Case 1:17-cv-00597-APM Document 44 Filed 11/30/18 Page 1 of 18

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

THE JAMES MADISON PROJECT, et al.,
Plaintiffs,
v.
No. 17-cv-00597-APM
DEPARTMENT OF JUSTICE,
Defendant.

DEFENDANT’S COMBINED MEMORANDUM IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND REPLY IN
SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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Table of Contents

INTRODUCTION................................................................................................................... 1
ARGUMENT .......................................................................................................................... 2
I.

There is No Declassification Order Requiring Declassification and Disclosure of these
Documents............................................................................................................... 2

II.

Discovery into Whether There is a Presidential Declassification Order is Not
Appropriate.............................................................................................................. 5

III.

The President’s Tweets Following the Release of the Redacted Documents Do Not
Create a Genuine Issue of Material Fact. ................................................................... 8

IV. Carter Page’s Privacy Waiver Does Not Require Additional Disclosures...................12
V.

Defendant Has Disclosed All Reasonably Segregable Information. ...........................12

CONCLUSION ......................................................................................................................13

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Table of Authorities
Cases
Am. Civil Liberties Union v. DOD,
628 F.3d 612 (D.C. Cir. 2011) .............................................................................................13
Baker & Hostetler LLP v. Dep’t of Commerce,
473 F.3d 312 (D.C. Cir. 2006) .............................................................................................. 8
Cheney v. U.S. District Court for District of Columbia,
542 U.S. 367 (2004) ..........................................................................................................6, 7
Clinton v. Jones,
520 U.S. 681 (1997) ............................................................................................................. 7
Dep’t of Navy v. Egan,
484 U.S. 518 (1988) ............................................................................................................. 2
Dep’t of State v. Ray,
502 U.S. 164 (1991) ............................................................................................................. 8
Hall v. CIA,
668 F. Supp. 2d 172 (D.D.C. 2009)......................................................................................12
In re Sealed Case,
121 F.3d 729 (D.C. Cir. 1997) .............................................................................................. 7
In re Sealed Case,
856 F.2d 268 (D.C. Cir. 1988) .............................................................................................. 8
James Madison Project v. DOJ,
302 F. Supp. 3d 12 (D.D.C.) ............................................................................................ 8, 10
James Madison Project v. DOJ,
330 F. Supp. 3d 192 (D.D.C. 2018)......................................................................................11
Juarez v. DOJ,
518 F.3d 54 (D.C. Cir. 2008) ...............................................................................................13
Justice v. IRS,
798 F. Supp. 2d 43 (D.D.C. 2011) ........................................................................................ 5

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Landmark Legal Found. v. EPA,
959 F. Supp. 2d 175 (D.D.C. 2013)....................................................................................... 9
Larson v. Dep’t of State,
565 F.3d 857 (D.C. Cir. 2009) .............................................................................................13
Military Audit Project, v. Casey,
656 F.2d 724 (D.C. Cir. 1981) .............................................................................................. 6
Nixon v. Fitzgerald,
457 U.S. 731 (1982) ............................................................................................................. 7
NY Times Co. v. CIA,
314 F. Supp. 3d 519 (S.D.N.Y. 2018) ................................................................................... 3
Ocasio v. DOJ,
67 F. Supp. 3d 438 (D.D.C. 2014) ........................................................................................ 6
Quiñon v. FBI,
86 F.3d 1222 (DC Cir. 1996) ...............................................................................................12
Ray v. Turner,
587 F.2d 1187 (D.C.Cir.1978) .............................................................................................12
Re the City of New York,
607 F.3d 923 (2d Cir. 2010) ................................................................................................. 8
SafeCard Servs., Inc. v. SEC,
926 F.2d 1197 (D.C. Cir. 1991) ............................................................................................ 8
SAI v. TSA,
315 F. Supp. 3d 218 (D.D.C. 2018)....................................................................................... 6
Schrecker v. DOJ,
217 F. Supp. 2d 29 (D.D.C. 2002) ........................................................................................ 6
United States v. Nixon,
418 U.S. 683 (1974) ............................................................................................................. 7
United States v. Reynolds,
345 U.S. 1 (1953)................................................................................................................. 8
Voinche v. FBI,
412 F. Supp. 2d 60 (D.D.C. 2006) ........................................................................................ 6

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Regulations
E.O. 13,526,
75 Fed. Reg. 707 (Dec. 29, 2009) ......................................................................................... 2
Rules
Fed. R. Civ. P. 56(c)(4)............................................................................................................ 5
Fed. R. Civ. P. 56(d) ................................................................................................................ 5
Other Authorities
FoxNews.com, “All About Getting at Trump Campaign”: Fitton Argues FBI Misled FISA Court
on Carter Page Warrant (July 23, 2018), http://insider.foxnews.com/2018/07/23/tom-fittoncarter-page-fisa-warrant-documents-fbi-doj-misled-court-target-trump...................................10
Mem. from the Att’y Gen. Re: Policies and Procedures Governing Invocation of the State Secrets
Privilege (Sept. 23, 2009),
http://www.justice.gov/opa/documents/state-secret-privileges.pdf............................................8
Press Release, DOJ OIG Announces Initiation of Review (March 28, 2018),
https://oig.justice.gov/press/2018/2018-03-28b.pdf....................................................................4
Press Release, Statement from the Press Sec’y (Sept. 17, 2018),
https://www.whitehouse.gov/briefings-statements/statement-press-secretary-34/.....................3
https://twitter.com/realDonaldTrump/status/1043146627576258561.............................................4
https://twitter.com/realDonaldTrump/status/1043148165883416576.............................................4
https://twitter.com/realDonaldTrump/status/1020978929736265729...........................................10
https://twitter.com/realDonaldTrump/status/1021347230022807552...........................................10
https://vault.fbi.gov/d1-release/d1-release.......................................................................................5

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INTRODUCTION
Plaintiffs concede the propriety of Defendant’s partial Glomar response and provide no
challenge to the factual and legal basis for redaction of the processed Carter Page FISA
applications and orders. These concessions are both unsurprising and necessary, given the
acknowledged and appropriate secrecy surrounding FISA matters and an ongoing national
security investigation.
Plaintiffs instead argue that, regardless of whether the redactions and withholdings are
otherwise proper, subsequent statements from the White House cast some doubt on the propriety
of the withholdings. First, Plaintiffs argue that a statement of the White House Press Secretary
constitutes a Presidential “order” to declassify twenty-one pages of the Carter Page documents,
and that the subsequent statements by the President (via Twitter) saying otherwise somehow
create a material issue of fact. This is simply not the case, and mis-reads both the press release
and the tweets. There is no presidential declassification order, and the President has publicly
indicated that he is not requiring declassification at this time, much less full disclosure. Second,
Plaintiffs point to additional tweets from the President that they claim cast doubt on the “good
faith basis” for Defendant’s FOIA redactions. Defendant’s sworn declarations are entitled to a
presumption of good faith. Moreover, they are based on the review of personnel with personal
knowledge of the documents and matters at issue and are not overcome by Plaintiff’s speculation
about the intended meaning of and basis for tweets by the President.
Plaintiffs also argue that they are entitled to additional information in light of a privacy
waiver obtained from Mr. Page. Because of that waiver, Defendant is no longer relying on the
privacy-based exemptions applicable to Page’s private information. However, as defense
counsel explained to Plaintiffs prior to their filing, as appears on the coded redactions, and as

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Defendant has now confirmed in a supplemental declaration, all of the redactions of Mr. Page’s
private information are also protected by other exemptions, and thus no further disclosures are
appropriate.
Finally, in light of these faulty legal arguments, Plaintiffs argue that Defendant’s
segregability analysis is somehow inadequate. In fact, the record shows that Defendant
personnel carefully and exhaustively reviewed the documents, segregating releasable material
whenever possible. The FBI declarant provided specific reasons for the redactions based on both
personal knowledge and information provided in his official capacity. In camera review is
neither required nor advisable under these circumstances.
ARGUMENT
I.

There is No Declassification Order Requiring Declassification and Disclosure of
these Documents.
The President has the authority to declassify documents that are otherwise currently and

properly classified. Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988) (“The President, after all,
is the ‘Commander in Chief of the Army and Navy of the United States.’ U.S. Const., Art. II, §
2. His authority to classify and control access to information bearing on national security . . .
flows primarily from this constitutional investment of power in the President and exists quite
apart from any explicit congressional grant.”); cf. E.O. 13,526 § 3.1(d), 75 Fed. Reg. 707, 713
(Dec. 29, 2009) (authorizing agency officials to declassify otherwise properly classified
information in the public interest on a discretionary basis).
Plaintiffs argue that the President exercised this authority to declassify portions of the
Carter Page documents based on a statement of the White House Press Secretary that “the
President has directed the Office of the Director of National Intelligence and the Department of
Justice (including the FBI) to provide for the immediate declassification of . . . pages 10-12 and
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17-34 of the June 2017 application to the FISA court in the matter of Carter W. Page” (as well as
certain other documents, not at issue in this case, related to the investigation into Russian
election interference). Pls.’ Opp’n to Def.’s Mot. For Summ. J. (“Pls.’ brief”) at 4, ECF No. 42,
citing Press Release, Statement from the Press Sec’y (Sept. 17, 2018),
https://www.whitehouse.gov/briefings-statements/statement-press-secretary-34/. Plaintiffs
presumptively and repeatedly refer to this press release, which they fail to quote, as an “order,”
Pls.’ brief at 4-5, but it is, indisputably, a statement from the press secretary, not an order from
the President. Plaintiffs have pointed to no other order declassifying the pages at issue, and DOJ
is not aware of any order that either declassified the pages at issue or directed declassification of
them. See NY Times Co. v. CIA, 314 F. Supp. 3d 519, 528 (S.D.N.Y. 2018) (“absent an
unequivocal statement of declassification from the President or exceptional circumstances that
are not present here, the Court will not infer whether the President’s statements have the legal
effect of declassifying information”). The Court should not infer its existence, especially when
the President is quite capable of making his intentions clear if he chooses to declassify
information.
The press secretary statement is also ambiguous as to what the President may have
directed. The press secretary statement does not indicate that the President was exercising his
personal Constitutional authority to declassify specific information. Rather, it indicates that the
President directed DOJ and ODNI to “provide for” the declassification of certain documents,
suggesting that the documents were not directly declassified by order of the President.
Whatever was intended by the Press Secretary’s announcement, the President made clear
on September 21, 2018 that he had not ordered the documents declassified. As Plaintiffs
concede, the President’s twitter account stated that:

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I met with the DOJ concerning the declassification of various
UNREDACTED documents. They agreed to release them but stated that so
doing may have a perceived negative impact on the Russia probe. Also, key
Allies’ called to ask not to release. Therefore, the Inspector General.....
https://twitter.com/realDonaldTrump/status/1043146627576258561.
....has been asked to review these documents on an expedited basis. I
believe he will move quickly on this (and hopefully other things which he is
looking at). In the end I can always declassify if it proves necessary. Speed
is very important to me - and everyone!
https://twitter.com/realDonaldTrump/status/1043148165883416576. These tweets are
ambiguous in a number of respects, and do not precisely identify which documents related to the
Russia probe are at issue. But the tweets are crystal clear that the President had not declassified
the documents related to the Russia probe at the time of the tweets and was not directing their
immediate declassification. In the tweets, the President states that “in the end I can always
declassify if it proves necessary.” Regardless of the lack of clarity about which documents are at
issue, see Pls.’ brief at 7, the President’s statement about deferring the declassification decision
is unambiguous, and Plaintiffs have no response to it. 1
Instead, Plaintiffs hang their hat on the tweets’ statement that DOJ “agreed to release” the
“unredacted documents.” Plaintiffs are wrong that this “unequivocally demonstrates that DOJ
has informed President Trump that any redactions will be removed.” Pls.’ brief at 5. In fact, the
statement is on its face equivocal, because it says that DOJ also told the President that release
“may have a perceived negative impact on the Russia probe.” Nor does the statement indicate
under what circumstances or conditions DOJ “agreed to release” documents.

1

The ongoing OIG investigation encompassed “the Justice Department’s and the Federal Bureau
of Investigation’s (FBI) compliance with legal requirements, and with applicable DOJ and FBI
policies and procedures, in applications filed with the U.S. Foreign Intelligence Surveillance
Court (FISC) relating to a certain U.S. person.” Press Release, DOJ OIG Announces Initiation
of Review (March 28, 2018), https://oig.justice.gov/press/2018/2018-03-28b.pdf.
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Finally, and perhaps most importantly, even if Plaintiffs are correct that the Press
Secretary had issued a “declassification order” and that the President never rescinded that
“order” via the tweets, the “order” still would not require additional disclosures under FOIA.
That is because all of the redactions on the referenced pages are taken pursuant to other
exemptions as well. A review of the coded redactions shows that not a single redaction on those
pages was taken solely on the basis of Exemption One. See https://vault.fbi.gov/d1-release/d1release (at pp. 301-03, 308-25).
II.

Discovery into Whether There is a Presidential Declassification Order is Not
Appropriate.
As demonstrated above, there is no presidential declassification order requiring

declassification and disclosure of certain of the Carter Page FISA application pages. Thus, there
is no genuine issue of material fact requiring discovery. See Pls.’ brief at 8-10. Plaintiffs
explicitly seek discovery into communications between the President and DOJ regarding whether
“the Order can be considered as rescinded or otherwise postponed”; the scope and timing of the
OIG’s review; and other bases for DOJ’s position in this matter. Id. at 9; Rule 56(d) Decl. of
Bradley Moss, at ¶ 7, ECF No. 41-1. 2 Not only is there is no dispute of material fact to justify
this discovery, it would be inappropriate for numerous other reasons.
As Plaintiffs concede, discovery is generally inappropriate in FOIA cases. See, e.g.,
Justice v. IRS, 798 F. Supp. 2d 43, 47 (D.D.C. 2011), aff'd, 485 F. App’x 439 (D.C. Cir. 2012)

2

Plaintiffs submit what purports to be a declaration from counsel under Rule 56(d), ostensibly to
show that Plaintiffs “cannot present facts essential to justify its opposition.” Fed. R. Civ. P.
56(d). Defendant does not dispute the content of the various cited public statements, considered
in their full context. Much of the declaration contains purely legal conclusions on matters about
which counsel has no basis for knowledge and is not competent to testify. See Fed. R. Civ. P.
56(c)(4) (“An affidavit or declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated.”).
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(“In FOIA actions, however, discovery is disfavored.”); Schrecker v. DOJ, 217 F. Supp. 2d 29,
35 (D.D.C. 2002), aff’d, 349 F.3d 657 (D.C. Cir. 2003) (“Discovery in FOIA is rare and should
be denied where an agency’s declarations are reasonably detailed [and] submitted in good faith
and [where] the court is satisfied that no factual dispute remains.”); SAI v. TSA, 315 F. Supp. 3d
218, 257 (D.D.C. 2018) (same). “Courts permit discovery in FOIA cases where a plaintiff has
made a sufficient showing that the agency acted in bad faith.” Ocasio v. DOJ, 67 F. Supp. 3d
438, 440 (D.D.C. 2014) (citation omitted). “When allowed, the scope of discovery is usually
limited to the adequacy of the agency’s search and similar matters.” Voinche v. FBI, 412 F.
Supp. 2d 60, 71 (D.D.C. 2006). Discovery is not warranted “when it appears that discovery
would only ... [afford the plaintiff] an opportunity to pursue a bare hope of falling upon
something that might impugn the affidavits.” Military Audit Project, v. Casey, 656 F.2d 724,
751–52 (D.C. Cir. 1981) (internal quotations omitted). Plaintiffs claim no bad faith with respect
to whether there is a presidential declassification order.
In addition, the discovery Plaintiffs seek would potentially violate separation of powers
principles and implicate the presidential communications privilege. The Supreme Court has
made clear that discovery directed to the President or his advisers in civil litigation, raises
significant separation of powers concerns and should be strictly circumscribed. In Cheney v.
U.S. District Court for District of Columbia, 542 U.S. 367 (2004), where the discovery requests
were directed to the Vice President and other senior officials of the Executive Branch who gave
advice and made recommendations to the President, the Court emphasized that “special
considerations control when the Executive Branch’s interests in maintaining the autonomy of its
office and safeguarding the confidentiality of its communications are implicated.” Id. at 385.
The Supreme Court “has held, on more than one occasion, that ‘[t]he high[est] respect that is

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owed to the office of the Chief Executive … is a matter that should inform the conduct of the
entire proceeding, including the timing and scope of discovery . . . .’” Id. (quoting Clinton v.
Jones, 520 U.S. 681, 707 (1997)). Further, the Court has held that the Executive’s
“constitutional responsibilities and status [are] factors counseling judicial deference and restraint
in the conduct of the litigation against it.” Id. (quoting Nixon v. Fitzgerald, 457 U.S. 731, 753
(1982)).
Discovery aimed at uncovering the substance of communications between the President
and his advisors, as Plaintiffs expressly seek, is subject to the presidential communications
privilege. The “presumptive privilege” that attaches to presidential communications is
“fundamental to the operation of Government and inextricably rooted in the separation of powers
under the Constitution.” United States v. Nixon, 418 U.S. 683, 708 (1974); see In re Sealed Case,
121 F.3d 729, 743 (D.C. Cir. 1997) (describing the privilege’s “constitutional origins”). The
privilege is broad, protecting the “confidentiality of Presidential communications in performance
of the President’s responsibilities . . . .” Nixon, 418 U.S. at 711; see also In re Sealed Case, 121
F.3d at 744 (“The Nixon cases establish the contours of the presidential communications
privilege. The President can invoke the privilege when asked to produce documents or other
materials that reflect presidential decisionmaking and deliberations . . . .”). Documents subject
to the presidential communications privilege are shielded in their entirety, and the privilege
“covers final and post-decisional materials as well as pre-deliberative ones.” In re Sealed Case,
121 F.3d at 745. Here, information Plaintiffs seek about deliberations and communications

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involving the President regarding potential declassification and disclosure of the documents at
issue would likely be subject to the presidential communications privilege. 3
III.

The President’s Tweets Following the Release of the Redacted Documents Do
Not Create a Genuine Issue of Material Fact.
Plaintiffs also argue that two statements by the President on Twitter, issued after the

government released the redacted Carter Page FISA materials, create a genuine issue of material
fact about the good faith of the government’s declarations. Pls.’ brief at 12-14. This argument is
meritless and should be rejected.
Generally speaking, in FOIA as elsewhere, there is a presumption of good faith and
regularity in official conduct. Dep’t of State v. Ray, 502 U.S. 164, 179 (1991) (“We generally
accord Government records and official conduct a presumption of legitimacy.”); Baker &
Hostetler LLP v. Dep’t of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (finding that
allegations of misconduct were insufficient to defeat summary judgment); SafeCard Servs., Inc.
v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (holding that agency search affidavits “are
accorded a presumption of good faith . . . .”); James Madison Project v. DOJ, 302 F. Supp. 3d
12, 32 (D.D.C.), reconsideration denied in part, 320 F. Supp. 3d 143 (D.D.C. 2018) (“Applying
the presumption is most appropriate where a government official or entity conducts official acts
in the manner provided by statute, regulation, or policy. For example, agencies are presumed to

3

To the extent Plaintiffs were to seek discovery about the ongoing national security
investigation or the classified bases for specific redactions, discovery in this matter could also
require the invocation of the state secrets privilege and/or the law enforcement privilege. See,
e.g., United States v. Reynolds, 345 U.S. 1 (1953) (state secrets privilege); Mem. from the Att’y
Gen. Re: Policies and Procedures Governing Invocation of the State Secrets Privilege (Sept. 23,
2009), http://www.justice.gov/opa/documents/state-secret-privileges.pdf; In re Sealed Case, 856
F.2d 268, 271 (D.C. Cir. 1988) (law enforcement privilege); Re the City of New York, 607 F.3d
923, 936-37 (2d Cir. 2010) (law enforcement privilege).
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comply with their FOIA obligation to disclose reasonably segregable material, and to properly
produce and process government documents . . . .”).
Plaintiffs have put forward no information sufficient to overcome this presumption with
respect to the government’s declarations. They have not challenged any statement in the Hardy
or Findlay declarations and have put forward no substantive information or legal argument
suggesting that the facts and analysis in those declarations are incorrect or misleading. They
have pointed to no statement in the declarations that may be the result of misconduct, and it does
not appear that they actually believe that there was misconduct. Rather, Plaintiffs have wholly
conceded the applicability of the government’s claimed exemptions in general. Plaintiffs cannot
therefore manufacture an issue of material fact as to the processing in general by relying on
generalized, vague allegations of misconduct based on no personal knowledge. 4
Moreover, the tweets cited by Plaintiffs do not create an issue of material fact as to the
good faith of the government declarations and redactions. The President made a series of posts
on Twitter on July 22 and 23 of this year related to Carter Page and/or the investigation into
Russian election interference. Plaintiffs partially quote two of these tweets. On July 22, 2018, a
post states:
Congratulations to @JudicialWatch and @TomFitton on being successful in
getting the Carter Page FISA documents. As usual they are ridiculously

4

This is in stark contrast to the cases cited by Plaintiffs. In Landmark Legal Found. v. EPA, 959
F. Supp. 2d 175 (D.D.C. 2013), for example, the court found some evidence of bad faith in the
agency’s alleged efforts to evade FOIA by construing the request narrowly and not searching
certain personal email accounts. Even assuming that ruling was correct, it was based on specific
facts before the court – the use of personal email accounts and the scope of the search – and the
remedy was discovery into those specific questions to resolve a specific disputed legal issue –
the adequacy of the search. Plaintiffs in this matter have not identified any specific issue of fact
or law with respect to the declaration and apparently seek unspecified further factual
development regarding highly sensitive classified national security and law enforcement matters,
based on a non-specific tweet.
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heavily redacted but confirm with little doubt that the Department of
“Justice” and FBI misled the courts. Witch Hunt Rigged, a Scam!
https://twitter.com/realDonaldTrump/status/1020978929736265729. On it its face, this tweet
does not suggest any misconduct in the redactions; the general statement that the redactions are
“heavy” and somehow “ridiculous” is not an accusation of bad faith or misconduct. And it is not
a statement of fact at all. As explained in the Hardy Declaration, FISA matters and national
security investigations necessarily involve government secrecy, and these applications contain a
significant amount of properly classified and otherwise sensitive material. Third Decl. of David
Hardy (“Hardy Decl.”) ¶¶ 13, 25, 35, ECF No 40-1.
On July 23, 2018, another post reads:
“It was classified to cover up misconduct by the FBI and the Justice
Department in misleading the Court by using this Dossier in a dishonest
way to gain a warrant to target the Trump Team. This is a Clinton
Campaign document. It was a fraud and a hoax designed to target Trump....
https://twitter.com/realDonaldTrump/status/1021347230022807552. Plaintiffs ignore the
opening quotation mark included in the tweet, as well as the President’s reference to himself in
the third person, and assume this is a statement directly from the President. In fact, it appears to
be a (partially condensed) quotation from Tom Fitton of Judicial Watch, who was simultaneously
appearing on television that morning to promote further declassification of the documents (and
its lawsuit seeking these documents). See FoxNews.com, “All About Getting at Trump
Campaign”: Fitton Argues FBI Misled FISA Court on Carter Page Warrant (July 23, 2018),
http://insider.foxnews.com/2018/07/23/tom-fitton-carter-page-fisa-warrant-documents-fbi-dojmisled-court-target-trump. The President’s quotation of media reporting cannot be assumed to
be his confirmation of the media reporting based on government information, and it is not
evidence of government misconduct in this case. See James Madison Project, 302 F. Supp. 3d at

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34 (“the President’s statements may very well be based on media reports or his own personal
knowledge, or could simply be viewed as political statements intended to counter media accounts
about the Russia investigation, rather than assertions of pure fact.”); James Madison Project v.
DOJ, 330 F. Supp. 3d 192 (D.D.C. 2018) (finding that the President’s retweet of media
speculation was not a waiver under the official acknowledgement doctrine). Plaintiffs have
pointed to no evidence establishing that the President was vouching for the wholesale accuracy
of the statement he was quoting, or that he was commenting based on personal knowledge of the
documents or based on personal knowledge of agency conduct. There is no evidence that he was
formally overruling agency determinations via tweeted quotation of Fox & Friends. That would,
indeed, be an extraordinary inference and is not warranted by the evidence.
Moreover, in context, it appears that Fitton may have been referring to the original
classification of the documents as being somehow illegitimate. He is incorrect to suppose that
the documents were classified to cover up misconduct; on the contrary, the declaration
establishes that all FISA applications are classified, see Hardy Decl. ¶ 13, and when a
declassification review was conducted, portions of the documents were determined to remain
classified to prevent harm to national security and investigative interests, id. ¶¶ 25, 67. A tweet,
quoting media reports based on speculation about FISA matters, cannot overcome the
presumption of regularity and the detailed, thoughtful, sworn declarations submitted in this case.
Plaintiffs lean heavily on the entirely irrelevant opinion in the travel ban case, in which
the President’s statements were supposedly direct evidence of the President’s motivations in
issuing an executive order. Pls.’ brief at 13-14. But the President’s motivations are not at issue
here – the issue Plaintiffs raised has to do with the agency’s good faith and whether the agency
has properly applied redactions. Contrary to Plaintiffs’ argument, there is an ample, detailed

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factual record before the Court as to how the agency reached its conclusions, not contradicted by
any other evidence in the record. 5
IV.

Carter Page’s Privacy Waiver Does Not Require Additional Disclosures.
FBI received a privacy waiver from Carter Page that would permit release of his private

information if no other exemptions applied. As confirmed in the Declaration of Michael Seidel,
attached, DOJ is no longer asserting Exemptions 6 or 7(C) over that information, but all such
information under redactions is also covered by other exemptions.
V.

Defendant Has Disclosed All Reasonably Segregable Information.
Plaintiffs make no effort whatsoever to find defects in the lengthy, substantive

declaration provided by David Hardy on the redacted Carter Page documents but complain
generally that the segregability analysis is “standard, boilerplate” and “conclusory.”
Pls.’ brief at 16. In fact, the redactions and withholdings are carefully coded on the documents
and categorized, described and explained in the declaration. And Mr. Hardy additionally
declared that FOIA personnel conducted an exhaustive segregability analysis, taking into account
public information, in order to properly apply redactions and release segregable material. This is
all that can possibly be required. See Defs.’ 2nd Mot. for Summ. J., at 30-32, ECF No. 40.
Plaintiffs’ alternative request for in camera review should be denied. Although district
courts may, at their discretion, examine agency records in camera, “in camera review should not
be resorted to as a matter of course . . . .” Quiñon v. FBI, 86 F.3d 1222, 1228 (DC Cir. 1996)
(citing Ray v. Turner, 587 F.2d 1187, 1195 (D.C.Cir.1978)); Hall v. CIA, 668 F. Supp. 2d 172,
196 (D.D.C. 2009). “When a district court finds that a law enforcement agency’s affidavits

5

Plaintiffs argue in their Rule 56(d) declaration that DOJ must produce evidence to rebut the
President’s July 22 and 23 tweets, but they do not propose to propound any discovery on this
issue. See Rule 56(d) declaration at ¶¶ 8-11.
12

 Case 1:17-cv-00597-APM Document 44 Filed 11/30/18 Page 18 of 18

sufficiently describe the documents and set forth proper reasons for invoking an exemption, in
camera inspection of those documents is unnecessary.” Juarez v. DOJ, 518 F.3d 54, 60 (D.C.
Cir. 2008). Moreover, “[i]n camera inspection is particularly a last resort in national security
situations like this case—a court should not resort to it routinely on the theory that “it can’t hurt.”
Larson v. Dep’t of State, 565 F.3d 857, 870 (D.C. Cir. 2009) (citations omitted); Am. Civil
Liberties Union v. DOD, 628 F.3d 612, 626 (D.C. Cir. 2011). Here, the explanations in the
declarations are sufficient to rule without conducting an in camera review, particularly given
Plaintiffs’ complete failure to challenge any of the redactions.
CONCLUSION
For the foregoing reasons, Plaintiffs’ Cross-Motion for Partial Summary Judgment
should be denied and Defendant’s Motion for Summary Judgment should be granted.

Dated: November 30, 2018

Respectfully Submitted,
CHAD A. READLER
Principal Deputy 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

13

 Case Document 44-1 ?led 11/30/18 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 



THE JAMES MADISON PROJECT and 
BRAD HEATH, USA Today, 

Plaintiffs, 


V. Civil Action No. l7?cv-0597

DEPARTMENT OF JUSTICE, 

Defendant. 


 

DECLARATION OF MICHAEL G. SEIDEL

1, Michael G. Seidel, declare as follows:

(1) I am currently the Assistant Section Chief of the Record/Information
Dissemination Section (RIDS), Information Management Division in Winchester,
Virginia, and in the absence of RIDS Section Chief David M. Hardy, I serve as Acting Section
Chief for RIDS. I have held this position since June 26, 2016. I joined the FBI in September
2011, and prior to my current position, I was the Unit Chief of Litigation Support Unit
from November 2012 to June 2016, and an Assistant General Counsel in the FBI Of?ce of the
General Counsel, Freedom of Information Act Litigation Unit from September 2011 to
November 2012. In those capacities, I had management oversight or agency counsel
responsibility for FBI FOIA and Privacy Act litigation cases nationwide. Prior to joining
the FBI, I served as a Senior Attorney at the US. Drug Enforcement Administration 
from September 2006 to September 2011, where among myriad legal responsibilities, I advised

on matters and served as agency counsel representing the DEA in lawsuits

Case Document 44-1 Filed 11/30/18 Page 2 of 4

nationwide. I also served as a U.S. Army Judge Advocate General?s Corps Of?cer in various
assignments from 1994 to September 2006 culminating in my assignment as Chief, General
Litigation Branch, U.S. Army Litigation Division, where I oversaw litigation for the
U.S. Army. I am an attorney registered in the State of Ohio (inactive) and the District of
Columbia (active).

(2) In my of?cial capacity as Acting Section Chief of RIDS, I supervise
approximately 237 employees who staff a total of twelve FBI Headquarters units and
three ?eld 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 OIA, as amended by the OPEN Government Act of 2007, the OPEN FOIA Act
of 2009 and the FOIA Improvement Act of 201 6; the Privacy Act of 1974; Executive Order
13526; 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 of?cial capacity, and
upon conclusions and determinations reached and made in accordance therewith.

(3) Due to the nature of my of?cial 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. Speci?cally, I am aware of the
handling of plaintiffs? FOIA request that is the subject of this lawsuit.

(4) This declaration is being submitted in further support of motion for
summary judgment ?led on October 19, 2018conjunction with 
reply in support of that motion/reSponse to plaintiffs? cross motion for partial summary

judgment, see ECF No. 41. It supplements and incorporates by reference three previous

Case Document 44-1 Filed 11/30/18 Page 3 of 4

declarations by David M. Hardy submitted in this case. See ECF No. 13-3, Declaration of David
M. Hardy (hereafter ?First Hardy submitted in support of withdrawn motion for
summary judgment (ECF No. 13); ECF No. 34-1, Second Declaration of David M. Hardy
(hereafter ?Second Hardy submitted in support of Joint Status Report (ECF No.
34); and ECF No. 40?1, Third Declaration of David M. Hardy (hereafter ?Third Hardy 
submitted in support of renewed motion for summary judgment (ECF No. 40).1

(5) This declaration speci?cally addresses the withholdings as categorized
under coded category 

(6) As explained in the Third Hardy Decl., the FBI protected certain personally?
identifying and other non-public information about Carter Page contained in the ISA
applications and FISC orders processed in response to plaintiffs? FOIA request. See ECF No.
40-1, Third Hardy Decl., at 102. On November 9, 2018, the FBI received a privacy waiver
executed by Carter Page in which he waived his privacy interests in information about him
redacted in this case, and authorized its release-to the public. Accordingly, the FBI is no longer
asserting Exemptions and to protect Mr. Page?s information.

(7) Nevertheless, this information was also protected under one or more other
exemptions, and accordingly, no additional information is available for public disclosure as a

result of this privacy waiver.2

 

1 The Third Hardy Decl. is classified. The version ?led on the public docket at ECF No.
40-1 is a redacted, unclassi?ed version.

2 The FBI notes that plaintiffs have not challenged the legal or factual basis for 
withholdings of information in this case other than certain withholdings on 21 pages of the
fourth application (and the corresponding pages in the other three applications). While the FBI
asserted Exemption in each instance where Exemptions and were cited to
protect information about Carter Page on those 21 pages, the FBI also relied on other exemptions
in those instances, including Exemptions and 

3

Case Document 44-1 Filed 11/30/18 Page 4 of 4

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

Executed this 2 9/ _day of November 2018.

 

Michael Seidel

Acting Section Chief

Record/Information Dissemination Section
Information Management Division

Federal Bureau of Investigation
Winchester, Virginia