Case 1:17-cv-01167-JEB Document 79 Filed 04/08/19 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CABLE NEWS NETWORK, INC., Civil Action No. 1:17-cv-01167-JEB Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, Defendant. NOTICE IN RESPONSE TO THE COURT’S ORDER OF APRIL 1, 2019 On April 1, 2019, the Court ordered the Government to file a notice by April 8, 2019 “indicating whether the completion of the Special Counsel’s investigation permits the Government to release more material from the Archey Declarations and the ex parte sealed proceeding.” As directed in the Court’s order, defendant Federal Bureau of Investigation (“FBI”) reports the following: 1. Redaction Block 19. In view of the conclusion of the investigation by the Special Counsel’s Office into Russian interference in the 2016 election, the FBI withdraws its claim that Exemption 7(A) of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(b)(7)(A), justifies withholding of Redaction Block 19 in the documents responsive to plaintiff Cable News Network’s FOIA request. See Fifth Decl. of David M. Hardy, Section Chief, Record/Information Dissemination Section (“RIDS”), Information Management Division, FBI (Dec. 14, 2018) (“Fifth Hardy Decl.”), at p.7 & ¶¶ 53-56 (ECF No. 69-2). The FBI continues to withhold this material pursuant to FOIA Exemptions 1 and 3. See id. at p. 7. Case 1:17-cv-01167-JEB Document 79 Filed 04/08/19 Page 2 of 3 2. Third Archey Declaration. In view of the conclusion of the investigation by the Special Counsel’s Office into Russian interference in the 2016 election, the FBI withdraws the redactions made to the Third In Camera, Ex Parte Declaration of David W. Archey (Jan. 31, 2017), when that declaration was filed on the public record on March 1, 2019. See Ex. A to Decl. of Michael G. Seidel, Acting Section Chief, RIDS (ECF No. 74-1). The unredacted declaration is attached as Exhibit A to this notice. 3. First Archey Declaration. In view of the conclusion of the investigation by the Special Counsel’s Office into Russian interference in the 2016 election, the FBI withdraws some of the redactions made to the In Camera, Ex Parte Declaration of the FBI (Oct. 13, 2017), when that declaration was filed on the public record on March 1, 2019. See Ex. B to Decl. of Michael G. Seidel, Acting Section Chief, RIDS (ECF No. 74-1). The revised redacted declaration is attached as Exhibit B to this notice. 4. Sealed Ex Parte Proceeding. To the FBI’s knowledge, no transcript of this proceeding was ever created. Therefore, there are no materials for the FBI to review to determine what portions could be released. 5. The FBI will file a further declaration on or before April 15, 2019, to explain why the remaining redactions to the Third Archey Declaration continue to be necessary. 2 Case 1:17-cv-01167-JEB Document 79 Filed 04/08/19 Page 3 of 3 Dated: April 8, 2019 Respectfully submitted, HASHIM M. MOOPPAN Deputy Assistant Attorney General MARCIA BERMAN Assistant Director, Civil Division /s/Carol Federighi CAROL FEDERIGHI Senior Trial Counsel United States Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 Phone: (202) 514-1903 Email: carol.federighi@usdoj.gov Counsel for Defendant 3 Case Document 79-1 Filed 04/08/19 Page 1 of 5 EXHIBIT A Case Document 79-1 Filed 04/08/19 Page 2 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CABLE NEWS NETWORK, INC., Plaintiff, Civil Action No. 1:17-cv-01167uJEB v. FEDERAL BUREAU OF INVESTIGATION, Defendant. GANNETT SATELLITE INFORMATION ?Vb/a USA 3? Civil Action No. Plaintiffs, V. DEPARTMENT OF JUSTICE, Defendant. JUDICIAL WATCH, INC., Plaintiff; Civil Action No. 1 :17-cv?01 189-JEB V. UNITED STATES DEPARTMENT OF JUSTICE, Defendant, FREEDOM WATCH, INC., Plaintiff; Civil Action No. V. UNITED STATES DEPARTMENT OF JUSTICE and FEDERAL BUREAU OF INVESTIGATION, Defendants. 1 Case Document 79-1 Filed 04/08/19 Page 3 of 5 THE DAILY CALLER NEWS FOUNDATION, Plaintiff, Civil Action No. V. UNITED STATES DEPARTMENT OF JUSTICE, Defendant. THIRD-INCAMEM expanse DECLARATION or DAVID w. anonnv (U) 1, DAVID W. ARCHEY, declare as follows: (1) (U) I have been a Special Agent with the Federal Bureau of Investigation (FBI) for approximately seventeen (17) years. I was assigned to the Counterintelligence Division at FBI Headquarters as a Deputy Assistant Director in August 2017 to supervise all FBI personnel assigned to the Special Counsel?s investigatirm.l Before then, I served as the Deputy Assistant Director of the Weapons of Mass Destruction Directorate at FBI Headquarters. Prior to that, I was a Section Chief in the Counterintelligence Division at BI Headquarters, where I supported counterintelligence operations since 2014. (2) (U) The statements contained in this declaration are based upon my personal lmowledge, upon information provided to me in my of?cial capacity, and upon conclusions and 9 determinations reached and made in accordance therewith. I have been advised about plaintiffs 1 (U) On May 17, 2017, Deputy Attorney General Rod Rosenstein named former FBI Director Robert S. Mueller, as Special Counsel to conduct the investigation into Russia?s interference with the 2016 Presidential election. DOJ Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian Interference with the 2016 Presidential Election and Related Matters (May 17, 2017). 2 Case Document 79-1 Filed 04/08/19 Page 4 of 5 Freedom of Information Act requests to the FBI that are the subject of this litigation concerning former FBI Director James B. Corney?s memoranda memorializing his conversations with President Donald . Trump (tie. the ?Comey Memos?), and that the FBI denied those requests in full. (3) (U) This declaration supplements and incorporates by reference my ?rst declaration in this case - In Camera, Ex Parts Declaration of the FBI (October 13, 2017). (4) (UH-LES) In my prior declaration, I explained that the Corney Memos have been incorporated into a pending investigation and thus compiled as investigative records. See In Camera, Ex Porto Declaration of the FBI (October 13, 2017) at fn. 2. Regarding when this compilation occurred, on or by May 12, 2017, following the termination of former Director Corney, the Comey Memos - which were previously maintained by the Director?s staff were provided to the investigative team, at which point they were compiled as investigative records into the case ?le. It is my understanding that the FBI invoked FOIA Exemption and declined to produce the Comey Memos in response to plaintiffs? FOIA requests on June 23, 2017, after the date they were compiled as investigative records. See John Doe Agency v. John Doe Corp. 493 US. 146, 155 (1989) (?Under the statute, documents need only to have been compiled when the response to the OIA request must be made?). 3 Case Document 79-1 Filed 04/08/19 Page 5 of 5 Pmsuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 3 1st day of January, 2018. 62ng gn?m geputy Assistant. ester Counterintelligence Division Federal Bureau of Investigation Washington DC. 4 Case Document 79-2 Filed 04/08/19 Page 1 of 13 EXHIBIT Case Document 79-2 Filed 04/08/19 Page 2 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CABLE NEWS Plaintiff Civil Action No. v; FEDERAL BUREAU OF INVESTIGATION, Defendant. SATELLITE INFORMATION NETWORK USA Civil Action No. 1:17-cv-01 Plaintiffs,- V. DEPARTMENT OF JUSTICE, Defendant. WATCI-I, Plaintiff, Civil Action NO. 1:17-cv-01 189-JEB V. UNITED STATES DEPARTMENT OF JUSTICE, Defendant. FREEDOM WATCH, INC, Plaintiff, Civil Action No. V. UNITED STATES DEPARTMENT OF JUSTICE and FEDERAL BUREAU OF INVESTIGATION, Defendants. 1 Case Document 79-2 Filed 04/08/19 Page 3 of 13 UNCLAS SI THE DAILY CALLER NEWS FOUNDATION, Plaintiff Civil Action No. VI UNITED STATES DEPARTMENT OF JUSTICE, Defendant. IN CAMERA .EX PAR TE DEGLARATIONDF THE FBI (mess;- 1, DAVID W. ARCHEY, declare as follows: (1) I have been a Special Agent with the Federal Bureau of Investigation (FBI) for approximately sixteen and a half (16.5) years. I was assigned to the I Counterintelligence Division at FBI Headquarters as a Deputy Assistant Director in September 2017 to supervise all FBI personnel assigned to the pending Special Counsel investigation into Russia?s interference with the 2016 Presidential election.i Before then, I served as the Deputy Assistant Director of the Weapons of Mass Destruction Directorate at FBI Headquarters. Prior to that, I was a Section Chief in the Counterhrtelligence Division at FBI Headquarters, Where I supported counterintelligenee operations since 2014. (2) (U) To my knowledge, at this time no FBI personnel currently assigned to the Russian interference investigation are publicly known. Because of the high profile and sensitive nature of the investigation, and to avoid any potential interference-with the ongoing investigation, my identity and association with the investigation cannot be disclosed on the On May 17, 2017, Deputy Attorney General Red Rosenstein named former FBI Director Robert S. Mueller, ill as Special Counsel to conduct the investigation into Russia?s interference with the 2016 Presidential election. D01 Order No. 3915-2017, Appointment of Special Counsel to Investigate Russian interference with the 2016 Presidential Election and Related Matters (May 17, 2017)). 2 Case Document 79-2 Filed 04/08/19 Page 4 of 13 UNCLAS SI public record. (3) (U) 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. I have been advised about plaintiffs? Freedom of Information Act requests to the FBI for all memos or other documents by former FBI Director James B. Comey discussing or memorializing conversations with President Donald J. Trump, and that the FBI denied those requests in full. This declaration is being submitted to supplement the public declaration of David M. Hardy, Section Chief (SC) of the Record?nfonnation Dissemination Section and to support the motion for partial summary judgment. FOIA EXEMPTION PENDING ENFORCEMENT PROCEEDINGS (4) (U) SC Hardy explained in his public declaration that the FBI is withholding in full the records responsive to plaintiffs? request 5.8. the ?Comey Memos? because disclosure could reasonably be expected to adversely affect the pending investigation into Russia?s interference in the 2016 Presidential election. However, little explanation of the reason for this conclusion could be provided publicly without causing the very harms that the FBI is trying to avoid. Additional details about the harms to the pending investigation are provided below. (5) (UH-LBS) The FBI and the Special Counsel?s Of?ce have determined that disclosure of the Comey Memos or any portions of them could reasonably be expected to adversely affect the pending Russia investigation. Former FBI Director James B. Comey is a witness in the pending investigation. The Comey Memos are his contemporaneous notes about incidents that are of interest in that investigation the records sought here), and are 3 Case Document 79-2 Filed 04/08/19 Page 5 of 13 considered witness statements and therefore evidence in the Russia investigation:Z (6) Consistent with its standard practices, the FBI has not publicly disclosed information and evidence collected in its pending Russia investigation, including the Comey Memos, nor has the Special Counsel done so. Indeed, beyond the general acknowledgment of an investigation into Russia?s interference in the 2016 Presidential election, details about the targets, witnesses, focus, scope, and nature of the investigation have not been publicly disclosed, con?rmed, or denied by either the. FBI or the Special Counsel. (U/tihES) In the context of the pending Russia investigation, disclosing the Carney Memos risks in?uencing, compromising, or tainting testimony by other witnesses and/or the fabrication of other evidence for the purpose of countering or undermining the information contained therein. Disclosing witness statements of investigative interest, especially when those statements identify other witnesses and evidence in the investigation, also reveals aspects of speci?c, non-public areas of investigative interest. Disclosure would further suggest a map of possible investigative activity, which could reasonably be expected to result in a race to the evidence pertinent to such activity. (8) (UH-LES) The FBI has considered whether former Director Corney?s public testimony before Congress in June 2017 would alleviate or overcome the normal concerns associated with disclosing evidence during pending investigations, and have concluded that it would not. Notwithstanding former Director Conroy?s testimony - as a private citizen to the Senate Select Committee on Intelligence on June 8, 2017, revealing the memos 3 (UILBES) The fact that the Carney Memos in rate have been incorporated into the pending investigation and thus recompiled as investigative records satis?es Exemption threshold requirement 1.3., ?records or information complied for law enforcement purposes.? 4 Case Document 79-2 Filed 04/08/19 Page 6 of 13 themselves risks substantial harm to the investigation because former Director Comey did not publish the memos, nor did his testimony cover everything contained in the memos. Disclosure of the memos, in any capacity, would provide substantially more information about his recorded, contemporaneous recollections than his testimony provided, thereby increasing the effectiveness of any potential efforts to impede or compromise the Russia investigation. For example, the memos discuss sensitive details regarding the progress of the pending Russia investigation as of the dates of the meetings or conversations memorialized in them. Speci?cally, additional witnesses are identi?ed and a con?dential human source is identi?ed by both true and code name, as well as evidence obtained therefrom, and investigative steps taken or not yet taken in the investigation as of the dates of the meetings memorialized in the memos are revealed. The memos also identify at least one investigative target and re?ect aspects of the investigation as of those dates. In short, the memos include highly sensitive information from the pending investigation. None of this information was the subject of former Director Comey?s testimony. Former Director Carney did not reveal the identity of the witnesses or con?dential source; describe the information provided by the source or the investigative interest in it; or otherwise explicitly describe the pending investigation. Disclosure of any of this non-public information would cause the harms discussed above. (9) The FBI has speci?cally considered whether we can release those portions of the Conroy Memos about which he testi?ed before 8801 on June 8, 2017, and we have concluded that we cannot. Former Director Comey?s- testimony was not an of?cial public release by the FBI because he was no longer the FBI Director or a government officialat the time. But aside from there being no waiver of the content of the memos for this reason, disclosing those portions of the Comey Memos that are the same or substantially similar to 5 Case Document 79-2 Filed 04/08/19 Page 7 of 13 former Director Comey?s testimony could reasonably be expected to harm the pending investigation, notwithstanding that very testimony, again, due to the harms described above. (10) Finally, in addition to not being able to disclose the Comey Memos - in whole or in part without risking adverse effects on the pending Russia investigation, the FBI also cannot disclose the total number of Comey Memos or the total number of pages of memos without risking harm to the investigation. While former Director Comey testi?ed publicly about having nine conversations with President Trump and documenting all or almost all of them, he did not explicitly disclose the total number of memos he authored or provide any speci?c information about the level of detail they do or do not contain. The FBI and the Special Counsel also have not publicly stated how many Conley Memos exist or whether one exists for each conversation. Moreover, neither the FBI nor the Special Counsel has disclosed any information suggesting the length of the memos, individually or in total, or any other information about them, such as the detail and extent to which they document the meetings that they memorialize. Public and of?cial con?rmation by the FBI about whether each conversation was documented or whether only a subset of them was, could reasonably be expected to affect the testimony of people knowledgeable about the conversations e. g. what and how much they tell investigators, whether they try to hide or fabricate information - based on what is already known (or not known) by the investigators. Similarly, the volume of the records would tend to show the public and also potential subjects of the investigation? how detailed former Director Comey?s recollections of the meetings were, and the extent to Which his public testimony was a comprehensive review of his memos or only a partial disclosure. As with disclosing the total number of Conroy Memos, disclosing the volume of pages comprising the memos could reasonably be expected to affect the testimony of people knowledgeable about the conversations 6 Case Document 79-2 Filed 04/08/19 Page 8 of 13 UNCLASS I PI 1530/ by revealing to them information suggestive of how much investigators already know - or do not know about the conversations. FOIA EXEMPTION CLASSIFIED INFORMATION (1 l) (UH-HES) As explained in SC Hardy?s public declaration, the Comey Memos contain some information that is classi?ed under subsections 1.4(c) and of EO 13526, in I order to protect intelligence activities, sources, and methods and foreign relations or activities of the United States. More particularly, the memos contain classi?ed discussions conceming: the code name and true identity of a con?dential source, as well as details of foreign intelligence information obtained from and through this whether the FBI initiated coverage through the Foreign Intelligence Surveillance Act (PISA) on investigation; and information concerning the President's foreign-policy decisionmaking. This information is currently and preperly classi?ed pursuant to (12) (WIPES-3 The memos also identify speci?c foreign governments and of?cials, and reflect particular, non-public interactions between them and the United States Government, the public disclosure of which could reasonably be expected to affect the United States? relationships with those countries. in addition, the revelation of the con?dential source?s name would identify the con?dential source?s and would restrict the ability of the FBI to continue to investigate and collect evidence in the Russian interference investigation. Accordingly, this information is 7 Case Document 79-2_ Filed 04/08/19 Page 9 of 13 Anas- currently and properly classi?ed pursuant to FOIA EXEMPTION Law ENFORCEMENT TECHNIQUES AND PROCEDURES (13) (U) SC Hardy explained inhis public declaration that the Comey Memos contain information about law enforcement techniques and procedures utilized in the investigation of Russia?s interference in the 2016 Presidential election that the FBI has protected pursuant to Exemption However, he could not provide any further information about the protected techniques or procedures without undermining the use of them and/or causing harm protected against by Exemption (l4) The FBI is protecting its use of at least one particular technique or procedure in the pending Russia investigation, which is discussed in the Carney Memos 123., use of con?dential sources. Neither D01, the FBI, nor the Special Counsel has publicly acknowledged the use of con?dential sources in the investigation, and disclosure of this information could reasonably be expected to undermine the effectiveness of their use and jeopardize the particular source referenced in the memos. Negating the effectiveness of this technique generally and of this source speci?cally could reasonably be expected to adversely affect the investigation.3 (15) Use of con?dential sources is a vital investigative tool used by the FBI, but key to the utility of the technique is maintaining the con?dentiality of the sources. If the FBI were to release information about and provided by its sources, they could be subjected to efforts to curtail their cooperation or undermine their assistance, as well as retaliation, intimidation, and physical or mental harm. This would have a chilling effect on the pending investigation, not 3 'l?he use and identity of the con?dential source here is also covered by?Bxemptions 010(1) and which protect intelligence sources and methods. 8 Case Document 79-2 Filed 04/08/19 Page 10 of 13 only with respect to these particular sources? continued cooperation but also with respect to the cooperation of other witnesses or sources, who would reasonably fear exposure. It is implicit in investigations such as the pending?Russian interference investigation that a source?s identity and the information/assistance he/she/it provided will be afforded con?dentiality. The FBI goes to great to protect and maintain its sources? con?dentiality because sources are an integral part of successful investigations and prosecutions. (16) (WEE-89 Disclosing information in the Carney Memos re?ecting the FBi?s use of con?dential sources in relation to the Russia investigation could also reasonably be expected to reveal the con?dential source?s ability to access information, allowing adversaries the opportunity to take steps to undennine or counteract that access, and thereby stop an effective means of foreign intelligence and evidence gathering used by the FBI. (U) For the preceding reasons, disclosure of the use of this technique at this time would risk of the law. And for the same reasons, it could reasonably be expected to adversely affect the pending investigation. (18) (UH-BBS) Moreover, this information independently would be subject to FOIA Exemption However, publicly asserting Exemption would reveal the very information that?the FBI is protecting under Exemptions and the, the use of con?dential sources in this investigation. Accordingly, the FBI concluded that the only way to avoid these harms was to raise Exemption only in camera and ex parts as part of its Exemption explanation. . . (19) FOIA Exemption protects records or information compiled for law enforcement purposes when disclosure: 9 Case Document 79-2 Filed 04/08/19 Page 11_of 13 UNCLASSI also/rises? could reasonably be expected to disclose the identity of a con?dential source, including a State, local or foreign agency or authority or any private institution which furnished information on a con?dential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a law?rl national security intelligence investigation, information furnished by the con?dential source. 5 U.S.C. Exemption provides categorical protection for the identities of con?dential sources, as well as information provided by such a source in a criminal or national security investigation. No balancing of interests is required and the public?s interest in the? information is not a factor. Rather, once the FBI establishes that the source provided information under express or implied assurances of con?dentiality, the identity of the source and all information the scarce provided in a criminal or national security investigation are exempt under Exemption (20) (U/lizE-S} Here, the infonnation subject to Exemption in the Corney Memos consists of the true name and code name of a con?dential source, as well as information provided by the source, including information about the origins of the information (ia, the Code-named sources operate under express assurances of con?dentiality. This alone entitles this information to protection under Exemption Moreover, the information provided by the con?dential source is entitled to protection under the second clause of Exemption Consequently, both the identity of the source, including the code name, and the information provided by this source, are entitled to protection under Exemption 10 Case Document 79-2 Filed 04/08/19 Page 12 of 13 WAIVER AND SEGREGATION (21) Official Government statements and comments have been care?rlly reviewed and compareid against the Comey Memos to determine whether there is any information in the memos that is as exact as information already made public in of?cial statements or comments. The FBI has concluded that no of?cial Government statements or comments have been made that precisely match-anything in the Comey Memos. While there are some similarities, there are no exact matches and any particular words from of?cial statements or comments that seem to match information in the Conley Memos is inextricably intertwined with non-matching words and contents such that waiver has not occurred and segregation is not reasonably possible. 11 Case Document 79-2 Filed 04/08/19 Page 13 of 13 UNCLASS I Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 13th day of October, 2017. 5mm w. - Deputy Assistant]?! re Counterintelligenee 'ivisidn Federal Bureau of Investigation Washington DC. 12