Case Detail

FOIA Project Annotation: Judge Beryl Howell has ruled that the Justice Department properly relied on Exemption 7(C) (invasion of privacy concerning law enforcement records) in issuing a Glomar response to neither confirm nor deny a decision not to prosecute Omar Ahmad for allegedly providing material support to Hamas. Ahmad, co-founder of the Council on American Islamic Relations, had been named on a "List of Unindicted Co-Conspirators and/or Joint Venturers" containing the names of 246 individuals and organizations. The list had initially been publicly available but was subsequently placed under seal by a Texas district court. Blogger Patrick Poole posted several articles asserting that "high-ranking" DOJ officials told him the decision not to prosecute Ahmad was political and showed him a copy of a March 2010 memo concerning the decision. Rep. Peter King (R-NY) then sent a letter to Attorney General Eric Holder accusing the Department and indicating that he had been "reliably informed" that DOJ had declined to prosecute Ahmad over the protests of FBI agents and the U.S. Attorney's Office in Texas. A reporter asked Holder at a press conference to respond to King's allegations. Holder explained that the decision not to prosecute Ahmad had been made during the Bush administration and that decision was affirmed after review by the Obama DOJ. Judicial Watch then requested the 2010 memo along with other responsive records. While DOJ produced copies of King's letter and Holder's response, it claimed it could neither confirm nor deny the decision not to prosecute Ahmad. Judicial Watch then filed suit. Judicial Watch argued that the agency's interest in Ahmad was publicly known and that, therefore, a Glomar response was inappropriate. Judicial Watch further argued that a Glomar response was only appropriate if it constituted the first time the individual had been identified as having been associated with criminal activity. Howell rejected such a reading, noting that "under the FOIA, however, Ahmad's alleged status as a person who has engaged in prior criminal acts is meaningfully distinct from whether or not he has been the target of criminal prosecution. . .The revelation that a prosecutor has formally considered criminal prosecution of an individual gives an official imprimatur to that individual's association with criminal activity, which is differentâ€"and more intrusive of personal privacy interestsâ€"than being publicly associated with criminal activity through individual pieces of information presented in the media or in the criminal prosecutions of others." Howell noted the King and Poole allegations did not amount to a "'meaningful evidentiary showing,' particularly considering that [they] are directly contradicted by evidence submitted by the plaintiff itself. . ." Distinguishing the public interest in disclosing the existence of a record from its contents, Howell observed that ""the plaintiff has not articulated how [the] public interest would be served by merely acknowledging the existence of the March 2010 declination memorandum or other internal correspondence relating to the alleged decision not to prosecute Ahmad. That is, after all, the relevant question when an agency issues a Glomar response under FOIA Exemption 7(C): whether the public interest in merely acknowledging the existence or non-existence of a record outweighs any privacy interests implicated by that acknowledgement. It is a completely separate question whether disclosing the contents of those alleged records would further any public interest, just as it is a separate question whether the records sought by the plaintiff would be subject to disclosure at all." Howell found that an alleged leak to Poole did not constitute an official acknowledgement of the decision not to prosecute Ahmad. She pointed out that "indeed, a statement by an anonymous agency insider is the exact opposite of an 'official acknowledgement' because an anonymous leak is presumptively an unofficial and unsanctioned act."
Issues: Determination - Glomar response, Exemption 7(C) - Invasion of privacy concerning law enforcement records

Date Filed	Doc #	Docket Text
2011-06-17	1	COMPLAINT against U.S. DEPARTMENT OF JUSTICE (Filing fee $ 0.00) filed by JUDICIAL WATCH, INC. (Attachments: # 1 Civil Cover Sheet)(rdj) (Entered: 06/20/2011)
2011-06-17		SUMMONS (3) Issued as to U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (rdj) (Entered: 06/20/2011)
2011-06-17	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JUDICIAL WATCH, INC. identifying Corporate Parent NONE for JUDICIAL WATCH, INC. (rdj) (Entered: 06/20/2011)
2011-06-20	3	STANDING ORDER. Signed by Judge Beryl A. Howell on June 20, 2011. (lcbah1) (Entered: 06/20/2011)
2011-07-05	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/21/2011. Answer due for ALL FEDERAL DEFENDANTS by 7/21/2011. (Attachments: # 1 Declaration of Cristina Rotaru)(Bekesha, Michael) (Entered: 07/05/2011)
2011-07-05	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 06/21/11., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF JUSTICE served on 6/20/2011 (Attachments: # 1 Declaration of Cristina Rotaru)(Bekesha, Michael) (Entered: 07/05/2011)
2011-07-21	6	NOTICE of Appearance by Peter Decklin Leary on behalf of U.S. DEPARTMENT OF JUSTICE (Leary, Peter) (Entered: 07/21/2011)
2011-07-21	7	ANSWER to 1 Complaint by U.S. DEPARTMENT OF JUSTICE.(Leary, Peter) (Entered: 07/21/2011)
2011-09-06	8	STATUS REPORT by JUDICIAL WATCH, INC., U.S. DEPARTMENT OF JUSTICE. (Bekesha, Michael) (Entered: 09/06/2011)
2011-10-06	9	NOTICE of Proposed Production Schedule by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Leary, Peter) (Entered: 10/06/2011)
2011-10-11		MINUTE ORDER (paperless) Upon consideration of the parties' 9 Joint Notice of Proposed Production Schedule, the defendant shall complete processing and release of all responsive non-exempt records to the plaintiff's Freedom of Information Act requests submitted to the defendant by December 5, 2011. The parties shall file a joint status report on December 19, 2011 after the parties have conferred and attempted to resolve any issues regarding the withholding of records by the defendant. If a resolution cannot be reached and it is determined that dispositive motions will be necessary, the parties shall submit a proposed briefing schedule along with the joint status report. Signed by Judge Beryl A. Howell on October 11, 2011. (lcbah1) (Entered: 10/11/2011)
2011-10-11		Set/Reset Deadlines: The defendant shall complete processing and release of all responsive non-exempt records to the plaintiff's FOIA requests submitted to the defendant by 12/5/2011. Joint Status Report due by 12/19/2011 (alg) (Entered: 10/11/2011)
2011-12-19	10	STATUS REPORT (Joint) by JUDICIAL WATCH, INC., U.S. DEPARTMENT OF JUSTICE. (Bekesha, Michael) (Entered: 12/19/2011)
2011-12-20		MINUTE ORDER (paperless) Upon consideration of the 10 Joint Status Report, the parties shall abide by the following SCHEDULING ORDER: The defendant's motion for summary judgment shall be filed by February 10, 2012. The plaintiff's Opposition to defendant's Motion for Summary Judgment and its Cross-Motion for Summary Judgment shall be filed by March 9, 2012. The defendant's Reply in support of defendant's Motion for Summary Judgment and its Opposition to plaintiff's Cross-Motion for Summary Judgment shall be filed by April 6, 2012. The plaintiff's Reply in Support of its Cross-Motion for Summary Judgment shall be filed by April 27, 2012. Signed by Judge Beryl A. Howell on December 20, 2011. (lcbah1) (Entered: 12/20/2011)
2011-12-20		Set/Reset Deadlines: Cross Motions due by 3/9/2012. Response to Cross Motions due by 4/6/2012. Reply to Cross Motions due by 4/27/2012. Dispositive Motions due by 2/10/2012. Response to Dispositive Motions due by 3/9/2012. Reply to Dispositive Motions due by 4/6/2012. (alp) (Entered: 12/21/2011)
2012-02-10	11	MOTION for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Declaration, # 2 Declaration, # 3 Text of Proposed Order)(Leary, Peter) (Entered: 02/10/2012)
2012-03-05	12	Unopposed MOTION for Extension of Time to File Response/Reply as to 11 MOTION for Summary Judgment by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 03/05/2012)
2012-03-06		MINUTE ORDER (paperless) granting 12 Plaintiff's Unopposed Motion for Extension of Time. The plaintiff's Opposition to the defendant's Motion for Summary Judgment and its Cross-Motion for Summary Judgment shall be filed by April 2, 2012. The defendant's Reply in support of its Motion for Summary Judgment and its Opposition to the plaintiff's Cross-Motion for Summary Judgment shall be filed by April 30, 2012. The plaintiff's Reply in Support of its Cross-Motion for Summary Judgment shall be filed by May 21, 2012. Signed by Judge Beryl A. Howell on March 6, 2012. (lcbah1) (Entered: 03/06/2012)
2012-03-06		Reset Deadlines: plaintiff's opposition to the defendant's motion for summary judgment and its cross-motion for summary judgment shall be filed by April 2, 2012. The defendant's reply in support of its motion for summary judgment and its opposition to the plaintiff's cross-motion for summary judgment shall be filed by April 30, 2012. The plaintiff's reply in support of its cross-motion for summary judgment shall be filed by May 21, 2012. (tj) (Entered: 03/06/2012)
2012-04-02	13	Memorandum in opposition to re 11 MOTION for Summary Judgment (with Response to Defendant's Statement of Material Facts) filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Declaration of Michael Bekesha with Exhibits (Part 1)(This document is SEALED and only available to authorized persons.), # 2 Declaration of Michael Bekesha with Exhibits (Part 2), # 3 Declaration of Patrick S. Poole with Exhibits, # 4 Text of Proposed Order)(Bekesha, Michael) Modified on 4/5/2012 (zrdj). (Entered: 04/02/2012)
2012-04-02	14	Cross MOTION for Summary Judgment and Memorandum of Law (with Plaintiff's Statement of Material Facts) by JUDICIAL WATCH, INC. (Attachments: # 1 Declaration of Michael Bekesha with Exhibits (Part 1)(This document is SEALED and only available to authorized persons.) , # 2 Declaration of Michael Bekesha with Exhibits (Part 2), # 3 Declaration of Patrick S. Poole with Exhibits, # 4 Text of Proposed Order)(Bekesha, Michael) Modified on 4/5/2012 (zrdj). (Entered: 04/02/2012)
2012-04-04	15	MOTION for Order Requiring Plaintiff to Refile a Document Under Seal by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Leary, Peter) (Entered: 04/04/2012)
2012-04-04	16	RESPONSE re 15 MOTION for Order Requiring Plaintiff to Refile a Document Under Seal filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 04/04/2012)
2012-04-05		MINUTE ORDER (paperless) granting defendant's 15 Motion for an Order Requiring Plaintiff to Refile a Document Under Seal. The plaintiff's attachments filed in support of its Memorandum in Opposition to Defendant's Motion for Summary Judgment (ECF No. 13-1) and its Cross Motion for Summary Judgment (ECF No. 14-1) shall be withdrawn and replaced by substitute attachments excluding Exhibit B as originally contained therein. It is further ordered that Exhibit B from each of the aforementioned attachments shall be filed under seal. Signed by Judge Beryl A. Howell on April 5, 2012. (lcbah1) (Entered: 04/05/2012)
2012-04-05	17	SEALED Exhibit B re MINUTE Order on Motion for Order. (This document is SEALED and only available to authorized persons.)(zrdj) (Entered: 04/05/2012)
2012-04-30	18	REPLY to opposition to motion re 11 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Leary, Peter) (Entered: 04/30/2012)
2012-04-30	19	Memorandum in opposition to re 14 Cross MOTION for Summary Judgment and Memorandum of Law (with Plaintiff's Statement of Material Facts) Cross MOTION for Summary Judgment and Memorandum of Law (with Plaintiff's Statement of Material Facts) filed by U.S. DEPARTMENT OF JUSTICE. (Leary, Peter) (Entered: 04/30/2012)
2012-05-17	20	REPLY to opposition to motion re 14 Cross MOTION for Summary Judgment and Memorandum of Law (with Plaintiff's Statement of Material Facts) Cross MOTION for Summary Judgment and Memorandum of Law (with Plaintiff's Statement of Material Facts) filed by JUDICIAL WATCH, INC.. (Bekesha, Michael) (Entered: 05/17/2012)
2012-06-11	21	NOTICE OF SUBSTITUTION OF COUNSEL by Judson Owen Littleton on behalf of U.S. DEPARTMENT OF JUSTICE Substituting for attorney Peter D. Leary (Littleton, Judson) (Entered: 06/11/2012)
2012-10-12	22	ORDER granting 11 Defendant's Motion for Summary Judgment and denying 14 Plaintiff's Cross-Motion for Summary Judgment. See Order for further details. The Clerk is directed to close this case. Signed by Judge Beryl A. Howell on October 12, 2012. (lcbah1) (Entered: 10/12/2012)
2012-10-12	23	MEMORANDUM OPINION regarding 11 Defendant's Motion for Summary Judgment and 14 Plaintiff's Cross-Motion for Summary Judgment. Signed by Judge Beryl A. Howell on October 12, 2012. (lcbah1) (Entered: 10/12/2012)
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