Gellman v. Department of Homeland Security

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BARTON GELLMAN, Plaintiff, v. Case No. 16-cv-635 (CRC) DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. MEMORANDUM OPINION Journalist Barton Gellman filed Freedom of Information Act (“FOIA”) requests with a host of federal intelligence agencies seeking every record in their files that mentions his name. When many of the agencies failed to respond within the required statutory timeframe, Gellman filed this suit. The agencies have now finished processing all of Gellman’s requests. In total, they provided him some 4,500 pages of responsive documents (in full or partially redacted) but have withheld many others. Before the Court are the parties’ cross-motions for summary judgment over the agencies’ withholdings. For the reasons explained below, the Court will uphold most of the challenged withholdings, enter summary judgment for Gellman on a handful of his claims, and deny summary judgment to each side on several issues where an agency needs to provide more detailed descriptions of the withheld or redacted documents. I. Background Barton Gellman is a Pulitzer Prize-winning journalist who reports on foreign affairs, the military, and intelligence issues. In 2013 and 2014, Gellman reported for the Washington Post on classified documents that had been leaked to him by former National Security Agency (“NSA”) contractor Edward Snowden. Pl.’s Cross-Mot. for Summ. J. (“Cross-MSJ”), Exh. 4 (“Gellman Decl.”) ¶ 6. Gellman is in the process of publishing a book about Snowden, the NSA, and “the boundaries of secret intelligence gathering in a democracy.” Id. ¶ 11. Throughout 2015, Gellman submitted FOIA and Privacy Act requests to nine separate components of federal agencies (collectively, “the Government”) seeking all records that mention his name. Id. ¶¶ 14– 22; Compl. Exhs. A–I. 1 After some agencies failed to respond within the statutory timeframe and others informed Gellman that they were withholding all responsive records, he filed this suit in April 2016. Over the next two years, the Government adhered to the Court’s order to process and produce responsive, non-exempt records on a monthly basis. After the Government issued its final response, the parties determined that dispositive motions were necessary. The Government moved for summary judgment (“Defs.’ MSJ”) supported by declarations from each agency, including two ex parte declarations for the Court to review in camera, explaining each withholding and redaction. Gellman filed a cross-motion for summary judgment and also asked the Court to review certain documents in camera. 2 The Court heard argument on the motions on February 26, 2020. 1 The recipient agencies are: the Department of Homeland Security (“DHS”)—including its components the Office of Legislative Affairs, the Office of Intelligence and Analysis (“I&A”) and the Transportation Security Administration (“TSA”); the Department of Justice (“DOJ”)— including its components the Federal Bureau of Investigation (“FBI”), the Criminal Division, the Office of Information Policy (“OIP”), and the National Security Division (“NSD”); and the Office of the Director of National Intelligence (“ODNI”). Some agencies sought a consultation from the National Security Agency (“NSA”), which requested certain withholdings on its behalf. 2 ...

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