Opinion
C/A No. 2:19-cv-1786-RMG-MHC
11-13-2020
Robert T. Samuel, III, Plaintiff, v. The United States Department of State, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, proceeding pro se, brings this action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking an order from this Court directing Defendant United States Department of State (the "Department") to produce agency records about alleged acoustic incidents in Cuba affecting American diplomatic personnel and their family members. Presently before the Court is the Department's Motion for Summary Judgment ("Motion"). ECF No. 37. Plaintiff filed a Response in Opposition, ECF No. 41, and the Department filed a Reply, ECF No. 42. The Motion is ripe for review.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(e), D.S.C. This Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned recommends that the Department's Motion be granted.
BACKGROUND
On February 25, 2018, Plaintiff submitted a FOIA request to the Department for the following categories of records:
-Evaluation(s), and/or, tests performed on person(s) afflicted with the 'Cuba Condition' pertaining to 'electromagnetic pulses,' electromagnetic fields (EMF)[;]ECF No. 1-1 at 1. Plaintiff further explained the reason behind his FOIA request:
-Analysis or reports related to the 'Cuba Condition' as it relates to the usage of EMF 'weaponry' or mechanisms, methods, or techniques that yield the same result(s) ([i.e.,] hacking of the electrical grid so as to produce EMF[.]
Specifically, there have been numerous articles covering the issue(s) as they relate to the 'Cuba Condition[,] and in two articles in the Fall of 2017 it was mentioned that 'electromagnetic pulses' was considered a potential cause (AP News and ARS Technica). Yet the recent report, commissioned by your agency and detailed in a JAMA article . . . makes no mention of any tests done relating to EMF. And therefore it is in the public's interest to know why not: what analysis, or testing, has been done by the government, or its agents, to conclude that EMF is not a cause of the conditions afflicting State Department personnel who were stationed in Havana, Cuba ([i].e. 'Cuba Condition').Id.
On May 1, 2018, the Department acknowledged receipt of Plaintiff's request but denied the FOIA request on the basis that the request had not "reasonably described" the records sought. Id. at 3. The Department asked that Plaintiff "narrow the time frame" of the request. Id. Plaintiff responded by letter dated May 18, 2018, narrowing the request's timeframe to January 1, 2016, through May 18, 2018. Id. at 5. The Department acknowledged receipt of Plaintiff's amended request by letter dated June 28, 2018. ECF No. 37-1 at 24.
By letter dated October 16, 2018, Plaintiff requested mediation from the Office of Government Information Services ("OGIS"), noting that he had not received a response to his FOIA request. ECF No.1-1 at 7. Plaintiff received an e-mail dated February 15, 2019, in which OGIS acknowledged receipt of his request but stated that it was unable to provide a date of completion for the processing of his FOIA request. ECF No. 1-1 at 9.
Plaintiff filed this lawsuit on June 24, 2019, seeking injunctive relief. ECF No. 1. By letter dated September 25, 2019, the Department issued a Glomar response to Plaintiff's request, declining to confirm or deny the existence of any records responsive to Plaintiff's request and citing as its bases FOIA Exemptions 7(A) and 7(E). ECF No. 37-1 at 26. On January 29, 2020, the Department amended its letter to add FOIA Exemption 1 as an additional basis for its Glomar response. Id. at 29.
This type of FOIA response received its name from Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976), in which the Central Intelligence Agency ("CIA") refused to confirm or deny whether records existed relating to "the Hughes Glomar Explorer, a ship used in a classified [CIA] project 'to raise a sunken Soviet submarine from the floor of the Pacific Ocean to recover the missiles, codes, and communications equipment onboard for analysis by United States military and intelligence experts.'" Roth v. U.S. Dep't of Justice, 642 F.3d 1161, 1171 (D.C. Cir. 2011) (quoting Phillippi, 655 F.2d at 1327).
LEGAL STANDARD
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
The FOIA confers jurisdiction on district courts to "enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld." 5 U.S.C. § 552(a)(4)(B). The law is clear that, under this provision, "federal jurisdiction is dependent on a showing that an agency has (1) improperly (2) withheld (3) agency records." U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989) (internal quotation marks omitted). "Unless each of these criteria is met, a district court lacks jurisdiction to devise remedies to force an agency to comply with the FOIA's disclosure requirements." Id. at 142-43. The court conducts a de novo review of the agency's response to a challenged FOIA request. 5 U.S.C. § 552(a)(4)(B).
The FOIA mandates disclosure of government records unless the requested information falls within one of nine enumerated exemptions. See 5 U.S.C. § 552(b). While narrowly construed, the FOIA's statutory exemptions "are intended to have meaningful reach and application." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989).
In some instances, an agency "may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable" under a FOIA exemption. Wolf v. C.I.A., 473 F.3d 370, 374 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)). This so-called Glomar response "is proper if the fact of the existence or nonexistence of agency records falls within a FOIA exemption." Id. "In determining whether the existence of agency records vel non fits a FOIA exemption, courts apply the general exemption review standards established in non-Glomar cases." Id.
The Government bears the burden of proving that the withheld information falls within the exemptions it invokes. See 5 U.S.C. § 552(a)(4)(B); City of Va. Beach, Va. v. U.S. Dep't of Commerce, 995 F.2d 1247, 1252 (4th Cir. 1993). An agency issuing a Glomar response must explain in as much detail as possible why it cannot confirm or deny the existence of certain records or categories of records, which it may seek to do by affidavit. James Madison Project v. Dep't of Justice, 208 F. Supp. 3d 265, 283 (D.D.C. 2016). "Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims[.]" SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation mark omitted). If a Glomar response is justified, "the agency need not conduct any search for responsive documents or perform any analysis to identify segregable portions of such documents." People for the Ethical Treatment of Animals v. Nat'l Insts. of Health, Dep't of Health & Human Servs., 745 F.3d 535, 540 (D.C. Cir. 2014). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Wolf, 473 F.3d at 374-75 (internal quotation marks and citations omitted).
"FOIA cases are generally resolved on summary judgment," Wickwire Gavin, P.C. v. U.S. Postal Serv., 356 F.3d 588, 591 (4th Cir. 2004), because FOIA cases rarely involve a factual dispute but rather only a legal dispute over how the law is to be applied to the documents withheld, see O'Shea v. NLRB, 2:05cv2808-DCN-RSC, 2006 WL 1977152, at *2 (D.S.C. July 11, 2006). A court may grant summary judgment to the Government based entirely on an agency's declaration or affidavit, provided it articulates "the justifications for nondisclosure with reasonably specific detail, demonstrate[s] that the information withheld logically falls within the claimed exemption, and [is] not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quotation omitted). "Summary judgment is available to the defendant in a FOIA case when the agency proves that it has fully discharged its obligations under [the] FOIA[.]" Miller v. U.S. Dep't of State, 779 F.2d 1378, 1382 (8th Cir. 1985).
DISCUSSION
I. The Department Properly Invoked Exemption 1.
The Department invoked Exemption 1 as a basis for its Glomar response. Exemption 1 exempts from disclosure matters that are "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and . . . are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1).
In support of its Motion, the Department has submitted the declaration of Todd J. Brown, the Principal Deputy Assistant Secretary and Director of the Diplomatic Security Service with the Bureau of Diplomatic Security at the Department. ECF No. 37-1. Brown states that the existence or nonexistence of records relating to Plaintiff's request is a fact exempted from disclosure by Exemption 1 because that "fact is currently and properly classified under Section l.4(c) of [Executive Order] 13526, which exempts from disclosure 'intelligence activities (including covert action), intelligence sources and methods, or cryptology.'" Id. at 5 ¶ 14. According to Brown, there is a real and significant counterintelligence threat from foreign intelligence entities, which is of serious concern to the U.S. Government and a priority area of focus for the intelligence community. Id. at 6 ¶ 15.
Brown further explains that "[i]n light of these threats, the existence or nonexistence of records related to the Department's investigative techniques and procedures with respect to incidents affecting American citizens in Cuba is an inherently sensitive intelligence matter that should be protected." Id. at ¶ 16.
Public acknowledgment of the existence or nonexistence of records relating to the Department's investigative techniques and procedures in a counterintelligence context would provide individuals, entities, and governments hostile to the United States with valuable information about the Department's counterintelligence priorities and capabilities. For example, the existence of a large volume of records related to electromagnetic testing in Cuba would allow U.S. adversaries to draw sensitive inferences about the Department's awareness of and involvement in any such testing as well as the importance the Department places on such incidents. Conversely, a lack of such records would indicate the Department's lack of awareness, or lack of interest, in the evaluation and analysis of the incidents, which hostile powers could exploit. Both scenarios implicate serious counterintelligence and national security concerns.
Similarly, for the Department to confirm or deny the existence of responsive records would reveal sensitive information regarding the Department's - and the Intelligence Community's - analytical and technological capabilities. For example, if the Department were to acknowledge that these records do not exist, a hostile foreign government, entity, or individual may be emboldened to exploit this
apparent weakness or to develop such investigative techniques or procedures itself. On the other hand, if the Department confirmed the existence of records related to such techniques and procedures, it would alert foreign adversaries to the Department's technological capacity and its investigative and analytical methods. As a result, U.S. adversaries may seek to exploit or to mitigate the effectiveness of these techniques and procedures, thereby undermining their development and harming national security.Id. at 6-7 ¶¶ 17-18.
Thus, Brown maintains that to "protect the U.S. Government's counterintelligence efforts and the national security, the only remaining option for the Department is to neither confirm nor deny the existence of records related to government evaluations, analyses, tests, or reports in this context." Id. at 7 ¶ 18.
The undersigned finds that the Department's justification for its invocation of Exemption 1 is both plausible and logical. See Wolf, 473 F.3d at 374 ("[I]n conducting de novo review in the context of national security concerns, courts must accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." (internal quotation marks omitted)). Therefore, the Glomar response should be sustained on this basis. See id. at 375. Accordingly, the undersigned recommends that the Department's Motion be granted.
II. The Department Properly Invoked Exemption 7(A).
The Department invoked Exemption 7(A) as an additional basis for its Glomar response. Exemption 7(A) 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 interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). To justify the withholding of records under Exemption 7(A), the Department must "demonstrate that disclosure (1) could reasonably be expected to interfere with (2) enforcement proceedings that are (3) pending or reasonably anticipated." Citizens for Responsibility & Ethics in Wash. v. DOJ, 746 F.3d 1082, 1096 (D.C. Cir. 2014) ("CREW") (internal quotation marks omitted); see BuzzFeed, Inc. v. Dep't of Justice, 344 F. Supp. 3d 396, 403 (D.D.C. 2018).
According to Brown's declaration, the types of records requested by Plaintiff—investigative records concerning specific types of evaluations, tests, analyses, or reports in relation to the alleged acoustic incidents in Cuba—are records that would have been compiled for law enforcement purposes: an investigation into incidents affecting U.S. diplomatic personnel and accompanying dependents. ECF No. 37-1 at 8 ¶ 20.
Brown further avers that such an investigation would fall under the Department's law enforcement duties, as the "Secretary of State has security responsibility for U.S. Government personnel overseas on official duty, except for Voice of America correspondents and those under the command of an area military commander." Id. at ¶ 21 (citing the Omnibus Diplomatic Security Act, as amended, 22 U.S.C. §§ 4802(a)(2)(B)(i), (a)(2)(B)(x)). Brown further explains that the Department's Bureau of Diplomatic Security ("DS"), which is the law enforcement and security arm of the Department, see 22 U.S.C. §§ 2709(a), 4802, has acknowledged that it is conducting an ongoing investigation into these incidents. Id. (citing Cuba Travel Advisory, U.S. DEP'T OF STATE (Nov. 21, 2019) ("We continue to investigate how the health of our diplomats and their family members was severely and permanently damaged.")).
Brown describes how acknowledging the existence or nonexistence of records related to this active, ongoing counterintelligence investigation "would interfere with and jeopardize the Department's ability to properly conduct the investigation":
Plaintiff not only requests records related to the Department's counterintelligence investigative techniques and procedures but requests records related to the use of specific types of techniques and procedures: namely, evaluations, tests, analyses, or reports pertaining to electromagnetic pulses, electromagnetic fields, or the usage of such weaponry or mechanisms, methods, or techniques.
To acknowledge the existence—or lack thereof—of any records related to such techniques and procedures would reveal sensitive, non-public information about the nature, scope, and focus of the investigation. It would tip off any perpetrators of the alleged acoustic incidents to the Department's investigative priorities, interests, and capabilities, including the areas where it has focused its resources at any given period of time, the extent of its awareness and usage of particular techniques and procedures in conducting investigations, and the extent of its analytical and technological capacity to perform such tests. By providing information about the ongoing investigation's parameters, the Department would give these individuals the opportunity to interfere with the investigation; conceal their current or past criminal activities; avoid detection; hide, destroy, or fabricate evidence; exploit any perceived weaknesses or gaps in the investigation; or otherwise mitigate the effectiveness of the investigation. Furthermore, it would provide subjects of the investigation with critical insights into the Department's legal thinking and strategy, which could impede the investigation itself. And, by damaging the investigation, release of this information could harm any potential criminal prosecutions or other enforcement proceedings that may ultimately result from the investigation.Id. at 10-11 ¶¶ 24-25.
Upon review of Brown's declaration, the undersigned finds that the Department has supplied sufficient information to support its claim that revealing whether or not records exist "could reasonably be expected to interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A); see also CREW, 746 F.3d at 1096. Therefore, the Glomar response should be sustained, and summary judgment granted, on this independent basis. See Wolf, 473 F.3d at 375.
III. The Department Properly Invoked Exemption 7(E).
Finally, Exemption 7(E) provides a third, independent basis to justify the Department's Glomar response. Exemption 7(E) exempts from disclosures "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . 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." 5 U.S.C. § 552(b)(7)(E).
Courts have recognized that "the text of exemption 7(E) is much broader" than other exemptions that "set a high[er] standard." Mayer Brown LLP v. IRS, 562 F.3d 1190, 1194 (D.C. Cir. 2009) "Rather than requiring a highly specific burden of showing how the law will be circumvented, exemption 7(E) only requires that the agency demonstrate logically how the release of the requested information might create a risk of circumvention of the law." Blackwell v. F.B.I., 646 F.3d 37, 42 (D.C. Cir. 2011) (internal quotation marks omitted). Thus, Exemption 7(E) "exempts from disclosure information that could increase the risks that a law will be violated or that past violators will escape legal consequences." Mayer Brown, 562 F.3d at 1193. Accordingly, "[w]hile Exemption 7(E)'s protection is generally limited to techniques or procedures that are not well-known to the public, even commonly known procedures may be protected from disclosure if the disclosure could reduce or nullify their effectiveness." Touarsi v. U.S. Dep't of Justice, 78 F. Supp. 3d 332, 348 (D.D.C. 2015) (internal quotation marks omitted).
The Department's justifications under FOIA Exemption 7(E) are similar to those invoked under Exemption 7(A):
Here, Plaintiff specifically seeks records related to the Department's usage of particular techniques and procedures in its investigation of the alleged acoustic incidents in Cuba: evaluations, tests, analyses, or reports pertaining to "'electromagnetic pulses,' [or] electromagnetic fields (EMF)" as well as the usage of other "'weaponry' or mechanisms, methods, or techniques that yield the same results." Any investigative techniques or procedures related to electromagnetic pulses or fields, to the extent that they do or do not exist, are not well-known to the public. Disclosure, however, would be damaging regardless of whether the underlying techniques or procedures exist and are widely known.
How the Department decides to apply—or not apply—its investigative resources against specific perceived threats or criminal activities is a law enforcement technique or procedure protected from disclosure. As previously demonstrated, such disclosure would reveal non-public information about the extent of the Department's use, as well as its capacity to use, the particular investigative techniques and procedures cited in Plaintiff[']s request. The public availability of such information could reasonably be expected to increase the risk that any perpetrators of the alleged acoustic incidents, as well as other parties intending to
harm U.S. personnel or U.S. national security interests, would be able to circumvent the law. Using this knowledge, for example, individuals would be able to exploit perceived investigatory or security gaps, change their behavior to avoid detection, or otherwise hamper investigations, making it more difficult for the Department to assess and investigate threats.ECF No. 37-1 at 11-12 ¶¶ 28-29.
Brown's declaration plausibly and logically demonstrates why confirming or denying the existence of responsive records increases the risk that laws may be violated or that perpetrators may avoid legal consequences. See Mayer Brown, 562 F.3d at 1193; Wolf, 473 F.3d at 375. The undersigned thus concludes that the Department has established the applicability of Exemption 7(E). Accordingly, the undersigned recommends that the Department's Glomar response be sustained, and the Department's Motion be granted, on this independent basis.
IV. The Government Did Not Waive Its Glomar Response.
In response to the Department's Motion, Plaintiff argues that the Department "already provided relevant material regarding the matter at hand; and an overview of the incident(s) precipitating the [FOIA] request can also be found online." ECF No. 41 at 1 (citing a Wikipedia page). Plaintiff cites to press articles to argue that the Department "has talked about test(s) being conducted" and "has stated publicly the results of tests and research." Id. at 2-3. He further claims that "[i]n numerous articles and reports Defendant states that individual(s) have suffered harm due to an 'acoustic attack' or 'sonic attack' with no substantiation of what, or when it, transpired." Id. at 2. Finally, Plaintiff notes that "it has been reported that the Federal Bureau of Investigation ('FBI') has conducted research on the efficacy of sonic weaponry." Id. at 3. None of these arguments are sufficient to overcome Defendant's Glomar response and compel disclosure.
The undersigned finds no merit in Plaintiff's contention that the Department has "acted in bad faith" because it did not mention "any incidents in China" in its filings or correspondence. See ECF No. 41 at 6. First, the Government generally is accorded a presumption of good faith and regularity in its official conduct. Dep't of State v. Ray, 502 U.S. 164, 179 (1991). Second, while Plaintiff's FOIA request specifically references "State Department personnel who were stationed in Havana, Cuba," it does not mention China. ECF No. 1-1 at 1. The Department is "not required to speculate about potential leads" or "to look beyond the four corners of the request." Kowalcyzk v. Dep't of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996); see Rein v. U.S. Patent & Trademark Office, 553 F.3d 353, 365 (4th Cir. 2009) (explaining that agencies "were not required to look beyond the four corners of [plaintiff's] requests . . . nor were they required to chase rabbit trails").
"It is well established that a FOIA plaintiff may compel disclosure of information 'even over an agency's otherwise valid exemption claim' if the government previously 'officially acknowledged' the information." BuzzFeed, 344 F. Supp. 3d at 407 (quoting ACLU v. U.S. Dep't of Def., 628 F.3d 612, 620 (D.C. Cir. 2011)). "The rationale behind the doctrine is that once information has become public, any harm the agency fears from disclosure has already been sustained." Id.
Courts have established a "strict test" to be applied to claims of official disclosure. See Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011). Pursuant to this stringent three-part test, information is officially acknowledged by an agency only where: (1) "the information requested [is] as specific as the information previously released"; (2) the requested information "match[es] the information previously disclosed"; and (3) the requested information was already "made public through an official and documented disclosure." Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). The prior disclosure must originate from the agency itself, as opposed to another, unrelated agency. Buzzfeed, 344 F. Supp. 3d at 408; see Mobley v. CIA, 806 F.3d 568, 583 (D.C. Cir. 2015) ("Disclosure by one federal agency does not waive another agency's right to assert a FOIA exemption."). Similarly, the "press and other non-official sources cannot waive the government's right to invoke a Glomar response." Buzzfeed, 344 F. Supp. 2d at 408 (citing Fitzgibbon, 911 F.2d at 765).
The fact "that information exists in some form in the public domain does not necessarily mean that official disclosure will not cause harm cognizable under a FOIA exemption." Wolf, 473 F.3d at 378. Therefore, to overcome a Glomar response, a plaintiff must identify a prior disclosure that "has been publicly and officially acknowledged by the agency," Moore, 666 F.3d at 1333, and that "matches both the information at issue—the existence of records—and the specific request for that information," Wolf, 473 F.3d at 379. "Prior disclosure of similar information does not suffice; instead, the specific information sought by the plaintiff must already be in the public domain by official disclosure." Id. at 378. Thus, "a plaintiff asserting prior disclosure must bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld." Id. (internal quotation marks omitted).
In light of the above, for Plaintiff to overcome the Department's Glomar response, Plaintiff must point to a record in the public domain in which the Department, or a related agency within the Department, acknowledged the existence of records of (1) "[e]valuation(s), and/or, tests performed on person(s) afflicted with the 'Cuba Condition' pertaining to 'electromagnetic pulses,' electromagnetic fields (EMF)," or (2) "[a]nalysis or reports related to the 'Cuba Condition' as it relates to the usage of EMF 'weaponry' or mechanisms, methods, or techniques that yield the same result(s) ([i.e.,] hacking of the electrical grid so as to produce EMF)." See ECF No. 1-1. Based on the undersigned's review of the full record, Plaintiff has not met this burden.
First, Plaintiff does not identify any prior disclosures by the Department that satisfy the specificity and matching requirements of the official acknowledgment test. Although the Department has acknowledged the general fact that it is conducting an investigation into the Cuba health incidents, ECF No. 37-1 at 9 ¶ 23, there is no evidence that the Department has confirmed the existence of any of the specific information Plaintiff has sought. Moreover, Plaintiff has not shown that the Department has publicly disclosed any information regarding evaluations, tests, analyses, or reports pertaining to electromagnetic pulses or fields in relation to the Cuba health incidents from the period January 1, 2016, to May 18, 2018, which is required under the official acknowledgment doctrine to overcome an agency's Glomar response. See, e.g., BuzzFeed, 344 F. Supp. 3d at 409-10 ("A prior agency statement that provides only the most general outline of an intelligence effort does not waive the right to withhold records that provide a far more precise idea of the effort.") (internal quotation marks omitted).
Second, Plaintiff cannot rely on news articles and reports to establish an official acknowledgment. See EPIC v. NSA, 678 F.3d 926, 933 n.5 (D.C. Cir. 2012) ("NSA has never officially acknowledged a collaborative relationship with Google, and the national media are not capable of waiving NSA's statutory authority to protect information related to its functions and activities."); Judicial Watch, Inc. v. U.S. Dep't of State, 373 F. Supp. 3d 142, 149 (D.D.C. 2019) ("[T]o the extent that Plaintiff asserts that State has somehow waived its right to claim these exemptions because of these media reports, an agency may only waive its FOIA rights th[r]ough "'official and documented' disclosure" of the information at issue."); Competitive Enter. Inst. v. NSA, 78 F. Supp. 3d 45, 59 (D.D.C. 2015) ("But speculation by the press—no matter how widespread—and disclosures in the press from unnamed sources are not sufficient to waive an agency's right to withhold information under FOIA.").
Finally, Plaintiff cannot rely on statements by other agencies, such as the FBI, to establish a waiver by the Department. See Mobley, 806 F.3d at 583. Therefore, even if the alleged FBI report to which Plaintiff refers has been released publicly, and even if it mentioned electromagnetic testing—neither of which is evident on the record—this alleged FBI report would not be sufficient to defeat the Department's Glomar response.
In sum, the undersigned concludes that the Department has justified its Glomar response under FOIA Exemptions 1, 7(A), and 7(E), and it has not waived these exemptions through a prior official statement. Accordingly, the Department is entitled to summary judgment.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Defendant's Motion for Summary Judgment (ECF No. 37) be GRANTED, and that Plaintiff's Complaint be DISMISSED.
The parties are referred to the Notice Page attached hereto. November 13, 2020
Charleston, South Carolina
/s/_________
Molly H. Cherry
United States Magistrate Judge
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).