Case Detail

FOIA Project Annotation: Judge Amy Berman Jackson has ruled that the FBI, the CIA, and the NSA properly invoked a Glomar response neither confirming nor denying the existence of records in response to a request from the James Madison Project and Noah Shachtman and Spencer Ackerman, an editor and reporter for the Daily Beast, for records memorializing President Donald Trump's decision to share classified information with Russian government officials during a May 10, 2017 meeting in the Oval Office based on Exemption 1 (national security) and Exemption 3 (other statutes). The request was also sent to the Defense Intelligence Agency and the Department of State. DIA told the requesters that it did not have any records and the State Department told them that it had not yet finished its search. As a result, Jackson addressed only the Glomar claims of the CIA, FBI, and NSA. All three agencies explained that acknowledging whether or not they had an interest in such a diplomatic meeting and, further, collected information about such meetings, would reveal intelligence interests that were properly classified. Jackson approved of the agencies' use of a Glomar response, noting that she was "satisfied that they have put forth a 'plausible' and 'logical' argument in support of their Glomar responses under Exemption 1." JMP, Shachtman, and Ackerman argued that public statements by Trump, then National Security Advisor H.R. McMaster, and then Secretary of State Rex Tillerson revealed that classified information had been disclosed during the meeting. Although Trump frequently confirms things publicly that no former president would ever formally acknowledge, as has happened a number of times during the Trump administration, Jackson found that the public admissions did not specifically match the records sought. She noted that "none of the statements made by President Trump, McMaster, or Tillerson explicitly acknowledges that either the CIA, NSA, or FBI has records 'memorializing the contents' of the May 10 meeting. Indeed, not a single public statement mentions any records related to the May 10 meeting, much less the 'transcripts or notes' plaintiffs specifically requested." Jackson found that a statement by McMaster alluded to communications between the CIA and NSA and Homeland Security Advisor Tom Bossert. But she pointed out that "this vague acknowledgment of some type of post-meeting communications between Bossert and the CIA and NSA does not expressly mention any particular record, nor does it reveal â€" explicitly or implicitly â€" that either of the agencies retains records memorializing the May 10 meeting." JMP, Shachtman and Ackerman argued that the government writ large had acknowledged an interest in the meeting. Finding this insufficient, Jackson indicated that "the Court cannot speculate that specific documents exist within individual agencies based on general pronouncements in the public domain, or the fact that 'the U.S. Government' has an 'interest' in a matter that came up at meeting. To do so would violate the strict requirements of the official acknowledgment doctrine which demands 'exactitude,' particularly in cases like this one where national security and foreign affairs are involved." She rejected the plaintiffs' reliance on ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013), in which the D.C. Circuit held that the CIA could not plausibly claim that it had no interests in drones to sustain a Glomar response. Here, Jackson pointed out that "the FBI, NSA, and CIA have not issued public statements related to the May 10 meeting. Nor do any of the public statements listed by plaintiffs reveal their involvement in the meeting, or in preparing for the meeting."
Issues: Determination - Glomar response, Public domain, Exemption 1 - Harm to national security

Date Filed	Doc #	Docket Text
2017-06-22	1	COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-5003114) filed by JAMES MADISON PROJECT, Spencer Ackerman, NOAH SHACHTMAN. (Attachments: # 1 Civil Cover Sheet, # 2 Summons CIA, # 3 Summons DoD, # 4 Summons DOJ, # 5 Summons DOS, # 6 Summons US Attny, # 7 Summons USAG)(Zaid, Mark) (Entered: 06/22/2017)
2017-06-22	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests for James Madison Project by JAMES MADISON PROJECT (Zaid, Mark) (Entered: 06/22/2017)
2017-06-26	3	NOTICE of Appearance by Bradley Prescott Moss on behalf of All Plaintiffs (Moss, Bradley) (Entered: 06/26/2017)
2017-06-26		Case Assigned to Judge Amy Berman Jackson. (zsb) (Entered: 06/26/2017)
2017-06-26	4	SUMMONS (6) Issued Electronically as to CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Form)(zsb) (Entered: 06/26/2017)
2017-08-10	5	ANSWER to Complaint by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE.(Elliott, Stephen) (Entered: 08/10/2017)
2017-08-11	6	ORDER. Before the Court in this FOIA case are a complaint and an answer. The requirements of LCvR 16.3 and Rule 26(f) of the Federal Rules of Civil Procedure appear to be inapplicable. Defendants shall file a dispositive motion or, in the alternative, a report setting forth the schedule according to which it will complete its production of documents to plaintiffs on or before September 11, 2017. SO ORDERED. Signed by Judge Amy Berman Jackson on 8/11/2017. (lcabj2) (Entered: 08/11/2017)
2017-09-08	7	STATUS REPORT by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE. (Elliott, Stephen) (Entered: 09/08/2017)
2017-09-08		MINUTE ORDER. In light of 7 defendants' status report, Department of State will complete its search for responsive records and release any non-exempt responsive materials to plaintiffs by September 29, 2017. Further, the Court adopts the following briefing schedule with regard to defendants CIA, FBI, and NSA's Glomar responses: plaintiffs must file their motion for partial summary judgment by September 18, 2017; defendants must file their combined opposition and cross-motion for partial summary judgment by October 18, 2017; plaintiffs must file their combined reply and cross-opposition by November 1, 2017; and defendants must file their cross-reply by November 15, 2017. The Court will establish a schedule for briefing issues related to responses provided by DIA and Department of State at a later date, if necessary. SO ORDERED. Signed by Judge Amy Berman Jackson on 9/8/2017. (lcabj2) (Entered: 09/08/2017)
2017-09-18	8	MOTION for Partial Summary Judgment by SPENCER ACKERMAN, JAMES MADISON PROJECT, NOAH SHACHTMAN (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibit 1 - FOIA Requests, # 4 Text of Proposed Order)(Moss, Bradley) Modified event title on 9/19/2017 (znmw). (Entered: 09/18/2017)
2017-10-18	9	Memorandum in opposition to re 8 MOTION for Partial Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE. (Attachments: # 1 Memorandum in Support, # 2 Declaration of David M. Hardy, # 3 Declaration of David J. Sherman, # 4 Declaration of Antoinette B. Shiner, # 5 Statement of Facts, # 6 Text of Proposed Order)(Elliott, Stephen) (Entered: 10/18/2017)
2017-10-18	10	Cross MOTION for Partial Summary Judgment by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE (Attachments: # 1 Memorandum in Support, # 2 Declaration of David M. Hardy, # 3 Declaration of David J. Sherman, # 4 Declaration of Antoinette B. Shiner, # 5 Statement of Facts, # 6 Text of Proposed Order)(Elliott, Stephen) (Entered: 10/18/2017)
2017-11-01	11	REPLY to opposition to motion re 8 MOTION for Partial Summary Judgment filed by SPENCER ACKERMAN, JAMES MADISON PROJECT, NOAH SHACHTMAN. (Moss, Bradley) (Entered: 11/01/2017)
2017-11-01	12	Memorandum in opposition to re 10 Cross MOTION for Partial Summary Judgment filed by SPENCER ACKERMAN, JAMES MADISON PROJECT, NOAH SHACHTMAN. (Attachments: # 1 Statement of Facts (Response), # 2 Text of Proposed Order)(Moss, Bradley) (Entered: 11/01/2017)
2017-11-15	13	REPLY to opposition to motion re 10 Cross MOTION for Partial Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE. (Elliott, Stephen) (Entered: 11/15/2017)
2018-05-10	14	NOTICE of Related Case by CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE (Elliott, Stephen) (Entered: 05/10/2018)
2018-08-22	15	NOTICE OF SUBSTITUTION OF COUNSEL by Nicholas P. Cartier on behalf of CENTRAL INTELLIGENCE AGENCY, DEPARTMENT OF DEFENSE, DEPARTMENT OF JUSTICE, DEPARTMENT OF STATE Substituting for attorney Stephen Elliott (Cartier, Nicholas) (Entered: 08/22/2018)
2018-09-26	16	ORDER. Pursuant to Federal Rule of Civil Procedure 56 and for the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that plaintiffs' Motion for Partial Summary Judgment 8 is DENIED and defendants' Cross-Motion for Partial Summary Judgment 10 is GRANTED. SO ORDERED. Signed by Judge Amy Berman Jackson on 09/26/2018. (lcabj3) (Entered: 09/26/2018)
2018-09-26	17	MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 09/26/2018. (lcabj3) (Entered: 09/26/2018)
2018-10-05		MINUTE ORDER. Plaintiffs and defendants State Department and DIA must submit a joint status report that includes a schedule for further proceedings by October 12, 2018. Signed by Judge Amy Berman Jackson on 10/05/2018. (lcabj3) (Entered: 10/05/2018)
2018-10-12	18	Joint STATUS REPORT by DEPARTMENT OF DEFENSE, DEPARTMENT OF STATE. (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 10/12/2018)
2018-10-12		MINUTE ORDER. In light of the parties' status report 18 , it is ORDERED that the parties shall file another status report by December 3, 2018. Signed by Judge Amy Berman Jackson on 10/12/18. (DMK) (Entered: 10/12/2018)
2018-10-18		Set/Reset Deadlines: Joint Status Report due by 12/3/2018. (tb) (Entered: 10/18/2018)
2018-12-03	19	Joint STATUS REPORT by DEPARTMENT OF DEFENSE, DEPARTMENT OF STATE. (Cartier, Nicholas) (Entered: 12/03/2018)
2018-12-04		MINUTE ORDER. The parties must file an updated status report by January 17, 2019, if the matter has not been resolved by then. SO ORDERED. Signed by Judge Amy Berman Jackson on 12/04/2018. (lcabj3) (Entered: 12/04/2018)
2019-01-17	20	MOTION to Stay by DEPARTMENT OF DEFENSE, DEPARTMENT OF STATE (Cartier, Nicholas) (Entered: 01/17/2019)
2019-01-17		MINUTE ORDER granting 20 Motion to Stay. The government must file a notice within two days of the resumption of operations and it should include a proposed revised schedule is necessary. SO ORDERED. Signed by Judge Amy Berman Jackson on 01/17/2019. (lcabj3) (Entered: 01/17/2019)
2019-01-29	21	NOTICE of Restoration of Operations by DEPARTMENT OF DEFENSE, DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Cartier, Nicholas) (Entered: 01/29/2019)
2019-01-30		MINUTE ORDER. In light of the government's notice 21 , the stay in this case is hereby lifted. The parties must submit a joint status report by March 1, 2019, if the matter has not been resolved. SO ORDERED. Signed by Judge Amy Berman Jackson on 01/30/2019. (lcabj3) (Entered: 01/30/2019)
2019-03-01	22	Joint STATUS REPORT by DEPARTMENT OF DEFENSE, DEPARTMENT OF STATE. (Cartier, Nicholas) (Entered: 03/01/2019)
2019-03-04		MINUTE ORDER. The parties must submit a joint status report by April 1, 2019, if the matter has not been resolved by then. SO ORDERED. Signed by Judge Amy Berman Jackson on 03/04/2019. (lcabj3) (Entered: 03/04/2019)
2019-03-25	23	STIPULATION of Dismissal by SPENCER ACKERMAN, JAMES MADISON PROJECT, NOAH SHACHTMAN. (Moss, Bradley) (Entered: 03/25/2019)
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