Project for Privacy and Surveillance Accountability, Inc. v. U.S. Dep’t of Justice, No. 21-CR-2362 RC, (D.D.C. Sept. 29, 2022)

PPSA sued under FOIA for access to communications between the FBI and Congress re: unmasking of members of Congress. FBI issued a Glomar response and refused to provide the documents under FOIA exemptions 1, 3, 6, 7(C) and 7(E). Under Knight First Amend. Inst. At Columbia Univ. v. CIA, 11 F.4th 810 (D.C. Cir. 2021), an agency “waives any right to a Glomar response by disclosing whether responsive records exist.” PPSA cited to the Gates Procedure and the 2020 memo from then-Acting DNI Richard Grenell that contained names of 16 federal officials who sought to unmask ID of Lt. Gnl. Michael Flynn Nov. 2016 - Jan. 2017. Court observed Grenell memo said nothing about members of Congress. While Gates Procedures were closer (they require Congress to be notified in writing re: congressional unmasking, and DNI has publicly acknowledged that it occasionally occurs), they didn’t waive the FBI’s Glomar response: Gates Procedures non-specific as to which agency has communications with Congress re: unmasking, and even if FBI engages in congressional unmasking, doesn’t confirm that FBI possesses communications with Congress about it—so Glomar response was not waived. On the merits, the Court found Glomar appropriate as to some documents (i.e., “operational documents”) but FBI required to conduct a further search for “policy documents”, which were squarely within the FOIA request. DOJ motion for summary judgment granted in part / denied in part; PPSA’s cross-motion for summary judgment denied