Case Detail

FOIA Project Annotation: Judge Beryl Howell has ruled that the FBI properly issued a Glomar response neither confirming nor denying the existence of records in response to requests by journalist Jason Leopold and researcher Ryan Shapiro for records concerning the agency's actions taken in response to two remarks made by then-candidate Donald Trump under Exemption 7(A) (ongoing investigation or proceeding) and Exemption 7(E) (investigative methods and techniques) â€" one encouraging Russia to hack Hillary Clinton's emails, and the second suggesting that supporters of the Second Amendment should take action to eliminate Clinton if she were elected. Leopold and Shapiro also requested records about the Secret Service's response to Trump's Second Amendment remark and another by New Hampshire state legislator Alfred Baldasaro threatening violence against Hillary Clinton. Because the agency had publicly acknowledged its awareness of Baldasaro's remark, the agency disclosed 268 pages with redactions under Exemption 5 (privileges) and Exemption 7(E). The FBI told Howell that any records related to Trump's remark about Russian hacking would have become part of the special counsel's investigation into Russian interference in the 2016 election. Leopold and Shapiro argued the FBI had improperly narrowed its interpretation to include only investigative records. Howell pointed out, however, that "the FBI has credibly explained that such a literal construction of this request 'as seeking more than law enforcement records' would be 'overly broad, unduly burdensome, and inadequate to describe the records sought,' such that the FBI 'would have been unable to craft a reasonable search for such non-investigative records.'" Leopold and Shapiro, pointing to a DOJ regulation implementing the statute's requirement that agencies contact requesters to narrow the scope of a request if the agency believes it is too broad, contended the regulation required the FBI to provide actual notice before narrowing their request. Howell disagreed. She noted that "this regulation is unavailing, however. This regulation is inapplicable since the Russia Rewards Request's reference to 'investigative records' provided a reasonable description of the records sought and allowed the FBI to limit the scope of the request to a reasonably manageable search, avoiding the need to trigger any conferral obligation under the cited regulation. . .[T]he plaintiffs' posture in this litigation in continuing to seek non-investigative records indicates that any such conferral would have been futile. Thus, while the law is clear that FOIA requests must be liberally construed, this obligation is limited by the agency's ability to identify the location where the requested records may be located and the concomitant administrative burdens of conducting the search with available search tools." After finding the agency had described its search and review of documents, Howell approved the agency's claim that the records were categorically protected under Exemption 7(A). Turning to the Second Amendment request, Leopold and Shapiro argued Exemption 7(A) did not apply once an investigation was complete and there was no indication of any ongoing investigation of Trump's remark. Howell noted that "requiring the FBI to respond to the Second Amendment Request with a substantive report would effectively reveal whether or not the agency instituted an investigation of then-candidate Trump's 'Second Amendment people' comment. . . No such investigation. . .has been publicly acknowledged, and any response other than a Glomar response would establish the existence or non-existence of an investigation prompted by then-candidate Trump's 'Second Amendment people' comment." She observed that "if an investigation related to then-candidate Trump's 'Second Amendment people' statement did exist, any confirmation in response to plaintiffs' FOIA request 'could reasonably be expected to interfere with enforcement proceedings.'" The Secret Service withheld records under Exemption 5 and Exemption 7(E). Howell agreed that both exemptions applied, noting that "defendants explain that the redactions on [some] of the disputed pages 'protect the deliberative process that was used to determine what particular course of criminal investigative or protective action, if any, was to be taken in response to the public comments that were the subject of Plaintiffs' FOIA requests'' and pointed out that "review of the redacted text on each of these pages confirms that this material is indeed pre-decisional and deliberative, and protected from disclosure under Exemption 5."
Issues: Search - Reasonableness of search, Determination - Glomar response, Exemption 7(A) - Categorical exemption, Exemption 7(E) - Investigative methods or techniques, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2016-09-12	1	COMPLAINT against DEPARTMENT OF JUSTICE, DEPARTMENT OF TREASURY ( Filing fee $ 400 receipt number 0090-4670618) filed by JASON LEOPOLD, RYAN NOAH SHAPIRO. (Attachments: # 1 Summons Attorney General, # 2 Summons DOJ, # 3 Summons Treasury, # 4 Summons USAO, # 5 Civil Cover Sheet)(Light, Jeffrey) (Entered: 09/12/2016)
2016-09-13		Case Assigned to Judge Ketanji Brown Jackson. (dr) (Entered: 09/13/2016)
2016-09-13	2	SUMMONS (4) Issued Electronically as to DEPARTMENT OF JUSTICE, DEPARTMENT OF TREASURY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Consent Forms)(dr) (Entered: 09/13/2016)
2016-09-13	3	GENERAL ORDER AND GUIDELINES FOR CIVIL CASES BEFORE JUDGE KETANJI BROWN JACKSON. The Court will hold the parties and counsel responsible for following these directives, and parties and counsel should pay particular attention to the Courts instructions for briefing motions. Failure to adhere to this Order may, when appropriate, result the imposition of sanctions and/or sua sponte denial of non-conforming motions. Signed by Judge Ketanji Brown Jackson on 9/13/2016. (lckbj1) (Entered: 09/13/2016)
2016-09-20	4	AMENDED COMPLAINT (First) against DEPARTMENT OF JUSTICE, INTERNAL REVENUE SERVICE, DEPARTMENT OF HOMELAND SECURITY filed by JASON LEOPOLD, RYAN NOAH SHAPIRO. (Attachments: # 1 Summons IRS, # 2 Summons Secret Service)(Light, Jeffrey) (Entered: 09/20/2016)
2016-09-22	5	SUMMONS (2) Issued Electronically as to DEPARTMENT OF HOMELAND SECURITY, INTERNAL REVENUE SERVICE. (jf) (Entered: 09/22/2016)
2016-09-27	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF HOMELAND SECURITY served on 9/26/2016; INTERNAL REVENUE SERVICE served on 9/26/2016 (Light, Jeffrey) (Entered: 09/27/2016)
2016-10-17	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 10/12/2016., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 10/12/2016. ( Answer due for ALL FEDERAL DEFENDANTS by 11/11/2016.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DEPARTMENT OF JUSTICE served on 10/12/2016 (Light, Jeffrey) (Entered: 10/17/2016)
2016-11-04	8	MOTION to Dismiss by DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(McMonagle, Ryan) (Entered: 11/04/2016)
2016-11-04	9	ANSWER to 4 Amended Complaint by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE. Related document: 4 Amended Complaint filed by JASON LEOPOLD, RYAN NOAH SHAPIRO.(Pezzi, Stephen) (Entered: 11/04/2016)
2016-11-21	10	NOTICE of Voluntary Dismissal re Internal Revenue Service (Light, Jeffrey) (Entered: 11/21/2016)
2016-11-23		MINUTE ORDER. It is hereby ORDERED that the IRS's 8 Motion to Dismiss is DENIED as moot in light of Plaintiff's voluntary dismissal of the IRS as a party. It is FURTHER ORDERED that the parties shall promptly confer and file a joint proposed schedule for briefing or disclosure on or before 12/9/2016. Signed by Judge Ketanji Brown Jackson on 11/23/2016. (lckbj1) (Entered: 11/23/2016)
2016-12-09	11	Joint MOTION for Order Setting Schedule and Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Pezzi, Stephen) (Entered: 12/09/2016)
2016-12-09	12	JOINT STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE, JASON LEOPOLD, RYAN NOAH SHAPIRO. (See Docket Entry 11 to view document). (znmw) (Entered: 12/12/2016)
2016-12-12		VACATED PURSUANT TO THE MINUTE ORDER ENTERED ON 3/21/17.....MINUTE ORDER granting 11 Joint Motion to Enter Scheduling Order. It is hereby ORDERED that the following schedule shall govern further proceedings in this case: (1) On or before February 17, 2017, the United States Secret Service shall complete its production of all non-exempt records responsive to Plaintiffs two pending Freedom of Information Act, 5 U.S.C. § 552 (FOIA) requests; (2) On or before February 24, 2017, the parties shall submit to the Court a joint status report informing the Court as to whether motions practice will be necessary; and (3) If motions practice is necessary, the following briefing schedule will apply: Defendants Motion for Summary Judgment is due on or before March 24, 2017; Plaintiffs Opposition to Defendants Motion for Summary Judgment and any Cross-Motion for Summary Judgment is due on or before April 7, 2017; Defendants Reply in Support of Summary Judgment and Opposition to any Cross-Motion for Summary Judgment is due on or before May 5, 2017; Plaintiffs Reply in Support of any Cross-Motion for Summary Judgment is due on or before 5/19/2017. Signed by Judge Ketanji Brown Jackson on 12/12/2016. (lckbj1) Modified on 3/21/2017 (zgdf). (Entered: 12/12/2016)
2016-12-13		Set/Reset Deadlines: Cross Motions due by 4/7/2017. Response to Cross Motions due by 5/5/2017. Reply to Cross Motions due by 5/19/2017. Status Report due by 2/24/2017 Summary Judgment motions due by 3/24/2017. Response to Motion for Summary Judgment due by 4/7/2017. Reply to Motion for Summary Judgment due by 5/5/2017. (gdf) (Entered: 12/13/2016)
2017-02-24	13	Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE. (Pezzi, Stephen) (Entered: 02/24/2017)
2017-03-21	14	Consent MOTION to Vacate Briefing Schedule by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Pezzi, Stephen) (Entered: 03/21/2017)
2017-03-21		MINUTE ORDER granting 14 Consent Motion to Vacate Briefing Schedule. It is hereby ORDERED that the schedule for briefing summary judgment in this matter is VACATED, and that, on or before 4/6/2017, the parties shall file a joint status report, which shall contain a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 3/21/2017. (lckbj1, ) (Entered: 03/21/2017)
2017-04-06	15	Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE. (Pezzi, Stephen) (Entered: 04/06/2017)
2017-04-07		MINUTE ORDER. It is hereby ORDERED that Defendants shall file their anticipated motion for summary judgment on or before July 25, 2017; Plaintiffs shall file their cross-motion for summary judgment and opposition to Defendants' motion on or before August 22, 2017; Defendants shall file their reply in support of their motion and opposition to Plaintiffs' cross-motion on or before September 19, 2017; and Plaintiffs shall file their reply in support of their cross-motion on or before October 3, 2017. It is FURTHER ORDERED that Defendants' summary judgment arguments regarding documents responsive to "the Russia Request" may rely solely on Exemption 7(A), and that any other basis for withholding documents responsive to that request are preserved and, if necessary, may be raised in future proceedings. Signed by Judge Ketanji Brown Jackson on April 7, 2017. (lckbj2) (Entered: 04/07/2017)
2017-04-07		Set/Reset Deadlines: Cross Motions due by 8/22/2017. Response to Cross Motions due by 9/19/2017. Reply to Cross Motions due by 10/3/2017. (gdf) (Entered: 04/07/2017)
2017-07-25	16	Consent MOTION for Extension of Time to File Motion for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Pezzi, Stephen) (Entered: 07/25/2017)
2017-07-26	17	MOTION for Leave to File Ex Parte, In Camera Versions of the FBI's Summary-Judgment Filings by DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Pezzi, Stephen) (Entered: 07/26/2017)
2017-07-26	18	MOTION for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Text of Proposed Order, # 4 Index of Exhibits, # 5 Hardy Declaration (FBI), # 6 Campbell Declaration (Secret Service))(Pezzi, Stephen) (Entered: 07/26/2017)
2017-07-28		MINUTE ORDER granting for good cause shown and nunc pro tunc, 16 Motion for Extension of Time to File Motion for Summary Judgment. Signed by Judge Ketanji Brown Jackson on 07/28/2017. (lckbj1) (Entered: 07/28/2017)
2017-07-29	19	Memorandum in opposition to re 17 MOTION for Leave to File Ex Parte, In Camera Versions of the FBI's Summary-Judgment Filings filed by JASON LEOPOLD, RYAN NOAH SHAPIRO. (Attachments: # 1 Text of Proposed Order)(Light, Jeffrey) (Entered: 07/29/2017)
2017-08-01	20	ORDER granting Defendants' 17 Motion for Leave to File Ex Parte In Camera Versions of the FBI's Summary Judgment Filings. Signed by Judge Ketanji Brown Jackson on August 1, 2017. (lckbj2) (Entered: 08/01/2017)
2017-08-22	21	Memorandum in opposition to re 18 MOTION for Summary Judgment filed by JASON LEOPOLD, RYAN NOAH SHAPIRO. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Light, Jeffrey) (Entered: 08/22/2017)
2017-08-22	22	Cross MOTION for Summary Judgment by JASON LEOPOLD, RYAN NOAH SHAPIRO (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Light, Jeffrey) (Entered: 08/22/2017)
2017-09-19	23	Memorandum in opposition to re 22 Cross MOTION for Summary Judgment and Reply in Support of Defendants' Motion for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE. (Attachments: # 1 Response to Plaintiffs' Statement of Facts, # 2 Index of Exhibits, # 3 Ex. A - Second Hardy Decl., # 4 Ex. B - Email Chain of Aug. 12, 2016, # 5 Ex. C - Memorandum of Aug. 11, 2016)(Pezzi, Stephen) (Entered: 09/19/2017)
2017-09-19	24	REPLY to opposition to motion re 18 MOTION for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF JUSTICE. (See Docket Entry 23 to view document). (znmw) (Entered: 09/20/2017)
2017-09-29	25	Consent MOTION for Extension of Time to File Response/Reply as to 22 Cross MOTION for Summary Judgment by JASON LEOPOLD, RYAN NOAH SHAPIRO (Attachments: # 1 Text of Proposed Order)(Light, Jeffrey) (Entered: 09/29/2017)
2017-10-04		MINUTE ORDER granting, for good cause shown, 25 Consent Motion for Extension of Time to File Reply re 22 Cross MOTION for Summary Judgment, nunc pro tunc. It is hereby ORDERED that Plaintiff's Cross-Motion reply is due on or before 10/17/2017. Signed by Judge Ketanji Brown Jackson on 10/4/2017. (lckbj1) (Entered: 10/04/2017)
2017-10-17	26	Consent MOTION for Extension of Time to File Response/Reply as to 22 Cross MOTION for Summary Judgment by JASON LEOPOLD, RYAN NOAH SHAPIRO (Attachments: # 1 Text of Proposed Order)(Light, Jeffrey) (Entered: 10/17/2017)
2017-10-18		MINUTE ORDER granting, for good cause shown, 26 Consent Motion for Extension of Time to File Reply re 22 Cross Motion for Summary Judgment, nunc pro tunc. It is hereby ORDERED that Plaintiff's reply in support of its cross-motion for summary judgment is due on or before 10/24/2017. Signed by Judge Ketanji Brown Jackson on 10/18/2017. (lckbj1) (Entered: 10/18/2017)
2017-10-24	27	REPLY to opposition to motion re 22 Cross MOTION for Summary Judgment filed by JASON LEOPOLD, RYAN NOAH SHAPIRO. (Light, Jeffrey) (Entered: 10/24/2017)
2017-10-24	28	Case directly reassigned to Chief Judge Beryl A. Howell by consent. Judge Ketanji Brown Jackson is no longer assigned to the case. (ztnr) (Entered: 10/25/2017)
2018-02-05		MINUTE ORDER (paperless) DIRECTING, upon consideration of the limited information set out in [18-6] Declaration of Kim E. Campbell, that the defendant Secret Service file, by February 12, 2018, in camera an unredacted copy of the following pages described in the defendants' [18-1] Statement of Material Facts ¶ 31, see also Pls.' [22-1] Mem. Supp. Cross-Mot. Summ. J. at 16 n.7 (withdrawing challenge to withholdings on pages 163, 217, 225, 237-39, and 250), with explanations for each disputed redaction, for the purpose of "creat[ing] a sufficient basis for making a decision" in the instant matter, see Hayden v. NSA , 608 F.2d 1381, 1384 (D.C. Cir. 1979): pages 10, 101, 135, 148-51, 156-58, 165-66, 168-69, 171, 174-75, 177, 179, 180-81, 183, 185, 187, 189, 195, 208-10, 212-13, 226, 228-29, 231, 233-36, 243, and 252. Signed by Chief Judge Beryl A. Howell on February 5, 2018. (lcbah3) (Entered: 02/05/2018)
2018-02-05		Set/Reset Deadlines: Defendant's unredacted copy due by 2/12/2018. (hmc) (Entered: 02/05/2018)
2018-02-08	29	Consent MOTION for Extension of Time to Provide In Camera Submission by DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Text of Proposed Order)(Pezzi, Stephen) (Entered: 02/08/2018)
2018-02-08		MINUTE ORDER (paperless) GRANTING the defendant Secret Service's 29 Motion for Extension of Time to Provide In Camera Submission, and DIRECTING the defendant Secret Service to file, by February 19, 2018, in camera an unredacted copy of the pages listed in this Court's February 5, 2018, Minute Order, with explanations for each disputed redaction. Signed by Chief Judge Beryl A. Howell on February 8, 2018. (lcbah3) (Entered: 02/08/2018)
2018-02-09		Set/Reset Deadlines: Defendant's unredacted copy due by 2/19/2018. (hmc) (Entered: 02/09/2018)
2018-02-15		MINUTE ORDER (paperless) DIRECTING, in light of the President's Day federal holiday, the defendant Secret Service to file, by February 20, 2018, in camera an unredacted copy of the pages listed in this Court's February 5, 2018, Minute Order, with explanations for each disputed redaction. Signed by Chief Judge Beryl A. Howell on February 15, 2018. (lcbah3) (Entered: 02/15/2018)
2018-02-16		Set/Reset Deadlines: Secret Service's in camera filing due by 2/20/2018. (tg) (Entered: 02/16/2018)
2018-03-19	30	ORDER GRANTING the defendants' 18 Motion for Summary Judgment and DENYING the plaintiffs' 22 Cross-Motion for Summary Judgment. See Order for further details. Signed by Chief Judge Beryl A. Howell on March 19, 2018. (lcbah3) (Entered: 03/19/2018)
2018-03-19	31	MEMORANDUM OPINION regarding the defendants' 18 Motion for Summary Judgment and the plaintiffs' 22 Cross-Motion for Summary Judgment. Signed by Chief Judge Beryl A. Howell on March 19, 2018. (lcbah3) (Entered: 03/19/2018)
2018-04-02	32	Consent MOTION for Extension of Time to File petition for attorneys' fees and costs by JASON LEOPOLD, RYAN NOAH SHAPIRO (Attachments: # 1 Text of Proposed Order)(Light, Jeffrey) (Entered: 04/02/2018)
2018-04-02		MINUTE ORDER (paperless) GRANTING the plaintiffs' 32 Consent Motion for Extension of Time to File and DIRECTING the plaintiffs to file, by June 1, 2018, any motion for attorneys' fees and costs. Signed by Chief Judge Beryl A. Howell on April 2, 2018. (lcbah3) (Entered: 04/02/2018)
2018-04-03		Set/Reset Deadlines: Motion for attorney's fees and cost, if any, due by 6/1/2018. (tg) (Entered: 04/03/2018)
2018-05-31	33	Consent MOTION for Extension of Time to File petition for attorneys' fees and costs by JASON LEOPOLD, RYAN NOAH SHAPIRO (Attachments: # 1 Text of Proposed Order)(Light, Jeffrey) (Entered: 05/31/2018)
2018-06-01		MINUTE ORDER (paperless) GRANTING the plaintiffs' 33 Consent Motion for Extension of Time to File and DIRECTING the plaintiffs to file, by July 2, 2018, any motion for attorneys' fees and costs. Signed by Chief Judge Beryl A. Howell on June 1, 2018. (lcbah3) (Entered: 06/01/2018)
2018-06-01		Set/Reset Deadlines: Motion, if any, for attorneys' fees and costs due by 7/2/2018. (tg) (Entered: 06/01/2018)
2018-07-02	34	Consent MOTION for Extension of Time to File petition for attorneys' fees and costs by JASON LEOPOLD, RYAN NOAH SHAPIRO (Attachments: # 1 Text of Proposed Order)(Light, Jeffrey) (Entered: 07/02/2018)
2018-07-02		MINUTE ORDER (paperless) GRANTING the plaintiffs' 34 Consent Motion for Extension of Time to File and DIRECTING the plaintiffs to file, by August 2, 2018, any motion for attorneys' fees and costs. Signed by Chief Judge Beryl A. Howell on July 2, 2018. (lcbah3) (Entered: 07/02/2018)
2018-07-02		Set/Reset Deadlines: Motions for Attorneys' Fees and Costs, if any, due by 8/2/2018. (tg) (Entered: 07/02/2018)
2018-08-02	35	STIPULATION of Dismissal with Prejudice by JASON LEOPOLD, RYAN NOAH SHAPIRO. (Light, Jeffrey) (Entered: 08/02/2018)
2018-08-06		MINUTE ORDER (paperless) DISMISSING this matter, with prejudice, pursuant to the parties' 35 Joint Stipulation of Dismissal. The Clerk is directed to close this case. Signed by Chief Judge Beryl A. Howell on August 6, 2018. (lcbah3) (Entered: 08/06/2018)
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