, former Director Comey again discussed his communications with President Trump regarding, among other things, the Russia investigation, referencing again his contemporaneous memos.1 See, e.g., Compl. (No. 17-1167), (Dkt. No. 1); Am. Compl. (No. 17-1175), 14-15 (Dkt. No. 9). With respect his conversations with President Trump, former Director Comey stated that had not included every detail his testimony. June Statement, II. THE FOIA REQUESTS AND RESPONSES Cable News Network CNN Request (Case No. 17-1167) May 16, 2017, CNN producer Greg Wallace submitted FOIA request behalf CNN the FBI for copies all records notes taken communications sent from FBI Director James Comey regarding documenting interactions (including interviews and other conversations) with President Donald Trump. Compl. (No. 17-1167), 12, Exh. (Dkt. No. 1). The FBI responded CNN request letter dated June 16, 2017, stating that the material requested was being withheld pursuant FOIA Exemption 7(A), U.S.C. 552(b)(7)(A). Hardy Decl. Exh. CNN-F. The FBI further stated that [t]he records The video former Director Comey testimony may found https://www. intelligence.senate.gov/hearings/open-hearing-former-director-james-comey-fbi (last visited Oct. 12, 2017). transcript published http://www.politico.com/story/2017/06/08/full-textjames-comey-trump-russia-testimony-239295 (last visited Oct. 12, 2017) Transcript Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page responsive your request are law enforcement records. There pending prospective law enforcement proceeding relevant these responsive records, and release the information these responsive records could reasonably expected interfere with enforcement proceedings. Id., Ex. CNN-F. Gannett Satellite Info. Network, LLC, al. Requests (Case No. 17-1175) letter dated May 12, 2017, USA TODAY (the business name Gannett Satellite Information Network), along with USA TODAY reporter Brad Heath, submitted FOIA request the FBI requesting, inter alia, copies any reports, letters, memoranda, electronic mail messages, FD-302s other records memorializing conversations between former Director Comey and President Trump. Am. Compl. 17-18 (Dkt. No. 9). letter dated May 17, 2017, the James Madison Project JMP and Garrett Graff submitted FOIA request the FBI, requesting, inter alia, [a]ny memoranda, notes, summaries and/or recordings memorializing conversations Director Comey had with President Trump. Id. 27, 35-36. Also May 17, 2017, JMP and Lance Markay submitted FOIA request the FBI seeking, inter alia, [t]he memorandum drafted Director Comey memorializing his conversation with President Trump February 14, 2017. Id. 44, 50-51. The FBI responded all three the above requests letters dated June 16, 2017. Hardy Decl. 19, 25, Exs. USA Today-D, JMP/Graff-D, JMP/Markay-C. all three letters, the FBI stated that the material requested was being withheld pursuant FOIA CNN also requested expedited treatment its request. Compl. (No. 17-1167), Exh. However, this claim now moot the FBI has responded the request. See Muttitt Dep State, 926 Supp. 284, 296 (D.D.C. 2013). Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page Exemption 7(A), U.S.C. 552(b)(7)(A). Hardy Decl., Exs. USA Today-D, JMP/Graff-D, JMP/Markay-C. The FBI further stated that [t]he records responsive your request are law enforcement records. There pending prospective law enforcement proceeding relevant these responsive records, and release the information these responsive records could reasonably expected interfere with enforcement proceedings. Id. JMP, Graff, and Markay filed administrative appeals challenging the FBI withholding, which were denied July 12, 2017. Am. Compl. 38-39, 53-54. The FOIA requests submitted USA TODAY, JMP, Graff, and Markay also requested additional related records. Am. Compl. 27, 35-36, 44, 50-51; Hardy Decl. 14, 21, 30. The government still conducting searches for documents responsive the remaining portions these requests, well the follow-up responsiveness review documents identified potentially responsive. Joint Status Report, (Dkt. No. 17). The present motion does not include these parts plaintiffs FOIA requests. The parties will file further report and proposed production schedule these parts the requests October 18, 2017. Id. Judicial Watch Request (Case No. 17-1189) May 16, 2017, Judicial Watch electronically submitted FOIA request the FBI, seeking [t]he memorandum written former Director James Comey memorializing his meeting and conversation with President Trump regarding the FBI investigation potential Russian interference the 2016 United States presidential election. For purposes clarification, this memorandum was reportedly written about February 13, 2017 and the subject New York Times article (enclosed) dated May 16, 2017. Compl. (No. 17-1189) (Dkt. No. 1). The FBI responded Judicial Watch request letter dated June 16, 2017, Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page stating that the material requested was being withheld pursuant FOIA Exemption 7(A), U.S.C. 552(b)(7)(A). Hardy Decl. Ex. Judicial Watch-D. The FBI further stated that [t]he records responsive your request are law enforcement records. There pending prospective law enforcement proceeding relevant these responsive records, and release the information these responsive records could reasonably expected interfere with enforcement proceedings. Id., Ex. Judicial Watch-D. Freedom Watch Request (Case No. 17-1212) May 18, 2017, Freedom Watch submitted FOIA request the FBI (along with identical one the Department Justice Criminal Division)3 seeking access [a]ny and all documents and records defined above, which constitute, refer, relate any way any memoranda prepared, written and/or issues former FBI Director James Comey concerning Barack Obama, Hillary Clinton, Bill Clinton, Lieutenant General Michael Flynn, and President Donald Trump. Compl. (No. 17-1212) (Dkt. No. 1). With regard the part Freedom Watch request for documents constituting any memoranda prepared, written and/or issued former FBI Director James Comey concerning President Donald Trump, the FBI responded letter dated June 16, 2017, stating that the material requested was being withheld pursuant FOIA Exemption 7(A), U.S.C. 552(b)(7)(A). Hardy Decl. Ex. Freedom Watch-D. The FBI further stated that [t]he records responsive your request are law enforcement records. There pending prospective law enforcement proceeding relevant The Court granted the Department Justice motion for summary judgment the request addressed DOJ Criminal Division September 22, 2017 (Dkt. Nos. 19). Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page these responsive records, and release the information these responsive records could reasonably expected interfere with enforcement proceedings. Id., Ex. Freedom Watch-D. The FBI still conducting searches for documents responsive the remaining portions Freedom Watch request, that is, for [a]ny and all documents and records which constitute, refer, relate any way any memoranda prepared, written and/or issues former FBI Director James Comey concerning Barack Obama, Hillary Clinton, Bill Clinton, Lieutenant General Michael Flynn, and President Donald Trump, excluding the Comey Memos, well the follow-up responsiveness review documents identified potentially responsive. Joint Status Report, (Dkt. No. 17); see Compl. (No. 17-1212) (Dkt. No. 1). The present motion does not include these parts Freedom Watch FOIA request. The parties will file further report and proposed production schedule these parts the requests October 18, 2017. Joint Status Report, (Dkt. No. 17). The Daily Caller Request (Case No. 17-1830) June 2017, The Daily Caller News Foundation submitted FOIA request the FBI, seeking all unclassified memoranda authored former FBI Director James Comey that contemporaneously memorialized his discussions with President Donald Trump and his aides. Compl. (Case No. 17-1830) (Dkt. No. 1). The FBI responded letter dated June 16, 2017, stating that the material requested was being withheld pursuant FOIA Exemption 7(A), U.S.C. 552(b)(7)(A). Hardy Decl. Ex. Daily Caller-D. The FBI further stated that [t]he records responsive your request are law enforcement records. There pending prospective law enforcement proceeding relevant these responsive records, and release the information these responsive records could reasonably expected interfere with enforcement proceedings. Id., Ex. Daily Caller-D. Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page ARGUMENT The FOIA basic purpose reflects general philosophy full agency disclosure unless information exempted under clearly delineated statutory language. John Doe Agency John Doe Corp., 493 U.S. 146, 152 (1989). Congress recognized, however, that public disclosure not always the public interest. CIA Sims, 471 U.S. 159, 166-67 (1985). Thus, FOIA designed achieve workable balance between the right the public know and the need the Government keep information confidence the extent necessary without permitting indiscriminate secrecy. John Doe, 493 U.S. 152 (quoting H.R. Rep. No. 1497, 89th Cong., Sess. (1966), reprinted 1966 U.S.C.C.A.N. 2418, 2423). that end, FOIA mandates disclosure government records unless the requested information falls within one nine enumerated exceptions. See U.S.C. 552(b). While these exemptions are narrowly construed, FBI Abramson, 456 U.S. 615, 630 (1982), courts still must respect the balance that Congress struck and give the exemptions meaningful reach and application. John Doe Agency, 493 U.S. 152. For defendant agency prevail motion for summary judgment FOIA litigation, must satisfy two elements. First, the agency must demonstrate that [it] conducted adequate search which was reasonably calculated uncover all relevant documents. Second, materials that are withheld must fall within FOIA statutory exemption. Leadership Conf. Civil Rights Gonzales, 404 Supp. 246, 252 (D.D.C. 2005) (citations omitted). Courts review agencies responses FOIA requests novo. U.S.C. 552(a)(4)(B). demonstrate the adequacy its search, the agency may submit affidavits declarations that explain reasonable detail the scope and method the agency search. Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page Dorsey Exec. Office for U.S. Attorneys, 926 Supp. 253, 255-56 (D.D.C. 2013) (citing Perry Block, 684 F.2d 121, 126 (D.C. Cir. 1982)). the absence contrary evidence, such affidavits declarations are sufficient demonstrate agencys compliance with the FOIA. Id. 256 (citing Perry, 684 F.2d 127). meet its burden justifying withholding documents, the government may submit agency declaration that describes the withheld material with reasonable specificity and the reasons for non-disclosure. See Armstrong Exec. Office the President, F.3d 575, 577-78 (D.C. Cir. 1996). The declarations submitted the agency are accorded presumption good faith, Safecard Servs., Inc. Securities Exchange Comm 926 F.2d 1197, 1200 (D.C. Cir. 1991), and presumption expertise, Piper U.S. Dep Justice, 294 Supp. 16, (D.D.C. 2003), jdgmt. aff 222 App (2007). Summary judgment freely granted where, here, the declarations reveal that there are material facts genuinely issue and that the agency entitled judgment matter law. See Alyeska Pipeline Serv. Co. EPA, 856 F.2d 309, 314-15 (D.C. Cir. 1988); Military Audit Project Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Accordingly, FOIA cases are typically and appropriately decided motions for summary judgment. Moore Bush, 601 Supp. (D.D.C. 2009). THE SEARCH FOR RESPONSIVE RECORDS WAS REASONABLE The adequacy agency search measured standard reasonableness and dependent upon the circumstances the case. Weisberg U.S. Dep Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983) (internal quotation marks and citations omitted). agency fulfills its obligations under FOIA can demonstrate beyond material doubt that its search was reasonably calculated uncover all relevant documents. Ancient Coin Collectors Guild Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page U.S. Dep State, 641 F.3d 504, 514 (D.C. Cir. 2011) (citations and internal quotation marks omitted). The FBI search for records responsive plaintiffs requests described the declaration David Hardy. Section Chief Hardy explained that, first, personnel the FBI Records Management Division RMD responsible for compiling and preserving FBI records, including the records former Director Comey after his removal, were consulted about the existence and location any responsive records. Hardy Decl. 62. These personnel consulted their collection former Director Comey records and identified what they believed the set records constituting the Comey Memos. Id. They then provided counsel from the FBI Office General Counsel OGC and Record/Information Dissemination Section personnel access the collection former Director Comey materials and the set records therein that they had identified the Comey Memos. Id. Counsel OGC National Security and Cyber Law Branch who were already familiar with the relevant records confirmed that the records identified RMD the Comey Memos were, fact, the full set memos. Id. This search protocol was reasonably calculated uncover all relevant documents under the circumstances the case. Accordingly, the FBI conducted adequate search. II. THE COMEY MEMOS ARE EXEMPT FROM DISCLOSURE PURSUANT FOIA EXEMPTION 7(A) explained the Declaration David Hardy, well the additional declaration the Federal Bureau Investigation that has been submitted camera and parte because contains law enforcement sensitive information, the FBI and the Special Counsel have determined that the release the Comey Memos, the disclosure any further information regarding the number, volume, substance the Comey Memos, could reasonably expected Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page interfere with the ongoing Russia investigation. Hardy Decl. 69-72. The FBI has made its assessment regarding the potential harm that would caused the integrity the current investigation with full knowledge the disclosures previously made former Director Comey this subject. Id. 71. detailed further below, these agency declarations plausibly and logically explain how the disclosure any portion the memoranda could compromise this important law enforcement investigation. Accordingly, the FBI properly withheld these documents their entirety pursuant FOIA Exemption 7(A), U.S.C. 552(b)(7)(A). Exemption 7(A) Applies the Comey Memos FOIA Exemption 7(A) authorizes the withholding records information compiled for law enforcement purposes the extent that production such law enforcement records information could reasonably expected interfere with enforcement proceedings. U.S.C. 552(b)(7)(A). Unlike with other exemptions, the government not required provide Vaughn index support its withholdings under Exemption 7(A) but may address the documents categorical basis. NLRB Robbins Tire Rubber Co., 437 U.S. 214, 236 (1978); Campbell Dep Health Human Servs., 682 F.2d 256, 265 (D.C. Cir. 1982). satisfy the government burden, declaration need only describe the type record issue terms sufficient allow[] the court trace rational link between the nature the document and the alleged likely interference. Crooker Bureau Alcohol, Tobacco Firearms, 789 F.2d 64, (D.C. Cir. 1986). The government has met its burden establish the applicability this exemption here. establish the applicability this exemption, the government must first show that the records were compiled for law enforcement purposes. Investigative documents qualify Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page records compiled for law enforcement purposes the agency declarations establish (1) rational nexus between the investigation and one the agency law enforcement duties and (2) connection between individual incident and possible security risk violation federal law. Ctr. for Nat Sec. Studies U.S. Dep Justice, 331 F.3d 918, 926 (D.C. Cir. 2003) (internal quotation marks omitted); see also Qui FBI, F.3d 1222, 1228 (D.C. Cir. 1996). [L]ess exacting proof legitimate law enforcement purpose required law enforcement agencies such the Department Justice and the FBI. Pratt Webster, 673 F.2d 408, 418 n.25 (D.C. Cir. 1982); see also Ctr. for Nat Sec. Studies, 331 F.3d 926. Information initially obtained record made for law enforcement purposes continues meet the threshold requirements Exemption where that recorded information reproduced summarized new document prepared for non-law-enforcement purpose. Abramson, 456 U.S. 631-32. addition, records not initially obtained generated for law enforcement purposes may qualify they were subsequently assembled for valid law enforcement purpose. John Doe, 493 U.S. 154-55; see also Kansi U.S. Dep Justice, Supp. 42, (D.D.C. 1998) [O]nce [the records issue] are assembled the FBI for its law enforcement purposes, all documents qualify for protection under Exemption regardless their original source. Here, the Comey Memos contain information compiled during the FBI Russia investigation, which now being continued the FBI and the Special Counsel. Hardy Decl. 67. That investigation unquestionably within the law enforcement duties the FBI, which include undertaking counterintelligence and national security investigations, and detecting and investigating possible violations Federal criminal laws. See U.S.C. 533; Hardy Decl. Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page 65. also within the authority the Special Counsel, which has specifically been tasked with investigating Russian involvement the election and prosecuting any federal crimes unearthed. DOJ Order No. 3915-2017. And the investigation based viable connection between incident (alleged Russian interference the election) and possible security risk violation federal law. See Transcript. Finally, further explanation how the memos constitute records compiled for law enforcement purposes included the camera and parte declaration submitted with this memorandum. Hardy Decl. 67. For the second inquiry under Exemption 7(A), the government must show that production the records issue (1) could reasonably expected interfere with (2) enforcement proceedings that are (3) pending reasonably anticipated. Mapother Dep Justice, F.3d 1533, 1540 (D.C. Cir. 1993) (emphasis omitted); see U.S.C. 552(b)(7)(A). Exemption 7(A) does not require presently pending enforcement proceeding ongoing investigation suffices. Ctr. for Nat Security Studies, 331 F.3d 926; see also Citizens for Responsibility Ethics Wash. U.S. Dep Justice, 746 F.3d 1082, 1098 (D.C. Cir. 2014) [A]n ongoing criminal investigation typically triggers Exemption 7(A). Juarez Dep Justice, 518 F.3d 54, (D.C. Cir. 2008) [S]o long the investigation continues gather evidence for possible future criminal case, and that case would jeopardized the premature release that evidence, Exemption 7(A) applies. These requirements are also met here. The FBI limited what can say the public record regarding the harms that would flow from the release any portion the Comey Memos. Although there has been extensive media coverage and speculation, little has been officially confirmed the FBI, DOJ, the Special Counsel about the investigation. The FBI Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page has generally explained, however, that the Comey Memos include information regarding confidential aspects the Russia investigation, Hardy Decl. 67, and that disclosure the Comey Memos and the information contained therein could reasonably expected adversely affect the ongoing investigation, well any law enforcement proceedings that may ultimately result from this investigation, revealing the scope and focus the investigation, and whether particular activities, information, evidence not interest the investigation. Id. 71. The FBI further explains that revealing additional information about the feared harms the investigation will itself risk harm the investigation. Id. The possible risks the investigation from disclosure have therefore been further described the camera and parte declaration submitted herewith. The investigators conclusions about the possible harms are common many investigations and are sufficient support application Exemption 7(A). The courts routinely recognize that Exemption 7(A) protects against the disclosure information that would reveal the scope and focus investigation. See Maydak U.S. Dep Justice, 218 F.3d 760, 762 (D.C. Cir. 2000) The principal purpose Exemption 7(A) prevent disclosures which might prematurely reveal the government cases court, its evidence and strategies, the nature, scope, direction, and focus its investigations, and thereby enable suspects establish defenses fraudulent alibis destroy alter evidence. Swan SEC, F.3d 498, 500 (D.C. Cir. 1996) (the records could reveal much about the focus and scope the [agency investigation, and are thus precisely the sort information exemption 7(A) allows agency keep secret Suzhou Yuanda Enter., Co. U.S. Customs Border Prot., 404 Supp. (D.D.C. 2005) (upholding Exemption 7(A) claim where disclosure the information could Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page inform the public the evidence sought and scrutinized this type investigation Thus, the courts have routinely found that disclosure that would reveal information such the status investigation, the investigators main concern, the material thus far collected, [the investigators assessment that information, and the information that [they] still required could potentially jeopardize the investigation. Judicial Watch, Inc. U.S. Dep Justice, 306 Supp. 58, 75-76 (D.D.C. 2004) (internal quotation marks omitted); see also Alyeska Pipeline Serv. Co., 856 F.2d 312 (upholding assertion Exemption 7(A) where disclosure would prematurely reveal[ the subject this ongoing investigation the size, scope and direction this investigation and expose the particular types allegedly illegal activities being investigated The courts have recognized that not only would disclosure such investigative progress and priorities chill witnesses and alert targets, but would provide targets witnesses with opportunity impede the investigation formulate their testimony rebut evidence already gathered. Moreover, the courts have recognized that the government, here, often cannot provide detailed descriptions the withheld information, but has upheld the withholdings nonetheless. See Patino-Restrepo Dep Justice, 246 Supp. 233, 250 (D.D.C. 2017) (finding the FBI justification its withholding pursuant 7(A) adequate even though was unable provide description the information withheld because specific description could identify the information that the FBI sought protect invoking the exemption). sum, because release the Comey Memos could reasonably expected reveal information about, and thus interfere with, the ongoing Russia investigation and any ensuing Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page enforcement proceedings, the documents are properly exempt from disclosure pursuant FOIA Exemption 7(A). There Has Been Official Prior Disclosure the Comey Memos The government anticipates that plaintiffs will argue that former Director Comey testimony before Congress, and/or his asserted delivery one more memos friend, constitute prior disclosure the contents the memos, sufficient compel disclosure here. However, that testimony and the release were made while Mr. Comey was longer the employ the FBI but rather was private citizen, and does not any event constitute disclosure the exact contents all the memos. Mr. Comey testimony therefore does not constitute official and documented disclosure the memos. Accordingly, the prior disclosure doctrine does not apply here. The general rule that, when information has been officially acknowledged, its disclosure may compelled even over agency otherwise valid exemption claim. Fitzgibbon CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). The D.C. Circuit applies three-part test for whether information has been officially acknowledged (1) the information requested must specific the information previously released; (2) the information requested must match the information previously disclosed; and (3) the information requested must already have been made public through official and documented disclosure. ACLU U.S. Dep Def., 628 F.3d 612, 620-21 (D.C. Cir. 2011). Notably, when assessing whether the third prong met, the prior disclosure must official government disclosure the fact that information exists some form the public domain does not necessarily mean that official disclosure will not cause harm cognizable under FOIA exemption. Wolf CIA, 473 F.3d 370, 378 (D.C. Cir. Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page 2007); see also Afshar U.S. Dep State, 702 F.2d 1125, 1130-31 (D.C. Cir. 1983) (drawing distinction between [u]nofficial leaks and public surmise and official acknowledgment Moreover, [p]rior disclosure similar information does not suffice; instead, the specific information sought the plaintiff must already the public domain official disclosure. Wolf, 473 F.3d 378. Accordingly, the plaintiff asserting claim prior disclosure carries the burden pointing specific information the public domain that appears duplicate that being withheld. Afshar, 702 F.2d 1130. Here, Mr. Comey testimony transmittal the material others, both which occurred when was acting private citizen, way constitutes official disclosure the contents the memos. See Transcript, (Comey answering [n]o question whether the special counsel office review[ed] and/or edit[ed] [his] written testimony This case thus similar the cases involving, e.g., memoirs former government officials and the Wikileaks documents, which waiver was not found. See Afshar, 702 F.2d 1133 (concluding that none the books former CIA agents and officials official and documented disclosure, the release CIA cables would ACLU Dep State, 878 Supp. 215, 224 (D.C. Cir. 2012) matter how extensive, the WikiLeaks disclosure substitute for official acknowledgement and the [plaintiff] has not shown that the Executive has officially acknowledged that the specific information issue was part the WikiLeaks disclosure. see also Hudson River Sloop Clearwater, Inc. Dep the Navy, 891 F.2d 414, 421 (2d Cir. 1989) Admiral Carroll statements cannot effect official disclosure information since longer active naval officer. The government has not even previously confirmed the existence any memos, and does not confirm here that the memo Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page memos allegedly provided Mr. Comey friend, even that occurred, was were accurate copies official memos wrote while FBI Director. Moreover, the actual contents the memos themselves, including such critical details the number memos and their length, Hardy Decl. 72, have not been made public. Thus, even taking into account Mr. Comey testimony, there has been documented disclosure the specific information issue here. See Muslim Advocates U.S. Dep Justice, 833 Supp. 92, 100 (D.D.C. 2011) (written chapters FBI guide did not become part the public domain when the chapters were only shown select group organizations FBI headquarters, even though attendees were permitted view and take notes); Black U.S. Dep Justice, Supp. 26, (D.D.C. 2014) (plaintiff failed meet his burden for invoking the prior disclosure doctrine certain recordings used court where, although the attorneys arguing before the court reference the recordings and present their respective characterizations the content the recordings, point does the transcript reflect that any portion the recordings were played court that the actual content the recordings were otherwise entered into the public record aff No. 14-5256, 2015 6128830 (D.C. Cir. Oct. 2015). Cf. Cottone Reno, 193 F.3d 550, 555 (D.C. Cir. 1999) (ordering release the specific tapes which had been played open court and received into evidence, where requestor could document those facts, but recognizing that will very often the case that some type hard copy facsimile will the only practicable way for FOIA requester demonstrate that the specific information has solicited has indeed circulated into the public domain Further discussion issues relevant the prior disclosure doctrine included the camera and parte declaration submitted herewith. Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page sum, Mr. Comey testimony does not constitute official acknowledgment the specific contents the memos. Accordingly, the prior disclosure doctrine does not apply. Disclosure the Comey Memos Will Still Interfere with the Russia Investigation, Notwithstanding Mr. Comey Testimony Plaintiffs may argue that, even Mr. Comey testimony did not constitute official disclosure, its existence the public domain negates any harm the investigation from releasing the memos. However, the FBI considered the disclosures made Mr. Comey making the determination that the release the Comey Memos could serve compromise the pending investigation, and nonetheless concluded that the release the Comey Memos would cause harm the investigative efforts. Hardy Decl. 71. The Comey Memos themselves have never entered the public domain. Accordingly, despite the former Director testimony, there much that not publicly known about these documents. Although former Director Comey testified that memorialized certain conversations with the President, the number records created not publicly known. Hardy Decl. 72. The level detail contained the memoranda not publicly known. Any disclosure this non-public information could reasonably expected reveal the scope and focus the investigation and thereby harm the investigation. Id. 71-72. Further details regarding the nature these harms provided the camera and parte declaration. Publicly explaining any greater detail why the release the Comey Memos would detrimental the pending investigation would itself disclose law enforcement sensitive information that could interfere with the pending investigation. Hardy Decl. 70. such cases, the submission camera, parte declaration proper. See Campbell, 682 Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page F.2d 265. the government has adequately articulated that submission, conjunction with the public declaration, how release any portion the Comey Memos could reasonably expected impede its ongoing investigation, the government has sufficiently demonstrated that Exemption 7(A) applies these documents. III. PORTIONS THE RECORDS ARE EXEMPT FROM DISCLOSURE PURSUANT EXEMPTION Portions certain the records responsive plaintiffs requests include classified information that also exempt from disclosure pursuant Exemption Hardy Decl. 75, 79. This information has been classified the Secret Confidential level. Id. This information also properly withheld. Exemption allows agency protect records that are: (1) specifically authorized under criteria established Executive Order kept secret the interest national defense foreign policy, and (2) are fact properly classified pursuant Executive Order. See U.S.C. 552(b)(1). with the other exemptions, agencies may establish the applicability Exemption declaration. See ACLU U.S. Dep Def., 628 F.3d 619. The current operative classification order for the purposes Exemption Executive Order No. 13,526, Fed. Reg. 707 (Dec. 29, 2009) [hereinafter E.O. 13,526 which sets forth the substantive and procedural criteria that agency must follow properly invoke the exemption. Hardy Decl. 77. E.O. 13,526 provides that, for information properly classified: (1) original classification authority must have classified the information; (2) the information must owned by, produced for, under the control the United States Government; (3) the information must fall within one more protected categories information listed section 1.4 the E.O.; and (4) the original classification authority must Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page determine[] that the unauthorized disclosure the information reasonably could expected result damage the national security and able identify describe the damage. E.O. 13,526, 1.1(a)(1)-(4). E.O. 13,526 also requires, relevant part, that information should classified Secret only its unauthorized disclosure could reasonably expected cause serious damage the national security, and Confidential only its unauthorized disclosure could reasonably expected cause damage the national security. E.O. 13,526, 1.2(a)(2)-(3). Here, Section Chief Hardy has determined that the information for which Exemption protection sought currently and properly classified the Secret Confidential level pursuant E.O. 13,526. Hardy Decl. 81. initial matter Section Chief Hardy has established that (1) the information owned by, was produced for, and under the control the U.S. Government; (2) was classified original classification authority; and (3) the withheld classified information falls within one more the categories described Section 1.4 E.O. 13,526, namely 1.4(c), information pertaining intelligence activities (including covert action), intelligence sources methods, cryptology, and 1.4(d), information pertaining foreign relations foreign activities the United States, including confidential sources. Id. 82. Section Chief Hardy also confirms that the unauthorized disclosure the information reasonably could expected result damage the national security and describes the expected damage the extent possible the public record. Hardy Decl. 82, 85-91. Because agencies have unique insights into the adverse effects that might result from public disclosure classified information, the courts must accord substantial weight agency affidavits Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page justifying classification. Larson Dep State, 565 F.3d 857, 864 (D.C. Cir. 2009) (citation omitted); see also Military Audit Project, 656 F.2d 738. the D.C. Circuit has noted, the FOIA context, have consistently deferred executive affidavits predicting harm the national security, and have found unwise undertake searching judicial review. Ctr. for Nat Sec. Studies, 331 F.3d 927. Thus, the issue for the Court whether the whole record, the [a]gency judgment objectively survives the test reasonableness, good faith, specificity and plausibility this field foreign intelligence which [the agency] expert and has been given Congress special role. Gardels CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982). Indeed, the D.C. Circuit has instructed that little proof explanation required beyond plausible assertion that information properly classified. Morley CIA, 508 F.3d 1108, 1124 (D.C. Cir. 2007). Here, the FBI has determined that some the information issue properly classified because would, disclosed, reveal otherwise non-public information regarding the FBI intelligence interests, priorities, activities, and methods. Hardy Decl. 88. Greater detail regarding the nature these intelligence interests, priorities, activities and methods are provided the parte, camera declaration. Id. 84. Section Chief Hardy explains the public record, however, release this information could reasonably expected cause harm the national security because the use such activities, sources and methods are valuable only insofar their use unknown the intelligence targets against which they are deployed. Id. 86. Otherwise, the targets such intelligence techniques would engage countermeasures nullify their effectiveness. Id. further explains, [i]ntelligence activities, sources, and methods are valuable only long they remain unknown and unsuspected. Once Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page intelligence activity, source, method the fact its use non-use certain situation discovered, its continued successful use seriously jeopardized. Id. [E]ven seemingly innocuous, indirect references intelligence activity, source, method could have significant adverse effects when juxtaposed with other publicly-available data. Id. 87. rational and plausible predict that disclosing details concerning the FBI intelligence activities, sources, and methods would undermine the usefulness those methods, the detriment national security, and thus the Court should sustain the agency withholding this information. See, e.g., Larson, 565 F.3d 863 (holding that [t]he CIA has carried its burden show that FOIA Exemption applies where the agency described with reasonably specific detail the importance for continuing intelligence operations keeping intelligence sources and methods classified and confidential see also Sims, 471 U.S. 175. The FBI has also determined that the other information issue would, disclosed, reveal otherwise non-public information about foreign relations foreign activities the United States, including confidential sources. Hardy Decl. 89-91. Specifically, the FBI has protected specific discussions and details concerning the United States foreign relations activities with identified foreign governments officials, the disclosure which, the context other surrounding information, could reasonably expected impair adversely impact relations with those countries, and thus, cause harm the national security. Id. 91. The FBI further explains that, for example, the unauthorized disclosure such information can reasonably expected lead diplomatic economic retaliation against the United States; the loss the cooperation and assistance friendly nations; the compromise cooperative Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page foreign sources, which may jeopardize their safety and curtail the flow information from these sources. Id. 90. The FBI assertion Exemption should upheld here well. III. PORTIONS THE RECORDS ARE EXEMPT FROM DISCLOSURE PURSUANT EXEMPTION FOIA Exemption protects information that specifically exempted from public disclosure statute that: (A)(i) requires that the matters withheld from the public such manner leave discretion the issue; (ii) establishes particular criteria for withholding refers particular types matters withheld; and (B) enacted after the date enactment the OPEN FOIA Act 2009, specifically cites this paragraph. U.S.C. 552(b)(3). the Court Appeals has explained, Exemption differs from other FOIA exemptions that its applicability depends less the detailed factual contents specific documents; the sole issue for decision the existence relevant statute and the inclusion withheld material within the statute coverage. Fitzgibbon, 911 F.2d 761-62. Thus, [a] specific showing potential harm national security irrelevant the language [an Exemption statute]. Congress has already, enacting the statute, decided that disclosure [the specified information] potentially harmful. Hayden Nat Sec. Agency, 608 F.2d 1381, 1390 (D.C. Cir. 1979). explained above, the Comey Memos include information that classified pursuant E.O. 13526, 1.4(c), protect intelligence sources and methods. That same information also exempt under Exemption Hardy Decl. 93. Specifically, disclosure information concerning intelligence sources and methods prohibited pursuant the National Security Act 1947, amended, which provides that the Director National Intelligence (DNI) shall Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page protect intelligence sources and methods from unauthorized disclosure. U.S.C. 3024(i)(1). relevant the application Exemption this provision was enacted before the date enactment the OPEN FOIA Act 2009, and its face, leaves discretion agencies about withholding from the public information about intelligence sources and methods. therefore settled that this statute falls within Exemption Gardels, 689 F.2d 1103 (discussing substantively similar predecessor statute applicable CIA which provided that the Director Central Intelligence shall responsible for protecting intelligence sources and methods from unauthorized disclosure accord Sims, 471 U.S. 167-68, 193; Fitzgibbon, 911 F.2d 761 There thus doubt that [the predecessor CIA statute] proper exemption statute under exemption DiBacco U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015). order fulfill its obligation protecting intelligence sources and methods, the DNI authorized establish and implement guidelines for the Intelligence Community for the classification information under applicable laws, Executive Orders, other Presidential Directives, and for access and dissemination intelligence. U.S.C. 3024(i)(1). The FBI one the member agencies comprising the IC, and such must protect intelligence sources and methods. Hardy Decl. 95. Accordingly, information the Comey Memos that reveals intelligence sources and methods prohibited from disclosure pursuant U.S.C. 3024(i)(1), id. 96, and thus properly exempt from disclosure under Exemption IV. PORTIONS THE RECORDS ARE EXEMPT FROM DISCLOSURE PURSUANT EXEMPTION 7(E) Exemption 7(E) protects records information compiled for law enforcement purposes [when release] would disclose techniques and procedures for law enforcement investigations prosecutions, would disclose guidelines for law enforcement investigations prosecutions Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page such disclosure could reasonably expected risk circumvention the law. U.S.C. 552(b)(7)(E). This exemption affords categorical protection techniques and procedures used law enforcement investigations. McRae U.S. Dep Justice, 869 Supp. 151, 168 (D.D.C. 2012); but see Blackwell FBI, 646 F.3d 37, (D.C. Cir. 2011) (applying, without analysis, risk circumvention standard law enforcement techniques and procedures). protects techniques and procedures that are not well-known the public well non-public details about the use publicly-known techniques and procedures. Vazquez U.S. Dep Justice, 887 Supp. 114, 117 (D.D.C. 2012), aff No. 13-5197, 2013 6818207 (D.C. Cir. Dec. 18, 2013). Exemption 7(E) applies information the Comey Memos reflecting the FBI use particular investigative techniques procedures furtherance the Russian interference investigation. Hardy Decl. 105. date, neither the FBI, DOJ, nor Special Counsel has publicly confirmed denied the use any particular techniques procedures the ongoing investigation. Id. Moreover, although defendants not believe they are required show risk circumvention here, the FBI explains that publicly disclosing the particular techniques and procedures utilized the investigation could reasonably expected risk circumvention the law because would arm those under investigation, and others intent disrupting it, the information necessary to, inter alia: develop countermeasures evade detection; destroy, adulterate, otherwise compromise evidence; and interfere with witnesses and their testimony. Id. Any further public description the information protected here would disclose nonpublic information that itself exempt under Exemption 7(E) and would trigger harm under Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page Exemption 7(A) prematurely revealing the conduct, scope, and direction the ongoing investigation. Hardy Decl. 106. Defendants have therefore provided additional reasons for assertion this exemption the camera and parte declaration filed herewith. Id. PORTIONS THE RECORDS ARE EXEMPT FROM DISCLOSURE PURSUANT EXEMPTIONS AND 7(C) The records issue contain small amount personal information namely, the names of, and some identifying information about: (a) FBI employee(s), (b) relative(s) the FBI employee(s), (c) individual(s) providing information the FBI during its investigation Russian interference the 2016 Presidential election, and (d) individuals who were merely mentioned the Comey Memos. Hardy Decl. 101. This information has properly been withheld pursuant FOIA Exemptions and 7(C). Exemption exempts from disclosure information about individuals personnel and medical and similar files when the disclosure such information would constitute clearly unwarranted invasion personal privacy. U.S.C. 552(b)(6). Exemption was intended cover detailed government records individual which can identified applying that individual. U.S. Dep State Wash. Post Co., 456 U.S. 595, 602 (1982). It, therefore, protects personal information contained any government file long that information applies particular individual. Id.; see also N.Y. Times Co. NASA, 920 F.2d 1002, 1006 (D.C. Cir. 1990) (en banc). Exemption does not merely apply files about individual, but applies more broadly bits personal information, such names and addresses, contained otherwise releasable documents. Judicial Watch, Inc. FDA, 449 F.3d 141, 152 (D.C. Cir. 2006). Exemption requires agency balance the individual right privacy against the public interest disclosure. See U.S. Dep Air Force Rose, 425 U.S. 352, Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page 372 (1976). However, general, the only relevant public interest disclosure weighed this balance the extent which disclosure would serve the core purpose the FOIA, which contribut[ing] significantly the public understanding the operations activities the government. U.S. Dep Defense FLRA, 510 U.S. 487, 495 (1994) (quoting U.S. Dep Justice Reporters Comm. for Freedom the Press, 489 U.S. 749, 775 (1989)) (emphasis and alteration original). Exemption 7(C) protects from disclosure records information compiled for law enforcement purposes the extent that the production such law enforcement records information could reasonably expected constitute unwarranted invasion personal privacy. U.S.C. 552(b)(7)(C). applying Exemption 7(C), the Court must balance the privacy interests that would compromised disclosure against the public interest release the requested information. Davis Dep Justice, 968 F.2d 1276, 1281 (D.C. Cir. 1992). Because Exemption 7(C) applies only law enforcement documents, however, and because protects documents that could reasonably expected constitute unwarranted invasion personal privacy, rather than those that would constitute clearly unwarranted invasion, courts have required lesser showing under Exemption 7(C) than under Exemption Nat Archives Records Admin. Favish, 541 U.S. 157, 166 (2004). with Exemption the public interest must assessed light FOIA central purpose, which open agency action the light public scrutiny. Nation Magazine, Wash. Bureau U.S. Customs Serv., F.3d 885, 894 (D.C. Cir. 1995) (quotation marks and citation omitted). However, general, this purpose not fostered disclosure about private individuals that accumulated various government files but that reveals little nothing about agency conduct. Id. Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page The personal information issue, the names the FBI employee(s) and private individuals, falls within the scope both these exemptions.4 Hardy Decl. 101-103. The FBI concluded that all these individuals maintain substantial privacy interests with respect being associated with this investigation. Id. 102. The FBI considers that its employees whether Special Agents Professional Staff enjoy substantial privacy protections virtue their FBI employment because, whether they are involved investigating cases providing other types services and support, their employment can subject them harassment, well unnecessary, unofficial questioning the conduct agency business. Id. Moreover, relatives such employees, like anyone merely mentioned FBI record, maintain similarly high privacy interests. Id. The individual providing information the FBI its investigation also has substantial privacy interests. Id. well settled that third parties who may mentioned investigatory files have presumptive privacy interest having their names and other personal information withheld from public disclosure. Nation Magazine, Wash. Bureau, F.3d 894; Bast U.S. Dep Justice, 665 F.2d 1251, 1254-55 (D.C. Cir. 1981). particular, the individuals whose information was withheld maintain strong privacy interest not being identified connection with high-profile investigation. Hardy Decl. 102; see Reporters Comm. For Freedom Press, 489 U.S. 763-66. the other hand, the public interest knowing the names individuals mentioned law enforcement records, general matter, nil. See Blanton Dep Justice, Supp. 35, (D.D.C. 1999) The privacy interests individual parties mentioned law enforcement files are substantial while The FBI not seeking protect any information regarding former Director Comey under these exemptions. Hardy Decl. 101. Case 1:17-cv-01167-JEB Document 22-1 Filed 10/13/17 Page [t]he public interest disclosure [of third party identities] not just less substantial, unsubstantial. (quoting Safecard Servs., Inc., 926 F.2d 1205, alterations original)); Safecard Servs, 926 F.2d 1206 [T]here reason believe that the incremental public interest such information would ever significant. There reason believe here that disclosure the identities the individuals mentioned the Comey Memos would shed any light government conduct, Hardy Decl. 103, and therefore the balancing test weighs clearly favor withholding. This personal information thus properly exempt from disclosure pursuant Exemption and 7(C). CONCLUSION For the reasons stated above, defendants motion for partial summary judgment should granted. Dated: October 13, 2017 Respectfully submitted, CHAD READLER Acting Assistant Attorney General Civil Division MARCIA BERMAN Assistant Director, Civil Division /s/Carol Federighi CAROL FEDERIGHI Senior Trial Counsel United States Department Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, 20044 Phone: (202) 514-1903 Email: carol.federighi@usdoj.gov Counsel for Defendant Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-2 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA CABLE NEWS NETWORK, INC., Plaintiff, Civil Action No. 1:17-cv-01167-JEB FEDERAL BUREAU INVESTIGATION, Defendant. GANNETT SATELLITE INFORMATION NETWORK, LLC, d/b/a USA TODAY, al., Civil Action No. 1:17-cv-01175-JEB Plaintiffs, DEPARTMENT JUSTICE, Defendant. JUDICIAL WATCH, INC., Plaintiff, Civil Action No. 1:17-cv-01189-JEB UNITED STATES DEPARTMENT JUSTICE, Defendant. FREEDOM WATCH, INC., Plaintiff, UNITED STATES DEPARTMENT JUSTICE and FEDERAL BUREAU INVESTIGATION, Defendants. Civil Action No. 1:17-cv-01212-JEB Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page THE DAILY CALLER NEWS FOUNDATION, Civil Action No. 1:17-cv-01830-JEB Plaintiff, UNITED STATES DEPARTMENT JUSTICE, Defendant. DECLARATION DAVID HARDY EXHIBIT CNN-A Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page ----START MESSAGE---- Subject: eFOIA Request Received Sent: 2017-0516T22:19:56.427909+00:00 Status: pending Message: Organization Representative Information Organization Name Prefix First Name CNN Mr. Gregory Middle Name Last Name Wallace Suffix Email gregory.wallace@cnn.com Phone 202-738-3113 Location United States Domestic Address Address Line 820 First Street Address Line 8th Floor City State Postal Washington District Columbia 20002 file:///C:/Users/klellis2/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Fil... 7/11/2017 Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page Agreement Pay How you will pay Allow requesting fee waiver for request and have reviewed the FOIA reference guide. fee waiver denied, willing pay additional fees and will enter that maximum amount the box below. Proof Affiliation for Fee Waiver Waiver Explanation Documentation Files Please see attached letter. 2017-05-16 FOIA FBI Comey notes Trump-1.docx Non-Individual FOIA Request Request Information Pursuant the Federal Freedom Information Act, U.S.C. 552 (the Act), Cable News Network, Inc. (CNN) requests access and copies all records notes taken communications sent from FBI Director James Comey regarding documenting interactions (including interviews and other conversations) with President Donald Trump. The scope this request records between January 20, 2017 and May 10, 2017. Please see attached letter. Expedite Expedite Reason Please see letter attached previous steps. file:///C:/Users/klellis2/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Fil... 7/11/2017 Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page ----END MESSAGE---- file:///C:/Users/klellis2/AppData/Local/Microsoft/Windows/Temporary%20Internet%20Fil... 7/11/2017 Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA CABLE NEWS NETWORK, INC., Plaintiff, Civil Action No. 1:17-cv-01167-JEB FEDERAL BUREAU INVESTIGATION, Defendant. GANNETT SATELLITE INFORMATION NETWORK, LLC, d/b/a USA TODAY, al., Civil Action No. 1:17-cv-01175-JEB Plaintiffs, DEPARTMENT JUSTICE, Defendant. JUDICIAL WATCH, INC., Plaintiff, Civil Action No. 1:17-cv-01189-JEB UNITED STATES DEPARTMENT JUSTICE, Defendant. FREEDOM WATCH, INC., Plaintiff, UNITED STATES DEPARTMENT JUSTICE and FEDERAL BUREAU INVESTIGATION, Defendants. Civil Action No. 1:17-cv-01212-JEB Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page THE DAILY CALLER NEWS FOUNDATION, Civil Action No. 1:17-cv-01830-JEB Plaintiff, UNITED STATES DEPARTMENT JUSTICE, Defendant. DECLARATION DAVID HARDY EXHIBIT CNN-B Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page U.S. Department Justice Federal Bureau Investigation Washington, D.C. 20535 May 23, 2017 MR. GREGORY WALLACE CNN 820 FIRST STREET, WASHINGTON, 20002 FOIPA Request No.: 1374094-000 Subject: All Memos, Emails, Other Documents James Comey Regarding Conversations with Donald Trump Dear Mr. Wallace: This reference your letter the FBI, which you requested expedited processing for the abovereferenced Freedom Information Act (FOIA) request. Under Department Justice (DOJ) standards for expedited processing, can only granted the following situations: C.F.R. 16.5 (e)(1)(i): Circumstances which the lack expedited treatment could reasonably expected pose imminent threat the life physical safety individual. C.F.R. 16.5 (e)(1)(ii): urgency inform the public about actual alleged federal government activity, made person primarily engaged disseminating information. C.F.R. 16.5 (e)(1)(iii): The loss substantial due process rights. C.F.R. 16.5 (e)(1)(iv): matter widespread and exceptional media interest which there exists possible questions about the government integrity which affects public confidence. You have not provided enough information concerning the statutory requirements permitting expedition; therefore, your request denied. For questions regarding our determinations, visit the www.fbi.gov/foia website under Contact Us. The FOIPA Request number listed above has been assigned your request. Please use this number all correspondence concerning your request. Your patience appreciated. You may file appeal writing the Director, Office Information Policy (OIP), United States Department Justice, Suite 11050, 1425 New York Avenue, NW, Washington, D.C. 20530-0001, you may submit appeal through OIPs FOIAonline portal creating account the following web site: https://foiaonline.regulations.gov/foia/action/public/home. Your appeal must postmarked electronically transmitted within ninety (90) days from the date this letter order considered timely. you submit your appeal mail, both the letter and the envelope should clearly marked Freedom Information Act Appeal. Please cite the FOIPA Request Number assigned your request that may easily identified. Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page You may seek dispute resolution services contacting the Office Government Information Services (OGIS) 877-684-6448, emailing ogis@nara.gov. Alternatively, you may contact the FBI FOIA Public Liaison emailing foipaquestions@ic.fbi.gov. you submit your dispute resolution correspondence email, the subject heading should clearly state Dispute Resolution Services. Please also cite the FOIPA Request Number assigned your request that may easily identified. Sincerely, David Hardy Section Chief Record/Information Dissemination Section Records Management Division Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA CABLE NEWS NETWORK, INC., Plaintiff, Civil Action No. 1:17-cv-01167-JEB FEDERAL BUREAU INVESTIGATION, Defendant. GANNETT SATELLITE INFORMATION NETWORK, LLC, d/b/a USA TODAY, al., Civil Action No. 1:17-cv-01175-JEB Plaintiffs, DEPARTMENT JUSTICE, Defendant. JUDICIAL WATCH, INC., Plaintiff, Civil Action No. 1:17-cv-01189-JEB UNITED STATES DEPARTMENT JUSTICE, Defendant. FREEDOM WATCH, INC., Plaintiff, UNITED STATES DEPARTMENT JUSTICE and FEDERAL BUREAU INVESTIGATION, Defendants. Civil Action No. 1:17-cv-01212-JEB Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page THE DAILY CALLER NEWS FOUNDATION, Civil Action No. 1:17-cv-01830-JEB Plaintiff, UNITED STATES DEPARTMENT JUSTICE, Defendant. DECLARATION DAVID HARDY EXHIBIT CNN-C Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page U.S. Department Justice Federal Bureau Investigation Washington, D.C. 20535 May 23, 2017 MR. GREGORY WALLACE CNN 820 FIRST STREET, WASHINGTON, 20002 FOIPA Request No.: 1374094-000 Subject: All Memos, Emails, Other Documents James Comey Regarding Conversations with Donald Trump Dear Mr. Wallace: This acknowledges receipt your Freedom Information Act (FOIA) request the FBI. Your request has been received FBI Headquarters for processing. Your request has been received the ______ Resident Agency _______ Field Office and forwarded FBI Headquarters for processing. You submitted your request via the FBI eFOIPA system. have reviewed your request. Consistent with the FBI eFOIPA terms service, future correspondence about your FOIA request will provided email link. have reviewed your request. Consistent with the FBI eFOIPA terms service, future correspondence about your FOIPA request will sent through standard mail. The subject your request currently being processed for public release. Documents will released you upon completion. Release responsive records will made the FBI FOIA Library (The Vault), http:/vault.fbi.gov, and you will contacted when the release posted. Your request for fee waiver being considered and you will advised the decision later date. your fee waiver denied, you will charged fees accordance with the category designated below. For the purpose assessing fees, have made the following determination: commercial use requester, you will charged applicable search, review, and duplication fees accordance with USC 552 (a)(4)(A)(ii)(I). educational institution, noncommercial scientific institution representative the news media requester, you will charged applicable duplication fees accordance with USC 552 (a)(4)(A)(ii)(II). general (all others) requester, you will charged applicable search and duplication fees accordance with USC 552 (a)(4)(A)(ii)(III). Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page Please check the status your FOIPA request www.fbi.gov/foia clicking FOIPA Status and entering your FOIPA Request Number. Status updates are adjusted weekly. The status newly assigned requests may not available until the next weekly update. the FOIPA has been closed the notice will indicate that appropriate correspondence has been mailed the address file. For questions regarding our determinations, visit the www.fbi.gov/foia website under Contact Us. The FOIPA Request number listed above has been assigned your request. Please use this number all correspondence concerning your request. Your patience appreciated. You may file appeal writing the Director, Office Information Policy (OIP), United States Department Justice, Suite 11050, 1425 New York Avenue, NW, Washington, D.C. 20530-0001, you may submit appeal through OIPs FOIAonline portal creating account the following web site: https://foiaonline.regulations.gov/foia/action/public/home. Your appeal must postmarked electronically transmitted within ninety (90) days from the date this letter order considered timely. you submit your appeal mail, both the letter and the envelope should clearly marked Freedom Information Act Appeal. Please cite the FOIPA Request Number assigned your request that may easily identified. You may seek dispute resolution services contacting the Office Government Information Services (OGIS) 877-684-6448, emailing ogis@nara.gov. Alternatively, you may contact the FBI FOIA Public Liaison emailing foipaquestions@ic.fbi.gov. you submit your dispute resolution correspondence email, the subject heading should clearly state Dispute Resolution Services. Please also cite the FOIPA Request Number assigned your request that may easily identified. Sincerely, David Hardy Section Chief, Record/Information Dissemination Section Records Management Division Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA CABLE NEWS NETWORK, INC., Plaintiff, Civil Action No. 1:17-cv-01167-JEB FEDERAL BUREAU INVESTIGATION, Defendant. GANNETT SATELLITE INFORMATION NETWORK, LLC, d/b/a USA TODAY, al., Civil Action No. 1:17-cv-01175-JEB Plaintiffs, DEPARTMENT JUSTICE, Defendant. JUDICIAL WATCH, INC., Plaintiff, Civil Action No. 1:17-cv-01189-JEB UNITED STATES DEPARTMENT JUSTICE, Defendant. FREEDOM WATCH, INC., Plaintiff, UNITED STATES DEPARTMENT JUSTICE and FEDERAL BUREAU INVESTIGATION, Defendants. Civil Action No. 1:17-cv-01212-JEB Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page THE DAILY CALLER NEWS FOUNDATION, Civil Action No. 1:17-cv-01830-JEB Plaintiff, UNITED STATES DEPARTMENT JUSTICE, Defendant. DECLARATION DAVID HARDY EXHIBIT CNN-D Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA CABLE NEWS NETWORK, INC., Plaintiff, Civil Action No. 1:17-cv-01167-JEB FEDERAL BUREAU INVESTIGATION, Defendant. GANNETT SATELLITE INFORMATION NETWORK, LLC, d/b/a USA TODAY, al., Civil Action No. 1:17-cv-01175-JEB Plaintiffs, DEPARTMENT JUSTICE, Defendant. JUDICIAL WATCH, INC., Plaintiff, Civil Action No. 1:17-cv-01189-JEB UNITED STATES DEPARTMENT JUSTICE, Defendant. FREEDOM WATCH, INC., Plaintiff, UNITED STATES DEPARTMENT JUSTICE and FEDERAL BUREAU INVESTIGATION, Defendants. Civil Action No. 1:17-cv-01212-JEB Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page THE DAILY CALLER NEWS FOUNDATION, Civil Action No. 1:17-cv-01830-JEB Plaintiff, UNITED STATES DEPARTMENT JUSTICE, Defendant. DECLARATION DAVID HARDY EXHIBIT CNN-E Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page U.S. Department Justice Federal Bureau Investigation Washington, D.C. 20535 June 13, 2017 MR. GREGORY WALLACE CNN 820 FIRST STREET, NORTHEAST WASHINGTON, 20002 OIP Appeal Number: DOJ-AP-2017-004349 FOIPA Request No.: 1374094-000 Subject: All Memos, Emails, Other Documents James Comey Regarding Conversations with Donald Trump Dear Mr. Wallace: This acknowledges your Freedom Information/Privacy Acts (FOIPA) remanded appeal has been received the FBI from the Office Information and Policy for processing. Pursuant the Department Justice (DOJ) standards permitting expedition, expedited processing can only granted when determined that FOIPA request involves one more the below categories. You have requested expedited processing according to: C.F.R. 16.5 (e)(1)(i): Circumstances which the lack expedited treatment could reasonably expected pose imminent threat the life physical safety individual. C.F.R. 16.5 (e)(1)(ii): urgency inform the public about actual alleged federal government activity, made person primarily engaged disseminating information. C.F.R. 16.5 (e)(1)(iii): The loss substantial due process rights. C.F.R. 16.5 (e)(1)(iv): matter widespread and exceptional media interest which there exist possible questions about the government integrity which affect public confidence. You have provided enough information concerning the statutory requirements permitting expedition; therefore, your request approved. For questions regarding our determinations, visit the www.fbi.gov/foia website under Contact Us. The FOIPA Request number listed above has been assigned your request. Please use this number all correspondence concerning your request. Your patience appreciated. You may file appeal writing the Director, Office Information Policy (OIP), United States Department Justice, Suite 11050, 1425 New York Avenue, NW, Washington, D.C. 20530-0001, you may submit appeal through OIPs FOIAonline portal creating account the following web site: https://foiaonline.regulations.gov/foia/action/public/home. Your appeal must postmarked electronically transmitted within ninety (90) days from the date this letter order considered timely. you submit your appeal mail, both the letter and the envelope should clearly marked Freedom Information Act Appeal. Please cite the FOIPA Request Number assigned your request that may easily identified. Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page You may seek dispute resolution services contacting the Office Government Information Services (OGIS) 877-684-6448, emailing ogis@nara.gov. Alternatively, you may contact the FBI FOIA Public Liaison emailing foipaquestions@ic.fbi.gov. you submit your dispute resolution correspondence email, the subject heading should clearly state Dispute Resolution Services. Please also cite the FOIPA Request Number assigned your request that may easily identified. Sincerely, David Hardy Section Chief Record/Information Dissemination Section Records Management Division Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA CABLE NEWS NETWORK, INC., Plaintiff, Civil Action No. 1:17-cv-01167-JEB FEDERAL BUREAU INVESTIGATION, Defendant. GANNETT SATELLITE INFORMATION NETWORK, LLC, d/b/a USA TODAY, al., Civil Action No. 1:17-cv-01175-JEB Plaintiffs, DEPARTMENT JUSTICE, Defendant. JUDICIAL WATCH, INC., Plaintiff, Civil Action No. 1:17-cv-01189-JEB UNITED STATES DEPARTMENT JUSTICE, Defendant. FREEDOM WATCH, INC., Plaintiff, UNITED STATES DEPARTMENT JUSTICE and FEDERAL BUREAU INVESTIGATION, Defendants. Civil Action No. 1:17-cv-01212-JEB Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page THE DAILY CALLER NEWS FOUNDATION, Civil Action No. 1:17-cv-01830-JEB Plaintiff, UNITED STATES DEPARTMENT JUSTICE, Defendant. DECLARATION DAVID HARDY EXHIBIT CNN-F Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page U.S. Department Justice Federal Bureau Investigation Washington, D.C. 20535 June 16, 2017 MR. GREGORY WALLACE CNN 820 FIRST STREET, WASHINGTON, 20002 FOIPA Request No.: 1374094-000 Subject: All records notes taken James Comey regarding interactions with Donald Trump (Between January 20, 2017 and May 10, 2017) Dear Mr. Wallace: This responds your Freedom Information Act (FOIA) request. The material you requested exempt from disclosure pursuant U.S.C. 552(b)(7)(A). U.S.C. 552(b)(7)(A) exempts from disclosure: records information compiled for law enforcement purposes, but only the extent that the production such law enforcement records information ... could reasonably expected interfere with enforcement proceedings... The records responsive your request are law enforcement records. There pending prospective law enforcement proceeding relevant these responsive records, and release the information these responsive records could reasonably expected interfere with enforcement proceedings. For further explanation this exemption, see the enclosed Explanation Exemptions. unnecessary adjudicate your request for fee waiver. For your information, Congress excluded three discrete categories law enforcement and national security records from the requirements the FOIA. See U.S. 552(c) (2006 Supp. (2010). This response limited those records that are subject the requirements the FOIA. This standard notification that given all our requesters and should not taken indication that excluded records do, not, exist. For questions regarding our determinations, visit the www.fbi.gov/foia website under Contact Us. The FOIPA Request Number listed above has been assigned your request. Please use this number all correspondence concerning your request. Your patience appreciated. Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page You may file appeal writing the Director, Office Information Policy (OIP), United States Department Justice, Suite 11050, 1425 New York Avenue, NW, Washington, D.C. 20530-0001, you may submit appeal through OIPs FOIAonline portal creating account the following web site: https://foiaonline.regulations.gov/foia/action/public/home. Your appeal must postmarked electronically transmitted within ninety (90) days from the date this letter order considered timely. you submit your appeal mail, both the letter and the envelope should clearly marked Freedom Information Act Appeal. Please cite the FOIPA Request Number assigned your request that may easily identified. You may seek dispute resolution services contacting the Office Government Information Services (OGIS) 877-684-6448, emailing ogis@nara.gov. Alternatively, you may contact the FBI FOIA Public Liaison emailing foipaquestions@fbi.gov. you submit your dispute resolution correspondence email, the subject heading should clearly state Dispute Resolution Services. Please also cite the FOIPA Request Number assigned your request that may easily identified. Sincerely, David Hardy Section Chief, Record/Information Dissemination Section Records Management Division Enclosures Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page FBI FACT SHEET The primary functions the FBI are national security and law enforcement. The FBI does not keep file every citizen the United States. The FBI was not established until 1908 and have very few records prior the 1920s. FBI files generally contain reports FBI investigations wide range matters, including counterterrorism, counter-intelligence, cyber crime, public corruption, civil rights, organized crime, white collar crime, major thefts, violent crime, and applicants. The FBI does not issue clearances non-clearances for anyone other than its own personnel persons having access FBI facilities. Background investigations for security clearances are conducted many different Government agencies. Persons who received clearance while the military employed with some other government agency should contact that entity. Most government agencies have websites which are accessible the internet which have their contact information. identity history summary check rap sheet NOT the same FBI file. listing information taken from fingerprint cards and related documents submitted the FBI connection with arrests, federal employment, naturalization military service. The subject rap sheet may obtain copy submitting written request FBI CJIS Division Summary Request, 1000 Custer Hollow Road, Clarksburg, 26306. Along with specific written request, the individual must submit new full set his/her fingerprints order locate the record, establish positive identification, and ensure that individual records are not disseminated unauthorized person. The fingerprint submission must include the subject name, date and place birth. There required fee $18 for this service, which must submitted money order certified check made payable the Treasury the United States. credit card payment option also available. Forms for this option and additional directions may obtained accessing the FBI Web site www.fbi.gov/about-us/cjis/identity-history-summary-checks. The National Name Check Program (NNCP) conducts search the FBI Universal Index (UNI) identify any information contained FBI records that may associated with individual and provides the results that search requesting federal, state local agency. Names are searched multitude combinations and phonetic spellings ensure all records are located. The NNCP also searches for both main and cross reference files. main file entry that carries the name corresponding the subject file, while cross reference merely mention individual contained file. The results from search this magnitude can result several hits and idents individual. each instance where UNI has identified name variation reference, information must reviewed determine applicable the individual question. The Record/Information Dissemination Section (RIDS) searches for records and provides copies FBI files responsive Freedom Information Privacy Act (FOIPA) requests for information. RIDS provides responsive documents requesters seeking reasonably described information. For FOIPA search, the subject name, event, activity, business searched determine whether there associated investigative file. This called main file search and differs from the NNCP search. FOR GENERAL INFORMATION ABOUT THE FBI, VISIT OUR WEBSITE www.fbi.gov 7/18/16 Case 1:17-cv-01167-JEB Document 22-3 Filed 10/13/17 Page EXPLANATION EXEMPTIONS SUBSECTIONS TITLE UNITED STATES CODE, SECTION 552 (b)(1) (A) specifically authorized under criteria established Executive order kept secret the interest national defense foreign policy and (B) are fact properly classified such Executive order; (b)(2) related solely the internal personnel rules and practices agency; (b)(3) specifically exempted from disclosure statute (other than section 552b this title), provided that such statute (A) requires that the matters withheld from the public such manner leave discretion issue, (B) establishes particular criteria for withholding refers particular types matters withheld; (b)(4) trade secrets and commercial financial information obtained from person and privileged confidential; (b)(5) inter-agency intra-agency memorandums letters which would not available law party other than agency litigation with the agency; (b)(6) personnel and medical files and similar files the disclosure which would constitute clearly unwarranted invasion personal privacy; (b)(7) records information compiled for law enforcement purposes, but only the extent that the production such law enforcement records information could reasonably expected interfere with enforcement proceedings, would deprive person right fair trial impartial adjudication, could reasonably expected constitute unwarranted invasion personal privacy, could reasonably expected disclose the identity confidential source, including State, local, foreign agency authority any private institution which furnished information confidential basis, and, the case record information compiled criminal law enforcement authority the course criminal investigation, agency conducting lawful national security intelligence investigation, information furnished confidential source, would disclose techniques and procedures for law enforcement investigations prosecutions, would disclose guidelines for law enforcement investigations prosecutions such disclosure could reasonably expected risk circumvention the law, could reasonably expected endanger the life physical safety any individual; (b)(8) contained related examination, operating, condition reports prepared by, behalf of, for the use agency responsible for the regulation supervision financial institutions; (b)(9) geological and geophysical information and data, including maps, concerning wells. SUBSECTIONS TITLE UNITED STATES CODE, SECTION 552a (d)(5) information compiled reasonable anticipation civil action proceeding; (j)(2) material reporting investigative efforts pertaining the enforcement criminal law including efforts prevent, control, reduce crime apprehend criminals; (k)(1) information which currently and properly classified pursuant Executive order the interest the national defense foreign policy, for example, information involving intelligence sources methods; (k)(2) investigatory material compiled for law enforcement purposes, other than criminal, which did not result loss right, benefit
