Case Detail

FOIA Project Annotation: Judge Colleen Kollar-Kotelly has ruled that the FBI cannot issue a Glomar response neither confirming nor denying the existence of records concerning contacts the government had with Imad Hage, a Lebanese national who tried to act as a diplomatic intermediary between the U.S. and Iraq. News reports had indicated that the FBI investigated Hage as the result of an incident at Dulles Airport in 2003. David Lindsey requested records concerning Hage's contacts with the U.S. government and the FBI issued a Glomar response, insisting that Hage's privacy would be invaded by revealing that the FBI had any records concerning him. Lindsey appealed to OIP, which upheld the FBI's use of a Glomar response. Kollar-Kotelly found the agency had improperly narrowed Lindsey's request to pertain only to alleged back-channel negotiations and not to the 2003 Dulles Airport incident. Kollar-Kotelly pointed out that "a FOIA requestor does not abandon the full scope of his request merely by showing a heightened interest in some documents over others. Here, the Plaintiff has plainly asked for 'FBI records of contact between Imad Hage and U.S. government officials,' without qualification as to the types of contact. True, the record indicates that Plaintiff has a particular interest in diplomatic contacts, but even on this point, Defendant's position is dubious. Defendant seeks to distinguish contacts related to the 2003 Dulles Airport incident from the diplomatic incidents in which Plaintiff has shown a heightened interest. But from Plaintiff's perspective, which is supported by citations to credible news media, the Dulles Airport incident was part-and-parcel of the alleged diplomatic contacts. The Court offers no view on whether or not the Dulles Airport incident was, in fact, related to the alleged diplomatic contacts. But Defendant cannot summarily conclude that contacts related to the Dulles Airport incident categorically fall outside of Plaintiff's FOIA request, when the plain language of that request seeks records of all contacts with U.S. officials." The FBI argued that it had not publicly acknowledged its investigation of Hage. But Kollar-Kotelly observed that "regardless, the fact that the government has not acknowledged a potentially personal piece of information, does not mean that the third party's acknowledgement of that information has no bearing on the private-public interest balancing test underlying the FOIA exemptions at issue. Rather, this circuit has held that the third-party's acknowledgment has a substantial effect on that balance." Pointing out that there was evidence that Hage had publicly acknowledged contacts with both the FBI and the Defense Department, Kollar-Kotelly dismissed the FBI's claim that Hage had not specifically acknowledged publicly any contact with the FBI regarding his alleged diplomatic proposals. Kollar-Kotelly observed that "but that draws too fine a point. . .Even if Mr. Hage did not have direct contacts with the FBI regarding his alleged diplomatic entreaties to U.S. officials, records of Mr. Hage's alleged efforts may still be in the possession of the FBI, perhaps collected as part of the 'official, public interaction' that the FBI had with Mr. Hage. How the disclosure of such documents would impose upon Mr. Hage's privacy interests. . .is a position on which Defendant must substantially elaborate if it intends to continue to pursue a categorical Glomar response in this matter." She added that "nor can the Court simply conclude that there is no public interest in the subject-matter of Plaintiff's FOIA request, given the substantial record evidence of media reports from credible news agencies regarding Mr. Hage's alleged diplomatic efforts. Even a modicum of public interest may suffice to warrant disclosure, if public acknowledgements by Mr. Hage have vitiated the claimed privacy interests in this matter."
Issues: Determination - Glomar response, Public domain

FOIA Project Annotation: Judge Colleen Kollar-Kotelly has ruled that the FBI properly issued a second Glomar response neither confirming nor denying the existence of records related to Imad Hage, a Lebanese businessman who claimed to speak for Iraq in the run-up to the 2003 invasion of Iraq, after the agency agreed that because a 2003 incident at Dulles airport where Hage was detained and questioned by government agents was part of the public record it was required to search for and disclose non-exempt records pertaining to that incident. Graduate student David Austin Lindsey submitted a FOIA request for records on Hage as part of his research on diplomatic initiatives. Even though Hage's detention at Dulles airport was a matter of public record, the FBI initially issued a Glomar response declining to confirm whether or not it had records on Hage, relying on Exemption 1 (national security), Exemption 3 (other statutes), and Exemption 7(C) (invasion of privacy concerning law enforcement records). In her first ruling in 2017, Kollar-Kotelly found that because the detention of Hage at Dulles airport was a matter of public record the agency could not decline to search for records pertaining to that incident. The agency then searched its records on the Dulles airport incident, located 400 potentially responsive records but disclosed only two records with redactions. After processing its records on Hage pertaining to the Dulles airport incident, the FBI then came back with a second Glomar response declining to confirm or deny the existence of any other records on Hage. This time, Kollar-Kotelly agreed that the agency had now shown that its more limited Glomar response was appropriate. Discussing the Exemption 1 claim, she noted that "it is plausible that either confirming or denying the existence, or non-existence, of any other records responsive to Plaintiff's request, which regard a foreign national, could reasonably be expected to damage intelligence sources and methods by revealing Defendant's investigative interests and priorities, which could be used by foreign intelligence actors in employing counterintelligence measures." Lindsey argued that since Hage had spoken to the media in regard to the Dulles airport incident his privacy interest was diminished. However, Kollar-Kotelly pointed out that "any diminishment is narrow and that otherwise is privacy interests are not diminished. In that case, his strong privacy interests still outweigh the public interest identified by Plaintiff here."
Issues: Determination - Glomar response, Exemption 7(C) - Invasion of privacy concerning law enforcement records

Date Filed	Doc #	Docket Text
2016-10-12	1	COMPLAINT against FEDERAL BUREAU OF INVESTIGATION ( Filing fee $ 400 receipt number 0090-4705483) filed by DAVID AUSTIN LINDSEY. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Civil Cover Sheet)(Sorenson, C.) (Entered: 10/12/2016)
2016-10-12		Case Assigned to Judge Colleen Kollar-Kotelly. (sth) (Entered: 10/12/2016)
2016-10-12	2	SUMMONS (3) Issued Electronically as to FEDERAL BUREAU OF INVESTIGATION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(sth) (Entered: 10/12/2016)
2016-10-13	3	ORDER Establishing Procedures for Cases Assigned to Judge Colleen Kollar-Kotelly. Signed by Judge Colleen Kollar-Kotelly on October 13, 2016. (NS) (Entered: 10/13/2016)
2016-10-24	4	NOTICE of Appearance by Rhonda Lisa Campbell on behalf of All Defendants (Campbell, Rhonda) (Entered: 10/24/2016)
2016-11-18	5	ANSWER to Complaint by FEDERAL BUREAU OF INVESTIGATION.(Campbell, Rhonda) (Entered: 11/18/2016)
2016-11-18	6	ORDER CALLING FOR JOINT STATUS REPORT. Signed by Judge Colleen Kollar-Kotelly on 11/18/2016. (lcckk1) (Entered: 11/18/2016)
2016-11-18		Set/Reset Deadlines: Joint Status Report due by 12/16/2016. (dot) (Entered: 11/21/2016)
2016-12-15	7	Joint STATUS REPORT and Proposed Briefing Schedule by DAVID AUSTIN LINDSEY. (Stotter, Daniel) (Entered: 12/15/2016)
2016-12-20	8	SCHEDULING AND PROCEDURES ORDER. Signed by Judge Colleen Kollar-Kotelly on 12/20/2016. (lcckk1) (Entered: 12/20/2016)
2016-12-20		Set/Reset Deadlines: Defendant's Summary Judgment motion due by 1/27/2017. Response to Motion for Summary Judgment due by 2/27/2017. Reply to Motion for Summary Judgment due by 3/13/2017. Vaughn Index due by 1/27/2017. Plaintiff's Cross Motion due by 2/27/2017. Response to Cross Motion due by 3/13/2017. Reply to Cross Motion due by 3/29/2017. (dot) (Entered: 12/21/2016)
2017-01-06	9	NOTICE of Appearance by Daniel J. Stotter on behalf of DAVID AUSTIN LINDSEY (Stotter, Daniel) (Entered: 01/06/2017)
2017-01-27	10	MOTION for Summary Judgment by FEDERAL BUREAU OF INVESTIGATION (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration David Hardy, # 4 Exhibit A-H)(Campbell, Rhonda) (Entered: 01/27/2017)
2017-02-27	11	MOTION for Summary Judgment and Memorandum of Points & Authorities by DAVID AUSTIN LINDSEY (Attachments: # 1 Statement of Facts, # 2 Declaration of David Austin Lindsey & Exhibits A - F, # 3 Text of Proposed Order)(Stotter, Daniel) (Entered: 02/27/2017)
2017-02-27	12	RESPONSE re 10 MOTION for Summary Judgment filed by DAVID AUSTIN LINDSEY. (Attachments: # 1 Statement of Facts, # 2 Declaration of David Austin Lindsey & Exhibits A - F, # 3 Text of Proposed Order)(Stotter, Daniel) (Entered: 02/27/2017)
2017-03-13	13	REPLY to opposition to motion re 10 MOTION for Summary Judgment filed by FEDERAL BUREAU OF INVESTIGATION. (Campbell, Rhonda) (Entered: 03/13/2017)
2017-03-13	14	Memorandum in opposition to re 11 MOTION for Summary Judgment and Memorandum of Points & Authorities filed by FEDERAL BUREAU OF INVESTIGATION. (See Docket Entry 13 to view document). (znmw) (Entered: 03/14/2017)
2017-03-29	15	REPLY to opposition to motion re 11 MOTION for Summary Judgment and Memorandum of Points & Authorities filed by DAVID AUSTIN LINDSEY. (Attachments: # 1 Declaration Second Declaration of David Austin Lindsey & Exhibit G)(Stotter, Daniel) (Entered: 03/29/2017)
2017-09-20	16	MEMORANDUM OPINION AND ORDER DENYING WITHOUT PREJUDICE Defendant's 10 Motion for Summary Judgment and Plaintiff's 11 Motion for Summary Judgment. The parties shall file a Joint Status Report by NOVEMBER 17, 2017. Signed by Judge Colleen Kollar-Kotelly on 9/20/2017. (lcckk3) (Entered: 09/20/2017)
2017-09-20		Set/Reset Deadlines: Joint Status Report due by 11/17/2017. (dot) (Entered: 09/22/2017)
2017-11-17	17	Joint STATUS REPORT & Proposed Briefing Schedule by DAVID AUSTIN LINDSEY. (Stotter, Daniel) (Entered: 11/17/2017)
2017-12-15		MINUTE ORDER: The Court has received the parties' 17 Joint Status Report. The Court finds that setting a schedule for summary judgment briefing is premature at this time, based on the nascent review of potentially responsive pages by Defendant's Office of General Counsel. In light of Defendant's "anticipate[d] release of all responsive, nonexempt information by February 1, 2018," the parties shall file a Joint Status Report by FEBRUARY 9, 2018 , proposing a schedule for any further production and, if necessary, briefing in this case. Signed by Judge Colleen Kollar-Kotelly on December 15, 2017. (lcckk1) (Entered: 12/15/2017)
2017-12-15		Set/Reset Deadlines: Joint Status Report due by 2/9/2018. (dot) (Entered: 12/18/2017)
2018-02-08	18	Joint STATUS REPORT by DAVID AUSTIN LINDSEY. (Stotter, Daniel) (Entered: 02/08/2018)
2018-03-01		MINUTE ORDER: The Court has received the parties' 18 Joint Status Report. The parties disagree regarding the sufficiency of Defendant's search and production in response to the Court's 16 Memorandum Opinion and Order, which allowed "Defendant [to] submit an amended affidavit [to support its motion for summary judgment on the basis of its Glomar response], or choose to pierce the Glomar veil, and conduct a search for relevant, non-exempt records that are responsive to Plaintiff's [Freedom of Information Act ("FOIA")] request." The parties propose schedules for renewed cross-motions for summary judgment that differ in both content and timing. As far as content, Plaintiff's proposed schedule would require Defendant to submit a supplemental search declaration with Defendant's renewed motion for summary judgment. Defendant, on the other hand, offers to supplement its previous affidavit in support of its Glomar response to include FOIA Exemptions 1 and 3, and, if the justification is classified, to provide support in camera , ex parte , for assertion of those exemptions in the Glomar response. Yet, it appears that Defendant has offered a solution that is not contemplated by the Court's 16 Memorandum Opinion and Order, namely, piercing the Glomar veil to conduct a search, and then submitting an amended affidavit that is in theory meant to justify not having responded to Plaintiff's FOIA request. Accordingly, the Court shall adopt the content of the schedule proposed by Plaintiff. Briefing of Defendant's renewed motion for summary judgment may nevertheless warrant in camera , ex parte , review of any classified information. As for timing, the Court shall issue an Amended Scheduling and Procedures Order that sets forth a briefing schedule that provides Defendant with the additional time that it seeks in its proposed schedule. The Court expects that this additional time will enable Defendant to comply with the Court's order to include a supplemental search declaration, and, if necessary, in camera , ex parte , submission of classified information. Signed by Judge Colleen Kollar-Kotelly on March 1, 2018. (lcckk1) (Entered: 03/01/2018)
2018-03-01	19	AMENDED SCHEDULING AND PROCEDURES ORDER. Signed by Judge Colleen Kollar-Kotelly on March 1, 2018. (lcckk1) (Entered: 03/01/2018)
2018-03-01		Set/Reset Deadlines: Plaintiff's Renewed Cross Motion due by 5/21/2018. Response to Cross Motion due by 6/15/2018. Reply to Cross Motion due by 7/6/2018. Defendant's Renewed Summary Judgment motion due by 4/23/2018. Response to Motion for Summary Judgment due by 5/21/2018. Reply to Motion for Summary Judgment due by 6/15/2018. (dot) (Entered: 03/01/2018)
2018-04-23	20	MOTION for Summary Judgment Renewed by FEDERAL BUREAU OF INVESTIGATION (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration David M. Hardy, # 4 Exhibit)(Campbell, Rhonda) (Entered: 04/23/2018)
2018-04-27	21	NOTICE (Notice of In Camera, Ex Parte Submission) by FEDERAL BUREAU OF INVESTIGATION re 20 MOTION for Summary Judgment Renewed (Campbell, Rhonda) (Entered: 04/27/2018)
2018-05-21	22	MOTION for Summary Judgment and Memorandum of Points & Authorities by DAVID AUSTIN LINDSEY (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Stotter, Daniel) (Entered: 05/21/2018)
2018-05-21	23	Memorandum in opposition to re 20 MOTION for Summary Judgment Renewed filed by DAVID AUSTIN LINDSEY. (Attachments: # 1 Statement of Facts, # 2 Text of Proposed Order)(Stotter, Daniel) (Entered: 05/21/2018)
2018-06-15	24	REPLY to opposition to motion re 20 MOTION for Summary Judgment Renewed filed by FEDERAL BUREAU OF INVESTIGATION. (Campbell, Rhonda) (Entered: 06/15/2018)
2018-06-15	26	Memorandum in opposition to re 22 MOTION for Summary Judgment and Memorandum of Points & Authorities filed by FEDERAL BUREAU OF INVESTIGATION. (See docket entry no. 24 to view.) (ztd) (Entered: 06/20/2018)
2018-06-18		NOTICE OF ERROR re 24 Reply to opposition to Motion; emailed to rhonda.campbell@usdoj.gov, cc'd 8 associated attorneys -- The PDF file you docketed contained errors: 1. Two-part docket entry, 2. You must enter the Opposition portion of your document on the docket. (ztd, ) (Entered: 06/18/2018)
2018-06-19	25	Consent MOTION for Extension of Time to File Response/Reply by DAVID AUSTIN LINDSEY (Attachments: # 1 Text of Proposed Order)(Stotter, Daniel) (Entered: 06/19/2018)
2018-06-20		MINUTE ORDER: The Court has received Plaintiff's 25 Consent Motion for Extension of Time, which indicates that Defendant consents. For good cause shown, the Court GRANTS Plaintiff's motion. Plaintiff shall file his Reply to Defendant's 24 Opposition to Plaintiff's 22 Renewed Motion for Summary Judgment by no later than JULY 16, 2018 . Signed by Judge Colleen Kollar-Kotelly on June 20, 2018. (lcckk1) (Entered: 06/20/2018)
2018-06-20		Set/Reset Deadlines: Defendant's Reply to 22 due by 7/16/2018. (dot) (Entered: 06/21/2018)
2018-07-16	27	REPLY to opposition to motion re 22 MOTION for Summary Judgment and Memorandum of Points & Authorities filed by DAVID AUSTIN LINDSEY. (Attachments: # 1 Declaration Third Declaration of David Austin Lindsey & Exhibit A)(Stotter, Daniel) (Entered: 07/16/2018)
2019-07-08	28	NOTICE OF WITHDRAWAL OF APPEARANCE as to DAVID AUSTIN LINDSEY. Attorney C. Peter Sorenson terminated. (Sorenson, C.) (Entered: 07/08/2019)
2019-08-13		MINUTE ORDER: By no later than AUGUST 16, 2019 , the parties shall notify the Court of any relevant new authorities or factual developments since the parties concluded their briefing of Defendant's 20 Renewed Motion for Summary Judgment and Plaintiff's 22 Renewed Motion for Summary Judgment. Signed by Judge Colleen Kollar-Kotelly on August 13, 2019. (lcckk1) (Entered: 08/13/2019)
2019-08-13		Set/Reset Deadlines: Parties shall notify the Court by 8/16/2019. (kt) (Entered: 08/13/2019)
2019-08-15	29	Consent MOTION for Extension of Time to file the Joint Status Report by FEDERAL BUREAU OF INVESTIGATION (Attachments: # 1 Text of Proposed Order)(Campbell, Rhonda) (Entered: 08/15/2019)
2019-08-16		MINUTE ORDER: The Court has received Defendant's 29 Consent Motion for Extension of Time, with respect to the deadline for the parties' notice of any relevant new authorities or factual developments since the parties concluded their briefing of Defendant's 20 Renewed Motion for Summary Judgment and Plaintiff's 22 Renewed Motion for Summary Judgment. Because the Court gave the parties less than four full business days to respond, the Court shall waive its requirement that motions for extensions of time be filed four business days in advance of a deadline. See Order Establishing Procedures for Cases Assigned to Judge Colleen Kollar-Kotelly, ECF No. 3 , ¶ 7(A). With Plaintiff's consent, the Court shall GRANT Defendant's 29 Consent Motion for Extension of Time, for good cause shown. The parties shall file the Notice set forth in the Court's Minute Order of August 13, 2019, by no later than AUGUST 23, 2019 . Signed by Judge Colleen Kollar-Kotelly on August 16, 2019. (lcckk1) (Entered: 08/16/2019)
2019-08-16		Set/Reset Deadlines: The parties shall file the Notice by no later than 8/23/2019. (kt) (Entered: 08/16/2019)
2019-08-23	30	NOTICE OF SUPPLEMENTAL AUTHORITY by DAVID AUSTIN LINDSEY (Stotter, Daniel) (Entered: 08/23/2019)
2019-08-23	31	NOTICE to the Court by FEDERAL BUREAU OF INVESTIGATION re Set/Reset Deadlines (Campbell, Rhonda) (Entered: 08/23/2019)
2020-04-22	32	NOTICE OF SUBSTITUTION OF COUNSEL by Kenneth A. Adebonojo on behalf of FEDERAL BUREAU OF INVESTIGATION Substituting for attorney Rhonda L. Campbell (Adebonojo, Kenneth) (Entered: 04/22/2020)
2020-09-18	33	ORDER granting 20 Motion for Summary Judgment and denying 22 Motion for Summary Judgment. Signed by Judge Colleen Kollar-Kotelly on September 18, 2020. (lcckk1) (Entered: 09/18/2020)
2020-09-18	34	MEMORANDUM OPINION regarding 33 Order. Signed by Judge Colleen Kollar-Kotelly on September 18, 2020. (lcckk1) (Entered: 09/18/2020)
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