Case 1:17-cv-00597-APM Document 34 Filed 03/16/18 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES MADISON PROJECT, et al.,

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Plaintiffs,
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v.
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UNITED STATES DEPARTMENT OF JUSTICE, )
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Defendant.
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Case No. 17-597-APM

JOINT STATUS REPORT
By Minute Order dated February 2, 2018, the Court instructed that by February 14, 2018,
“Defendant shall notify the court whether the release of the ‘Nunes Memo’ referenced in
Plaintiffs’ Notice of Supplemental Information affects Defendant’s blanket Glomar response to
Plaintiffs’ FOIA request,” and further that “[i]f Defendant maintains that the Nunes Memo’s
release does not in any way change the agency’s Glomar response, it shall set forth its
justification for that position.” Defendant responded on February 14, 2018, requesting that
current motions be terminated as moot and requesting 30 days to confer with Plaintiffs’ counsel
and propose a reasonable schedule for the Government to make additional disclosures of records,
if any, and to re-brief summary judgment, including asserting any remaining partial Glomar
response.
The Court denied the pending motions for summary judgment as moot and directed the
parties to appear for a status conference on March 19, 2018, at 10:00 am. Counsel for the parties
have conferred and hereby advise the Court of their respective positions in advance of the status
conference.

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Defendant’s Position.
As explained in the February 14, 2018 filing, the declassification of the Nunes
Memorandum, and the subsequent release of the Schiff Memorandum, require the Government
to carefully review FISA materials related to Carter Page to determine what information
contained in them has been declassified and whether any such declassified information can be
released to Plaintiff in response to its FOIA request. That review is ongoing.
Defendant requests until July 20, 2018 to complete processing of documents by NSD and
FBI. The Government does not make this request lightly. The attached Declaration of David
Hardy explains that ongoing review of these documents is novel, complex, and time-consuming.
The Government has never, in any litigation civil or criminal, processed FISA applications for
release to the public. See Hardy Decl. ¶ 9. The documents are lengthy and complicated, and the
assessment of national security risk requires significant consultation and review and the
diversion of operational resources from FBI’s law enforcement and national security missions.
Id. ¶¶ 8-15. The Hardy Declaration explains that this is an ongoing, multistep process to
identify matching information in the responsive documents and public disclosure, to analyze
classification and FOIA exemption status of all information in the documents, and to disclose
any reasonably segregable non-exempt information. Id. ¶¶ 8-13. Finally, if and when portions
of the FISA applications and FISC orders are identified for release after all classification, FOIA
exemption, and segregability determinations are made, the Government may have to move the
FISC for an unsealing order in order to make the release. Id.¶ 14.
Based on the foregoing, Defendants propose the following schedule:
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July 20, 2018 - Defendant completes processing and production of responsive, nonexempt records subject to FOIA.

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•

August 3, 2018 - The parties will meet and confer and file a joint status report on or
before August 3, 2018, proposing next steps.

Plaintiffs’ Position.
As a general matter, the Plaintiffs have no objection to meeting and conferring with the
Government subsequent to the completion of its processing and release of responsive records (if
any can be released, whether in whole or in part). The Plaintiffs agree that a joint status report
advising the Court of proposed next steps would be appropriate at that juncture.
The Plaintiffs do object, however, to the Government’s proposed timeframe for
completing that processing and production of responsive, non-exempt records. The records at
issue are of significant public interest, as evidenced by nothing less than the decision by the
President of the United States – apparently in defiance of objections raised by the defendant
Department of Justice – to personally authorize the declassification of the Nunes Memo in its
entirety and take the unprecedented step of officially disclosing the existence of a FISA warrant.
https://www.cnbc.com/2018/02/02/white-house-says-trump-declassified-gop-surveillancememo.html (last accessed March 16, 2018). Both the President and several Members of Congress
have since raised concerns that the information disclosed in both the Nunes Memo and
Schiff Memo reveal potential violations of law, ethics or policy by the Department of Justice in
its applications for FISA warrants targeting Carter Page. https://www.washingtontimes.com
/news/2018/feb/28/donald-trump-slams-disgraceful-jeff-sessions-over-/ (last accessed
March 16, 2018); https://www.msn.com/en-us/news/politics/gowdy-goodlatte-demandappointment-of-special-counsel-citing-fisa-abuses/ar-BBJXaI5 (last accessed March 16, 2018).

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The Plaintiffs are cognizant of the complexities of the situation faced by the Department
of Justice in processing the responsive records, but respectfully submit that alone does not render
the aforementioned public interest in these records any less immediate or significant. The
Plaintiffs ultimately defer to the Court’s best judgment regarding just how much time should be
afforded to the Department of Justice to complete processing of these important records.
On a final note, it is the Plaintiffs’ understanding that the Government will also – in
addition to processing the Carter Page FISA warrant materials in particular – be evaluating the
extent to which separate official disclosures in the Schiff Memo justify declining to invoke
Glomar responses with respect to other categories of records that would be responsive to the
Plaintiffs’ FOIA requests. It is the Plaintiffs’ understanding that the Government will advise
them of this separate legal determination at some point in advance of the deadline to complete
processing and production of the Carter Page records.
Dated: March 16, 2018

Respectfully Submitted,
CHAD A. READLER
Acting Assistant Attorney General
MARCIA BERMAN
Assistant Director, Federal Programs Branch
/s/Amy E. Powell
AMY E. POWELL
Trial Attorney, Federal Programs Branch
Civil Division, Department of Justice
310 New Bern Avenue, Suite 800
Federal Building
Raleigh, NC 27601-1461
Phone: 919-856-4013
Email: amy.powell@usdoj.gov
/s/ Bradley P. Moss
Bradley P. Moss, Esq.
D.C. Bar #975905
Mark S. Zaid, Esq.
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D.C. Bar #440532
Mark S. Zaid, P.C.
1250 Connecticut Avenue, N.W.
Suite. 200
Washington, D.C. 20036
(202) 454-2809
(202) 330-5610 fax
Brad@MarkZaid.com
Mark@MarkZaid.com
Attorneys for Plaintiffs

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 Case 1:17-cv-00597-APM Document 34-1 Filed 03/16/18 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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THE JAMES MADISON PROJECT and
BRAD HEATH, USA Today,
Plaintiffs,

v.
DEPARTMENT OF JUSTICE,
Defendant.

Civil Action No. 17-cv-0597

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SECOND 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), in Winchester, Virginia. I have held this
position since August 1, 2002. Prior to my joining the FBI, from May 1, 2001 to July 31, 2002, I
was the Assistant Judge Advocate General of the Navy for Civil Law. In that capacity, I had
direct oversight of Freedom oflnformation Act (FOIA) policy, procedures, appeals, and
litigation for the Navy. From October 1, 1980 to April 30, 2001, I 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 243

employees who staff a total of twelve (12) Federal Bureau oflnvestigation 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

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information pursuant to the FOi.A as amended by the OPEN Government Act of2007 and the
OPEN FOIA Act of2009; the Privacy Act of 1974; Executive Order 13526; Presidential,
Attorney General, and FBI policies and procedures; judicial decisions; and Presidential and
Congressional directives. My responsibilities also include the review of FBI information for
classification purposes as mandated by Executive Order 13526, 75 Fed. Reg. 707 (2010), and the
preparation of declarations in support of Exemption (b)( 1) claims under the FO IA. I have been
designated by the Attorney General of the United States as an original classification authority,
and a declassification authority pursuant to Executive Order 13526 §§ 1.3 and 3.1. The
statements contained in this declaration are based upon my personal know ledge, 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 pursuant to the provisions of the FOIA, 5
U.S.C. § 552, and the Privacy Act of 1974, 5 U.S.C. § 552a. Specifically, I am aware of the
FBI's handling of Plaintiffs' FOIA request that is the subject of this lawsuit.
(4)

This is the second declaration I have submitted in this case. My first declaration

was submitted on July 14, 2017, in support of Defendant's motion for summary judgment and
specifically to defend the FBI's Glomar response to Plaintiffs' FOIA request. See ECF No. 13-3,
Declaration of David M. Hardy. Due to recent events, the FBI's Glomar response has been
pierced in part due to the public disclosure of surveillance of Carter Page under the Foreign
Intelligence Surveillance Act (FISA). Accordingly, my second declaration is being submitted to
support Defendant's proposed schedule for processing the Carter Page FISA materials that have
been publicly acknowledged and that are responsive to Plaintiffs' FOIA request at issue in this

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lawsuit. That specifically includes the Foreign Intelligence Surveillance Court (FISC) orders of
October 21, 2016 and January 12, 2017, authorizing surveillance of Carter Page, and the FISA
applications associated with those two orders, which are the two groups of materials that fall
within the search cut-off dates of Plaintiffs request (June 16, 2015 -April 4, 2017).
(5)

On February 2, 2018, House Republicans released a memorandum authored for

Devin Nunes, Chairman of the House Permanent Select on Intelligence (HPSCI), by his staff that
disclosed the existence of FISA surveillance of Carter Page by the FBI (hereafter "the Nunes
Memo"). Information in the memorandum that was classified when it was written was
declassified by order of the President on February 2, 2018. The memorandum represents the
judgments of its authors and is not a product of the Executive Branch. It summarizes,
characterizes, and offers opinions about the much lengthier and more detailed FISA applications
submitted by the Department of Justice (DOJ) to the Foreign Intelligence Surveillance Court
(FISC), and the orders obtained from the FISC in response thereto. The Nunes Memo does not
quote any portions of the FISA applications or FISC orders on Carter Page.
(6)

On February 24, 2018, HPSCI's Democratic Members released a memorandum

authored by Adam Schiff, ranking member ofHPSCI, in response to the Nunes Memo (hereafter
"the Schiff Memo"). The release of certain information from the Schiff Memo was a
consequence of the President's decision to declassify the Nunes Memo; the redacted information
in the Schiff Memo was not declassified and disclosed in the Nunes Memo and remains currently
and properly classified. As with the Nunes Memo, the Schiff Memo represents the judgments of
its authors and is not a product of the Executive Branch. It summarizes, characterizes, and offers
opinions about the lengthy, detailed FISA applications submitted to the FISC, and the FISC
orders obtained in response thereto. Other than one paragraph in the memorandum, the Schiff

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Memo does not quote any portions of the FISA applications or FISC orders on Carter Page.
(7)

The declassification of the information in the Nunes Memo did not result in the

declassification of all information in the lengthy and detailed FISA applications or the resulting
FISC orders on Carter Page, nor did either memorandum disclose all facts and information
contained in those FISA applications and FISC orders.
(8)

Thus, notwithstanding declassification and disclosure of the fact that DOJ sought

and obtained authorization to conduct surveillance of Carter Page under FISA and certain related
facts, the FISA applications and FISC orders at issue here continue to be very sensitive materials
that are part of the on-going Russian interference investigation being overseen by the Special
Counsel's Office. Accordingly, determining what information must now be disclosed under the
FOIA requires that the FBI analyze each piece of information in the FISA materials to determine
whether it matches information disclosed in the Nunes and Schiff Memos; whether
declassification of the Nunes Memo and publication of the Schiff Memo have affected the
classification status of information that does not match the disclosed information; and what other
FOIA exemptions apply to non-matching information. Such an analysis of this information had
not previously been conducted due to the FBI's initial Glomar response to the FOIA request
submitted by Plaintiff. After the Nunes Memo was released, the FBI began processing the Carter
Page FISA applications and FISC orders for determination of what, if anything, can be released
under the FOIA, in response to the FOIA request at issue in this case, as well as other requests.
(9)

Identifying matching information and determining the classification and FQIA

exemption status of the non-matching information in these FISA materials requires extremely
careful and detailed analysis, given the sensitivities of this information. It is exceedingly rare
that the FBI would disclose any substantive information related to an active investigation such as

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the Russian interference investigation being overseen by the Special Counsel's Office, and it is
wholly unprecedented for the Government to disclose FISA applications at all, whether under the
FOIA or otherwise. Thus, any disclosure here is likely to have wide-reaching consequences to
operational concerns outside the FOIA process and must be undertaken with all due care and
consideration of the wide-reaching impacts on national security and intelligence ·operations.
(10)

The FBI is undertaking a multi-step, largely iterative process, as described below,

in order to facilitate the identification of matching information, the analysis of classification and
FOIA exemption status, and the disclosure of any reasonably segregable non-exempt
information.
( 11)

Matching Review:
(A)

Information that has been officially acknowledged through a documented

public release by an agency official must be disclosed. Thus, to the extent that there is a match
between information disclosed in the Nunes and Schiff Memos and information in the FISA
applications and FISC opinions, the matching information in the FISA materials will have to be
disclosed when reasonably segregable from non-exempt information.
(B)

The FBI is currently reviewing all of the relevant materials to identify

matching information. Except for one paragraph in the Schiff Memo, the HP SCI memoranda do
not quote the FISA applications or FISC orders, which are far longer and more detailed than
either of the HP SCI memoranda. Thus, in order to determine whether other information in the
Nunes and Schiff Memos matches information in the FISA applications and FISC orders, the
FBI has to consider whether particular information in the Nunes and Schiff Memos, when
combined with other information in either memorandum, creates a composite that
matches information in the FISA applications and FISC orders. This is a detailed and

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complicated process that requires more than a side-by-side comparison of the Nunes Memo or
the Schiff Memo against the FISA materials.
(C)

This process is on-going and will proceed simultaneously with the

classification review but must be completed prior to the FOIA review, both of which are
discussed below. 1
(12)

Classification Review:
(A)

As mentioned above, not all information in the FISA applications and

FISC orders was declassified as a result of the declassification of the Nunes Memo.
Accordingly, the FISA applications and FISC orders must undergo a classification review to
determine (i) what has been declassified, and (ii) whether the classification level of other
information was affected by the declassification of the information in the Nunes Memo and the
publication of the Schiff Memo. This requires analysis of each piece of information in the FISA
applications and FISC opinions.
(B)

This is not a typical classification review that can be conducted by RIDS,

as it would in most FOIA cases. Rather, because of the nature and sensitivities of the documents
at issue, this review is being completed by subject matter experts on the operational equities
impacted by the classification determinations at issue here. The review necessarily diverts
operational resources from FBI' s core mission activities.
(C)

Matching the declassified information in the Nunes and Schiff Memos to

the information in the FISA materials is not simply a matter of a side-by-side comparison to

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The matching review must be completed prior to the FOIA review because any
information that matches cannot be exempted. Accordingly, to ensure efficiency and
consistency, the FBI intends to identify any matching information that cannot be exempted
before beginning to analyze the remaining information for exemptions.
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transfer the declassification decisions from the HPSCI memoranda to the FISA applications and
FISC orders, given that both HPSCI memoranda consist of summaries, characterizations, and
opinions, rather than quotations from the FISA materials (except one instance in the Schiff
Memo).
(D)

Moreover, determining whether declassification of the Nunes Memo has

affected the classification status of other information in the FISA applications and orders will
require careful analysis of all of the relevant documents (i.e., both HPSCI memoranda and all the
FISA applications and FISC orders), as well as other information that is already publicly known. 2
(E)

Finally, given the sensitivities of FISA materials generally and of these

materials specifically, this classification review will be subject to multiple layers of review and
approval from operational divisions across the FBI, and by DOJ, at a minimum.
(13)

FOIA Exemption Review:
(A)

Once the matching and classification reviews are completed, RIDS will

conduct a FOIA review of the FISA applications and FISC orders to apply any other applicable
FOIA exemptions. As mentioned above, these FISA materials have not previously been
processed because the FBI issued a Glomar response to Plaintiffs FOIA request. Furthermore,
this will be the first time that FISA applications have been processed for release under the FOIA

2

Classification determinations relative to the FISA applications and FISC orders at issue
here are being made in light of the body of information available to the FBI concerning the
national defense and foreign relations of the United States. When making classification
determinations, the FBI cannot examine information in the FISA applications and FISC orders in
isolation but rather must evaluate it with careful consideration given to the impact that its
disclosure could have on other sensitive information contained elsewhere in the United States
Intelligence Community's files. Consideration must also be given to the impact that other
information - both in the public domain and likely known or suspected by present or potential
adversaries of the United States - would have upon the information in the FISA applications and
FISC orders under review here.

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or otherwise, and complicated questions about the protection of information in the applications
will have to be resolved prior to any disclosure decisions being made, because such decisions
will impact the handling of FISA applications in other cases under the FOIA and otherwise.
(B)

Once RIDS finishes applying FOIA exemptions, the consolidated

redactions of classified and other FOIA-exempt information will then be sent to internal and
external stakeholders, including DOJ's National Security Division, the Special Counsel's Office,
and other affected U.S. Intelligence Community agencies, for final review to ensure that all
equities are properly protected and defensible. Again, FBI has never previously processed FISA
applications for production under FOIA or in other litigation, and anticipates this will require
extensive consultation and review.
(14)

FISC Unsealing Order: Finally, assuming that any sealed portions of the FISA

applications and/or FISC orders are identified for release after all classification, FOIA
exemption, and segregability determinations are made, the Government will have to move to
unseal the materials before the FISC and obtain an unsealing order from the FISC in order to
make the release.
(15)

The FBI estimates that it will require four months to complete the above-

described work, up to and including July 20, 2018. Specifically, it anticipates completing the
matching review and the classification review/approvals within the first two months; the FOIA
review and internal/external stakeholder approvals in the following six weeks; and the FISC
unsealing and disclosure of any reasonably segregable, non-exempt information within the final
two weeks.

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Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and correct.

I -f.- \----

Executed

.,

this_\_~_ day of March, 2018.

Record/Information Disseminan·t'n'l-~'11
Records Management Division
Federal Bureau of Investigation
Winchester, Virginia

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