Gizmodo Media Group, LLC v. Department of Justice

Filing 69

OPINION AND ORDER.....DOJs summary judgment motion of September 14, 2018 is granted. Gizmodos summary judgment motion of October 9, 2018 is denied. The Clerk of Court shall enter judgment for the Government and close the case. (Signed by Judge Denise L. Cote on 4/3/2019) (gr) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
GIZMODO MEDIA GROUP, LLC,
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:
Plaintiff,
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-v:
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DEPARTMENT OF JUSTICE,
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Defendant.
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17cv3566 (DLC)
OPINION AND
ORDER

APPEARANCES:
For the Plaintiff:
David A. Schulz
Jacquelyn Nicole Schell
Ballard Spahr LLP
1675 Broadway, 19th Floor
New York, NY 10019
For the Defendant:
Andrew Edward Krause
United States Attorney's Office, SDNY
86 Chambers Street, 3rd Floor
New York, NY 10007
DENISE COTE, District Judge:
Plaintiff Gizmodo Media Group, LLC (“Gizmodo”) has filed
suit against the Department of Justice (“DOJ”) under the Freedom
of Information Act (“FOIA”) to compel production of records
related to alleged wiretaps of the 2016 Trump Campaign (“Trump
Campaign”) leading up to the presidential election.

The

question presented by this action is whether the Government has
publicly acknowledged the existence of the classified
information sought by Gizmodo.

If it has, then the Government
1

has lost the right to withhold acknowledgment of the existence
or non-existence of the requested documents.

For the reasons

that follow, the DOJ’s motion for summary judgment is granted.

Background
The following facts are undisputed and provide relevant
background for the FOIA request and the Government’s response to
that request.

On March 3, 2017, Breitbart News published an

article describing alleged wiretapping of the Trump Campaign by
the Obama Administration.

The article included a timeline of

alleged actions, including a June 2016 Foreign Intelligence
Surveillance Act (“FISA”) request to monitor the Trump Campaign
that was denied and an October 2016 FISA request that was
granted.
On March 4, President Trump posted a four-part tweet on his
Twitter account @realDonaldTrump.

These tweets read as follows:

[1]Terrible! Just found out that Obama had my “wires
tapped” in Trump Tower just before the victory.
Nothing found. This is McCarthyism!
[2] Is it legal for a sitting President to be “wire
tapping” a race for president prior to an election?
Turned down by court earlier. A NEW LOW!
[3] I’d bet a good lawyer could make a great case out
of the fact that President Obama was tapping my phones
in October, just prior to Election!
[4] How low has President Obama gone to tapp [sic] my
phones during the very sacred election process. This
is Nixon/Watergate. Bad (or sick) guy!
2

(Emphasis supplied.)
In a Fox News interview with Tucker Carlson (“Carlson”) on
March 15, President Trump discussed these tweets.

When asked by

Carlson how he found out about the alleged wiretapping,
President Trump responded:
Well, I had been reading about things. I read in, I
think it was January 28th, a New York Times article
where they were talking about wiretapping. There was
an article, I think they used that exact term it
[sic]. I read other things. I watched your friend
Bret Baier, the day previous where he was talking
about certain, very complex sets of things happening
and wiretapping. I said, wait a minute, there's lot
[sic] of wiretapping being talked about. I've been
seeing a lot of things. Now, for the most part, I am
not going to discuss it because we have it before the
committee. 1 And we will be submitting things before
the committee very soon that has [sic] not been
submitted as of yet.
When asked by Carlson why he did not gather evidence of the
wiretapping from intelligence agencies, President Trump stated,
among other things, that “we will be submitting certain things
and I will be perhaps speaking about this next week but it is
right now before the committee and I think I want to leave it
there.”

When Carlson asked “[w]hy not wait to tweet about it

until you can prove it?” President Trump responded “[w]ell,
because The New York Times wrote about it.

You know? . . .

The reference to the committee is understood to be a reference
to the House Permanent Select Committee on Intelligence.
1

3

They're using the word wiretapped.

Other people have come out

with --.”
On March 16, during a White House press briefing, when
asked about the alleged wiretapping and Trump’s statements about
it, then-Press Secretary Sean Spicer (“Spicer”) recounted
information that had been reported by a variety of news outlets
regarding alleged surveillance of the Trump Campaign by the
Obama Administration.

After quoting from several news articles,

Spicer concluded:
The bottom line is, is that the President said last
night that he will be -- that there will be additional
information coming forward. There’s a ton of media
reports out there that indicate that something was
going on during the [2016] election.
When one journalist at the press briefing stated to Spicer, that
“[i]t sounds like your information is news reports, not
evidence, not conversations with the FBI Director,” Spicer
responded:
No, no, what -- I think the President addressed that
last night. He said there’s more to come. These are
merely pointing out that I think there is widespread
reporting that throughout the 2016 election there was
surveillance that was done on a variety of people that
came up.
And in response to the same journalist’s question about whether
President Trump was “asking, himself, for the intelligence
agencies that report to him, to provide him specific answers to

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these underlying questions that are separate from the reports
you’re citing,” Spicer responded “[n]o.”
On March 20, then-Federal Bureau of Investigation (“FBI”)
Director James Comey (“FBI Director”) was asked during sworn
testimony before the House Permanent Select Committee on
Intelligence (“HPSCI”) about the March 4 tweets.

He responded:

With respect to the President’s tweets about alleged
wiretapping directed at him by the prior
administration, I have no information that supports
those tweets and we have looked carefully inside the
FBI. The Department of Justice has asked me to share
with you that the answer is the same for the
Department of Justice and all its components. The
Department has no information that supports those
tweets.
(Emphasis supplied.)
On April 6, Gizmodo submitted a FOIA request to DOJ’s
National Security Division (“NSD”).

This request seeks

all information provided to or received from the FISA
Court pertaining to requests made in 2016 for one or
more warrants to conduct electronic surveillance on
Mr. Trump, any of his associates, any of his
properties and/or any foreign entities (including but
not limited to, SVB Bank and Alfa Bank) with whom he
or his associates were alleged to be in communication.
The request cited President Trump’s March 4 tweets as public
disclosures that “he and/or his associates” had been a target of
electronic surveillance during the 2016 Presidential Campaign.
It argued that the tweets had confirmed the published report by
Breitbart News on March 3 that a FISA warrant had at first been
denied in June 2016 but then granted in October 2016.
5

The NSD responded by email to this request on April 14,
with a Glomar response, refusing to confirm or deny the
existence of responsive records.

The NSD invoked FOIA Exemption

1, explaining that the NSD does not search for records in
response to requests regarding the use or non-use of certain
foreign intelligence gathering techniques where the confirmation
or denial of the existence of responsive records would, in and
of itself, reveal information properly classified under
Executive Order 13526.

Gizmodo appealed the NSD’s response that

same day to the DOJ’s Office of Information Policy (“OIP”), the
office responsible for deciding DOJ FOIA appeals, and on April
18, the OIP affirmed the NSD’s determination.

Gizmodo filed

this lawsuit on May 12, 2017.
On February 2, 2018, President Trump declassified the
entirety of a January 18, 2018 memorandum authored by
Representative Devin Nunes, Chairman of the HPSCI, entitled
“Foreign Intelligence Surveillance Act Abuses at the Department
of Justice and the Federal Bureau of Investigation” (“the Nunes
Memorandum”).

This memorandum stated, among other things, that

in October 2016 the “DOJ and FBI sought and received a FISA
probable cause order . . . authorizing electronic surveillance
on Carter Page.”

Page was identified “as a volunteer advisor to

the Trump presidential campaign.”

Approximately three weeks

later, an unclassified, redacted version of a January 29, 2018
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memorandum prepared by the HPSCI Minority entitled “Correcting
the Record – The Russia Investigation, from the House Permanent
Select Committee on Intelligence Minority, to All Members of the
House of Representatives” was released.

This memorandum also

discussed the existence of FISA applications and orders to
conduct surveillance of Page.
On July 20, in response to FOIA requests in this and other
cases, the DOJ disclosed redacted copies of the FISA
applications and order to conduct surveillance of Page.

The

released records disclosed a FISA application for surveillance
of Page in October 2016 and several renewal applications, the
last of which was submitted in June 2017.

According to DOJ,

this was the first ever official public disclosure of an
application to or order by the FISA Court pertaining to a
specific individual surveillance target.
Since the filing of this lawsuit, President Trump has
issued several tweets that reference surveillance of the Trump
Campaign.

On January 11, 2018, President Trump tweeted:

House votes on controversial FISA ACT today. This is
the act that may have been used, with the help of the
discredited and phony Dossier, to so badly surveil and
abuse the Trump Campaign by the previous
administration and others? 2
The reference to a Dossier is understood to be a reference to a
document authored by Christopher Steele concerning among other
things President Trump’s alleged ties to Russia and published by
BuzzFeed in January 2017.
2

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On August 24, President Trump tweeted:
FISA abuse, Christopher Steele & his phony and corrupt
Dossier, the Clinton Foundation, illegal surveillance
of Trump Campaign, Russian collusion by Dems – and so
much more. Open up the papers & documents without
redaction? Come on Jeff, you can do it, the country
is waiting! 3
On August 29, President Trump tweeted “’The Obama people did
something that’s never been done. . . .

They spied on a rival

presidential campaign.’”
Another tweet followed a September 17 White House
statement.

That statement disclosed that President Trump had

directed the Office of the Director of National Intelligence and
DOJ to declassify certain documents. 4

On September 21, President

Trump tweeted
I met with the DOJ concerning the declassification of
various UNREDACTED documents. They agreed to release
them but stated that so doing may have a perceived
negative impact on the Russia probe. Also, key
The reference to the Clinton Foundation is understood to be
either a reference to the non-profit organization named the
Clinton Foundation founded by former President Bill Clinton or
to the Clinton Family Foundation, Bill and Hillary Rodham
Clinton’s private charitable foundation. Hillary Rodham Clinton
was the nominee of the Democratic Party for the Office of
President in 2016. The reference to Jeff is understood to refer
to Jeff Sessions, then Attorney General.
3

The documents to be disclosed included pages of the June 2017
application to the FISA court regarding Page (which was the
final of four applications for surveillance of Page), all FBI
reports of interviews prepared in connection with all Page FISA
applications, and certain other FBI reports related to
investigations related to Russia.
4

8

Allies’ called to ask not to release. Therefore, the
Inspector General . . . has been asked to review these
documents on an expedited basis. I believe he will
move quickly on this (and hopefully other things which
he is looking at). In the end I can always declassify
if it proves necessary.
President Trump later reversed course, and the documents were
not declassified.

Procedural History
As noted, Gizmodo filed this lawsuit on May 12, 2017.

On

September 27, 2017, DOJ filed a motion for summary judgment in
this case and on November 14, Gizmodo filed a cross-motion for
summary judgment.

Those motions were terminated as moot on

March 30, 2018, after DOJ represented that its responses to
Gizmodo’s FOIA request would change in light of the
declassification of the Nunes Memorandum.
DOJ filed the instant motion for summary judgment on
September 14, 2018 and Gizmodo filed its cross-motion for
summary judgment on October 9.

The motions were fully submitted

on November 16. 5
Several cases seeking similar records through FOIA requests
have also been filed by other plaintiffs in other courts. See,
e.g., Poulsen v. Department of Defense et al, 17cv3531 (N.D.
Cal. filed June 19, 2017); James Madison Project v. Department
of Justice, 17cv597 (D.D.C. filed April 4, 2017). On March 22,
2019, an opinion issued in Poulsen, granted the Government’s
motions for summary judgment and found, inter alia that the
President’s tweets did not disclose the existence of the
specific documents requested and that the Government agencies
5

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Discussion
FOIA was enacted in 1966 “to improve public access to
information held by government agencies.”

Pierce & Stevens

Chem. Corp. v. U.S. Consumer Prod. Safety Comm'n, 585 F.2d 1382,
1384 (2d Cir. 1972).

It “expresses a public policy in favor of

disclosure so that the public might see what activities federal
agencies are engaged in.”

A. Michael's Piano, Inc. v. F.T.C.,

18 F.3d 138, 143 (2d Cir. 1994).

“FOIA generally calls for

broad disclosure of Government records.”

Am. Civil Liberties

Union v. United States Dep't of Def., 901 F.3d 125, 133 (2d Cir.
2018), as amended (Aug. 22, 2018) (citation omitted)(“ACLU v.
DOD”).

FOIA requires a federal agency to disclose records in

its possession unless they fall under one of nine enumerated and
exclusive exemptions.

5 U.S.C. § 552(a) (3)-(b).

The statutory

exemptions “do not obscure the basic policy that disclosure, not
secrecy, is the dominant objective of the Act.”

Dep't of the

Interior and Bur. of Indian Affairs v. Klamath Water Users
Protective Ass'n, 532 U.S. 1, 8 (2001) (citation omitted).
exemptions are thus to be “given a narrow compass.”

The

Id.

(citation omitted).

could maintain Glomar responses as to forms of electronic
surveillance and targets of electronic surveillance undisclosed
by the Government’s acknowledgment of the use of electronic
surveillance on Page. Poulsen v. Dep't of Def., No. 17cv3531,
2019 WL 1318380 (N.D. Cal. Mar. 22, 2019).
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“In order to prevail on a motion for summary judgment in a
FOIA case, the defending agency has the burden of showing that
its search was adequate and that any withheld documents fall
within an exemption to the FOIA.”

Carney v. U.S. Dep't of

Justice, 19 F.3d 807, 812 (2d Cir. 1994).

“An agency may carry

its burden by submitting declarations giving reasonably detailed
explanations why any withheld documents fall within an
exemption, and such declarations are accorded a presumption of
good faith.”

Florez v. Cent. Intelligence Agency, 829 F.3d 178,

182 (2d Cir. 2016) (citation omitted).
Summary judgment is appropriate where the agency
declarations describe the justifications for
nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically
falls within the claimed exemption, and are not
controverted by either contrary evidence in the record
or by evidence of agency bad faith.
ACLU v. DOD, 901 F.3d at 133 (citation omitted).

“Ultimately,

an agency's justification for invoking a FOIA exemption is
sufficient if it appears logical or plausible.”

New York Times

Co. v. U.S. Dep't of Justice, 756 F.3d 100, 119 (2d Cir.),
opinion amended on denial of reh'g, 758 F.3d 436 (2d Cir.),
supplemented, 762 F.3d 233 (2d Cir. 2014) (citation omitted).
Because of “FOIA’s general principle of broad disclosure of
government records . . . all doubts as to the applicability of
the exemption must be resolved in favor of disclosure.”

Ctr.

for Constitutional Rights v. CIA, 765 F.3d 161, 166 (2d Cir.
11

2014), cert. denied, 135 S.Ct. 1530 (2015) (citation omitted).
A court “review[s] the adequacy of the agency's justifications
de novo.

In the national security context, however, we must

accord substantial weight to an agency's affidavit concerning
the details of the classified status of the disputed record.”
Am. Civil Liberties Union v. Dep't of Justice, 681 F.3d 61, 69
(2d Cir. 2012) (citation omitted).
FOIA Exemption 1, which the DOJ invokes in this case to
justify its Glomar response, exempts from disclosure “records
that are specifically authorized under criteria established by
an Executive order to be kept secret in the interest of national
defense or foreign policy, and are in fact properly classified
pursuant to such Executive order.” Ctr. for Constitutional
Rights, 765 F.3d at 166 (quoting 5 U.S.C. § 552(b)(1)).
Executive Order 13,526 permits classification of information
that, if disclosed, “reasonably could be expected to result in
damage to the national security” and requires that “the original
classification authority is able to identify or describe the
damage.” Exec. Order No. 13,526, 75 Fed. Reg. 707 (Dec. 29,
2009).

This executive order explicitly permits a classifying

agency to “refuse to confirm or deny the existence or
nonexistence of requested records whenever the fact of their
existence or nonexistence is itself classified under this order
or its predecessors.”

Id. § 3.6(a).
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The term “Glomar response” refers to “a response that
neither confirms nor denies the existence of documents
responsive to the request.”
F.3d at 164 n.5.

Ctr. for Constitutional Rights, 765

A Glomar response is “justified only in

unusual circumstances, and only by a particularly persuasive
affidavit.”

Florez, 829 F.3d at 182.

An agency is “precluded from making a Glomar response if
the existence or nonexistence of the specific records sought by
the FOIA request has been the subject of an official public
acknowledgment.”
(2d Cir. 2009).

Wilner v. Nat'l Sec. Agency, 592 F.3d 60, 70
“Classified information . . . is deemed to have

been officially disclosed only if it (1) is as specific as the
information previously released, (2) matches the information
previously disclosed, and (3) was made public through an
official and documented disclosure.”

Wilson v. C.I.A., 586 F.3d

171, 186 (2d Cir. 2009) (citation omitted).

While noting that

this test “remains the law of this Circuit,” the Second Circuit
has since expressed concerns about the “questionable provenance”
of the Wilson test and cautioned “that a rigid application of it
may not be warranted.”

New York Times Co., 756 F.3d at 120

n.19.
In applying the Wilson test to determine whether an
official statement precludes the Government from issuing a
Glomar response, “absolute identity” between the information
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requested and disclosed is not required.

Id. at 120.

such a requirement would make little sense.

“Indeed,

A FOIA requester

would have little need for undisclosed information if it had to
match precisely information previously disclosed.”

Id.

Moreover, in the Glomar context, it is disclosure of the
existence of the specific records requested, rather than their
contents, that is the subject of the inquiry.

“If the

government has admitted that a specific record exists, a
government agency may not later refuse to disclose whether that
same record exists or not.”

Wilner, 592 F.3d at 70.

See also

Am. Civil Liberties Union v. C.I.A., 710 F.3d 422, 427 (D.C.
Cir. 2013) (“In the Glomar context, the specific information at
issue is not the contents of a particular record, but rather the
existence vel non of any records responsive to the FOIA
request.” (citation omitted)) (“ACLU v. CIA”).
This Court finds, and there is no dispute, that the
information Gizmodo requests regarding FISA Court applications
and orders is classified information that is properly subject to
Exemption 1 and a Glomar response if the existence of the
records sought by Gizmodo has not already been made public
through an official disclosure.

Both parties also agree that

each of the statements recited above by President Trump,
including his tweets, and by the FBI Director are “official”
public statements for purposes of analyzing whether a Glomar
14

response may be given to the Gizmodo FOIA request.

The FBI

Director has acknowledged on behalf of DOJ that the Government
has no records of wiretapping “directed at” then-candidate Trump
by the Obama Administration.

Through the declassification of

the Nunez Memorandum, the Government has acknowledged the
existence of FISA applications and orders to conduct
surveillance of Page.

Documents related to the Page

surveillance were later released to the public.
The only issue remaining in this case is the propriety of
the DOJ’s blanket Glomar response as to any remaining category
of documents in Gizmodo’s FOIA request.

In light of the

disclosures already made by the Government, Gizmodo takes the
position in its final brief in support of its cross-motion for
summary judgment that a Glomar response is still inappropriate
for one category of documents.

That category is documents of

any DOJ efforts to obtain FISA warrants for then-candidate
Trump’s “associates in 2016” who were involved in his Campaign
for President.

Gizmodo contends that President Trump’s tweets

prevent the Government from invoking a Glomar response to that
remaining request.
President Trump’s tweets were too vague to foreclose a
Glomar response to this remaining category of requests.
President Trump discussed surveillance of his Campaign in broad
strokes.

He did not refer to any targets of this surveillance
15

apart from himself, or to any number of targets.

His statements

do not disclose the existence of records of surveillance of any
specific individual associated with his Campaign.

His

statements may be fairly interpreted to refer only to the
surveillance of himself or Page; nothing in the statements
clearly indicates that the surveillance was not so limited.
While official statements need not name any additional
individuals or otherwise reveal a person’s identity to render a
Glomar response inappropriate, the statements must more
concretely indicate the existence of the specific records sought
in order to satisfy the Wilson test.

With the disclosure that

surveillance did occur of Page, who worked with the Trump
Campaign, and with the disclosure that candidate Trump was not
the target of such surveillance, there is no bar to the
Government invoking a Glomar response with respect to a FOIA
request seeking records of surveillance of all other individuals
associated with the Trump Campaign in 2016.
This outcome is consistent with the Court of Appeals recent
decision in Wilner.

There, the Second Circuit held that an

agency may provide a Glomar response despite the fact that the
existence of the program about which a plaintiff sought records
-- the Terrorist Surveillance Program -- had been disclosed.
“An agency only loses its ability to provide a Glomar response
when the existence or nonexistence of the particular records
16

covered by the Glomar response has been officially and publicly
disclosed.”

Wilner, 592 F.3d at 70.

Gizmodo’s reliance on ACLU v. CIA, 710 F.3d 422, is
misplaced.

In ACLU v. CIA, the Court of Appeals rejected a

Glomar response offered to resist revealing not whether the
Government as a whole had records concerning a drone program,
but whether one agency -- the CIA -- had an interest in that
program.

Id. at 428, 431.

There was no dispute that the

Government had officially disclosed the existence of a drone
program against al Qaeda.

Id. at 429.

In rejecting the Glomar

response, the court found that the Government had also disclosed
the CIA’s own particular interest in the program.

Id. at 430.

Here, there is no issue about any particular agency’s refusal to
reveal its participation in a publicly disclosed program, and,
under Wilson, there has been no official disclosure of the
existence or non-existence of additional records responsive to
Gizmodo’s request.

Conclusion
DOJ’s summary judgment motion of September 14, 2018 is
granted.

Gizmodo’s summary judgment motion of October 9, 2018

17

is denied.

The Clerk of Court shall enter judgment for the

Government and close the case.
Dated:

New York, New York
April 3, 2019
________________________________
DENISE COTE
United States District Judge

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