Flush With Victory

The United States District Court for the District of Columbia (Judge Howell) has granted summary judgment to the plaintiff in FOIA litigation

The FOIA request at issue in this lawsuit was filed by plaintiff Jason Leopold with the Federal Bureau of Investigation (“FBI”), on February 22, 2022, following published reports that President Donald Trump (“President Trump”) allegedly flushed some presidential records down the toilet when he was still in the White House and brought presidential records, including sensitive classified documents, to his personal residence in Florida. Pl.’s Statement of Undisputed Material Fact (“Pl.’s SUMF”) ¶¶ 1-5, 10, ECF No. 34-2; Pl.’s Reply Supp. Cross Mot. Summ. J. (“Pl.’s Reply”) at 6, ECF No. 40 (noting “[t]he request was plainly targeting” records “that President Trump had allegedly flushed records down the White House toilet”). Presidential records are those “documentary materials, or any reasonably segregable portions thereof, created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” 44 U.S.C. § 2201(2). These records belong to the “United States,” see 42 U.S.C. § 2202, not any individual office holder, and are to be handled in accordance with the provisions found in 42 U.S.C. § 2201 et seq.

Plaintiff requested five categories of information related to “Presidential Records removed from the Trump White House that were stored at Mar-a-Lago” and an additional category of information related to “Presidential Records from the Trump White House that were destroyed and Presidential Records from the Trump White House that were allegedly flushed down the toilet” (“sixth category” or “Item No. 6”). Defs.’ Statement of Undisputed Material Facts (“Defs.’ SUMF”) ¶ 1, ECF No. 31-2.1 Shortly after receipt of the FOIA request, the FBI issued, on March 11, 2022, a Glomar response refusing to confirm or deny the existence of responsive records because no investigation into the mishandling of presidential records had been officially acknowledged. Id. at ¶ 2.2 Plaintiff timely instituted this action, after administratively exhausting his claims, against the FBI and the United States Department of Justice (“DOJ”) (collectively “defendants”) to challenge the FBI’s Glomar response. See generally Compl., ECF No. 1.

Four months after the filing of this suit, the FBI, on November 22, 2022, reopened its response to plaintiff’s FOIA request because the Attorney General of the United States officially acknowledged an investigation into the possible mishandling of confidential documents. See Defs.’ Mem. Supp. Mot. Summ. J. (“Defs.’ Mem.”) at 5-7, ECF No. 31-1; Pl.’s SUMF ¶ 15; Defs.’ SUMF ¶ 6. Specifically, as to the first five categories of requested information, the FBI lifted its Glomar response, searched for responsive records in its Centralized Records System (“CRS”) and in email accounts, processed portions of the records that fell outside what the FBI calls its “Mar-a-Lago investigative file,” see Defs.’ Mem., Decl. of Shannon R. Hammer, Asst. Section Chief of the Record/Info. Dissemination Section, FBI (“Hammer Decl.”) ¶ 37, ECF No. 31-6, and released 499 pages of records in full and 120 pages in part to plaintiff, Hammer Decl. ¶ 4, Defs.’ SUMF ¶¶ 6-7, 19-21. Relying on FOIA’s Exemption 7(A), 5 U.S.C. § 522(b)(7)(A), the FBI withheld categorically all records responsive to categories one through five that fell within the Mar-a-Lago investigative file, Defs.’ SUMF ¶¶ 19-21, 46-47, and, in contrast to its response to the first five categories of requested information, the FBI maintained the Glomar response as to the sixth category of requested information and did not search for any responsive records that may or may not exist, see Hammer Decl. ¶¶ 152-154, Defs.’ Mem. at 13.

The parties’ dispute, in the pending cross-motions for summary judgment, focuses on the FBI’s categorical reliance on Exemption 7(A), to decline to release from the Mar-a-Lago investigative file records responsive to the first five categories in the FOIA request, as well as the propriety of offering a Glomar response to requested information in the sixth category together 3 with the refusal to conduct a search for records. See Defs.’ Mot. Summ. J. (“Defs.’ MSJ”) at 1, ECF No. 31, Defs.’ Mem. at 1-3; Pl.’s Cross-Mot. Summ. J. (“Pl.’s XMSJ”) at 1, ECF No. 34; Pl.’s Mem. Supp. XMSJ & Opp’n Defs.’ MSJ (“Pl.’s Opp’n”) at 1-3, ECF No. 34-1.3 Given the current circumstances and legal landscape—including that President Trump now enjoys absolute and presumptive immunity from criminal liability, the government has dismissed criminal charges against President Trump and has dropped its challenge to the district court’s order dismissing the criminal charges against his co-defendants for alleged mishandling of classified presidential records, and no pending or even contemplated criminal enforcement action within the applicable statute of limitations on the topics of responsive records is at all likely—the FBI’s reliance on Exemption 7(A) and a Glomar response predicated on this exemption, is neither a proper nor a sufficient response to the FOIA request at issue.

Consequently, for the reasons explained in more detail below, defendants’ motion for summary judgment as to application of Exemption 7(A) to withhold responsive records contained in the Mar-a-Lago investigative file and to rely on a Glomar response to the sixth category of requested information, is denied, and plaintiff’s cross motion for summary judgment on these two legal issues is granted.

(Mike Frisch)