Judicial Watch, Inc. v. U.S. Department of State

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUDICIAL WATCH, INC., Plaintiff, v. Civil Action No. 20-1729 (TJK) UNITED STATES DEPARTMENT OF STATE, Defendant. MEMORANDUM OPINION AND ORDER Judicial Watch, Inc. sued the Department of State under the Freedom of Information Act to obtain records of requests made by, or on behalf of, former United Nations Ambassador Saman- tha Power to “unmask” the identity of former National Security Advisor Lieutenant General Mi- chael Flynn in intelligence reports. After searching for such records, the State Department found none. The State Department now moves for summary judgment, arguing that its search was ade- quate. Judicial Watch opposes and cross-moves for summary judgment, arguing to the contrary. On the record before it, the Court finds that the State Department’s search was largely but not entirely adequate, but it will allow the State Department to try to remedy the identified inadequa- cies. Thus, the Court will grant in part and deny without prejudice in part the State Department’s motion, deny in part and deny without prejudice in part Judicial Watch’s cross-motion, and order the parties to file a joint status report addressing how they wish to proceed. I. Background In 2019, Judicial Watch submitted a FOIA request to the State Department seeking a wide array of records relating to alleged requests from former U.N. Ambassador Samantha Power to intelligence-community agencies for information generally concerning potential ties between former President Trump and the Russian government. ECF No. 29 at 11–13 ¶ 1; see also ECF No. 1 ¶ 5. The State Department acknowledged receiving the request but never responded to it. See id. ¶¶ 6–7; ECF No. 19 at 3–4. Judicial Watch previously had submitted an identical request to the State Department, which issued a Glomar response that this Court upheld. See ECF No. 1 ¶ 8; Judicial Watch, Inc. v. U.S. Dep’t of State, 373 F. Supp. 3d 142, 145, 147, 149 (D.D.C. 2019). 1 Later, however, Acting Director of National Intelligence Richard Grenell declassified a memorandum (“Grenell Memo- randum”) listing government officials who submitted requests to the NSA between November 8, 2016 and January 31, 2017 to “unmask” Lieutenant General Michael Flynn in foreign intelligence reports. See ECF No. 1-1 at 2–4; ECF No. 29 at 13 ¶ 3. 2 The Grenell Memorandum revealed that several “authorized individuals” had requested “unmaskings” on behalf of a number of govern- ment officials, including Ambassador Power, who had seven such requests made on her behalf on six dates in late 2016 and early 2017—namely, November 30, 2016; December 2, 2016; December 7, 2016; December 14, 2016; December 23, 2016; and January 11, 2017. ECF No. 1-1 at 4. Judicial Watch then sued over its 2019 FOIA request, arguing that the State Department’s prior Glomar response had been “superseded” by the Grenell Memorandum. ECF No. 1 ¶¶ 10– 14. Soon after that, another court in this District held that the State Department “no longer can assert a Glomar response . . . for records about the …

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