UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PROPERTY OF THE PEOPLE, INC.,
et al.
Plaintiffs,
No. 17-cv-1728 (EGS)
v.
DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION
Plaintiffs Property of the People, Inc., a non-profit
organization, and its founder, Ryan Noah Shapiro, filed suit
against the U.S. Department of Justice (“DOJ”) under the Freedom
of Information Act (“FOIA”), 5 U.S.C. § 552, seeking records
from the Federal Bureau of Investigation (“FBI”) 1 concerning its
investigative and non-investigative files of a former
congressperson, Dana Rohrabacher of California. See Am. Compl.,
ECF No. 5. 2 In response to the FOIA request, the FBI issued a
partial Glomar response, refusing to confirm or deny the
1 The FBI is a component of the United States Department of
Justice (“DOJ”). See Prop. of the People, Inc. v. Dep’t of
Justice, 405 F. Supp. 3d 99, 106 (D.D.C. 2019).
2 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
1
existence of certain records, 3 but confirming that records
existed for three categories: (1) “records reflecting
communications between it and the Congressman in the performance
of his official duties,” Def.’s Opp’n, ECF No. 30 at 8; (2)
records relating to communications between the congressperson
and the FBI concerning a 2012 meeting, id. at 8-9; and (3)
“records related to the statement of offense in the [Richard W.]
Gates prosecution that [Paul J.] Manafort[, Jr.] and a lobbyist
for ‘Company A’ had met with a ‘member of Congress,’” id. at 9;
see also Prop. of the People, Inc. v. Dep’t of Justice, 405 F.
Supp. 3d 99, 109 (D.D.C. 2019).
The parties filed cross-motions for summary judgment
raising, among other issues, whether the partial Glomar response
was proper. Prop. of the People, Inc., 405 F. Supp. 3d at 110.
On September 24, 2019, the Court ruled on the parties’ cross-
motions for summary judgment. As is relevant here, with regard
to the partial Glomar response, the Court determined that it
3 In FOIA parlance, the Glomar response is a disclaimer that
neither confirms nor denies the existence of records. Bartko v.
U.S. Dep’t of Justice, 898 F.3d 51, 63 n.1 (D.C. Cir. 2018).
“The response is named for the Hughes Glomar Explorer, a ship
used in a classified Central Intelligence Agency project ‘to
raise a sunken Soviet submarine from the floor of the Pacific
Ocean to recover the missiles, codes, and communications
equipment onboard for analysis by United States military and
intelligence experts.’” Roth v. U.S. Dep’t of Justice, 642 F.3d
1161, 1171 (D.C. Cir. 2011) (quoting Phillippi v. CIA, 655 F.2d
1325, 1327 (D.C. Cir. 1981)).
2
could not come to a conclusion on the issue due to the record’s
“level of generality,” and therefore denied in part DOJ’s motion
for summary judgment and held in abeyance Plaintiffs’ cross-
motion for summary judgment. Id. at 118. The Court then directed
DOJ to submit a Vaughn index and an amended declaration that
addressed the balance between the privacy and public interests
in light of the FBI’s partial Glomar response. Following the
Court’s decision, the parties filed a joint motion for a ruling
on the Glomar issue on the present record, which the Court
granted. See Min. Order (Jan. 30, 2020).
Now pending before the Court is the portion of Plaintiffs’
motion for summary judgment that the Court had held in abeyance.
Upon careful consideration of the parties’ submissions, the
applicable law, and the entire record, the Court DENIES
Plaintiffs’ motion for summary judgment regarding the Glomar
issue.
I. Background
The full background of this case is set out in Property of
the People, Inc. v. Department of Justice, 405 F. Supp. 3d 99
(D.D.C. 2019); therefore, the Court provides a brief summary of
the relevant facts below.
On May 19, 2017, the New York Times published an article
stating that, in 2012, the FBI warned former Congressman
Rohrabacher that Russian spies were attempting to recruit him as
3
an “agent of influence.” Pls.’ Ex. 1, ECF No. 26-3 at 3; see
also Pls.’ Statement of Material Facts (“Pls.’ SOMF”), ECF No.
26-1 at 1 ¶ 1. In an interview for the article, Congressman
Rohrabacher confirmed that the FBI met with him and that the
“meeting had focused on his contact with one member of the
Russian Foreign Ministry, whom he recalled meeting on a trip to
Moscow.” Pls.’ SOMF, ECF No. 26-1 at 1 ¶ 1. The article includes
a quote from Congressman Rohrabacher, stating that the FBI
agents “were telling [him that] he had something to do with some
kind of Russian intelligence” and one of the agents told him
that “Moscow ‘looked at [him] as someone who could be
influenced.’” Id. at 1 ¶ 2.
On May 20, 2017, Plaintiffs submitted a FOIA request to the
FBI, seeking “[a]ny and all records constituting, mentioning, or
referring to the living person Dana Tyrone Rohrabacher . . . .
This request is intended to include both investigative and non-
investigative files (e.g. correspondence to or from Rep.
Rohrabacher in his capacity as a member of Congress).” Ex. A,
Decl. of Michael G. Seidel (“Seidel Decl.”), ECF No. 24-1 at 45
(emphasis omitted). Plaintiffs claimed that Congressman
Rohrabacher “is known for his friendship with Vladimir Putin and
defense of Russia” and asserted that he waived his privacy
interests because he had publicly disclosed the 2012 meeting
with the FBI. Pls.’ SOMF, ECF No. 26-1 at 1 ¶ 1; see also Seidel
4
Decl., ECF No. 24-1 at 46. Upon receipt of the FOIA request, the
FBI declined to confirm or deny the existence of any
investigative records—in FOIA terms, a Glomar response—to
protect the privacy rights of third parties. Def.’s Statement of
Material Facts (“Def.’s SOMF”), ECF No. 24 at 6 ¶¶ 13-15. In its
Glomar response, the FBI advised Plaintiffs that it could not
confirm or deny the existence of any other records pertaining to
Congressman Rohrabacher unless one of three conditions were met:
“(1) the requester provides a notarized authorization (privacy
waiver) from the third party, (2) the requester provides proof
of death, or (3) the requestor demonstrates a public interest in
the records sufficient to outweigh the third party's individual
privacy rights.” Id. at 6 ¶ 13. Subsequently, the FBI modified
its Glomar response after determining that Congressman
Rohrabacher waived his privacy interests by making public
statements about the 2012 meeting, and conducted a search for
responsive records. Seidel Decl., ECF No. 24-1 at 9-10 ¶ 18.
Plaintiffs challenged the adequacy of the FBI’s searches. Id. at
19 ¶ 38.
Plaintiffs filed this action on August 24, 2017. See
Compl., ECF No. 1. The FBI released 230 responsive pages
pertaining to Congressman Rohrabacher between January and March
2018, and 29 pages in November 2018. See, e.g., Def.’s SOMF, ECF
No. 24 at 5 ¶¶ 6-10; Pls.’ Resp. to Def.’s SOMF, ECF No. 25-1 at
5
2-3; Seidel Decl., ECF No. 24-1 at 21 ¶ 43. The FBI withheld
certain documents and redacted information under FOIA Exemptions
3, 6, 7(C), (7)(D), and (7)(E). 4 Def.’s SOMF, ECF No. 24 at 5 ¶
7, 6 ¶ 10. As the FBI made its productions, the parties filed
cross-motions for summary judgment in May and June 2018,
respectively. See generally Docket of Civil Action No. 17-1728.
After litigation had already begun, Plaintiffs learned that
Congressman Rohrabacher, Mr. Manafort, and “a senior Company A
lobbyist” attended a March 2013 meeting about Ukraine in the
District of Columbia, and Plaintiffs sought the FBI’s records
regarding the investigation into that meeting. Pls.’ Cross-Mot.
Summ. J., ECF No. 16 at 12; see also Statement of Offense,
United States v. Richard W. Gates III, No. 17-201-2 (D.D.C. Feb.
23, 2018), ECF No. 206 at 7 ¶ 16 (stating that the “Member of
4 Under FOIA, an agency must release all responsive documents
unless the information contained within such documents falls
within one of nine exemptions. Summers v. U.S. Dep’t of Justice,
517 F. Supp. 2d 231, 236 (D.D.C. 2007) (Sullivan, J.) (citing 5
U.S.C. § 552(a),(b)). Exemption 3 permits an agency to withhold
information that is “specifically exempted from disclosure by
statute,” provided that the statute either (i) “requires that
the matters be withheld from the public in such a manner as to
leave no discretion on the issue”; or (ii) “establishes
particular criteria for withholding or refers to particular
types of matters to be withheld[.]” 5 U.S.C. § 552(b)(3).
Exemption 6 protects “personnel and medical files and similar
files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy[.]” Id. § 552(b)(6).
Exemption 7 protects from disclosure “records or information
compiled for law enforcement purposes,” but only to the extent
that disclosure of such records would cause an enumerated harm.
Id. § 552(b)(7).
6
Congress,” who met with Mr. Manafort and the lobbyist, served
“on a subcommittee that had Ukraine within its purview”).
Congressman Rohrabacher’s spokesperson confirmed that
Congressman Rohrabacher was the “Member of Congress” referenced
in the court filing, and that former Congressman Vin Weber, who
was a lobbyist, attended the meeting. Pls.’ SOMF, ECF No. 26-1
at 4 ¶¶ 12-13; see also Pls.’ Ex. 8, ECF No. 26-3 at 37-38.
After Congressman Rohrabacher publicly acknowledged his
interactions with the FBI, the FBI confirmed that records
existed for three categories: (1) “records reflecting
communications between it and the Congressman in the performance
of his official duties,” Def.’s Opp’n, ECF No. 30 at 8; (2)
records relating to communications between the Congressman and
the FBI concerning the 2012 meeting, id. at 8-9; and (3)
“records related to the statement of offense in the [Mr.] Gates
prosecution that [Mr.] Manafort and a lobbyist for ‘Company A’
had met with a ‘member of Congress,’” id. at 9.
The parties renewed their cross-motions for summary
judgment in December 2018 and January 2019. In the second round
of briefing, DOJ argued that it was entitled to summary judgment
because it properly applied the Glomar response; it conducted
adequate searches; it appropriately invoked Exemptions 3, 6,
7(C), 7(D), and 7(E); and it reasonably segregated the non-
exempt information from the exempt information. Def.’s Renewed
7
Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 24 at 20-30.
Plaintiffs also moved for summary judgment, see Pls.’ Mot., ECF
No. 26 at 1, arguing that: (1) the Defendant’s declarations
constituted hearsay and the declarants lack personal knowledge,
id. at 6-8; (2) the Glomar response was unwarranted because the
“FBI has narrowly pierced the Glomar veil by carving out a
category of responsive documents,” id. at 11; (3) the FBI
improperly invoked Exemption 7(C) because Congressman
Rohrabacher has a de minimis privacy interest, id. at 9-12; (4)
the FBI failed to conduct adequate searches of its investigative
records, id. at 16-24, and its records related to Congressman
Rohrabacher in his official capacity as a U.S. Congressman, id.
at 24-26; and (5) the FBI improperly withheld the names of
certain individuals because it had previously “officially
acknowledged” the identities of those persons in the released
documents, see Pls.’ Reply, ECF No. 32 at 27-28.
On September 24, 2019, the Court ruled on the parties’
motions for summary judgment. The Court denied in part DOJ’s
motion for summary judgment and held in abeyance Plaintiffs’
cross-motion with regard to the issue of whether the partial
Glomar response was proper. Prop. of the People, 405 F. Supp. 3d
at 118. The Court determined that it could not come to a
conclusion on the issue “at this level of generality” and
directed Defendant to submit a Vaughn index and an amended
8
declaration that addressed the balance between the privacy and
public interests in light of the FBI’s partial Glomar response.
Id. at 118. The Court also ruled that the FBI’s temporal
limitation of its searches was improper and that the FBI
improperly limited its searches, but rejected Plaintiffs’
evidentiary objections. Id. at 120, 125. Finally, the Court
deferred ruling on the issues of segregability and the
applicability of the “official acknowledgment” doctrine with
respect to the redactions in Bates-stamped pages 15, 175, 185,
186, 190, 197, and 221. Id. at 127.
Defendant filed an amended declaration on November 25,
2019. See Notice Filing Third Decl. Hardy (“Hardy Decl.”), ECF
No. 37. On January 29, 2020, the parties filed a joint motion
requesting that the Court rule on the portion of Plaintiffs’
cross-motion regarding the Glomar issue prior to Defendant
submitting a Vaughn index. See Joint Mot., ECF No. 41. The Court
granted the motion, see Min. Order (Jan. 30, 2020), and
addresses the issue below.
II. Legal Standard
A Glomar response is appropriate “only when confirming or
denying the existence of records would itself ‘cause harm
cognizable under a FOIA exception.’” ACLU v. CIA, 710 F.3d 422,
426 (D.C. Cir. 2013) (quoting Roth v. U.S. Dep’t of Justice, 642
F.3d 1161, 1178 (D.C. Cir. 2011)). “When addressing an agency’s
9
Glomar response, courts must accord ‘substantial weight’ to
agency determinations.” Sea Shepherd Conservation Soc’y v. IRS,
208 F. Supp. 3d 58, 89 (D.D.C. 2016) (citing Gardels v. CIA, 689
F.2d 1100, 1104 (D.C. Cir. 1982)). The agency must “tether its
refusal to respond to one of the nine FOIA Exemptions.”
Montgomery v. IRS, No. 17-918, 2019 WL 2930038, at *2 (D.D.C.
July 8, 2019) (citation omitted). “Ultimately, an agency’s
justification for invoking a FOIA exemption is sufficient if it
appears ‘logical’ or ‘plausible.’” Wolf v. CIA, 473 F.3d 370,
374-75 (D.C. Cir. 2007) (quoting Gardels, 689 F.2d at 1105).
“To overcome a Glomar response, the plaintiff[s] can either
challenge the agency’s position that disclosing the existence of
a record will cause harm under the FOIA exemption asserted by
the agency, or the plaintiff[s] can show that the agency has
‘officially acknowledged’ the existence of records that are the
subject of the request.” James Madison Project v. Dep’t of
Justice, 320 F. Supp. 3d 143, 148 (D.D.C. 2018). Here,
Plaintiffs selected the first route to attack the FBI’s partial
Glomar response. Pls.’ Mot., ECF No. 26 at 11. The FBI concedes
that it was required to search for records that have been
publicly confirmed by Congressman Rohrabacher. Def.’s Opp’n, ECF
No. 30 at 12.
The FBI justifies its invocation of Glomar under Exemptions
6 and 7(C). E.g., Def.’s Opp’n, ECF No. 30 at 9; Hardy Decl.,
10
ECF No. 30-1 at 3-4 ¶ 6, 5 ¶ 9. Both exemptions are
foundationally similar. See, e.g., Garza v. U.S. Marshals Serv.,
No. 16-0976, 2018 WL 4680205, at *11 (D.D.C. Sept. 28, 2018)
(Sullivan, J.); Am. Ctr. for Law & Justice v. U.S. Dep’t of
Justice, 334 F. Supp. 3d 13, 18 (D.D.C. 2018) (recognizing that
“[c]ourts tasked with evaluating withholdings made pursuant to
both statutory exemptions generally look first to the agency’s
justification under Exemption 7(C), because information properly
withheld under Exemption 7(C) would also be covered by Exemption
6”). Plaintiffs focused on Exemption 7(C), see, e.g., Pls.’
Mot., ECF No. 26 at 11; Pls.’ Reply, ECF No. 32 at 14, and the
Court shall do the same.
Exemption 7(C) protects from disclosure records compiled
for law enforcement purposes to the extent that their disclosure
“could reasonably be expected to constitute an unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).
“[J]udicial review of an asserted Exemption 7 privilege requires
a two-part inquiry.” FBI v. Abramson, 456 U.S. 615, 622 (1982).
The threshold requirement has been met here because it is
undisputed that the FBI’s records were compiled for law
enforcement purposes. See 5 U.S.C. § 552(b)(7); see also Seidel
Decl., ECF No. 24-1 at 7 ¶ 15 (“[T]he records include contacts
by Congressman Rohrabacher to the FBI regarding its duties and
responsibilities as a law enforcement and national security
11
agency, and the information discussed between the FBI and
Congressman relate to the FBI’s investigative role and obtained
from investigative records.”). Next, the FBI “must show that
release of those records ‘could reasonably be expected to
constitute an unwarranted invasion of personal privacy.’” Prop.
of the People v. U.S. Dep’t of Justice, 310 F. Supp. 3d 57, 65-
66 (D.D.C. 2018) (quoting 5 U.S.C. § 552(b)(7)(C)).
The Court must “balance the privacy interests that would be
compromised by disclosure against the public interest in release
of the requested information.” Davis v. U.S. Dep’t of Justice,
968 F.2d 1276, 1281 (D.C. Cir. 1992). The Court of Appeals for
the District of Columbia Circuit (“D.C. Circuit”) has held
“categorically that, unless access to the names and addresses of
private individuals appearing in files within the ambit of
Exemption 7(C) is necessary in order to confirm or refute
compelling evidence that the agency is engaged in illegal
activity, such information is exempt from disclosure.” SafeCard
Servs., Inc. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991). Where
a FOIA request “is made for FBI investigative records regarding
a particular individual, the FBI’s mere acknowledgment that it
possesses responsive records associates the individual named in
the request with suspected criminal activity.” Citizens for
Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 746
F.3d 1082, 1091 (D.C. Cir. 2014). As such, “the FBI’s Glomar
12
response, absent a countervailing public interest in disclosure,
[is] appropriate under Exemption 7(C).” Roth, 642 F.3d at 1179.
III. Analysis
A. There Are Interests on Both Sides of the Scale
The Court in its September 24, 2019 memorandum opinion
addressed both the privacy interest and the public interest at
stake in this case. See Prop. of the People, 405 F. Supp. 3d at
114-17.
The Court first turned to Congressman Rohrabacher’s privacy
interest and found that he has “more than a de minimis privacy
interest in the contents of any FBI investigative records.” Id.
at 113-14. The Court found instructive the D.C. Circuit’s
decision in the FOIA case Citizens for Responsibility and Ethics
in Washington (“CREW”) v. Dep’t of Justice. In CREW, Tom DeLay—
the former Majority Leader of the U.S. House of Representatives—
publicly announced that he had cooperated with the FBI’s
investigation into a public corruption scandal, that he had been
under investigation, and that the Justice Department had decided
not to pursue criminal charges against him. 746 F.3d at 1087,
1089, 1091-92. The D.C. Circuit determined that Mr. DeLay had
“two potential privacy interests at stake”: (1) “avoiding the
stigma of having his name associated with a criminal
investigation[,]” id. at 1091; and (2) “[a]lthough [Mr.] DeLay’s
action [i.e. his public statements] lessened his [privacy]
13
interest in keeping secret the fact that he was under
investigation, he retained a second, distinct privacy interest
in the contents of the investigative files[,]” id. at 1092
(emphasis in original). The D.C. Circuit ultimately found that
“[Mr.] DeLay’s privacy interest in the contents of the
investigative files [was] not insubstantial,” even though he was
a public official at the time. Id. In view of the D.C. Circuit’s
reasoning in CREW, this Court determined Congressman
Rohrabacher’s privacy interest in the records to be “not
insubstantial.” Prop. of the People, 405 F. Supp. 3d at 114.
The Court next turned to whether disclosure would advance
the public interest, and found that the public interest in the
case was “significant.” Id. at 115 (quoting Prop. of the People,
310 F. Supp. 3d at 69). The Court again found the D.C. Circuit’s
decision in CREW instructive. There, the D.C. Circuit determined
that there was a “weighty” public interest at stake because
“[d]isclosure of the records would likely reveal much about the
diligence of the FBI’s investigation and DOJ’s exercise of its
prosecutorial discretion: whether the government had the
evidence but nevertheless pulled its punches” where the FBI’s
records related to “a wide-ranging public corruption
investigation as part of [the FBI’s] ongoing efforts to root out
systemic corruption within the highest levels of government.”
CREW, 746 F.3d at 1092-93. While noting that CREW was
14
distinguishable, the Court nonetheless acknowledged that
Plaintiffs had, during the course of the litigation, “shifted
their focus to the SCO’s investigation into Russia’s influence
in the 2016 presidential election and the FBI’s
counterintelligence efforts” and had asked the Court to “require
the FBI to exclude from its Glomar response any records which
link [Congressman] Rohrabacher to Russian counterintelligence
matters.” Prop. of the People, 405 F. Supp. 3d at 115-16. In
view of this shift, the Court stated that Plaintiffs had
demonstrated that there is a public interest in “how the FBI
handled the issue of threats posed by Russian intelligence to
the U.S. political system.” Id. (quoting Pls.’ Mot., ECF No. 26
at 15 n.5). The Court concluded that “[c]learly, the American
public has a right to know about the manner in which its
representatives are conducting themselves and whether the
government agency responsible for investigating and, if
warranted, prosecuting those representatives for alleged illegal
conduct is doing its job.” Id. (quoting Citizens for
Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 840
F. Supp. 2d 226, 234 (D.D.C. 2012)).
The next step in the Court’s inquiry was to balance the
significant interests on both sides of the scale. However, the
Court declined to weigh the balance due to the “level of
generality,” and instead directed DOJ to submit a Vaughn index.
15
Id. at 118. The Court therefore denied in part DOJ’s motion for
summary judgment and held in abeyance Plaintiffs’ motion for
summary judgment. Id. In view of the Court’s Minute Order
granting the parties’ joint motion to resolve the Glomar issue
on the current record, the Court addresses the balance of the
competing interests below.
B. The Balance of the Competing Interests Weighs in Favor
of Non-Disclosure
The Court shall now consider anew the merits of the
parties’ arguments regarding the balance of the competing
interests. The Court must consider whether disclosure regarding
the existence or non-existence of records “could reasonably be
expected to constitute an unwarranted invasion of personal
privacy,” 5 U.S.C. § 552(b)(7)(C); which, as noted above,
involves balancing the public interest in disclosure against the
privacy interest that would be compromised, see Roth, 642 F.3d
at 1174. In balancing the competing interests, “[i]t is
important to remember that, at this stage, the Court is
considering only whether [Congressman Rohrabacher] has a privacy
interest in the very existence of the requested records.”
Judicial Watch, Inc. v. Dep’t of Justice, 415 F. Supp. 3d 71, 75
(D.D.C. 2019) (quoting Wolf, 473 F.3d at 374). “That is, while
he may have a privacy interest in the content of any such
records, the question in evaluating a Glomar response is whether
16
disclosure of their existence would ‘cause harm cognizable under
a[] FOIA exception.’” Id. Here, the Court is not persuaded that
the balance weighs in favor of public disclosure.
First, it is significant to this analysis that Congressman
Rohrabacher has not publicly confirmed that he was the subject
of an investigation outside of the two meetings. The D.C.
Circuit has “consistently held that Exemption 7(C) authorizes
Glomar responses to comparable FOIA requests seeking information
about particular individuals” when the subject of an
investigation has not acknowledged that the investigation
occurred. PETA, 745 F.3d at 543; see also Beck v. U.S. Dep’t of
Justice, 997 F.2d 1489, 1493–94 (D.C. Cir. 1993) (upholding
Glomar response as to any complaints or other investigatory
files concerning two named DEA agents); Dunkelberger v. U.S.
Dep’t of Justice, 906 F.2d 779, 781 (D.C. Cir. 1990) (upholding
Glomar response as to a specific FBI agent’s disciplinary
records).
Plaintiffs argue, however, that the privacy interests of
Congressman Rohrabacher are “negate[d]” due to his statements to
the media. Pls.’ Mot., ECF No. 26 at 9. According to Plaintiffs,
Congressman Rohrabacher acknowledged through statements to the
media that: (1) the 2012 meeting occurred; (2) the 2012 meeting
“had focused on his contact with one member of the Russian
Foreign Ministry” who was in fact “an intelligence officer” he
17
had met during a congressional delegation to Moscow; (3) the FBI
had informed him during the meeting that Russia had “targeted
[him] to be recruited as an agent” and that Moscow “looked at
[him] as someone who could be influenced”; and (4) he felt that
“Russian intelligence” had been “after [him] since [he] was a
teenager.” Id. at 10-11. In addition, Congressman Rohrabacher’s
spokesperson confirmed that he was the member of Congress who
had attended a March 2013 meeting about Ukraine. Prop. of the
People, 405 F. Supp. 3d at 109. These statements, however, do
not diminish Congressman Rohrabacher’s privacy interests in the
broad manner that Plaintiffs assert. While his privacy interest
in the 2012 and 2013 meetings “evaporated” once he publicly
acknowledged his involvement, Judicial Watch, 415 F. Supp. 3d at
75; his statements do not disclose that he was ever the target
of an FBI investigation outside of his association with the two
events. Despite his statements to the media, Mr. Rohrabacher
therefore has more than a de minimis privacy interest in the
existence of any FBI investigative records outside of the two
meetings he has publicly acknowledged. See Prop. of the People,
405 F. Supp. 3d at 114; see also U.S. Dep’t of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763
(1989) (recognizing the distinction between “scattered
disclosure of the bits of information contained in a rap sheet
and revelation of the rap sheet as a whole”); Judicial Watch,
18
Inc. v. U.S. Dep’t of Justice, 898 F. Supp. 2d 93, 104 (D.D.C.
2012) (rejecting plaintiff’s argument that “would have the Court
waive Ahmad’s relevant privacy interests in toto based solely on
the fact that he has, at one time, been associated with criminal
activity”). And, as this Court has explained, this privacy
interest remains despite Congressman Rohrabacher’s status as a
former public official. See Prop. of the People, 405 F. Supp. 3d
at 114; see also CREW, 746 F.3d at 1094.
Second, although the Court has previously concluded that
there existed a public interest in any records because
disclosure could shed light on “how the FBI handled the issue of
threats posed by Russian intelligence to the U.S. political
system,” Prop. of the People, 405 F. Supp. 3d at 117; this
finding also was not based upon the public acknowledgment of an
investigation by the FBI or Congressman Rohrabacher. Rather,
critical to that determination was “the existence of news
articles, of which the Court [took] judicial notice, reporting
that the SCO investigated a September 2016 meeting between
Congressman Rohrabacher and one of the President’s former
National Security Advisors.” Id. at 115. But the news articles
regarding the 2016 meeting were based on anonymous sources. See
Julia Ainsley, Mueller Probing Pre-Election Flynn Meeting With
Pro-Russia Congressman, NBC News (Nov. 10, 2017, 12:59 PM),
https://www.nbcnews.com/news/us-news/mueller-probing-pre-
19
election-flynn-meeting-pro-russia-congressman-n819676 (citing
“two sources with knowledge of the investigation”); Michael R.
Blood, Rouda Claims Historic Victory Over Republican
Rohrabacher, NBC4 (Nov. 10, 2018),
https://www.nbclosangeles.com/news/local/Rouda-Declares-Victory-
in-House-Race-Against-Rohrabacher-500204551.html (reporting that
Congressman Rohrabacher’s “name has come up in the investigation
into Russian meddling in the 2016 presidential election” but
that he had “denied any wrongdoing”). Thus, despite the accounts
provided by the articles, the FBI’s “own official acknowledgment
that it had investigated [Congressman Rohrabacher] would [still]
carry an added and material stigma” notwithstanding other
entities’ acknowledgment of investigations. People for the
Ethical Treatment of Animals v. Nat’l Inst. of Health (“PETA”),
745 F.3d 535, 542 (D.C. Cir. 2014). In other words, “the fact
that an event is not wholly private does not mean that an
individual has no interest in limiting disclosure or
dissemination of the information.” Id.; cf. Alfred A. Knopf,
Inc. v. Colby, 509 F.2d 1362, 1370 (4th Cir. 1975) (“It is one
thing for a reporter or author to speculate or guess that a
thing may be so or even, quoting undisclosed sources, to say
that it is so; it is quite another thing for one in a position
to know of it officially to say that it is so.”).
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It is true that “[o]ver the course of this litigation,
Plaintiffs have shifted their focus to the SCO’s investigation
into Russia’s influence in the 2016 presidential election and
the FBI’s counterintelligence efforts.” Prop. of the People, 504
F.3d at 115. But without a public acknowledgment of an
investigation by Congressman Rohrabacher or the FBI, this case
is also easily distinguishable from CREW. As this Court
recognized in its September 24, 2019 opinion, unlike in CREW,
Plaintiffs here request records related to a particular
individual, not a particular investigation. Prop. of the People,
405 F. Supp. 3d at 115. And “[f]or such requests, ‘the public
interest in understanding the agency’s investigatory processes’
ordinarily ‘fails to outweigh the [subject’s] substantial
interest in nondisclosure.’” Prop. of the People, 310 F. Supp.
3d at 69 (quoting PETA, 745 F.3d at 543). In addition, unlike
Mr. DeLay’s public announcement in CREW, neither Congressman
Rohrabacher nor the FBI has conceded that he was under
investigation. Id.
Thus, despite the public interest in understanding an
agency’s investigatory process into Russia’s influence in the
2016 presidential election and the FBI’s counterintelligence
efforts, the Court concludes that the public interest fails to
outweigh Congressman Rohrabacher’s privacy interest in
nondisclosure. “[W]ithout more,” the “[public] interest [is]
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insufficient to justify disclosure when balanced against the
substantial privacy interests weighing against revealing the
targets of a law enforcement investigation.” PETA, 745 F.3d at
543.
IV. Conclusion
For the reasons set forth above, the Court DENIES
Plaintiffs’ motion for summary judgment regarding the Glomar
issue. An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
December 23, 2021
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