Lindsey v. Federal Bureau of Investigation

MOTION for Summary Judgment

D.D.C.January 27, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant Federal Bureau of Investigation (“FBI”),1 by and through its undersigned counsel, respectfully submits this memorandum of points and authorities in support of its motion for summary judgment pursuant to Federal Rule of Civil Procedure (“Rule”) 56(b), to enter summary judgment in favor of Defendant on claims brought by David Austin Lindsey (“Plaintiff”), as no genuine issue of material fact exists and Defendant is entitled to judgment as a matter of law. 1 The FBI is a component of the U.S. Department of Justice and can be sued under the FOIA in its own name. See Peralta v. U.S. Attorney’s Office, 136 F.3d 169 (D.C. Cir. 1998). DAVID AUSTIN LINDSEY, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, Defendant. ) ) ) ) ) ) ) ) ) ) C.A. No. 1:16-cv-02032 (CKK) Case 1:16-cv-02032-CKK Document 10 Filed 01/27/17 Page 1 of 3 2 In support of this motion, Defendant respectfully refers the Court to the accompanying statement of material facts not in dispute and Memorandum of Points and Authorities with exhibits attached thereto. A proposed order consistent with this motion is attached hereto. Respectfully submitted, CHANNING D. PHILLIPS UNITED STATES ATTORNEY D.C. BAR NUMBER 415793 DANIEL F. VAN HORN, D.C. Bar No. 924092 Chief, Civil Division /s/ RHONDA L. CAMPBELL, D.C. Bar No. 462402 Assistant United States Attorneys Civil Division 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2559 Rhonda.campbell@usdoj.gov Counsel for United States Case 1:16-cv-02032-CKK Document 10 Filed 01/27/17 Page 2 of 3 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ORDER Upon consideration of Defendant’s Motion for Summary Judgment and Memorandum in Support, it is hereby ORDERED that Defendant’s Motion is GRANTED; ORDERED that Plaintiff=s Motion for Summary Judgment is DENIED. Dated this ____ day of ____, 2017. ____________________________________ JUDGE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DAVID AUSTIN LINDSEY, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, Defendant. ) ) ) ) ) ) ) ) ) ) C.A. No. 1:16-cv-02032 (CKK) Case 1:16-cv-02032-CKK Document 10 Filed 01/27/17 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant Federal Bureau of Investigation (“FBI”),1 by and through its undersigned counsel, respectfully submits this memorandum of points and authorities in support of its motion for summary judgment pursuant to Federal Rule of Civil Procedure (“Rule”) 56(b). PRELIMINARY STATEMENT Plaintiff, David Austin Lindsey (“Plaintiff”), brings this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as amended, seeking to compel the FBI to produce certain records regarding contact between Imad Hage and U.S. government officials. (Pl’s Compl., ECF No. 1). Plaintiff asserts in his FOIA request that the records should be produced because of an overriding public interest in knowing the relationship between “Imad Hage and U.S. government officials.” (See Exhibit A (attached hereto)). To prevail on a FOIA claim, the Plaintiff must demonstrate the agency in question: (1) improperly (2) withheld (3) agency records. Mingo v. DOJ, 793 F.Supp.2d 447, 452 (D.D.C. 2011). 1 The FBI is a component of the U.S. Department of Justice and can be sued under the FOIA in its own name. See Peralta v. U.S. Attorney’s Office, 136 F.3d 169 (D.C. Cir. 1998). DAVID AUSTIN LINDSEY, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, Defendant. ) ) ) ) ) ) ) ) ) ) C.A. No. 1:16-cv-02032 (CKK) Case 1:16-cv-02032-CKK Document 10-1 Filed 01/27/17 Page 1 of 17 2 Here, the FBI properly refused to confirm or deny the existence of records pertaining to the third party, which would be exempt from disclosure pursuant to FOIA Exemptions 6 and 7(C), and he therefore fails to overcome the FBI’s Glomar response as well as Exemption 6 and 7(C)’s protection for personal privacy. See 5 U.S.C. §§ 552(b)(6) and (7)(C). Accordingly, the FBI moves for summary judgment because as demonstrated below and set forth in the accompanying Declaration of David M. Hardy (“Hardy Decl.”), the Section Chief of the Record/Information Dissemination Section (“RIDS”), Records Management Division (“RMD”), of the Federal Bureau of Investigation (“FBI”), in Winchester, Virginia, the response to Plaintiff’s FOIA request was proper and because there is no genuine issue of material fact, Defendant is entitled to judgment as a matter of law. Accordingly, summary judgment should be entered in favor of Defendant. BACKGROUND On May 18, 2016, Plaintiff submitted a FOIA request to the FBI seeking access to “all FBI records of contact between Imad Hage and U.S. government officials.” Plaintiff alleged that existence of these contacts as well as an investigation of Mr. Hage have been “extensively discussed in the media.” (See Exhibit A.) On May 18, 2016, the RMD Public Information Officer (“PIO”) acknowledged receipt of plaintiff’s request and advised plaintiff his request concerned third-party records and the FBI required one of the following to further process Plaintiff’s request: 1) express authorization and consent from the third-party individual whose records are sought, 2) proof of death for the third- party subject, or 3) a clear demonstration that the public interest in disclosure outweighs the privacy interest of the third-party. The FBI enclosed a Certification of Identity form, to be completed by the subject of the request. Also, the FBI advised Plaintiff his request for a fee Case 1:16-cv-02032-CKK Document 10-1 Filed 01/27/17 Page 2 of 17 3 waiver would be addressed at a later date. (See Exhibit B (attached hereto)). On June 6, 2016, the FBI advised plaintiff it assigned his request FOIPA Request No. 1351152, and absent express authorization and consent from the third-party individual whose records are sought, proof of death for the third-party, or a clear demonstration that the public interest in disclosure outweighs the privacy interest of the third-party, the “FBI can neither confirm nor deny the existence of any records responsive to his request, which, if they were to exist, would be exempt from disclosure pursuant to FOIA Exemptions (b)(6) and (b)(7)(C).” The FBI enclosed a Certification of Identity form (“Privacy Waiver”), to be completed by the subject of the request. The FBI notified plaintiff of his right to appeal the FBI’s decision to the Department of Justice (“DOJ”) Office of Information Policy (“OIP”) within sixty (60) days from the date of its letter. (See Exhibit C (attached hereto)). June 10, 2016, by facsimile, Plaintiff alleged that there is “overwhelming public interest in disclosure of [the] records” he seeks from the FBI. While the original request (Exhibit A) was a request for “all” records of contact between Mr. Hage and U.S. Government officials, this letter narrows the request to only include records of contacts “related to back channel Iraqi peace proposals.” (See Exhibit D (attached hereto)). June 23, 2016, the FBI advised Plaintiff he had not demonstrated sufficient public interest in disclosure of the records he seeks. Again issuing a privacy Glomar response, the FBI informed plaintiff that, absent express authorization and consent from the third-party individual whose records are sought, the FBI can neither confirm nor deny the existence of any records responsive to plaintiff’s request, and informed plaintiff that if such records were to exist, they would be exempt from disclosure pursuant to FOIA Exemptions (b)(6) and (b)(7)(C). The FBI again enclosed a Privacy Waiver, to be completed by the subject of the request. The FBI notified Case 1:16-cv-02032-CKK Document 10-1 Filed 01/27/17 Page 3 of 17 4 plaintiff of his right to appeal the FBI’s decision to OIP within sixty (60) days from the date of its letter. (See Exhibit E (attached hereto)). On July 20, 2016, through OIP’s online portal, plaintiff appealed the FBI’s denial. Plaintiff states that the appeal is limited “solely to information about peace proposals related to the Iraq conflict.” (See Exhibit F (attached hereto)). On July 20, 2016, OIP acknowledged that it received plaintiff’s appeal and assigned it appeal number AP-2016-004293. (See Exhibit G (attached hereto)). On September 5, 2016, OIP informed plaintiff that it had affirmed the FBI’s action on this FOIA request, stating that “[t]he FBI properly refused to confirm or deny the existence of records responsive to your request. Without consent, proof of death, official acknowledgment of an investigation, or an overriding public interest, confirming or denying the existence of such records, including law enforcement records, concerning an individual would constitute a clearly unwarranted invasion of personal privacy.” (See Exhibit H (attached hereto)). On October 12, 2016, plaintiff filed the present lawsuit against the FBI in the United States District Court for the District of Columbia, challenging the FBI’s response to its FOIA request. (See ECF No. 1) I. STANDARD OF REVIEW A. Summary Judgment Pursuant to Rule 56 On a motion for summary judgment under Rule 56 of the Federal Rules, “[t]he inquiry performed is the threshold inquiry of determining whether there is a need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Summary judgment “should be rendered if the pleadings, Case 1:16-cv-02032-CKK Document 10-1 Filed 01/27/17 Page 4 of 17 5 the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002). A material fact is one that is capable of affecting the outcome of the litigation. Anderson, 477 U.S. at 248. A genuine issue is one where the “evidence is such that a reasonable jury could return a verdict for the nonmoving party,” id., as opposed to evidence that “is so one-sided that one party must prevail as a matter of law.” Id. at 252. “The burden on the moving party may be discharged by ‘showing’ - that is, pointing out to the [Court] - that there is an absence of evidence to support the non- moving party’s case.” Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833 F.2d 1560, 1563 (Fed. Cir. 1987). A court considering a motion for summary judgment must draw all “justifiable inferences” from the evidence in favor of the nonmovant. Id. at 255. The nonmoving party, however, must do more than simply “show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the nonmovant must “come forward with ‘specific facts showing that there is a genuine issue for trial.’” Id. at 587 (citing Fed. R. Civ. P. 56(e)) (emphasis in original). In Celotex Corp. v. Catrett, the Supreme Court held that, in responding to a proper motion for summary judgment, the party who bears the burden of proof on an issue at trial must “make a sufficient showing on an essential element of [his] case” to establish a genuine dispute. 477 U.S. 317, 322-23 (1986). In Anderson, the Supreme Court further explained that “the mere existence of a scintilla of evidence in support of the Plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the Plaintiff.” Anderson, 477 U.S. at 252; see also Laningham v. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (the non-moving Case 1:16-cv-02032-CKK Document 10-1 Filed 01/27/17 Page 5 of 17 6 party is “required to provide evidence that would permit a reasonable jury to find” in its favor). In Celotex, the Supreme Court further instructed that the “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’” 477 U.S. at 327 (quoting Fed. R. Civ. P. 1). In the end, “the plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. B. Summary Judgment is the Appropriate Mechanism for Resolving a FOIA Claim The FOIA provides that a federal court “has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). The Supreme Court has held that a court’s authority to ensure private access to requested materials “is dependent upon a showing that an agency has (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records’.” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980); see also Forsham v. Harris, 445 U.S. 169, 177 (1980). Acknowledging that “[t]he FOIA represents a carefully balanced scheme of public rights and agency obligations designed to foster greater access to agency records than existed prior to its enactment,” the Court held that federal judicial authority to “devise remedies and enjoin agencies” is limited to those situations where the “agency has contravened all three components of this obligation.” Kissinger, 445 U.S. at 151; accord Kuffel v. U.S. Bureau of Prisons, 882 F.Supp. 1116, 1120 (D.D.C. 1995). FOIA does not allow the public to have unfettered access to government files. McCutchen v. U.S. Dep’t of Health and Human Services, 30 F.3d 183, 184 (D.C. Cir. 1994). Case 1:16-cv-02032-CKK Document 10-1 Filed 01/27/17 Page 6 of 17 7 Although disclosure is the dominant objective of FOIA, there are several exemptions to the statute’s disclosure requirements. Dep’t of Defense v. FLRA, 510 U.S. 487, 494 (1994). To protect materials from disclosure, the agency must show that they come within one of the FOIA exemptions. Public Citizen Health Research Group v. FDA, 185 F.3d 898, 904 (D.C. Cir. 1999). The summary judgment standards set forth above also apply to FOIA cases, which are typically decided on motions for summary judgment. See Cappabianca v. Commissioner, U.S. Customs Service, 847 F. Supp. 1558, 1562 (M.D. Fla. 1994) (“once documents in issue are properly identified, FOIA cases should be handled on motions for summary judgment”) (citing Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993)). For purposes of summary judgment in a FOIA matter, an agency’s decision to withhold information from a FOIA requester is subject to de novo review by the courts. Hayden v. National Security Agency Cent. Sec. Serv., 608 F.2d 1381, 1384 (D.C. Cir. 1979), cert. denied, 446 U.S. 937 (1980). Summary judgment is appropriate in a FOIA action, such as the instant case, where the pleadings, together with the declarations, demonstrate that there are no material facts in dispute and the requested information has been produced or is exempted from disclosure, and the agency, as the moving party, is entitled to judgment as a matter of law. Fed. R Civ. P. 56(c); Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001); Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). An agency can satisfy the summary judgment requirements in a FOIA case by providing the Court and the Plaintiff with reasonably detailed, nonconclusory affidavits or declarations and other evidence which show that the documents in question were produced or are exempt from disclosure. Hayden v. NSA, 608 F.2d 1381, 1384, 1386 (D.C. Cir. 1979), cert. denied, 446 U.S. 937 (1980); Church of Scientology v. U.S. Dep’t of Army, 611 F.2d 738, 742 (9th Cir. 1980); Case 1:16-cv-02032-CKK Document 10-1 Filed 01/27/17 Page 7 of 17 8 Trans Union LLC v. FTC, 141 F. Supp. 2d 62, 67 (D.D.C. 2001) (summary judgment in FOIA cases may be awarded solely on the basis of agency affidavits “when the affidavits describe ‘the documents and the justifications for non-disclosure 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.’”) (quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)); see also Public Citizen, Inc. v. Dept. of State, 100 F. Supp. 2d 10, 16 (D.D.C. 2000), af f’d in part, rev’d in part, ,276 F.3d 634 (D.C. Cir. 2002). Typically, the agency's declarations or affidavits are referred to as a Vaughn declaration or index, after the case of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). There is no set formula for a Vaughn index. “[I]t is well established that the critical elements of the Vaughn index lie in its function, and not in its form.” Kay v. FCC, 976 F. Supp. 23, 35 (D.D.C. 1997). The purpose of a Vaughn declaration and index is “to permit adequate adversary testing of the agency's claimed right to an exemption.” NTEU v. Customs, 802 F.2d 525, 527 (D.C. Cir. 1986) (citing Mead Data Central v. United States Dept. of the Air Force, 566, F.2d 242, 251 (D.C. Cir. 1977), and Vaughn, 484 F.2d at 828). Thus, the declaration or index must contain “an adequate description of the records” and “a plain statement of the exemptions relied upon to withhold each record.” NTEU, 802 F.2d at 527 n.9. Here, the FBI has submitted a detailed declaration in support of this motion for summary judgment. The declaration meets the Vaughn requirements, and provides the Court with the requisite basis and sufficient detail to grant Defendant’s motion for summary judgment. Case 1:16-cv-02032-CKK Document 10-1 Filed 01/27/17 Page 8 of 17 9 II. ARGUMENT A. The FBI PROPERLY ASSERTED THE GLOMAR RESPONSE The FBI properly refused to deny or confirm the existence of records pertaining to a third-party that would be exempt from disclosure pursuant to FOIA Exemptions 6 and 7(C). The FBI issued a Glomar response because to acknowledge the existence of records would reveal personal information that the FOIA exemptions are intended to protect. See, e.g., Larson v. Dep’t of State, 565 F.3d 857, 861 (D.C. Cir. 2009); Roth, 642 F.3d at 171-72. The response is in recognition that in some circumstances a FOIA request can by its very terms be limited to privacy-sensitive information pertaining to an identified individual or is necessary to protect the privacy interest of individuals who are named in investigatory records. In such cases, redaction alone would not be adequate to protect the personal privacy interests at stake. The FBI explains in its declaration that FBI long standing policy has been to neither confirm nor deny the existence of records pursuant to 5 U.S.C. § 552(b)(6) and (b)(7)(C)2 (“Glomar”), where a requester seeks access to information regarding a third party but fails to provide a privacy waiver from the third party or proof of death of that third party. (Hardy Decl. ¶ 14). 2 5 U.S.C. § 552 (b)(6) exempts from disclosure personnel and medical files and similar files when the disclosure of such information would constitute a clearly unwarranted invasion of personal privacy. Similarly, 5 U.S.C. § 552 (b)(7)(C) exempts from disclosure records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy. The practice of the FBI is to assert Exemption (b)(6) in conjunction with Exemption (b)(7)(C). Although the balancing test for Exemption (b)(6) uses a “would constitute a clearly unwarranted invasion of personal privacy” standard, and the test for Exemption (b)(7)(C) uses the lower standard of “could reasonably be expected to constitute an unwarranted invasion of personal privacy,” the analysis and balancing required by both exemptions is sufficiently similar to warrant a consolidated discussion. The privacy interests are balanced against the public’s interest in disclosure under the analysis of both exemptions. (Hardy Decl. ¶ 14, Ftnt. 2). Case 1:16-cv-02032-CKK Document 10-1 Filed 01/27/17 Page 9 of 17 10 The FBI defends its response under FOIA Exemptions 6 and 7(C). As a preliminary matter, the documents sought, whether they exist or not, are appropriately classified under these exemptions. Plaintiff seeks FBI files relating to an alleged relationship between “Imad Hage and U.S. government officials. FOIA Exemption 6 exempts disclosure of information contained in “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy.” 5 U.S.C. § 552(b)(6). Here, it is clear that the information sought would fall within the category of “personnel files.” See Dep’t of the Air Force v. Rose, 425 U.S. 352 (1976); Washington Post Co. v. U.S. Dep’t of Health, 690 F.2d 252, 264 (D.C. Cir. 1982). Exemption 7(C) exempts from disclosure “records and information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information … could reasonably be expected to constitute an unwarranted invasion of personal privacy.” While it is noted that “FBI records are not law enforcement records [under FOIA] simply be virtue of the function that the FBI services,” (Vymetalkic v. FBI, 785 F.2d 1090, 1095 (D.C. Cir. 1986)), the records sought on the third-party could be related to an FBI investigation, thus 7(C) was properly asserted here. See Stern v. Federal Bureau of Investigation, 737 F.2d 84, 91 (D.C. Cir. 1984). B. Defendants are Entitled to Summary Judgment on Plaintiff’s FOIA Claim as No Issue of Material Fact Remains as to the Withholding of Information under FOIA Exemptions (b)(6) and (b)(7)(C) 1. Exemption 6 The purpose of Exemption 6 is to “protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information.” United States Dep’t of State v. Washington Post Co., 456 U.S. 595, 599 (1982). Exemption 6 protects “personnel or medical files and similar files the disclosure of which constitute a clearly unwarranted invasion Case 1:16-cv-02032-CKK Document 10-1 Filed 01/27/17 Page 10 of 17 11 of personal privacy.” 5 U.S.C. § 552 (b)(6). The Supreme Court has interpreted Exemption 6 broadly, making clear that the statutory language files “similar” to personnel or medical files encompasses any “information which applies to a particular individual.” Washington Post Co, 456 U.S. at 602. See also New York Times Co. v. NASA, 920 F.2d 1002, 1005 (D.C. Cir. 1990) (finding voice tapes from the shuttle Challenger to be “similar files”). Highly personal information has been held to be exempt from disclosure under FOIA Exemption 6. See e.g. National Archives and Records Admin. v. Favish, 541 U.S. 157 (2004) (photographs of the suicide of Deputy White House Counsel Vincent Foster). See also Dep’t of Defense v. FLRA, 510 U.S. 487, 497 (1994) (addresses); United States Dep’t of State v. Ray, 502 U.S. 164, 175-76 (1991) (names and addresses, marital and employment status, information regarding children); Washington Post, 456 U.S. at 602 (passport information); Judicial Watch, Inc. v. United StatesDep’t of Commerce, 83 F. Sup. 2d 105, 112 (D.D.C. 1999) (date of birth, visa, and passport data); Church of Scientology v. Dep’t of the Army, 611 F.2d 738, 747 (9th Cir. 1979) (religious affiliation). Once across the low threshold that information at issue “applies to a particular individual,” the analysis shifts to whether disclosure of the information at issue “would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). This requires a balancing of the public’s interest in disclosure against the privacy interest in non-disclosure. See FLRA, 510 U.S. at 495; Dep’t of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 776 (1989); Dep’t of the Air Force v. Rose, 425 U.S. 352, 372 (1976). The plaintiff bears the burden of establishing that disclosure of personal information would serve a cognizable public interest. Carter v. United States Dep’t of Commerce, 830 F.2d 388, 391 n.13 (D.C. Cir. 1987). The “simple invocation of a legitimate public interest . . .cannot itself justify the release of Case 1:16-cv-02032-CKK Document 10-1 Filed 01/27/17 Page 11 of 17 12 personal information. Rather, a court must first ascertain whether that interest would be served by disclosure.” Hopkins v. HUD, 929 F.2d 81, 88 (2 Cir. 1991); see also Carter, 830 F.2d at 391 and n.13 (establishing public interest is the requester’s burden). The “only relevant public interest to be weighed in this balance is the extent to which disclosure would serve the core purpose of FOIA, which is contribut[ing] significantly to public understanding of the operations or activities of the government.” FLRA, 510 U.S. at 495-96. (internal citation and quotation marks omitted). Exemptions 6 and 7 do not create blanket exemptions; rather a balancing of private and public interests is required. To determine whether records are exempt from disclosure under Exemptions 6 or 7(C), a court “ ‘must balance the individual’s right of privacy’ against the basic policy of opening ‘agency action to the light of public scrutiny.’ ” U.S. Dep’t of State v. Ray, 502 U.S. 164, 175 (1991) (quoting Rose, 425 U.S. at 372). With respect to privacy concerns, the requesting party must show a “sufficient reason for the disclosure.” Favish, 541 U.S. at 172. Where, as here, the asserted public interest is government misconduct, the FOIA requester must “establish more than a bare suspicion” of misconduct. Favish, 541 U.S. at 174. Rather, “the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.” Id. Only if the requester meets this threshold set forth in Favish¸ is the Court then required to balance Plaintiff’s interest in having the FBI neither confirm nor deny the existence of records against the public interest at stake. Roth, 642 F.3d at 357 (citing Boyd v. Crim. Div. of the U.S. Dep't of Justice, 475 F.3d 381, 388 (D.C. Cir. 2007)). Here, Plaintiff identifies the public interest as knowing why Mr. Hage’s “back channel peace negotiations between the United States and Iraq” were “rejected.” (Exhibit D, Lindsey’s Case 1:16-cv-02032-CKK Document 10-1 Filed 01/27/17 Page 12 of 17 13 Letter to the FBI’s FOIA Officer, dated June 10, 2016). In support of his assertion of public interest, Plaintiff proffers several publications by various authors that (in Plaintiff’s view) are “extensive claims that contacts between Mr. Hage and U.S. government officials constitute strong evidence of misconduct by senior Bush administration officials, there is a clear and overwhelming public interest in the disclosure of these records.” (Exhibit D, Lindsey’s Letter to the FBI’s FOIA Officer, dated June 10, 2016). In this case, nothing in Plaintiff’s administrative request demonstrates a link between Mr. Hage and the alleged FBI investigation of alleged misconduct by a former administration. Indeed, Plaintiff only states that “extensive scholarly and media commentary suggests that the back channels peace offers and the Bush administration’s respond to them constitute clear evidence that the Bush administration acted fraudulently in making the case for war in Irag.” (Exhibit D). This conclusory statement does not demonstrate stong evidence of misconduct to overcome the FBI’s Glomar response. Even if, this Court were to find that the Plaintiff put forth “evidence that would warrant a belief by a reasonable person” that Government impropriety occurred, Plaintiff’s asserted public interest in having the FBI confirm or deny the existence of records would not overcome the privacy interest of Mr. Hage at stake. To begin with, release of names and/or other personal information about Mr. Hage could cause unsolicited and unnecessary attention to be focused on him. (Hardy Decl. at ¶ 20). Further, the FBI states that individuals--whether they are suspects, witnesses, or law enforcement personnel--have a strong interest in not being associated unwarrantedly with alleged or actual criminal activity. Id. See also United States Dep't of State v. Ray, 502 U.S. 164, 176 n.12 (1991) (finding a “significant” privacy interest under Exemption 6 in the nondisclosure of personal information that would subject individuals “to possible embarrassment and retaliatory action”); Case 1:16-cv-02032-CKK Document 10-1 Filed 01/27/17 Page 13 of 17 14 Thus, Plaintiff has not demonstrated government misconduct sufficient to overcome the FBI’s Glomar response. And, even if this Court were to proceed to a balancing test, the privacy interest of Mr. Hage would outweigh the public interest at stake in this case. b. Exemption 7(C) FOIA Exemption 7 protects from mandatory disclosure “records or information compiled for law enforcement purposes,” to the extent that disclosure could result in one of the six harms enumerated in subparts (A) through (F) of the exemption. See 5 U.S.C. § 552(b)(7). As such, judicial review of an agency’s withholding under Exemption 7 “requires a two-part inquiry.” FBI v. Abramson, 456 U.S. 615, 622 (1982). First, the relevant information must have been “compiled for law enforcement purposes.” Id.; Quinon v. FBI, 86 F.3d 1222, 1228 (D.C. Cir. 1996). A record is compiled for law enforcement purposes if: (1) the activity that gives rise to the documents is related to the enforcement of federal laws or the maintenance of national security; and (2) the nexus between the activity and one of the agency’s law enforcement duties is based on information sufficient to support as least a “colorable claim” of its rationality. See Keys v. DOJ, 830 F. 2d 337, 340 (D.C. Cir. 1987); Pratt v. Webster, 673 F.2d 408, 420-21 (D.C. Cir. 1982); Blanton v. DOJ, 63 F. Supp. 2d 35, 44 (D.D.C. 1999). Second, assuming information was compiled for law enforcement purposes, then it must be determined if disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Like Exemption 6, Exemption 7(C) “call[s] for a balancing of the privacy interests that would be compromised by disclosure against the public interest in release of the requested information.” McCutchen v. United States Dep't of Health & Human Servs., 30 F.3d 183, 185 (D.C. Cir. 1994); Davis v. DOJ, 968 F.2d 1276, 1281 (D.C. Cir. 1992). As the Supreme Court explained in Reporters’ Committee, “Exemption 7(C)’s privacy Case 1:16-cv-02032-CKK Document 10-1 Filed 01/27/17 Page 14 of 17 15 language is broader than [that of]. . . Exemption 6 in two respects. First, whereas Exemption 6 requires that the invasion of privacy be ‘clearly unwarranted,’ the adverb ‘clearly’ is omitted from Exemption 7(C). . . . Second, whereas Exemption 6 refers to disclosures that ‘would constitute’ an invasion of privacy, Exemption 7(C) encompasses any disclosure that ‘could reasonably be expected to constitute’ such an invasion.” 489 U.S. at 756 (quoting 5 U.S.C. §§ 552(b)(6), (7)(C)). Courts have construed the public interest component narrowly, noting that the public interest “must be assessed in light of FOIA’s central purpose,” and that purpose “is not fostered by disclosure about private individuals that is accumulated in various government files but that reveals little or nothing about an agency’s conduct.” Nation Magazine v. United States Customs Serv., 71 F.3d 885, 894 (D.C. Cir. 1995) (quotation marks and citation omitted). Rather, the information must “contribute significantly to public understanding of the operations or activities of the government.” Reporters’ Comm., 489 U.S. at 775; Favish, 541 U.S. at 172-73 (public interest must be significant and information sought must be likely to advance that interest); see also Davis, 968 F.2d at 1282 (analyzing whether information would confirm or refute alleged government misconduct). 2. Names and Other Identifying Information of Law Enforcement Agents, Witnesses, and Other Third Parties Withheld Pursuant to (b)(6) and (b)(7)(C) In the instant case, the withheld information was proper under the second prong of the Exemption 6 analysis, whether disclosure of the information at issue “would constitute a clearly unwarranted invasion of personal privacy,” or in the case of Exemption 7(C), “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The privacy interest in non-disclosure of the information at issue is significant, and Plaintiff cannot establish a bona fide Case 1:16-cv-02032-CKK Document 10-1 Filed 01/27/17 Page 15 of 17 16 public interest in disclosure. Release in no way serves the “core purpose of FOIA, which is contribut[ing] significantly to public understanding of the operations or activities of the government.” See Dep’t. of Defense v . FLRA, 510 U.S. at 495-96; see also Reporters’ Comm. 498 U.S. at 775. These pieces of personal, indentifying information in no way “let[s] citizens know ‘what their government is up to.’” Dep’t. of Def ense v . FLRA, 510 U.S. at 497 (quoting Reporters’ Comm. ). On the other end of the balance, significant privacy interests are at stake. The release of any of the third-party name would result in an “unwarranted invasion of privacy” under the standard of Exemption 6 (“would constitute a clearly unwarranted invasion of privacy”) or 7(C) (“could reasonably be expected to constitute an unwarranted invasion of personal privacy”). See 5 U.S.C.§ 552(b)(6) and (7)(C). Specifically, Plaintiff has not demonstrated that there has been an official acknowledgement by the FBI that it possesses information or records pertaining to Mr. Hage and releasing the names of any third parties by agency, where there has been no public acknowledgment would intrude on their legitimate privacy interests. (Hardy Decl. ¶¶ 19, 22). Further, Plaintiff’s bare unsupported allegations of public corruption, without more, are not sufficient to establish an overriding public interest. (Hardy Decl. ¶ 22). These privacy concerns are significant and with no competing public interest in the information, summary judgment is appropriate for Defendant’s use of Exemptions 6 and 7(C). Case 1:16-cv-02032-CKK Document 10-1 Filed 01/27/17 Page 16 of 17 17 III. CONCLUSION For the foregoing reasons, the complaint as it pertains to Defendant the Federal Bureau of Investigation is entitled to summary judgment for all of the withholdings at issue in this case. Respectfully submitted, CHANNING D. PHILLIPS UNITED STATES ATTORNEY D.C. BAR NUMBER 415793 DANIEL F. VAN HORN, D.C. Bar No. 924092 Chief, Civil Division /s/ RHONDA L. CAMPBELL, D.C. Bar No. 462402 Assistant United States Attorneys Civil Division 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2559 Rhonda.campbell@usdoj.gov Counsel for United States Case 1:16-cv-02032-CKK Document 10-1 Filed 01/27/17 Page 17 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DEFENDANT’S STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE TO BE TRIED The United States Attorney for the District of Columbia, on behalf of Defendants, and pursuant to Fed. R. Civ. P. 56(d)(1), files the following Statement of Material Facts as to Which There is No Genuine Issue to be Tried: 1. Plaintiff made a request under the Freedom of Information Act (“FOIA”) seeking access to “all FBI records of contact between Imad Hage and U.S. government officials.” 2. Since August 1, 2002, David Hardy has supervised the Record/Information Dissemination Section (“RIDS”), Records Management Division (“RMD”), of the Federal Bureau of Investigation (“FBI”), in Winchester, Virginia, and he is familiar with the procedures followed by the RIDS/RMD in responding to requests for information from its files pursuant to FOIA and the Privacy Act, 5 U.S.C. § 552a. (Declaration of David M. Hardy (“Hardy Decl.”) ¶ 1). Hardy’s declaration is based on her personal knowledge, upon information provided to his in her official capacity, and upon conclusions and determinations reached and made in accordance therewith. (Hardy Decl. ¶¶ 3-4). Determination of Records Responsive to Plaintiff's FOIA Requests DAVID AUSTIN LINDSEY, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, Defendant. ) ) ) ) ) ) ) ) ) ) Civ. A. No. 1:16-cv-02032 (CKK) Case 1:16-cv-02032-CKK Document 10-2 Filed 01/27/17 Page 1 of 8 2 3. By email dated May 18, 2016, Plaintiff submitted a FOIA request to the FBI seeking access to “all FBI records of contact between Imad Hage and U.S. government officials.” Plaintiff alleged that existence of these contacts as well as an investigation of Mr. Hage have been “extensively discussed in the media.” (See Exhibit A.) 4. By email dated May 18, 2016, the RMD Public Information Officer (“PIO”) acknowledged receipt of plaintiff’s request and advised plaintiff his request concerned third-party records and the FBI required one of the following to further process Plaintiff’s request: 1) express authorization and consent from the third-party individual whose records are sought, 2) proof of death for the third-party subject, or 3) a clear demonstration that the public interest in disclosure outweighs the privacy interest of the third-party. The FBI enclosed a Certification of Identity form, to be completed by the subject of the request. Also, the FBI advised Plaintiff his request for a fee waiver would be addressed at a later date. (See Exhibit B.) 5. By letter dated June 6, 2016, the FBI advised plaintiff it assigned his request FOIPA Request No. 1351152. Additionally, the FBI advised that absent express authorization and consent from the third-party individual whose records are sought, proof of death for the third-party, or a clear demonstration that the public interest in disclosure outweighs the privacy interest of the third-party, the “FBI can neither confirm nor deny the existence of any records responsive to his request, which, if they were to exist, would be exempt from disclosure pursuant to FOIA Exemptions (b)(6) and (b)(7)(C).”1 The FBI enclosed a Certification of Identity form (“Privacy Waiver”), to be completed by the subject of the request. The FBI notified plaintiff of his right to appeal the FBI’s decision 1 This response, explained more fully infra, is known as a “privacy Glomar” response. Case 1:16-cv-02032-CKK Document 10-2 Filed 01/27/17 Page 2 of 8 3 to the Department of Justice (“DOJ”) Office of Information Policy (“OIP”) within sixty (60) days from the date of its letter. (See Exhibit C.) 6. By facsimile dated June 10, 2016, Plaintiff alleged that there is “overwhelming public interest in disclosure of [the] records” he seeks from the FBI. While the original request (Exhibit A) was a request for “all” records of contact between Mr. Hage and U.S. Government officials, this letter narrows the request to only include records of contacts “related to back channel Iraqi peace proposals.” (See Exhibit D.) 7. By letter dated June 23, 2016, the FBI advised plaintiff he had not demonstrated sufficient public interest in disclosure of the records he seeks. Again issuing a privacy Glomar response, the FBI informed plaintiff that, absent express authorization and consent from the third-party individual whose records are sought, the FBI can neither confirm nor deny the existence of any records responsive to plaintiff’s request, and informed plaintiff that if such records were to exist, they would be exempt from disclosure pursuant to FOIA Exemptions (b)(6) and (b)(7)(C). The FBI enclosed a Privacy Waiver, to be completed by the subject of the request. The FBI notified plaintiff of his right to appeal the FBI’s decision to OIP within sixty (60) days from the date of its letter. (See Exhibit E.) 8. On July 20, 2016, through OIP’s online portal, plaintiff appealed the FBI’s denial. Plaintiff states that the appeal is limited “solely to information about peace proposals related to the Iraq conflict.” (See Exhibit F.) 9. By letter dated July 20, 2016, OIP acknowledged that it received plaintiff’s appeal and assigned it appeal number AP-2016-004293. (See Exhibit G.) Case 1:16-cv-02032-CKK Document 10-2 Filed 01/27/17 Page 3 of 8 4 10. By letter dated September 5, 2016, OIP informed plaintiff that it had affirmed the FBI’s action on this FOIA request, stating that “[t]he FBI properly refused to confirm or deny the existence of records responsive to your request. Without consent, proof of death, official acknowledgment of an investigation, or an overriding public interest, confirming or denying the existence of such records, including law enforcement records, concerning an individual would constitute a clearly unwarranted invasion of personal privacy.” (See Exhibit H.) 11. On October 12, 2016, plaintiff filed the present lawsuit against the FBI in the United States District Court for the District of Columbia, challenging the FBI’s response to its FOIA request. (See ECF No. 1) THE FBI’S PRIVACY GLOMAR RESPONSE In General. 12. When an individual seeks access to information regarding a third party but fails to provide a Privacy Waiver from the third party, provide proof of death of that third party as described in the regulation at 28 C.F.R. § 16.3(a), or provide sufficient evidence of a significant public interest in disclosure of the material sought, it is FBI policy, pursuant to 5. U.S.C. § 552(b)(6)/(b)(7)(C), to neither confirm nor deny the existence of records. 2 2 5 U.S.C. § 552 (b)(6) exempts from disclosure “personnel and medical files and similar files when the disclosure of such information would constitute a clearly unwarranted invasion of personal privacy.” Similarly, 5 U.S.C. § 552 (b)(7)(C) exempts from disclosure “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The practice of the FBI is to assert Exemption (b)(6) in conjunction with Exemption (b)(7)(C). Although the balancing test for Exemption (b)(6) uses a “would constitute a clearly unwarranted invasion of personal privacy” standard, and the test for Exemption (b)(7)(C) uses the lower standard of “could reasonably be expected to constitute an unwarranted invasion of personal privacy,” the analysis and balancing required by both Case 1:16-cv-02032-CKK Document 10-2 Filed 01/27/17 Page 4 of 8 5 This response is known as a “privacy Glomar” response.3 It is necessary to neither confirm nor deny the existence of responsive records because simply acknowledging whether the FBI possess records about an individual would unwarrantedly invade his/her privacy interests. For example, members of the public are likely to draw adverse inferences from the mere fact that an individual is mentioned in the files of a criminal law enforcement agency such as the FBI, which could cast them in an unfavorable or negative light. Individuals - whether they are suspects, witnesses, or law enforcement personnel - have a strong interest in not being associated unwarrantedly with alleged or actual criminal activity. 13. In determining whether to make a “privacy Glomar” response, the FBI balances the substantial privacy interests of third parties mentioned in its files against the public interest in disclosure and evaluates - on a case-by-case basis - whether there is a significant public benefit which would result from the disclosure of the requested records. If there is a significant public interest which outweighs the substantial privacy interests of the subject involved, the FBI will typically acknowledge the existence of responsive records. In most cases, there is no discernible public interest in disclosure of information about specific individuals because disclosure of information in FBI investigative files would not significantly increase the public’s understanding of the FBI’s operations and exemptions is sufficiently similar to warrant a consolidated discussion. The privacy interests are balanced against the public’s interest in disclosure under the analysis of both exemptions. 3 In Phillipi v. CIA, 655 F 2d. 1325, 1327 (D.C.Cir. 1981), a FOIA requester sought information concerning a ship named the “Hughes Glomar Explorer” and the CIA refused to confirm or deny its relationship with the “Glomar” vessel because to do so would compromise the national security or divulge intelligence sources and methods. Case 1:16-cv-02032-CKK Document 10-2 Filed 01/27/17 Page 5 of 8 6 activities. Under such circumstances, disclosure would unwarrantedly invade the individual’s personal privacy interests. 14. A “privacy Glomar” response is not proper when the agency has officially acknowledged the existence of information or records about an individual that would be responsive to a FOIA request. 15. Moreover, while an individual’s status as a high-ranking Government official could possibly diminish, to varying extents, his/her privacy interests, such status - without more - does not distinguish those privacy interests with respect to FBI records. 16. In order to justify disclosure, a requester must clearly demonstrate that a public interest in disclosure that outweighs the third party’s personal privacy interest. As Applied. 17. In response to plaintiff’s request, the FBI first determined that plaintiff’s third-party request for records related to Mr. Hage was not accompanied either by a Privacy Waiver or a proof of death. It further concluded that plaintiff failed to provide any evidence to demonstrate how any FBI records about Mr. Hage, if they exist, would inform the public about the operations of the FBI or to establish how the public interest in disclosure is significant enough to override Mr. Hage’s substantial privacy interest in not being associated with FBI records. Plaintiff also did not establish that Mr. Hage’s privacy interests are diminished based on his official position. (Mr. Hage is not a high-ranking public official.) Finally, plaintiff did not show that there has been an official acknowledgement by the FBI that it possesses information or records pertaining to Mr. Hage. Case 1:16-cv-02032-CKK Document 10-2 Filed 01/27/17 Page 6 of 8 7 18. In his July 20, 2016, letter to OIP appealing the FBI’s denial, plaintiff asserted that there is “strong evidence of misconduct by the Bush administration” - a matter that would typically involve an FBI investigation - and thus, a more in-depth review of this purported public interest argument was warranted. Plaintiff further claimed that Mr. Hage has publicly discussed contacts with government officials regarding peace proposals related to the Iraq conflict, and that such information of a personal nature. Notwithstanding plaintiff’s elaboration of his public interest argument in his appeal, the FBI’s Privacy Glomar response is appropriate because any existing public interest is outweighed by the substantial privacy interests of Mr. Hage.4 19. Regarding Mr. Hage’s public statements, while Mr. Hage has publicly stated he was involved with alleged peace proposals, Plaintiff has not provided evidence that Mr. Hage publicly stated that he had contact with the FBI regarding the proposals. More importantly, however, Plaintiff has not shown that the FBI has ever officially acknowledged any interaction between it - or any other Government agency/official - and Mr. Hage. Plaintiff also argues that the information is not of a personal nature. However, the information would be located via a search using Mr. Hage’s name; therefore, any results of the search are most certainly tied to him personally. Finally, Plaintiff’s bare allegations of public corruption, without more, are not sufficient to establish an overriding public interest. In sum, the FBI cannot confirm or deny the 4 The U.S. government has had official, public interaction with Mr. Hage regarding a criminal complaint filed against him in 2003. The charges were dismissed in 2004. That interaction has no bearing on this FOIA litigation. Case 1:16-cv-02032-CKK Document 10-2 Filed 01/27/17 Page 7 of 8 8 existence of these records without violating the substantial privacy interests of a private citizen, Mr. Hage.5 Respectfully submitted, CHANNING D. PHILLIPS UNITED STATES ATTORNEY D.C. BAR NUMBER 415793 DANIEL F. VAN HORN, D.C. Bar No. 924092 Chief, Civil Division /s/ RHONDA L. CAMPBELL, D.C. Bar No. 462402 Assistant United States Attorneys Civil Division 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2559 Rhonda.campbell@usdoj.gov Counsel for United States 5 In the unlikely event that the FBI’s “privacy Glomar” is pierced or rejected by this Court, the FBI respectfully reserves its right to assert all applicable exemptions, assuming that responsive records exist. Case 1:16-cv-02032-CKK Document 10-2 Filed 01/27/17 Page 8 of 8 IN UNITED STATES DISTRICT COURT FOR THE SOUtHERN DISTRICT OF NEW YORK ) DAVID AUSTIN LINDSEY ) ) Plaintiff, ) ) v. ) Civil Action No. l:16-cv-02032 ) FEDERAL BUREAU OF INVESTIGATION ) ) Defendant. ) _________________________________________________ ) DECLARATION OF DAVID M. HARDY I, David M. Hardy, declare as follows: (1) I am currently the Section Chief of the Record/Information Dissemination Section (“RIDS”), Records Management Division (“RMD”), of the Federal Bureau of Investigation (“FBI”), in Winchester, Virginia. I have held this position since August 1, 2002. Prior to joining the FBI, from May 1, 2001 to July 31, 2002,1 was the Assistant Judge Advocate General of the Navy for Civil Law. In that capacity, I had direct oversight of Freedom of Information Act (“FOIA”) policy, procedures, appeals, and litigation for the Navy. From October 1, 1980 to April 30, 2001,1 served as a Navy Judge Advocate at various commands and routinely worked with FOIA matters. I am also an attorney who has been licensed to practice law in the State of Texas since 1980. (2) In my official capacity as Section Chief of RIDS, I supervise approximately 248 employees who staff a total of ten (10) FBI Headquarters (“FBIHQ”) units and two (2) field operational service center units whose collective mission is to effectively plan, develop, direct, and manage responses to requests for access to FBI records and information pursuant to the 1 Case 1:16-cv-02032-CKK Document 10-3 Filed 01/27/17 Page 1 of 9 FOIA, as amended by the OPEN Government Act of 2007 and the OPEN FOIA Act of 2009; the Privacy Act of 1974; Executive Order 13,526; Presidential, Attorney General and FBI policies and procedures; judicial decisions; and Presidential and Congressional directives. The statements contained in this declaration are based upon my personal knowledge, upon information provided to me in my official capacity, and upon conclusions and determinations reached and made in accordance therewith. (3) Due to the nature of my official duties, I am familiar with the procedures followed by the FBI in responding to requests for information from its files pursuant to the provisions of the FOIA, 5 U.S.C. § 552. Specifically, I am familiar with the FBI’s handling of Plaintiff s May 18, 2016, FOIA request to the FBI for “all FBI records of contact between Imad Hage and U.S. government officials,” and subsequently narrowed to only include contacts “related to back channel Iraqi peace proposals.” See 8 infra. (4) The FBI submits this declaration in support of its motion for summary judgment. It provides a brief administrative history of plaintiffs request and provides justification for the FBI’s privacy Glomar response issued pursuant to FOIA Exemptions (b)(6) and (b)(7)(C). ADMINISTRATIVE HISTORY OF PLAINTIFF’S REQUEST (5) By email dated May 18, 2016, Plaintiff submitted a FOIA request to the FBI seeking access to “all FBI records of contact between Imad Hage and U.S. government officials.” Plaintiff alleged that existence of these contacts as well as an investigation of Mr. Hage have been “extensively discussed in the media.” (See Exhibit A.) (6) By email dated May 18, 2016, the RMD Public Information Officer (“PIO”) acknowledged receipt of plaintiffs request and advised plaintiff his request concerned third- party records and the FBI required one of the following to further process Plaintiffs request: 1) 2 Case 1:16-cv-02032-CKK Document 10-3 Filed 01/27/17 Page 2 of 9 express authorization and consent from the third-party individual whose records are sought, 2) proof of death for the third-party subject, or 3) a clear demonstration that the public interest in disclosure outweighs the privacy interest of the third-party. The FBI enclosed a Certification of Identity form, to be completed by the subject of the request. Also, the FBI advised Plaintiff his request for a fee waiver would be addressed at a later date. (See Exhibit B.) (7) By letter dated June 6, 2016, the FBI advised plaintiff it assigned his request FOIPA Request No. 1351152. Additionally, the FBI advised that absent express authorization and consent from the third-party individual whose records are sought, proof of death for the third-party, or a clear demonstration that the public interest in disclosure outweighs the privacy interest of the third-party, the “FBI can neither confirm nor deny the existence of any records responsive to his request, which, if they were to exist, would be exempt from disclosure pursuant to FOIA Exemptions (b)(6) and (b)(7)(C).”1 The FBI enclosed a Certification of Identity form (“Privacy Waiver”), to be completed by the subject of the request. The FBI notified plaintiff of his right to appeal the FBI’s decision to the Department of Justice (“DOJ”) Office of Information Policy (“OIP”) within sixty (60) days from the date of its letter. (See Exhibit C.) (8) By facsimile dated June 10, 2016, Plaintiff alleged that there is “overwhelming public interest in disclosure of [the] records” he seeks from the FBI due to “great public concern”. While the original request (Exhibit A) was a request for “all” records of contact between Mr. Hage and U.S. Government officials, this letter narrows the request do only include records of contacts “related to back channel Iraqi peace proposals.” (See Exhibit D.) (9) By letter dated June 23, 2016, the FBI advised plaintiff he had not demonstrated sufficient public interest in disclosure of the records he seeks. Again issuing a privacy Glomar * 3 1 This response, explained more fully infra, is known as a "privacy Glomar" response. 3 Case 1:16-cv-02032-CKK Document 10-3 Filed 01/27/17 Page 3 of 9 response, the FBI informed plaintiff that, absent express authorization and consent from the third-party individual whose records are sought, the FBI can neither confirm nor deny the existence of any records responsive to plaintiffs request, and informed plaintiff that if such records were to exist, they would be exempt from disclosure pursuant to FOIA Exemptions (b)(6) and (b)(7)(C). The FBI enclosed a Privacy Waiver, to be completed by the subject of the request. The FBI notified plaintiff of his right to appeal the FBI’s decision to OIP within sixty (60) days from the date of its letter. (See Exhibit E.) (10) On July 20, 2016, through OIP’s online portal, plaintiff appealed the FBI’s denial. Plaintiff states that the appeal is limited “solely to information about peace proposals related to the Iraq conflict.” (See Exhibit F.) (11) By letter dated July 20, 2016, OIP acknowledged that it received plaintiffs appeal and assigned it appeal number AP-2016-004293. (See Exhibit G.) (12) By letter dated September 5, 2016, OIP informed plaintiff that it had affirmed the FBI’s action on this FOIA request, stating that “[t]he FBI properly refused to confirm or deny the existence of records responsive to your request. Without consent, proof of death, official acknowledgment of an investigation, or an overriding public interest, confirming or denying the existence of such records, including law enforcement records, concerning an individual would constitute a clearly unwarranted invasion of personal privacy.” (See Exhibit H.) (13) On October 12, 2016, plaintiff filed the present lawsuit against the FBI in the United States District Court for the District of Columbia, challenging the FBI’s response to its FOIA request. (See ECF No. 1) 4 Case 1:16-cv-02032-CKK Document 10-3 Filed 01/27/17 Page 4 of 9 THE FBI’S PRIVACY GLOMAR RESPONSE In General. (14) When an individual seeks access to information regarding a third party but fails to provide a Privacy Waiver from the third party, provide proof of death of that third party as described in the regulation at 28 C.F.R. § 16.3(a), or provide sufficient evidence of a significant public interest in disclosure of the material sought, it is FBI policy, pursuant to 5. U.S.C. § 552(b)(6)/(b)(7)(C), to neither confirm nor deny the existence of records. This response is known as a “privacy Glomar” response/ It is necessary to neither confirm nor deny the existence of responsive records because simply acknowledging whether the FBI possesses records about an individual would unwarrantedly invade his/her privacy interests. For example, members of the public are likely to draw adverse inferences from the mere fact that an individual is mentioned in the files of a criminal law enforcement agency such as the FBI, which could cast them in an unfavorable or negative light. Individuals - whether they are suspects, witnesses, or 2 3 2 5 U.S.C. § 552 (b)(6) exempts from disclosure “personnel and medical files and similar files when the disclosure of such information would constitute a clearly unwarranted invasion of personal privacy.” Similarly, 5 U.S.C. § 552 (b)(7)(C) exempts from disclosure “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The practice of the FBI is to assert Exemption (b)(6) in conjunction with Exemption (b)(7)(C). Although the balancing test for Exemption (b)(6) uses a “would constitute a clearly unwarranted invasion of personal privacy” standard, and the test for Exemption (b)(7)(C) uses the lower standard of “could reasonably be expected to constitute an unwarranted invasion of personal privacy,” the analysis and balancing required by both exemptions is sufficiently similar to warrant a consolidated discussion. The privacy interests are balanced against the public’s interest in disclosure under the analysis of both exemptions. 3 In Phillipi v. CIA, 655 F 2d. 1325, 1327 (D.C.Cir. 1981), a FOIA requester sought information concerning a ship named the “Hughes Glomar Explorer” and the CIA refused to confirm or deny its relationship with the “Glomar” vessel because to do so would compromise the national security or divulge intelligence sources and methods. 5 Case 1:16-cv-02032-CKK Document 10-3 Filed 01/27/17 Page 5 of 9 law enforcement personnel - have a strong interest in not being associated unwarrantedly with alleged or actual criminal activity. (15) In determining whether to make a “privacy Glomar” response, the FBI balances the substantial privacy interests of third parties mentioned in its files against the public interest in disclosure and evaluates - on a case-by-case basis - whether there is a significant public benefit which would result from the disclosure of the requested records. If there is a significant public interest which outweighs the substantial privacy interests of the subject involved, the FBI will typically acknowledge the existence of responsive records. In most cases, there is no discernible public interest in disclosure of information about specific individuals because disclosure of information in FBI investigative files would not significantly increase the public’s understanding of the FBI’s operations and activities. Under such circumstances, disclosure would unwarrantedly invade the individual’s personal privacy interests. (16) A “privacy Glomar” response is not proper when the agency has officially acknowledged the existence of information or records about an individual that would be responsive to a FOIA request. (17) Moreover, while an individual’s status as a high-ranking Government official could possibly diminish, to varying extents, his/her privacy interests, such status - without more - does not distinguish those privacy interests with respect to FBI records. (18) In order to justify disclosure, a requester must clearly demonstrate that a public interest in disclosure that outweighs the third party’s personal privacy interest. As Applied. (19) In response to plaintiffs request, the FBI first determined that plaintiffs third- party request for records related to Mr. Hage was not accompanied either by a Privacy Waiver or 6 Case 1:16-cv-02032-CKK Document 10-3 Filed 01/27/17 Page 6 of 9 a proof of death. It further concluded that plaintiff failed to provide any evidence to demonstrate how any FBI records about Mr. Hage, if they exist, would inform the public about the operations of the FBI or to establish how the public interest in disclosure is significant enough to override Mr. Hage’s substantial privacy interest in not being associated with FBI records. Plaintiff also did not establish that Mr. Hage’s privacy interests are diminished based on his official position. (Mr. Hage is not a high-ranking public official.) Finally, plaintiff did not show that there has been an official acknowledgement by the FBI that it possesses information or records pertaining to Mr. Hage. (20) In his July 20, 2016, letter to OIP appealing the FBI’s denial, plaintiff asserted that there is “strong evidence of misconduct by the Bush administration” - a matter that would typically involve an FBI investigation - and thus, a more in-depth review of this purported public interest argument was warranted. Plaintiff further claimed that Mr. Hage has publicly discussed contacts with government officials regarding peace proposals related to the Iraq conflict, and that such information is not of a personal nature. Notwithstanding plaintiffs elaboration of his public interest argument in his appeal, the FBI’s Privacy Glomar response is appropriate because any existing public interest is outweighed by the substantial privacy interests of Mr. Hage.4 (21) Regarding Mr. Hage’s public statements, while Mr. Hage has publicly stated he was involved with alleged peace proposals, Plaintiff has not provided evidence that Mr. Hage publicly stated that he had contact with the FBI regarding the proposals. More importantly, however. Plaintiff has not shown that the FBI has ever officially acknowledged any interaction between it - or any other Government agency/official - and Mr. Hage. Plaintiff also argues that the information is not of a personal nature. However, the information would be located via a 4 The U.S. government has had official, public interaction with Mr. Hage regarding a criminal complaint filed against him in 2003. The charges were dismissed in 2004. That interaction has no bearing on this FOIA litigation. 7 Case 1:16-cv-02032-CKK Document 10-3 Filed 01/27/17 Page 7 of 9 search using Mr. Rage’s name; therefore, any results of the search are most certainly tied to him personally. Finally, Plaintiffs bare allegations of public corruption, without more, are not sufficient to establish an overriding public interest. In sum, the FBI cannot confirm or deny the existence of these records without violating the substantial privacy interests of a private citizen, Mr. Rage.5 CONCLUSION (22) Plaintiff sought law enforcement records regarding “contact between Imad Rage and U.S. government officials.” Plaintiff has neither obtained a privacy waiver from Mr. Rage nor established a public interest sufficient to override his substantial privacy interest. Therefore the FBI properly refused to confirm or deny the existence of any responsive records pursuant to Exemptions 6 and 7(C). 5 In the unlikely event that the FBI’s “privacy Glomar” is pierced or rejected by this Court, the FBI respectfully reserves its right to assert all applicable exemptions, assuming that responsive records exist. 8 Case 1:16-cv-02032-CKK Document 10-3 Filed 01/27/17 Page 8 of 9 Pursuant to 28 U.S.C. § 1746,1 declare under penalty of perjury that the foregoing is true and correct, and that Exhibits A through H attached hereto are true and correct copies. A ^-x' Executed this ZI day of January, 2017. Record/Information Dissemination Section Records Management Division Federal Bureau of Investigation Winchester, VA 9 Case 1:16-cv-02032-CKK Document 10-3 Filed 01/27/17 Page 9 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) DAVID AUSTIN LINDSEY ) ) Plaintiff, ) ) v. ) Civil Action No. l:16-cv-2032 ) FEDERAL BUREAU OF ) INVESTIGATION ) ) Defendant. ) _______________________________________ ) Exhibit A Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 1 of 36 Sobonya, David P. (RMD) (FBI) From: Sent: To: Subject: David Lindsey Wednesday, May 18, 2016 12:08 PM FOIPARequest FOIA Request May 18, 2016 Dear FOIA Officer, This is a request under the Freedom of Information Act. I request all FBI records of contact between Imad Hage and U.S. government officials. The existence of these contacts and of an investigation into Mr. Hage have been extensively discussed iri the media are a matter of significant public concern. While Mr. Hage is a living person, I am not requesting records on him as such and the records being requested deal with matters of public concern that have been extensively covered in the media. For your reference, news coverage of the contacts between Mr. Hage and government officials has disclosed the following facts: -On November 6, 2003, the New York Times (article available at lHtiv/^vv-w,iiyuiiica,co)ti/2003/1 l/06/wMA/s:tfMtd,fcdbf-ira.q-dipkimagy-irtK|-said jia.ye,»tfied*jt.ea6h-lMl» miint(c---dea[-a!yMiMtlir.1pagewatttcd~"a1l) reported that Mr. Hage contacted Michael Maloof and Jaymie Duman (of the Department of Defense) and Richard Perle (of the Defense Policy Board) in January 2003 to discuss a peace proposal from the Iraqi government. Mr. Hage remained in contact with these individuals up until the invasion of Iraq. The article also reports that Mr. Hage was detained at Dulles International Airport in January 2003 and questioned by the F.B.I. Hage was subsequently publicly charged in the Eastern District of Virginia for the incident at Dulles (USA v. Hage) -According to an article published online by Newsweek on November 5, 2003 by Michael Isikoff and Mark Hosenball entitled "On the eve of the invasion of Iraq, Defense officials were offered a secret, back-channel opportunity to talk peace with Saddam", when Mr. Hage was questioned by the FBI, he provided FBI agents with a business card belonging to Jaymie Duman, who was questioned by the FBI about his connections to Hage, which included a meeting between the two set up by Michael Maloof. -These contacts and the role of the FBI have attracted considerable attention in other national news outlets. As a few examples, the story was covered in ABC News (hHn;//ttbettews,g0,com/.WNT/story?id^l 31448), CNN (liUp;/7www.cnn.coin/200T/USH l/07teimaJ,ntge/), the Los Angeles times laumeAAPQ]/ViH)3(np>y'U8/H:pdd/rg.-dcalS) I request a waiver of all fees associated with this request as it serves a compelling public interest in better understandmg fTte’operatiohs’of the U.S. government as they relate to attempts to avoid the 2003 Iraq War. Journalists have identified offers emanating from Mr. Hage as one of the most consequential efforts to avert war, but many questions about Mr. Hage and his relationship with U.S. officials and the Department of Defense remain unclear. Disclosure of these documents will support research into how the U.S. government operated in responding to Iraqi peace proposals. I am an academic expert in the study of U.S. foreign policy and will receive my PhD in political science, focusing on inSnfitidnti iicurity and US foreign policy from the University of California, San Diego in June. All responsive documents received in connection with this request will be used in my scholarly research on the Iraq War and disseminated through scholarly publications and presentations. 1 have previously used declassified documents to advance public understanding of the operations of the U.S. government in the foreign policy area. 1 Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 2 of 36 See, for example, “Presidential Effort and International Outcomes: Evidence for an Executive Bottleneck," Journal of Politics, Vol. 77, no. 4, which can be found online at ltttB://wwwJlnuriials,tatliiKniicttiduAluEabs/U), 1086/682399-1 have also conducted scholarly research into US government operations with respect to Iraq that has been disseminated as part of doctoral dissertation, available athitpi//e»eht>lHHihlp,tiii^/utj/ltem/ft>ilftj01e In addition to incorporating conclusions derived from responsive documents into academicpapers and publications Sat will substantially advance public understanding, I will publicly post all responsive documents on my website,tlavidalincls.ey,fttj.ffl- Specifically, I will post such documents athttpV/davIdaliitdSilv.eoiii/j-utiCfltegorlsetl/.lO^diBelaBsilled^tigumeiltB- This request is made solely for scholarly purposes and serves no commercial interest. In the event that a waiver of fees is not available, I am willing to pay fees up to $25. If fees will exceed this amount, please inform me in advance. In assessing fees, you should know that I am academic researcher requesting these records as part of the scholarly research program of the Department of Political Science at the University of California, San Diego. As such, I request classification as an educational institution requester. "----- ------------------------------------ - ............- If possible, I would prefer to receive all documents responsive to this request electronically. If you have any questions or require any clarification of this request, please contact me at this email address or by phone at (5.40).32Mill8- I look forward your prompt response, David Lindsey Mailing Address: David Lindsey Department of Political Science 9500 Gilman Drive #0521 La Jolla, CA 92093-0521 Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 3 of 36 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) DAVID AUSTIN LINDSEY ) ) Plaintiff, ) ) v. ) ) FEDERAL BUREAU OF ) INVESTIGATION ) ) Defendant. ) _______________________________________) Civil Action No. 1:16-CV-2032 Exhibit B Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 4 of 36 Sobonya, David P. (RMD) (FBI) From: Sent: To: Subject: Sobonya, David P. (RMD) (FBI) Wednesday, May 18, 2016 12:11 PM 'David Lindsey' RE: FOIA Request Dear Mr. Lindsey, The FBI has received your Freedom of Information Act/Privacy (FOIPA) request and it will be forwarded to Initial Processing for review. Your request will be processed under the provisions of FOIPA and a response will be mailed to you at a later date. Requests for fee waivers and expedited processing will be addressed once your request has been assigned a FOIPA request number. You will receive written notification of the FBI’s decision. You have requested records concerning one or more third party individuals. The FBI recognizes an important privacy interest in the requested information. You may receive greater access to these records (if they exist) by providing one of the following: (1) an authorization and consent from the individual(s) (i.e., express authorization and consent of the third party); (2) proof of death (i.e., proof that your subject is deceased); or (3) a justification that the public interest in disclosure outweighs personal privacy (i.e., a clear demonstration that the public interest in disclosure outweighs personal property interests). The U. S. Department of Justice CERTIFICATION OF IDENTITY (Authorization to Release Information to Another Person)-? orm DQJ-361, and is also available at http://www.fbi.aov/, http://www.fbi.qov/foia/ or http://www.iustice.aov/oip/. Note-please provide the following information on the OPTIONAL: Authorization to Release Information to Another Person line; Your name, title/business (If applicable) and a complete and current mailing address, Acceptable forms of proof of death include; obituaries, death certificates, recognized sources that can be documented, written media, Who’s Who in America, FBI file that indicates person is deceased or the Social Security Death Index. A waiver or proof of death is not required if date of birth is 100 years ago or greater. Note-a web link in itself does not satisfy proof of death. Please return the form or letter to one of the following: by mail: FBI, Attn: FOIPA Request, 170 Marcel Drive, Winchester, VA 22602-4843, by fax: (540) 868-4391/4997 or by e-mail: foiparequest@ic.fbi.gov. You may submit an attachment listing additional information that may aid in locating responsive records. Please place your name and contact information on the attachment. Information regarding the Freedom of Information Act/Privacy is available at http://www.fbi.qoy/ or http://www.fbi.qov/foia/- If you require additional assistance please contact the Public Information Officer. Thank you, Bivid P= Sobonya Publie Information Officer/dls Record/lnformation Dissemination Section (RIDS) FlLHseerds Management Division i Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 5 of 36 170 Marcel Drive, Winchester, VA 220024843 w Ofc: (040)1114083 Direct: (040) 0684286 Fax: (540) 8684391/4997 From: David Lindsey [mailto:dvdlndsy@gmail.com] Sent: Wednesday, May 18, 2016 12:08 PM To: FOlPARequest Subject: FOIA Request May 18, 2016 Dear FOIA Officer, This is a request under the Freedom of Information Act. I request all FBI records of contact between Imad Hage and U.S. government officials. The existence of these contacts and of an investigation into Mr. Hage have been extensively discussed in the media are a matter of significant public concern. While Mr. Hage is a living person, I am not requesting records on him as such and the records being requested deal with matters of public concern that have been extensively covered in the media. For your reference, news coverage of the contacts between Mr. Hage and government officials has disclosed the following facts: -On November 6, 2003, the New York Times (article available at http://www.nvtimes.com/2003/ll/06/world/struggle-for-iraq-diplomacv-iraq-said-have-tried-reach-last- minute-deal-avert.htm 1 ?pa pewanted=all) reported that Mr. Hage contacted Michael Maloof and Jaymie Duman (of the Department of Defense) and Richard Perle (of the Defense Policy Board) in January 2003 to discuss a peace proposal from the Iraqi government. Mr. Hage remained in contact with these individuals up until the invasion of Iraq. The article also reports that Mr. Hage was detained at Dulles International Airport in January 2003 and questioned by the F.B.I. Hage was subsequently publicly charged in the Eastern District of Virginia for the incident at Dulles (USA v. Hage) -According to an article published online by Newsweek on November 5, 2003 by Michael Isikoff and Mark Hosenball entitled "On the eve of the invasion of Iraq, Defense officials were offered a secret, back-channel opportunity to talk peace with Saddam", when Mr. Hage was questioned by the FBI, he provided FBI agents with a business card belonging to Jaymie Durnan, who was questioned by the FBI about his connections to Hage, which included a meeting between the two set up by Michael Maloof. -These contacts and the role of the FBI have attracted considerable attention in other national news outlets. As a few examples, the story was covered in ABC News (http.V/abcnews.go.com/WNT/story?id= 131448), CNN (http://www.cnn.com/2003/US/ll/07/cnna.hage/), the Los Angeles Times (http://articles.latimes.com/2003/nov/08/world/fg-deal8) I request a waiver of all fees associated with this request as it serves a compelling public interest in better understanding the operations of the U.S. government as they relate to attempts to avoid the 2003 Iraq War. Journalists have identified offers emanating from Mr. Hage as one of the most consequential efforts to avert war, but many questions about Mr. Hage and his relationship with U.S. officials and the Department of Defense remain unclear. Disclosure of these documents will support research into how the U.S. government operated in responding to Iraqi peace proposals. I I am an academic expert in the study of U.S. foreign policy and will receive my PhD in political science, focusing on international security and US foreign policy from the University of California, San Diego in June. All responsive documents received in connection with this request will be used in my scholarly research on the Iraq War and disseminated through scholarly publications and presentations. I have 2 Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 6 of 36 previously used declassified documents to advaiitcg'public understanding of the operations of the U.br-government in the foreign policy area. See, for example, “Presidential Effort and International Outcomes: Evidence for an Executive Bottleneck,” Journal of Politics, Vol. 77, no. 4, which can be found online at http://www.ioumals.uchicago.edu/doi/abs/10.1086/682399-1 have also conducted scholarly research into US government operations with respect to Iraq that has been disseminated as part of doctoral dissertation, available athttp://escholarship.org/uc/item/6x 16801 p In addition to incorporating conclusions derived from responsive documents into academicpapers and publications that will substantially advance public understanding, I will publicly post all responsive documents on my website,davidalindsev.com- Specifically, I will post such documents at http://davidalindsev.com/2-uncategorised/l0-declassified-documents- This request is made solely for scholarly purposes and serves no commercial interest. In the event that a waiver of fees is not available, 1 am willing to pay fees up to $25. If fees will exceed this amount, please inform me in advance. In assessing fees, you should know that I am academic researcher requesting these records as part of the scholarly research program of the Department of Political Science at the University of California, San Diego. As such, I request classification as an educational institution requester. If possible, I would prefer to receive all documents responsive to this request electronically. If you have any questions or require any clarification of this request, please contact me at this email address or by phone at (540) 525-1588- I look forward your prompt response, David Lindsey Mailing Address: David Lindsey Department of Political Science 9500 Gilman Drive #0521 La Jolla, CA 92093-0521 3 Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 7 of 36 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) DAVID AUSTIN LINDSEY ) ) Plaintiff, ) ) v. ) ) FEDERAL BUREAU OF ) INVESTIGATION ) ) Defendant. ) _______________________________________ ) Civil Action No. l:16-cv-2032 Exhibit C Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 8 of 36 U.S. D "utment of Justice Federal Bureau of Investigation Washington, D.C. 20535 June 6, 2016 MR. DAVID LINDSEY UNIVERSITY OF CALIFORNIA, SAN DIEGO DEPARTMENT OF POLITICAL SCIENCE NUMBER 0521 9500 GILMAN DRIVE LA JOLLA , CA 92093-0521 FOIPA Request No.: 1351152-000 Subject: HAGE, IMAD (Contact between Imad Hage and U.S. Government Officials) Dear Mr. Lindsey: This acknowledges receipt of your Freedom of Information Act (FOIA) request to the FBI. The FOIPA number listed above has been assigned to your request. You have requested records concerning one or more third party individuals. The FBI recognizes an important privacy interest in the requested information. You may receive greater access to these records if they exist by providing one of the following: (1) an authorization and consent from the individual(s) (i.e., express authorization and consent of the third party); (2) proof of death (i.e., proof that your subject is deceased); or (3) a justification that the public interest in disclosure outweighs personal privacy (i.e., a clear demonstration that the public interest in disclosure outweighs personal privacy interests). In the absence of such information, the FBI can neither confirm nor deny the existence of any records responsive to your request, which, if they were to exist, would be exempt from disclosure pursuant to FOIA Exemptions (b)(6) and (b)(7)(C), 5 U.S.C. §§ 552 (b)(6) and (b)(7)(C). Express authorization and consent. If you seek disclosure of any existing records on this basis, enclosed is a Certification of Identity form. You may make additional copies of this form if you are requesting information on more than one individual. The subject of your request should complete this form and then sign it. Alternatively, the subject may prepare a document containing the required descriptive data and have it notarized. The original certification of identity or notarized authorization with the descriptive information must contain a legible, original signature before FBI can conduct an accurate search of our records. Proof of death. If you seek disclosure of any existing records on this basis, proof of death can be a copy of a death certificate, Social Security Death Index, obituary, or another recognized reference source. Death is presumed if the birth date of the subject is more than 100 years ago. Public Interest Disclosure. If you seek disclosure of any existing records on this basis, you must demonstrate that the public interest in disclosure outweighs personal privacy interests. In this regard, you must show that the public interest sought is a significant one, and that the requested information is likely to advance that interest. Fax your request to the Work Process Unit at (540) 868-4997, or mail to 170 Marcel Drive, Winchester, VA 22602. If we do not receive a response from you within 30 days from the date of this letter, your request will be closed. You must include the FOIPA request number with any communication regarding this matter. For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. § 552(c). As such, this response is limited to those records, if any exist, that are subject to the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist. Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 9 of 36 You may file an appeal by writing to the Director, Office of Information Policy (OIP), United States Department of Justice, Suite 11050,1425 New York Avenue, NW, Washington, D.C. 20530-0001, or you may submit an appeal through OIP's FOIAonline portal by creating an account on the following web site: https://foiaonline.requlations.qov/foia/action/public/home. Your appeal must be postmarked or electronically transmitted within sixty (60) days from the date of this letter in order to be considered timely. If you submit your appeal by mail, both the letter and the envelope should be clearly marked “Freedom of Information Act Appeal.” Please cite the FOIPA Request Number assigned to your request so that it may be easily identified. For questions on how to reasonably describe your request, please email us at foipaquestions@ic.fbi.gov. You may also visit www.fbi.qov and select “Stats and Services,” “FOIA/Records Requests,” and “Requesting FBI Records” for additional guidance. Enclosed for your information is a copy of the FBI Fact Sheet and a copy of the Explanation of Exemptions. Sincerely, David M. Hardy Section Chief, Record/Information Dissemination Section Records Management Division Enclosure(s) Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 10 of 36 FBI FACT SHEET • The primary functions of the FBI are national security and law enforcement. • The FBI does not keep a file on every citizen of the United States. • The FBI was not established until 1908 and we have very few records prior to the 1920s. • FBI files generally contain reports of FBI investigations of a wide range of matters, including counterterrorism, counter-intelligence, cyber crime, public corruption, civil rights, organized crime, white collar crime, major thefts, violent crime, and applicants. • The FBI does not issue clearances or non-clearances for anyone other than its own personnel or persons having access to FBI facilities. Background investigations for security clearances are conducted by many different Government agencies. Persons who received a clearance while in the military or employed with some other government agency should contact that entity. Most government agencies have websites which are accessible on the internet which have their contact information. • A criminal history summary check or “rap sheet” is NOT the same as an “FBI file.” It is a listing of information taken from fingerprint cards and related documents submitted to the FBI in connection with arrests, federal employment, naturalization or military service. The subject of a “rap sheet” may obtain a copy by submitting a written request to FBI, Criminal Justice Information Services (CJIS) Division, Record Request, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306. Along with a specific written request, the individual must submit a new full set of his/her fingerprints in order to locate the record, establish positive identification, and ensure that an individual’s records are not disseminated to an unauthorized person. The fingerprint submission must include the subject's name, date and place of birth. There is a required fee of $18 for this service, which must be submitted by money order or certified check made payable to the Treasury of the United States. A credit card payment option is also available. Forms for this option and additional directions may be obtained by accessing the FBI Web site at www.fbi.gov/about-us/cjis/background-checks/background_checks. • The National Name Check Program (NNCP) conducts a search of the FBI’s Universal Index (UNI) to identify any information contained in FBI records that may be associated with an individual and provides the results of that search to a requesting federal, state or local agency. Names are searched in a multitude of combinations and phonetic spellings to ensure all records are located. The NNCP also searches for both “main” and “cross reference” files. A main file is an entry that carries the name corresponding to the subject of a file, while a cross reference is merely a mention of an individual contained in a file. The results from a search of this magnitude can result in several “hits” and “idents" on an individual. In each instance where UNI has identified a name variation or reference, information must be reviewed to determine if it is applicable to the individual in question. • The Record/Information Dissemination Section (RIDS) searches for records and provides copies of FBI files responsive to Freedom of Information or Privacy Act (FOIPA) requests for information. RIDS provides responsive documents to requesters seeking “reasonably described information.” For a FOIPA search, the subject’s name, event, activity, or business is searched to determine whether there is an associated investigative file. This is called a “main file search” and differs from the NNCP search. FOR GENERAL INFORMATION ABOUT THE FBI, VISIT OUR WEBSITE AT www.fbi.qov 1/6/14 Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 11 of 36 EXPLANATION OF EXEMPTIONS SUBSECTIONS OF TITLE 5, UNITED STATES CODE, SECTION 552 (b)( 1) (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified to such Executive order; (b)(2) related solely to the internal personnel rules and practices of an agency; (b)(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld; (b)(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (b)(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; (b)(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (b)(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A ) could reasonably be expected to interfere with enforcement proceedings, ( B ) would deprive a person of a right to a fair trial or an impartial adjudication, ( C ) could reasonably be expected to constitute an unwarranted invasion of personal privacy, ( D ) could reasonably be expected to disclose the identity of confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, ( E ) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or ( F ) could reasonably be expected to endanger the life or physical safety of any individual; (b)(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or (b)(9) geological and geophysical information and data, including maps, concerning wells. SUBSECTIONS OF TITLE 5, UNITED STATES CODE, SECTION 552a (d)(5) information compiled in reasonable anticipation of a civil action proceeding; (j) (2) material reporting investigative efforts pertaining to the enforcement of criminal law including efforts to prevent, control, or reduce crime or apprehend criminals; (k) (l) information which is currently and properly classified pursuant to an Executive order in the interest of the national defense or foreign policy, for example, information involving intelligence sources or methods; (k)(2) investigatory material compiled for law enforcement purposes, other than criminal, which did not result in loss of a right, benefit or privilege under Federal programs, or which would identify a source who furnished information pursuant to a promise that his/her identity would be held in confidence; (k)(3) material maintained in connection with providing protective services to the President of the United States or any other individual pursuant to the authority of Title 18, United States Code, Section 3056; (k)(4) required by statute to be maintained and used solely as statistical records; (k)(5) investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment or for access to classified information, the disclosure of which would reveal the identity of the person who furnished information pursuant to a promise that his/her identity would be held in confidence; (k)(6) testing or examination material used to determine individual qualifications for appointment or promotion in Federal Government service he release of which would compromise the testing or examination process; (k)(7) material used to determine potential for promotion in the armed services, the disclosure of which would reveal the identity of the person who furnished the material pursuant to a promise that his/her identity would be held in confidence. FBI/DOJ Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 12 of 36 U.S Department of Justice Certification of Identify FORM AF9R0VEB'OMBNO. LE03-3016 PrivatT Act Statement In accordance vsith 28 CFE Section 16.41(d) personal data sufficient to identify the indivictals submitting requests by nmtl under the Privacy Act of 1974, 5 U.S.C. Section 552a, is required. The purpose of this solicitation is to ensure that the records of individuals who are the subject of U.S. Department of Justice systems of records are not wrongfully disclosed by the Department. Requests will not be processed if this infomBtion is not furnished. False information on this form may subject the requester to criminal penalties under 18 U.S.C. Section 1001 and-’or 5 U.S C. Section $52a(iX3>. Public reporting burden for this collection of information is estimated to average 0.50 horns per response, including the time for reviewing instructions, searching existing data sources, gathering and mamtammg the date needed, and completing and reviewing the collection of information Suggestions for reducing tins burden may be submitted to the Office of Mormation and Regulatory Affairs, Office of Management md Budget Public Use Reports Project (1103-0016): Washington. DC 20503. Full Name of Requester 1___________________________________________________________________________ Citizenship Status :___________________________ Social Security' Number ’______________________________ Current Address_________________________________________________________________________________ Date of Birth ___________________________________ Place of Birth________________________________________ OPTIONAL: Authorization to Release Information to Another Person This form is also to be completed by a requester who is authorizing infonnation relating to himself or herself to be released to another person. Further, pursuant to 5 U.S.C. Section 552a(b), I authorize the U.S. Department of Justice to release any and all infonnation relating to me to: Print or Type Name I declare under penalty of petjuiy under the law's of the United States of America that the foregoing is true and correct and that I am the person named above, and I understand that any falsification of this statement is punishable under the provisions of 18 U.S.C. Section 1001 by a fine of not more than SI0,000 or by imprisonment of not more than five years or both, and that requesting or obtaining any recordfe) under false pretenses is punishable under the provisions of 5 U.S.C. 552a(i)(3) by a fine of not more than 55,000. Signature J Date Name of individual who is the subject of the record(s) sought. Individual submitting a request under the Privacy Act of 1974 must be either" “a citizen of the United States or an alien lawfully admitted for permanent residence," pumiant to 5 U.S.C. Section 552a(a)(2). Requests wall be processed as Freedom of Infonnatton Act requests pursuant to 5 U.S.C. Section 552. rather than Privacy Act requests, for individuals who are not United States citizens or aliens lawfully' admitted for permanent residence. Providing your social security number is voluntary. You are asked to pr ovide your social security number only to facilitate the identification of records relating to you. Without your social security' number, the Department may be unable to locate any or all records pertaining to you Signature of individual who is the subject of the record sought. FORM BOJ-361 Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 13 of 36 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) DAVID AUSTIN LINDSEY ) ) Plaintiff, ) ) v. ) ) FEDERAL BUREAU OF ) INVESTIGATION ) ) Defendant. ) _______________________________________ ) Civil Action No. 1:16-cv-2032 Exhibit D Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 14 of 36 === COVER PAGE === TO: ___________________ 11: FROM: UCSii POL I SCI FAX: 8585347130 TEL: 8585343548 COMMENT: Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 15 of 36 UNIVERSITY OF CALIFORNIA, SAN DIEGO UCSD UtXILELtY , DAVIS . IRVIN6 . LOS ANGELES MERCED ■ RIVERSIDE . SAN DlBGO • SAN FRANCISCO Depeflmem o( Political Science Phone: 658-534-3648 Fax: 856-534-7130 SANTA BARBARA ■ SANTA CRUZ 9500 Gilman Drive La Jolla, CA 92093-0521 BY FAX Date.v^noC- 10^ ^ TO: LVo^lC f/oc€Sj *b Institution: -PR17 ___________ FAX: 41^7 FROM: \)£S8S8 Bf.st 910C/0T/90 Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 19 of 36 My request seeks FBI records documenting contact between U.S. officials and Mr. Hage relevant to Mr. Hage's role as an intermediary in the U.S. conflict with Iraq. As such, the information sought Is not about Mr. Hage in any meaningful way. Mr. Hage acted as an intermediary between the U.S. and Iraq, passing messages of a political and diplomatic nature that had nothing to do with him as an individual. As such, there is no privacy interest in the information requested. 90/50 B9Vd ids nod ason 0EUP£S8S8 6t>:ST 9T02;/0T/90 Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 20 of 36 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) DAVID AUSTIN LINDSEY ) ) Plaintiff, ) ) v. ) ) FEDERAL BUREAU OF ) INVESTIGATION ) ) Defendant. ) _________________________________________J Civil Action No. 1:16-cv-2032 Exhibit E Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 21 of 36 U.S. Depp'" ~'ent of Justice Federal Bureau of Investigation Washington, D.C. 20535 June 23, 2016 MR. DAVID LINDSEY UNIVERSITY OF CALIFORNIA, SAN DIEGO DEPARTMENT OF POLITICAL SCIENCE NUMBER 0521 9500 GILMAN DRIVE LA JOLLA, CA 92093-0521 Dear Mr. Lindsey: This is in response to your Freedom of Information Act (FOIA) request for information pertaining to the above third party. In the absence of proof of death or a privacy waiver, it is incumbent upon the requester to provide sufficient documentation demonstrating the public interest in the operations and activities of the government outweighs the substantial privacy interest of the subject. You have not demonstrated sufficient public interest. The FBI can neither confirm nor deny the existence of any records responsive to your request. If records were to exist, they would be exempt from disclosure pursuant to FOIA exemptions (b)(6) and (b)(7)(C), 5 U.S.C. § 552 (b)(6) and (b)(7)(C). Therefore, your request is being closed. To reopen your request, you will need to submit proof of death or a privacy waiver. You can submit a privacy waiver by completing the enclosed Certification of Identity Form. To be considered a valid privacy waiver, your name must be listed on the ‘Authorization to Release Information to Another Person” line. For questions regarding our determinations, visit the www.fbi.qov/foia website under “Contact Us.” The FOIPA Request number listed above has been assigned to your request. Please use this number in all correspondence concerning your request. Your patience is appreciated. You may file an appeal by writing to the Director, Office of Information Policy (OIP), United States Department of Justice, Suite 11050, 1425 New York Avenue, NW, Washington, D.C. 20530-0001, or you may submit an appeal through OIP's FOIAonline portal by creating an account on the following web site: https://foiaonline.requlations.qov/foia/action/Dublic/home. Your appeal must be postmarked or electronically transmitted within sixty (60) days from the date of this letter in order to be considered timely. If you submit your appeal by mail, both the letter and the envelope should be clearly marked “Freedom of Information Act Appeal.” Please cite the FOIPA Request Number assigned to your request so that it may be easily identified. FOIPA Request No.: 1351152-000 Subject: HAGE, I MAD (Contact between Imad Hage and U.S. Government Officials) Sincerely, David M. Hardy Section Chief Record/Information Dissemination Section Records Management Division Enclosure Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 22 of 36 U,S Department of Justice Certification of Identity FCSM A$PRO\H>OMBNO. li03-OC- ̂ EXPIRES (8-'3i:n Pi-iTaa." Act Statement In accordance Vkitb 28 CFR Sectaon 16 41(d) personal data sufficient to identify the indrviduals submitting requests by maal under tiie Privacy Act of 1974. 5 U.S. C. Section 552a7 is required. The pmpose of this solicitation is to ensure that the records of individuals who are the subject of U.S. Department of Justice systems of records are not wrongfully disclosed by the Department. Requests will not be processed if this information is not furnished. False information on this form may subject die requester to criminal penalties under 18 U.S.C. Section 1001 and-'or 5 U.S.C. Section 5523.(1X3). Public reporting burden for this collection of information is estimated to average 0.50 hours per response, including the time for reviewing uastmctLons. searching existing data sources, gathering and maintaining the data needed and completing and reviewing the collection of information. Suggestions for reducing this burden may* be submitted to the Office of Information and Regulatory Affairs, Office of Management and Budget Public Use Reports Project (1103-0016).. Washington. DC 20503. Full Name of Requester 1_____________________________________________ Citizenship Status ‘_________________________ Social Security Number5_____________________________ Current Address Date of Birth _______________________________ Place of Birth____________________________________ OPTIONAL: Authorization to Release Information to Another Person This form is also to be completed, by a requester who is authorizing information relating to himself or herself to be released to another person. Further, pursuant to 5 U.S.C. Section 552a(b). I authorize the U.S. Department of Justice to release any and all information relating to me to: Print or Type Name I declare under penalty of per]my unde- the law's of die United States of America that the foregoing is true and correct and that I am the person named above, and 1 understand that any falsification of this statement is punishable under the provisions of 18 U.S.C. Section 1001 by a fine of not more tlizm $10,000 or by imprisonment of not more than five years or both, and that requesting or obtaining any record(s) under false pretenses is punishable under the provisions of 5 U.S.C. 55 2a(i)(3) by a fine of not more than $5,000. Signature 4 _______________________________________________Date____________________________ Name of individual who is the subject of the reeord(s) sought. * Individual submitting a request under the Privacy Act of 1974 must be either “a citizen of the United States or an alien lawfully admitted for permanent residence.'"’ pursuant to 5 U.S.C. Section 552a(aX2). Requests will be processed as Freedom of Information Act requests pursuant to 5 U.S.C. Section 552, rather than Privacy Act requests, for individuals who are not United Stales citizens or aliens lawfully admitted for permanent residence. Providing your social security number is voluntary. You are asked to provide your social security number only to facilitate the identification of records relating to you. Without your social security number, the Department may be unable to locate any or all records pertaining to you. 4 Signature of individual who is die subject of the record sought. FORM BOJ-361 Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 23 of 36 EXPLANATION OF EXEMPTIONS (b)(1) (b)(2) (b)(3) (b)(4) (b)(5) (b)(6) (b)(7) (b)(8) (b)(9) (d)(5) ti)(2) (k)0) (k)(2) (k)(3) (k)(4) (k)(5) (k)(6) (k)(7) SUBSECTIONS OF TITLE 5, UNITED STATES CODE, SECTION 552 (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified to such Executive order; related solely to the internal personnel rules and practices of an agency; specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld; trade secrets and commercial or financial information obtained from a person and privileged or confidential; inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ( A) could reasonably be expected to interfere with enforcement proceedings, (B ) would deprive a person of a right to a fair trial or an impartial adjudication, ( C ) could reasonably be expected to constitute an unwarranted invasion of personal privacy, ( D ) could reasonably be expected to disclose the identity of confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, ( E ) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or ( F ) could reasonably be expected to endanger the life or physical safety of any individual; contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or geological and geophysical information and data, including maps, concerning wells. SUBSECTIONS OF TITLE 5, UNITED STATES CODE, SECTION 552a information compiled in reasonable anticipation of a civil action proceeding; material reporting investigative efforts pertaining to the enforcement of criminal law including efforts to prevent, control, or reduce crime or apprehend criminals; information which is currently and properly classified pursuant to an Executive order in the interest of the national defense or foreign policy, for example, information involving intelligence sources or methods; investigatory material compiled for law enforcement purposes, other than criminal, which did not result in loss of a right, benefit or privilege under Federal programs, or which would identify a source who furnished information pursuant to a promise that his/her identity would be held in confidence; material maintained in connection with providing protective services to the President of the United States or any other individual pursuant to the authority of Title 18, United States Code, Section 3056; required by statute to be maintained and used solely as statistical records; investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment or for access to classified information, the disclosure of which would reveal the identity of the person who furnished information pursuant to a promise that his/her identity would be held in confidence; testing or examination material used to determine individual qualifications for appointment or promotion in Federal Government service he release of which would compromise the testing or examination process; material used to determine potential for promotion in the armed services, the disclosure of which would reveal the identity of the person who furnished the material pursuant to a promise that his/her identity would be held in confidence. FBI/DOJ Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 24 of 36 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) DAVID AUSTIN LINDSEY ) ) Plaintiff, ) ) v. ) ) FEDERAL BUREAU OF ) INVESTIGATION ) ) Defendant. ) _______________________________________ ) Civil Action No. 1:16-cv-2032 Exhibit F Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 25 of 36 Appeal Details St at Submitted Evaluation Assignment Processing Initial Evaluation Due Date : N/A 0 0 (Never Started) Closed Appeal Details Tracking Number: DOJ-AP-2016-004293 Requester: David Lindsey University of California, San Diego Yes N/A dvdlndsy@gmail.com 540-525-1588 N/A Department of Political Science 9500 Gilman Drive #0521 City : La Jolla State/Province : CA Zip Code/Postal Code : 92093 Organization Requester Has Account Created on behalf of Email Address Phone Number Fax Number Address Submitted Date Last Assigned Date Appeal Track Due Date Assigned To Last Assigned By 07/20/2016 07/20/2016 Simple N/A Appeals N/A -Request Details--------------------------------------------------------- ----------------------------------------- Tracking Number: 1351152-000 Request Phase : Closed Requester: David Lindsey Request Track : Simple Date Submitted : 05/18/2016 Final Disposition : Denied Request Description : j? The original request sought all FBI records of contact between I mad Hage and U.S. government officials, which I later agreed to limit solely to information about peace proposals related to the Iraq conflict. Submission Details Case File i Admin Cost Assigned Tasks Comments (0) Review Appeal Handling-------------- Requester Info Available to No * the Public : Appeal Track: simple Fee Category : N/A Expedited Processing No Requested : Expedited Processing Status : N/A Appeal Received : No -J Acknowledgement Sent Date: 5 Day Notifications: Litigation : No »| - Basis for Appeal----- Short Description : The FBI denied this request on the basis that public interest in the operations and activities of the government involved did not exceed the privacy interest involved. As noted in my June 10 letter to the FBI, the Hage affair is a matter of immense public concern with substantial implications for public trust in the government and a full accounting of the matter will dramatically advance public understanding of government operations. Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 26 of 36 I have attached a copy of this June 10 to this appeal for your reference. In brief as been extensively reported that Mr. Hage transmitted back channel peace proposals to the Bush administration prior to the Iraq War. I note first that the records requested concern only diplomatic activity and do not involve privacy considerations. Second, OIF guidelines note that "an individual generally does not have substantial privacy interests with respect to information that he or she has made public" and Mr. Hage has, as noted in the attached document, given national media interviews discussing these matters. Third, the information in question is of great public concern: the attached document cites over a dozen national and international new stories covering the issue and several books by scholars and journalists. As noted in the document, prominent commentators argue that Hage's diplomatic efforts and the Bush administration's response constitute strong evidence of misconduct by the Bush administration -- such claims of misconduct by officials up to and including the President of the United States create a public interest of the highest order in understanding what occurred and how the government operated. In short, any existing privacy interest is miniscule given that the request concerns diplomatic, rather than personal activities, and that Mr. Hage has given national media interviews discussing this matter. On the other hand, the public interest in understanding an issue of such consequence is overwhelming. Basis Available to the Public : No rj Has Basis Been Modified? r Additional Information------------------------------------------------------------------------------------- Expedited Type : Select Expedited Type *1 Sub-Office : Federal Bureau of Investigation -Attached Supporting Files-------------------------------------------------------------------------------- Attachments Available to the No - Public: “ Attached File Type Size (MB) Remove FBIHage.pdf PDF 0.08 Q - Upload Supporting Files No attachments have been added. Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 27 of 36 FBI Work Process Unit (540) 868-4997 June 10, 2016 Dear FOIA Officer, This letter is in reference to FOIA request #1351152-000, specifically your letter dated June 6, 2016. This request sought records from the FBI concerning contact between Imad Hage and U.S. government officials related to back channel Iraqi peace proposals. In your letter, you state that the existence of such records can neither be confirmed nor denied as Mr. Hage is a living person. The purpose of this letter is to demonstrate a clear public interest in the disclosure of these records. As stated in the original request, the requested documents concern matters of great public concern that have been extensively discussed in the media, including direct discussion of these matters by Mr. Hage. Most importantly, extensive scholarly and media commentary suggests that the back channels peace offers and the Bush administration’s response to them constitute clear evidence that the Bush administration acted fraudulently in making the case for war with Iraq. Given the severity of this claim, there is an overwhelming public interest in the disclosure of these records. I divide this response into several sections. First, I show that the subject of these records is of great public concern. Second, I note that Mr. Hage has personally discussed the matter in question publicly. The subject of these records is of great public concern I will reiterate that the purpose of this request is to support research into back channel peace negotiations between the United States and Iraq. On November 7, 2003, Mr. Hage personally spoke with CNN, openly discussing his involvement in these matters.1 In his CNN interview, Mr. Hage states that the back channel offers he received were genuine and while unsure if these offers could have averted war, he “though that this effort should have been given a chance.” Mr. Hage personally made similar statements to ABC News on November 5, 2003, telling ABC: “It seemed to me there was a genuine offer that was on the table and somebody should have talked, at least talked.”2 These claims have prompted significant, genuine public concern about the rejection of Mr. Hage’s offers. In his book In his book, Why Nations Go to War (Wadsworth Cengage Learning 2011; see p. 418), the academic John Stoessinger describes the rejection of Mr. Hage’s offer by the Bush administration as “deeply troubling” and writes that “the United States rejected the 1 See “Intermediary: Iraq talks deserved a chance”, CNN, November 7, 2003, available online at http://www.cnn.eom/2003/US/11 /07/cnna.hage/. 2 See “Claim: U.S. Spurned Peace Talks”, ABC News, November 5, 2003, available online at http://abcnews.go.com/WNT/story?id=131448&page=1 Case 1:16-cv-02032-CKK Document 10-4 Filed 01/27/17 Page 28 of 36 offer out of hand and thereby made the war inevitable.”3 Similarly, the prominent journalist James Risen in his book, State of War, suggests that the rejection of the offer made by Mr. Hage is evidence that, by the time the U.S. invaded Iraq, “it was too late for anyone to consider the truth” about the Iraqi situation.4 In 2005, the noted political bog Da//y/