                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
JAMES MADISON PROJECT, et al.,      )
                                    )
                  Plaintiffs,       )
                                    )
      v.                            )               Civil Action No. 17-1231 (ABJ)
                                    )
CENTRAL INTELLIGENCE                )
AGENCY, et al.,                     )
                                    )
                  Defendants.       )
____________________________________)

                                MEMORANDUM OPINION

       The James Madison Project, an organization concerned with promoting government

accountability and reducing secrecy, and Noah Shachtman and Spencer Ackerman, an editor and

reporter for the Daily Beast, have brought this suit against the Department of State, the Central

Intelligence Agency (“CIA”), the Department of Defense (on behalf of the National Security

Agency (“NSA”) and Defense Intelligence Agency (“DIA”)), and the Department of Justice (on

behalf of the Federal Bureau of Investigation (“FBI”)) under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552 et seq. Plaintiffs have made FOIA requests for “records memorializing

the circumstances surrounding the decision by President Donald J. Trump (“President Trump”) to

convey classified information to Russian Government officials during a May 10, 2017, meeting in

the Oval Office.” Compl. [Dkt. # 1] ¶ 10. In response, the CIA, NSA, and FBI each issued what

is known as a “Glomar response,” refusing to do so much as confirm or deny the existence of
responsive records in the agencies’ possession on the grounds that even that information would be

covered by a FOIA exemption. 1 Status Report [Dkt. # 7] ¶ 2.

       The parties agreed to litigate the propriety of the three Glomar responses before addressing,

if necessary, the substantive responses issued by the State Department and DIA. Id. ¶ 4. Plaintiffs

moved for partial summary judgment, arguing that the agencies waived their right to issue Glomar

responses because the existence of responsive records has already been acknowledged. Pls.’ Mot.

for Partial Summ. J. [Dkt. # 8]; Mem. in Supp. of Pls.’ Mot. for Partial Summ. J. [Dkt. # 8-1]

(collectively, “Pls.’ Mot.”) at 5–12. Defendants opposed the motion and filed their own motion

for partial summary judgment. Defs.’ Opp. to Pls.’ Mot. & Cross-Mot. for Partial Summ. J.

[Dkt # 10]; Mem. of P. & A. in Supp. of Defs.’ Cross-Mot. [Dkt. # 10-1] (collectively, “Defs.’

Cross-Mot”). Upon review of the full record, including the agencies’ affidavits and the alleged

“official disclosures,” the Court will grant the motion for partial summary judgment in favor of

the CIA, NSA, and FBI, and it will deny plaintiffs’ motion. This opinion does not address any

questions that may arise in connection with the FOIA responses by the State Department or DIA.

                                        BACKGROUND

       On May 22, 2017, plaintiffs filed identical FOIA requests to the CIA, NSA, DIA, FBI, and

Department of State. Ex. 1 to Pls.’ Mot. [Dkt. # 8-3] (“FOIA Requests”). The requests sought

information related to a May 10, 2017 meeting in which President Trump allegedly shared

“sensitive classified information” concerning a terrorist threat with the Russian Foreign Minister




1       The term “Glomar response” originates from the CIA’s refusal to confirm or deny the
existence of records in response to a FOIA request relating to “the Hughes Glomar Explorer, a
ship used in a classified [CIA] 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
and the Russian Ambassador to the United States. Id. at 1. The requesters sought three categories

of “records created, received and/or maintained” by the five agencies:

               1) Any documentation – including, but not limited to, transcripts or notes –
               memorializing the contents of the discussion between President Trump and
               the two Russian Government officials in the Oval Office on May 10, 2017;
               2) Any documentation relied upon for the purpose of briefing President
               Trump on the intelligence information that falls within the scope of
               information referenced in category #1, including, but not limited to,
               documentation that identified the country that had originally gathered the
               information; and
               3) Any documentation – including documentation reflecting verbal
               statements – memorializing the briefing in which President Trump was
               informed of the intelligence information that falls within the scope of
               information referenced in category #1, including, but not limited to,
               documentation that identified the country that had originally gathered the
               information.
Id. at 2. Plaintiffs specified the relevant time frame of November 8, 2016, to the date of the

agencies’ searches. Id. They advised the agencies that they were “preemptively” arguing that a

Glomar response would be improper given remarks made by President Trump and his then-

National Security Advisor, H.R. McMaster, concerning the May 10 meeting. 2 Id. at 3.

       None of the defendant agencies provided substantive responses to the FOIA requests, so

plaintiffs filed this suit on June 22, 2017 seeking to compel each agency to respond. See Compl.

Subsequently, the CIA, NSA, and FBI issued Glomar responses, informing plaintiffs that “they

can neither confirm nor deny whether they possess responsive materials without revealing

information that is exempt from disclosure by FOIA.” Status Report [Dkt. # 7] ¶ 2. The DIA




2       Plaintiffs asserted in their requests that President Trump’s and McMaster’s statements
disclosed at least three facts: “1) President Trump shared classified information in the May 10,
2017, meeting; 2) President Trump did not mention during the May 10, 2017, meeting that Israel
was the original source of the information; and 3) the briefing in which President Trump was
informed of the information did not mention the identity of the country that had originally collected
the information.” See FOIA Requests at 3.
                                                 3
completed its search and informed plaintiffs that it did not identify responsive materials, and the

Department of State explained that it needed more time to complete its search. Id. ¶ 3. The parties

agreed to litigate the propriety of the Glomar responses before addressing other issues. Id. ¶ 4.

       On September 18, 2017, plaintiffs filed a motion for partial summary judgment, identifying

five statements made by President Trump, McMaster, and then-Secretary of State Rex Tillerson,

which they argued waived the agencies’ right to rely upon Glomar responses. Pls.’ Mot. at 5–13.

Defendants opposed that motion and cross-moved for partial summary judgment asserting that all

three agencies properly invoked Glomar responses under FOIA Exemptions 1 and 3 and that the

FBI response was also justified under FOIA Exemption 7. Defs.’ Cross-Mot. at 7–25. The three

agencies also argued that none of the statements plaintiffs identified constituted an official

acknowledgment of the information sought in plaintiffs’ requests. Id. at 25–30.


                                   STANDARD OF REVIEW

       Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The party seeking summary judgment “bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary

judgment, the non-moving party must “designate specific facts showing that there is a genuine

issue for trial.” Id. at 324 (internal quotation marks omitted). When the court is presented with

cross-motions for summary judgment, it analyzes the underlying facts and inferences in each




                                                  4
party’s motion in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986).

        The mere existence of a factual dispute is insufficient to preclude summary judgment. Id.,

at 247–48. A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving

party; a fact is “material” only if it is capable of affecting the outcome of the litigation. Id. at 248;

Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987).

        FOIA cases are typically and appropriately decided on motions for summary judgment.

Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In FOIA cases, the

agency bears the ultimate burden of proof. See Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142

n.3 (1989). The Court may award summary judgment based solely on information provided in an

agency’s affidavits or declarations that identify “the justifications for nondisclosure with

reasonably specific detail, demonstrate that the information withheld logically falls within the

claimed exemption, and are not controverted by either contrary evidence in the record nor by

evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.

1981). These affidavits or declarations are accorded “a presumption of good faith, which cannot

be rebutted by ‘purely speculative claims about the existence and discoverability of other

documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), quoting Ground

Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981).


                                             ANALYSIS

        FOIA requires government agencies to release records upon request in order to “ensure an

informed citizenry, vital to the functioning of a democratic society, needed to check against

corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire &

Rubber Co., 437 U.S. 214, 242 (1978). The statute provides that: “each agency, upon any request


                                                   5
for records which (i) reasonably describes such records and (ii) is made in accordance with

published rules . . . shall make the records promptly available to any person,”

5 U.S.C. § 552(a)(3)(A), unless the records fall within one of nine narrowly construed exemptions.

See 5 U.S.C. § 552(b); FBI v. Abramson, 456 U.S. 615, 630–31 (1982). This framework

“represents a balance struck by Congress between the public’s right to know and the government’s

legitimate interest in keeping certain information confidential.” Ctr. for Nat’l Sec. Studies v. DOJ,

331 F.3d 918, 925 (D.C. Cir. 2003), citing John Doe Agency v. John Doe Corp., 493 U.S. 146,

152 (1989). When an agency withholds documents or parts of documents, it must explain what it

is withholding and specify the statutory exemptions that apply. See Vaughn v. Rosen, 484 F.2d

820, 825–28 (D.C. Cir. 1973).

       In some instances, however, the government may refuse to even confirm or deny the

existence of responsive records. Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007). This is called

a “Glomar response.” Id. Such a response is appropriate when revealing the fact that an agency

possesses responsive records would itself “cause harm cognizable under [a] FOIA exception.” Id.,

quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982) (internal quotation marks omitted).

       To justify a Glomar response, the agency must supply the court with a detailed affidavit

that explains why it cannot provide a substantive response pursuant to a FOIA exemption. Elec.

Privacy Info. Ctr. v. NSA, 678 F.3d 926, 931 (D.C. Cir. 2012). To determine whether a Glomar

response “fits a FOIA exemption, courts apply the general exemption review standards established

in non-Glomar cases.” Wolf, 473 F.3d at 374.




                                                 6
I.     Defendants’ Glomar responses are justified under FOIA Exemptions 1 and 3. 3

       The FOIA requests at issue here deal with whether the President received certain “sensitive

classified information,” and whether he shared it with foreign officials.             Under those

circumstances, plaintiffs do not challenge the applicability of FOIA Exemptions 1 and 3, which

authorize government agencies to withhold information that is classified to protect national

security and information that may not be disclosed under another federal law. But since an agency

bears the burden of proving that a FOIA exemption applies, Tax Analysts, 492 U.S. at 142 n.3, and

defendants have moved for summary judgment on this issue as a matter of law, the Court will

briefly address the undisputed validity of these exemptions.

       FOIA Exemption 1 provides that matters that are “specifically authorized under criteria

established by an Executive [O]rder to be kept secret in the interest of national defense or foreign

policy and . . . are in fact properly classified pursuant to such Executive [O]rder” are exempt from

production under FOIA. 5 U.S.C. § 552(b)(1). “[I]n the FOIA context, [the D.C. Circuit has]

consistently deferred to executive affidavits predicting harm to the national security, and have

found it unwise to undertake searching judicial review.” Ctr. for Nat’l Sec. Studies, 331 F.3d at

927. “The [agency’s] arguments need only be both ‘plausible’ and ‘logical’ to justify the

invocation of a FOIA exemption in the national security context.” ACLU v. U.S. Dep’t of Def.,

628 F.3d 612, 624 (D.C. Cir. 2011) (“ACLU I”), quoting Wolf, 473 F.3d at 374–75; see

also Morley v. CIA, 508 F.3d 1108, 1124 (D.C. Cir. 2007) (“[T]he text of Exemption 1 itself

suggests that little proof or explanation is required beyond a plausible assertion that information

is properly classified.”). The D.C. Circuit has advised courts to accord substantial deference to an


3       The FBI also invoked FOIA Exemption 7(A) and 7(E). Decl. of David M. Hardy
[Dkt. # 10-2] (“FBI Decl.”) ¶¶ 33–45. Because the Court has found that its Glomar response was
proper under FOIA Exemptions 1 and 3 it need not analyze whether it was also proper under
Exemption 7.
                                                 7
agency’s Glomar response when the information requested “implicat[es] national security, a

uniquely executive purview.” Elec. Privacy Info. Ctr., 678 F.3d at 931, quoting Ctr. for Nat’l Sec.

Studies, 331 F.3d at 926–27.

       Here, the three agencies’ declarants aver that the question of whether or not these agencies

have responsive records is itself a classified fact that is protected by Executive Order and that

disclosure of this fact could pose a risk to national security. The agencies all rely on Executive

Order 13,526 which protects from disclosure classified information concerning “intelligence

activities (including covert action), intelligence sources or methods, or cryptology.” See Decl. of

David M. Hardy [Dkt. # 10-2] (“FBI Decl.”) ¶ 20, quoting Exec. Order No. 13,526 (“E.O.

13,526”), 75 Fed. Reg. 707 (Dec. 29, 2009); see also Decl. of Antoinette B. Shiner [Dkt. # 10-4]

(“CIA Decl.”) ¶ 20; Decl. of David J. Sherman [Dkt. # 10-3] (“NSA Decl.”) ¶ 22.

       As to whether the requested information could reasonably be expected to damage national

security, the FBI declarant avers:

               Specifically, an official FBI acknowledgment that confirms or denies the
               existence or nonexistence of responsive FBI records would indicate the
               FBI’s involvement in collecting, analyzing, and/or disseminating
               intelligence regarding the terror plot described in Plaintiffs’ FOIA request.
               It would also reveal the existence or nonexistence of an FBI intelligence
               interest in the May 10th meeting, as well as intelligence sources and
               methods related to the collection of intelligence from diplomatic meetings
               generally. This would reveal classified and statutorily-protected
               information.

FBI Decl. ¶ 20; see also id ¶¶ 26, 28.

       The NSA declarant similarly avers that confirming whether responsive records exist within

the agency’s files is a classified fact because disclosure “would permit the public at large to

determine information concerning the focus and direction of the NSA’s intelligence efforts, as well

as its capabilities, sources, and methods,” and it “would disclose at minimum, that [signal



                                                8
intelligence],” was or was not involved in the discussions that took place at the May 10th meeting.

NSA Decl. ¶ 9; see also id. ¶¶ 18, 26.

       Finally, the CIA declarant avers that a Glomar response is justified under Exemption 1

because:

               It would be alerting and possibly alarming for foreign countries to learn that
               CIA was somehow involved or interested in specific diplomatic meetings,
               signaling to both the diplomats and the world that there was something
               about the diplomatic meeting that warranted CIA involvement. Here, for
               example, acknowledging the existence of records responsive to [p]laintiffs’
               FOIA request would tend to reveal that CIA actually participated in the
               White House meeting with the Russian diplomats; used the meeting to
               obtain intelligence from or about the Russian officials; had an intelligence
               interest in, information about, or relationship with the Russian officials;
               and/or had an intelligence interest in the topic discussed at the meeting,
               including alleged discussions about intelligence information allegedly
               provided by Israel about an alleged terrorist threat related to the use of
               laptop computers on commercial flights.

CIA Decl. ¶ 22. And on the other hand, “if it were disclosed that CIA was not involved or

interested in a particular meeting with a foreign diplomat, then it would signal to the diplomat that

his or her activities or the topics discussed were not of interest to CIA,” which could be

“problematic if, for example, the foreign diplomat is clandestinely engaging in intelligence-related

activities because it would suggest that his or her activities have gone undetected by CIA activities,

as it would indicate.” Id.

       After examining the declarations submitted by the three agencies in support of their motion,

the Court is satisfied that they have put forth a “plausible” and “logical” argument in support of

their Glomar responses under FOIA Exemption 1. ACLU I, 628 F.3d at 624.

       Defendants also argue that the information is properly withheld under FOIA Exemption 3.

See FBI Decl. ¶¶ 31–32; NSA Decl. ¶¶ 31–36; CIA Decl. ¶¶ 27–28. FOIA Exemption 3 permits

an agency to withhold records that are “specifically exempted from disclosure by statute,”



                                                  9
provided that the statute either “requires that the matters be withheld from the public in such a

manner as to leave no discretion on the issue; or establishes particular criteria for withholding or

refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). Because each agency’s

declaration both identifies the statute that excludes the information and establishes that the

information falls within the statute’s scope, the Court finds that FOIA Exemption 3 was properly

invoked. 4 See Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978) (holding that in FOIA

Exemption 3 cases “the sole issue for decision is the existence of a relevant statute and the

inclusion of withheld material within that statute’s coverage”).


II.    Defendants have not waived their right to issue Glomar responses.

       A.      The Official Acknowledgment Doctrine

       It is well established that a FOIA plaintiff may compel disclosure of information “even

over an agency’s otherwise valid exemption claim” if the government previously “officially

acknowledged” the information. ACLU I, 628 F.3d at 620. The rationale behind the doctrine is

that once information has become public, any harm the agency fears from disclosure has already

been sustained. See Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy, 169 F.3d 16, 19 (D.C.

Cir. 1999). This is commonly referred to as an “official acknowledgment” challenge or the “public

domain exception.” See ACLU v. CIA, 710 F.3d at 422, 426–27 (D.C. Cir. 2013) (“ACLU II”)

(using the terms interchangeably).




4      The NSA points to the National Security Agency Act, 50 U.S.C. § 3605(a), the Intelligence
Reform and Terrorism Prevention Act, 50 U.S.C. § 3024(i)(1), and 18 U.S.C. § 798. See NSA
Decl. ¶¶ 32–34. The FBI and CIA both point to the National Security Act, 50 U.S.C. § 3024(i)(l)
(formerly codified at 50 U.S.C § 403-1(i)(l)). See FBI Decl. ¶¶ 31–32; CIA Decl. ¶¶ 27–28.


                                                10
       A plaintiff mounting this type of challenge “must bear the initial burden of pointing to

specific information in the public domain that appears to duplicate that being withheld.” Afshar

v. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983).

       The D.C. Circuit has established a “strict test” to be applied to claims of official disclosure.

Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011). Information is officially acknowledged by

an agency where: (1) “the information requested [is] as specific as the information previously

released,” (2) the requested information “match[es] the information previously disclosed,” and (3)

the requested information was already “made public through an official and documented

disclosure.” Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990).

       In Glomar cases, a plaintiff need not show that that the contents of the requested records

have been disclosed; rather, consistent with the nature of the exemption being invoked, the plaintiff

must establish that the agency has previously acknowledged the fact of the “existence” of

responsive records. Marino v. DEA, 685 F.3d 1076, 1081 (D.C. Cir. 2012).

       The D.C. Circuit has articulated the official acknowledgment test in Glomar cases as

follows:

               [I]f the prior disclosure establishes the existence (or not) of records
               responsive to the FOIA request, the prior disclosure necessarily matches
               both the information at issue – the existence of records – and the specific
               request for that information.

Wolf, 473 F.3d at 379 (emphasis in original). This standard has been reaffirmed by the D.C. Circuit

in subsequent Glomar cases. See Moore, 666 F.3d at 1333 (holding that a plaintiff must “pinpoint

an agency record that both matches the plaintiff’s request and has been publicly and officially

acknowledged by the agency”); see also Mobley v. CIA, 806 F.3d 568, 583 (D.C. Cir. 2015) (re-

stating the three-part Fitzgibbon official acknowledgment test).




                                                 11
       The D.C. Circuit has repeatedly emphasized the importance of applying this test narrowly,

because “the fact that information exists in some form in the public domain does not necessarily

mean that official disclosure will not cause harm cognizable under a FOIA exemption.” Wolf, 473

F.3d at 378, citing Fitzgibbon, 911 F.2d. at 766. Therefore, “[p]rior disclosure of similar

information does not suffice; instead, the specific information sought by the plaintiff must already

be in the public domain by official disclosure.” Morley, 508 F.3d at 1124 (emphasis in original).

And in cases involving FOIA Exemption 1, “[t]he insistence on exactitude recognizes ‘the

Government’s vital interest in information relating to national security and foreign affairs.’” Id.

       If a court determines that a Glomar response has been waived because the information was

previously officially acknowledged, then the government must either: “(1) disclose the record to

the requester or (2) establish that its contents are exempt from disclosure and that such exemption

has not been waived.” Moore, 666 F.3d at 1333. In other words, a failed Glomar response “does

not mark the end” of a case. ACLU II, 710 F.3d at 432. Instead, the case is remanded to the agency

to process the FOIA request and assert any exemptions to disclosure on a document-by-document

basis. Wolf, 473 F.3d at 379–80.

        B.     The Public Statements

       To overcome defendants’ Glomar responses, plaintiffs point to five public statements made

by President Trump, the National Security Advisor at the time, H.R. McMaster, and the then-

Secretary of State, Rex Tillerson.

          i.   May 15, 2017 McMaster Press Statement

       Plaintiffs first cite to remarks McMaster made at a press conference on May 15, 2017

following news reports that President Trump had allegedly disclosed sensitive classified




                                                12
information to senior Russian officials at a White House meeting on May 10, 2017. Pls.’ Mot. at

7. McMaster stated:

                 There’s nothing that the president takes more seriously than the security of
                 the American people. The story that came out tonight, as reported, is false.
                 The president and the foreign minister reviewed a range of common threats
                 to our two countries, including threats to civil aviation. At no time – at no
                 time – were intelligence sources or methods discussed. And the president
                 did not disclose any military operations that were not already publicly
                 known. Two other senior officials who were present, including the
                 secretary of state, remember it being the same way and have said so. Their
                 on-the-record accounts should outweigh those of anonymous sources. And
                 I was in the room. It didn’t happen.

Id. 5

          ii.    May 15, 2017 Tillerson Press Statement

        Next, plaintiffs note that Tillerson issued a press statement that same day, echoing

McMaster’s remarks regarding the May 10 meeting:

                 During President Trump’s meeting with Foreign Minister Lavrov a broad
                 range of subjects were discussed among which were common efforts and
                 threats regarding counter-terrorism. During that exchange, the nature of
                 specific threats were discussed, but they did not discuss sources, methods
                 or military operations.

Pls.’ Mot. at 7. 6

         iii.    May 16, 2017 Statements by the President on Twitter

        Plaintiffs also rely on a two-part tweet about the May 10 meeting which the President

posted on May 16, 2017:


5       Citing, Aaron Blake, The White House isn’t denying that Trump gave Russia classified
information — not really, Wash. Post (May 15, 2017), https://www.washingtonpost.com/news/
the-fix/wp/2017/05/15/the-white-house-isnt-denying-that-trump-gave-russia-classified-
information-not-really/?utm_term=.42063524b636.

6      Citing, Michelle Kosinski & Nicole Gaouette, State Dept. left in the dark about Tillerson
statement on Post’s Trump report, CNN (May 15, 2017, 9:05 PM), https://www.cnn.com/2017/
05/15/politics/tillerson-statement-trump/index.html.
                                                  13
                As President I wanted to share with Russia (at an openly scheduled W.H.
                meeting) which I have the absolute right to do, facts pertaining . . .

                                            ***

                . . . to terrorism and airline safety. Humanitarian reasons, plus I want Russia
                to greatly step up their fight against ISIS & terrorism.

Pls.’ Mot. at 7–8. 7

         iv.    May 16, 2017 McMaster Press Conference

        Plaintiffs point to the statements McMaster made at another press briefing on May 16, 2017

that was reported on by NBC news. Pls.’ Mot. at 8. 8 The online article plaintiffs cite to includes

a video clip of the press conference in which a news reporter asked McMaster, “Are you denying

that he revealed information that was given to the U.S. by an intelligence partner?” NBC article.

McMaster responded:

                So what we don’t do is discuss what is and isn’t classified. What I will tell
                you, is in the context of that discussion, what the President discussed with
                the foreign minister was wholly appropriate to that conversation and is
                consistent with the routine sharing of information between the President and
                any leaders with whom he’s engaged.

Id.

        When pressed on the same point, McMaster replied, “I’m not going be the one to confirm

that sort of information that could jeopardize, that could jeopardize our security.” Id. The reporter

then asked whether McMaster was concerned that other intelligence partners would stop sharing



7       Citing, Peter Baker & Julie Hirschfeld Davis, Trump Defends Sharing Information on ISIS
Threat With Russia, N.Y. Times (May 16, 2017), https://www.nytimes.com/2017/05/16/
us/politics/trump-intelligence-russia-classified.html?_r=0 (featuring the President’s two-part
tweet) (“N.Y. Times Article”).

8       Citing, Ali Vitali & Ken Dilanian, National Security Advisor McMaster: Trump’s
Revelations to Russians ‘Wholly Appropriate’, NBC News (May 16, 2017, 3:54 PM),
https://www.nbcnews.com/politics/white-house/national-security-adviser-mcmaster-trump-s-
revelations-russians-wholly-appropriate-n760136 (“NBC Article”).
                                                  14
information with the United States. Id. McMaster responded, “No I am not concerned at all. That

conversation was wholly appropriate to the conversation. And I think wholly appropriate what the

expectations are of our intelligence partners.” Id.

       Aside from the video clip, the news article also attributes the following quotes to McMaster

regarding the May 10 meeting:

           •   “I was in the room, the Secretary of State was in the room, as you know, the
               deputy adviser for national security, Dina Powell, and none of us felt in any
               way that conversation was inappropriate.”

           •   “[The President] wasn’t aware of where this came from. He wasn’t briefed
               on the source of this information.”

Id.

       The article also reports that McMaster confirmed that President Trump disclosed the city

in ISIS-held Syria where the intelligence emanated from and quotes McMaster saying, “It was

nothing that you would not know from open-source reporting.” Id. Finally, the article states that

Homeland Security Adviser Tom Bossert reached out to the CIA and NSA in the aftermath of the

May 10 meeting. Id. The news article quotes McMaster saying that Bossert likely did so out of

“an overabundance of caution,” although the next line of the article reports that McMaster added

that he did not know why Bossert reached out. Id.

         v.    May 22, 2017 President Trump Press Statement

       Finally, plaintiffs point to a May 22, 2017 statement President Trump made while at a press

appearance in Israel. Pls.’ Mot. at 8. Following news reports that Israel was the intelligence

partner that provided the classified information President Trump allegedly shared with the

Russians during the May 10 meeting, the President said:

               I never mentioned the word or the name Israel. Never mentioned it during
               our conversation.


                                                15
Id. 9

        C.     Plaintiffs have not met the strict official acknowledgment test.

        In their FOIA request, plaintiffs sought three categories of records. The first item called

for records “memorializing the contents of the discussion between President Trump and the two

Russian Government officials in the Oval Office on May 10, 2017.” See FOIA Requests at 2.

None of the statements made by President Trump, McMaster, or Tillerson explicitly acknowledge

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 record related to the May 10 meeting, much

less the “transcripts or notes” plaintiffs specifically requested. Id.

        The McMaster and Tillerson statements from May 15, and the President’s tweet on May

16, simply describe the meeting with the Russians in very broad terms. At most, they confirm that

the meeting took place and that common threats, including issues related to civil aviation and ISIS

were discussed. While the President appeared to acknowledge in his May 16 tweet that he

communicated with the Russians about “terrorism and airline safety,” N.Y. Times Article, and he

later denied rumors that he had mentioned “Israel,” ABC Article, his statements do not necessarily

confirm the existence of records memorializing the May 10 conversation, and they certainly do

not reveal or imply that any of the three agencies created or retain such records.

        On May 16, McMaster provided another general overview, characterizing the President’s

disclosures as “wholly appropriate.” See NBC Article. The press report from that date reflects

that he added a little more detail, as he disclosed that his Deputy Advisor for National Security,

Dina Powell, as well as then-Secretary of State, Rex Tillerson, were in the room. Id. While these



9       Citing, Katherine Faulders et. al., Trump: ‘I never mentioned’ Israel to Russian officials in
Oval Office Meeting, ABC News (May 22, 2017, 2:12 PM), https://abcnews.go.com/
Politics/trumpmeet-israeli-palestinian-leaders-separately/story?id=47545023 (“ABC Article”).
                                                  16
statements may provide grist for speculation that the State Department or the Executive Office of

the President memorialized the meeting in some way, they do not expressly acknowledge that

possibility, and they do not bear on the agencies at issue here.

       The only specific reference to any of the agencies advancing the Glomar response was

made when McMaster reportedly confirmed in the May 16, 2017 press conference that Homeland

Security Adviser Tom Bossert had reached out to the CIA and NSA following the May 10 meeting

out of a “an overabundance of caution.” NBC Article. McMaster added that he did not know why

Bossert contacted the agencies. This vague acknowledgment of some type of post-meeting

communication between Bossert and the CIA and NSA does not expressly mention any particular

record, nor does it reveal – explicitly or implicitly – that either of the agencies retains records

memorializing the May 10 meeting. So the claimed official acknowledgments do not match the

first item of plaintiffs’ FOIA requests. See Wolf, 473 F.3d at 378–79.

       Plaintiffs argue that the individual agencies’ Glomar responses are unsustainable because

“the U.S. Government writ large . . . has already acknowledged its obvious interest in the May 10,

2017 Oval Office meeting.” Pls.’ Reply in Supp. of Mot. [Dkt. # 11] (“Pls.’ Reply”) at 5. They

submit – based simply on the fact that the meeting occurred – that surely some documents must

exist. Id. And they posit that the NSA, FBI, and CIA must possess those documents given the

sensitive nature of the topics discussed and the fact that the CIA and NSA are intelligence agencies,

and the FBI is the “country’s law enforcement agency.” Pls.’ Mot. at 11; Pls.’ Reply at 5. But

that, of course, does not begin to meet the “strict” official acknowledgment test, which demands

that the information disclosed “match[ ]” plaintiffs’ request. Moore, 666 F.3d at 1333.

       FOIA does not treat the executive branch as a unified entity, and not one of the public

statements proffered by the plaintiffs touches upon the FBI in any way. Nor does any statement



                                                 17
confirm any relationship between the CIA or the NSA and the meeting. 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” had an “interest” in

a matter that came up at the meeting. See Wolf, 473 F.3d at 379; Morley, 508 F.3d at 1124. 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. Morley, 508 F.3d at 1124. Because plaintiffs have failed to meet that burden, the Court

finds that none of the public statements constitute official acknowledgments that waived

defendants’ Glomar responses to the requests related to the May 10 meeting.

       With respect to the second and third items in the FOIA requests, both call for records

related to information that may have been transmitted, or a briefing that may have occurred, prior

to the President’s May 10 meeting with the Russian officials. See FOIA Requests at 2. But none

of the public statements expressly acknowledge the existence of records concerning a pre-meeting

briefing or, more important, any role played by the three agencies advancing the Glomar responses.

       While a news account of McMaster’s May 16, 2017 press conference reported that the

National Security Advisor confirmed that the President had named the city in Syria from which

the intelligence he shared emanated, it also noted that McMaster added, “[i]t was nothing that you

would not know from open-source reporting.” NBC Article. McMaster is quoted as saying that

the President “wasn’t aware of where this came from. He wasn’t briefed on the source of this

information.” Id.

       Plaintiffs infer from this statement that a briefing must have taken place: “[i]t borders on

axiomatic that Mr. McMaster’s statements that President Trump had not been briefed on the

identity of the intelligence-gathering partner also stands for the idea that President Trump had been



                                                 18
briefed (in some manner) in advance of the May 10, 2017, meeting.” Pls.’ Mot. at 11. (emphasis

in original). Maybe so. But that is not the point. Even if one were to draw an inference from this

isolated statement that that the President was “briefed” about something, McMaster’s description

of the limits of the President’s knowledge does not open the door to a fishing expedition into

which, if any, of the three defendant agencies that has raised undisputed national security concerns

participated in a briefing, or created or retained materials related to its subject matter. That is

precisely the information the agencies have plausibly argued is exempt, and McMaster’s denial

has not in any way exposed it to public view.

       Because none of the public statements expressly acknowledge the existence of a pre-

meeting briefing, much less that these agencies may possess specific documents that were relied

upon or were generated as a part of it, the Court finds that the public statements do not “match”

the second and third items of the FOIA request either. See Wolf, 473 F.3d at 378.

       In an effort to forestall the entry of judgment in the defendants’ favor, plaintiffs argue that

the D.C. Circuit’s ruling in ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013) relaxed the official

acknowledgment test and established some “latitude” in Glomar cases. Pls.’ Reply at 2. Plaintiffs

misconstrue the narrow holding in ACLU II and ignore subsequent precedent that reaffirms the

strict application of the “matching” and “specificity” requirements of the official acknowledgment

doctrine in the Glomar context. While the Court in ACLU II did infer the existence of records,

even when none were expressly mentioned in the public statements themselves, it did so based on

a narrow set of circumstances that are not applicable here. 710 F.3d at 430.

       In ACLU II, the plaintiffs sought the release of records from the CIA regarding the

operation of drones by the CIA and the Armed Forces. 710 F.3d at 425. The agency issued a

Glomar response in order to avoid confirming or denying whether the agency had an “interest” in



                                                 19
drones. Id. at 427. 10 In rejecting the Glomar approach, the Court pointed to a number of

statements, including comments made by the President and a national security advisor, as well as

a speech made by the Director of the CIA. Id. at 429–31. Based on that combination of public

revelations, it concluded that the government had already disclosed enough to demonstrate that it

must be in possession of responsive records. Id. at 430

       The Court placed particular emphasis on public statements made by the CIA itself. It found

that contrary to the agency’s assertions, the CIA had already disclosed its “interest” in drones:

               [T]he Director spoke directly about the precision of targeted drone strikes,
               the level of collateral damage they cause, and their usefulness in comparison
               to other weapons and tactics. Given those statements, it is implausible that
               the CIA does not possess a single document on the subject of drone strikes.
               Unless we are to believe that the Director was able to “assure” his audience
               that drone strikes are “very precise and . . . very limited in terms of collateral
               damage” without having examined a single document in his agency’s
               possession, those statements are tantamount to an acknowledgment that the
               CIA has documents on the subject.
Id. at 431. Thus, under those unique circumstances, the Court found that it was “neither logical

nor plausible to maintain that the Agency does not have any documents relating to drones.” Id.

(internal quotation marks omitted).

       Here, by contrast, 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 the plaintiffs reveal their

involvement in the meeting, or in preparing for the meeting. Therefore, the Court finds that it is

entirely plausible that either confirming or denying whether the NSA, FBI, or CIA have an interest

or involvement in the May 10 meeting could reasonably damage national security notwithstanding



10       The CIA also issued the Glomar response to avoid disclosing whether it had an
“involvement” in drone strikes. ACLU II, 710 F.3d at 427. The Court rejected this part of its
justification by concluding that the agency had “proffered no reason to believe that disclosing
whether it has any documents at all about drone strikes will reveal whether the Agency itself – as
opposed to some other U.S. entity such as the Defense Department – operates drones.” Id. at 428.
                                                  20
the general accounts of the meeting made by other public officials. See Fitzgibbon, 911 F.2d at

763, quoting Gardels, 689 F.2d at 1106 (“We must take into account . . . that each individual piece

of intelligence information, much like a piece of jigsaw puzzle, may aid in piecing together other

bits of information.”).

       Moreover, since ACLU II, the D.C. Circuit has reaffirmed the need to satisfy both the

specificity and matching requirements in the Glomar context. In Mobley, a Glomar case, the D.C.

Circuit re-stated that a “three-part test determines whether an item is ‘officially acknowledged,’”

and it went on to quote the matching and specificity requirements articulated in Fitzgibbon. 806

F.3d at 583. Plaintiffs’ suggestion that ACLU II upended the long-standing requirements of the

official acknowledgment doctrine is therefore without legal support.

                                         CONCLUSION

       The Court will grant defendants’ motion for partial summary judgment because the

agencies supported their Glomar responses under FOIA Exemption 1 and 3 with uncontroverted

declarations, and significant deference is given to agencies when the information requested

implicates national security. See Elec. Privacy Info. Ctr., 678 F.3d at 931. Because plaintiffs have

not supplied any statements that constitute official acknowledgments of the existence of the

records requested, the Glomar responses issued by the CIA, NSA, and FBI will stand and the Court

will deny plaintiffs’ motion for partial summary judgment.

       A separate order will issue.




                                              AMY BERMAN JACKSON
                                              United States District Judge

DATE: September 26, 2018

                                                21
