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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
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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----
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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