GREENSPAN v. EXECUTIVE OFFICE FOR U.S. ATTORNEYS et al Document 43: Motion for Summary Judgment, Attachment 1

Filed November 11, 2024

Back to GREENSPAN v. EXECUTIVE OFFICE FOR U.S. ATTORNEYS et al, District Of Columbia District Court Case No. 1:23-cv-01816-BAH

Cross MOTION for Summary Judgment by CENTRAL INTELLIGENCE AGENCY, FEDERAL BUREAU OF INVESTIGATION, U.S. DRUG ENFORCEMENT ADMINISTRATION. (Attachments: # (1) Memorandum in Support, # (2) Statement of Facts, # (3) Exhibit Ex. 1 (Seidel Decl.), # (4) Exhibit Ex. 2 (Davis Decl.), # (5) Exhibit Ex. 3 (Williams Decl.), # (6) Text of Proposed Order)(Littman, M.)

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Page 1 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AARON GREENSPAN,
Plaintiff,
v.
Civil Action No. 23-1816 (BAH)
EXECUTIVE OFFICE FOR U.S.
ATTORNEYS, et al.,
Defendants.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’
CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Page 2 TABLE OF CONTENTS
INTRODUCTION ........................................................................................................................
1
BACKGROUND ........................................................................................................................
3
I.
II.
FOIA Requests and Responses ............................................................................... 4
A.
FBI .............................................................................................................. 4
B.
DEA ............................................................................................................ 6
C.
CIA.............................................................................................................. 7
Civil Action............................................................................................................. 8
LEGAL STANDARD................................................................................................................
9
ARGUMENT ........................................................................................................................
9
I.
II.
III.
FBI and DEA Have Properly Asserted Glomar Responses Pursuant to Privacy
Exemptions 6 and 7(C) ......................................................................................... 10
A.
FBI: Privacy Interests Outweigh the Public Interests in Disclosure ......... 13
B.
DEA: Privacy Interests Outweigh the Public Interests in Disclosure ....... 15
C.
Plaintiff’s Privacy and Public Interest Arguments Are Unpersuasive and
Contrary to Law. ....................................................................................... 16
CIA Has Properly Asserted Glomar Responses Pursuant to Exemptions 1 and 3 19
A.
Exemption 1 .............................................................................................. 19
B.
Exemption 3 .............................................................................................. 24
Defendants Have Never Officially and Publicly Acknowledged the Records that
Plaintiff Requests. ................................................................................................. 26
CONCLUSION ........................................................................................................................
33
-i-

Page 3 TABLE OF AUTHORITIES
Cases
ACLU v. Dep’t of Def.,
628 F.3d 612 (D.C. Cir. 2011) .................................................................................... 19, 20, 24
Afshar v. Dep’t. of State,
702 F.2d 1125 (D.C. Cir. 1983) ........................................................................................ 31, 32
Am. First Legal Found. v. FBI,
Civ. A. No. 23-2172, 2024 WL 4607496 (D.D.C. Oct. 29, 2024) ................................. passim
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) ................................................................................................................. 9
Blackwell v. FBI,
646 F.3d 37 (D.C. Cir. 2011) ............................................................................................ 18, 19
Boyd v. Crim. Div. of Dep’t of Just.,
475 F.3d 381 (D.C. Cir. 2007) ................................................................................................ 18
Brayton v. Off. of U.S. Trade Rep.,
641 F.3d 521 (D.C. Cir. 2011) .................................................................................................. 9
Canaday v. U.S. Citizenship & Immigr. Servs.,
545 F. Supp. 2d 113 (D.D.C. 2008) ........................................................................................ 17
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) ................................................................................................................. 9
CIA v. Sims,
471 U.S. 159 (1985) ............................................................................................................... 25
CREW v. Dep’t of Just.,
746 F.3d 1082 (D.C. Cir. 2014) .............................................................................................. 12
CREW v. Dep’t of Just.,
854 F.3d 675 (D.C. Cir. 2017) ................................................................................................ 11
Davis v. Dep’t of Just.,
968 F.2d 1276 (D.C. Cir. 1992) .............................................................................................. 11
Dep’t of Just. v. Reps. Comm. for Freedom of Press,
489 U.S. 749 (1989) ......................................................................................................... 11, 17
Dep’t of State v. Wash. Post Co.,
456 U.S. 595 (1982) ............................................................................................................... 10
DiBacco v. Dep’t of Army,
926 F.3d 827 (D.C. Cir. 2019) ................................................................................................ 25
- ii -

Page 4 DiBacco v. U.S. Army,
795 F.3d 178 (D.C. Cir. 2015) ................................................................................................ 24
Frontier Found. v. Dep’t of Just.,
739 F.3d 1 (D.C. Cir. 2014) ...................................................................................................... 9
Frugone v. CIA,
169 F.3d 772 (D.C. Cir. 1999) ................................................................................................ 27
Gardels v. CIA,
689 F.2d 1100 (D.C. Cir. 1982) .............................................................................................. 10
Graff v. FBI,
822 F. Supp. 2d 23 (D.D.C. 2011) .......................................................................................... 17
Higgins v. Dep’t of Just.,
919 F. Supp. 2d 131 (D.D.C. 2013) ........................................................................................ 11
Jud. Watch, Inc. v. Dep’t of Def.,
715 F.3d 937 (D.C. Cir. 2013) ................................................................................................ 20
Jud. Watch, Inc. v. Dep’t of Homeland Sec.,
514 F. Supp. 2d 7 (D.D.C. 2007) ............................................................................................ 17
Jurdi v. United States,
485 F. Supp. 3d 83 (D.D.C. 2020) .......................................................................................... 11
Knight First Amend. Inst. at Columbia Univ. v. CIA,
11 F.4th 810 (D.C. Cir. 2021) .......................................................................................... 27, 28
Leopold v. CIA,
987 F.3d 163 (D.C. Cir. 2021) .......................................................................................... 27, 32
Marino v. DEA,
685 F.3d 1076 (D.C. Cir. 2012) .............................................................................................. 28
Mobley v. CIA,
806 F.3d 568 (D.C. Cir. 2015) .................................................................................... 26, 27, 30
Moore v. CIA,
666 F.3d 1330 (D.C. Cir. 2011) ...................................................................................... passim
Morley v. CIA,
508 F.3d 1108 (D.C. Cir. 2007) .............................................................................................. 24
Nat’l Archives & Records Admin. v. Favish,
541 U.S. 157 (2004) ................................................................................................... 17, 18, 19
Nat’l Ass’n of Retired Fed. Emps. v. Horner,
879 F.2d 873 (D.C. Cir. 1989) ................................................................................................ 19
- iii -

Page 5 Phillippi v. CIA,
546 F.2d 1009 (D.C. Cir. 1976) ........................................................................................ 1, 3, 4
SafeCard Servs. v. SEC,
926 F.2d 1197 (D.C. Cir. 1991) .............................................................................................. 12
Schaerr v. Dep’t of Just.,
69 F.4th 924 (D.C. Cir. 2023) ................................................................................................ 10
U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mex.,
740 F.3d 195 (D.C. Cir. 2014) ................................................................................................ 11
PETA v. NIH,
745 F.3d 535 (D.C. Cir. 2014) ................................................................................................ 10
Weisberg v. Dep’t of Just.,
627 F.2d 365 (D.C. Cir. 1980) .................................................................................................. 9
Wolf v. CIA,
473 F.3d 370 (D.C. Cir. 2007) ........................................................................................ passim
Statutes
5 U.S.C. § 552 ...................................................................................................................... passim
50 U.S.C. § 3024 ........................................................................................................................
24
50 U.S.C. § 3507 ........................................................................................................................
25
- iv -

Page 6 Defendants Federal Bureau of Investigation (“FBI”), Central Intelligence Agency (“CIA”),
and Drug Enforcement Administration (“DEA”) (collectively, “Defendants”), 1 by and through
undersigned counsel, respectfully submit this memorandum of points and authorities in support of
their cross-motion for summary judgment under Federal Rule of Civil Procedure (“Rule”) 56 and
in opposition to Plaintiff’s motion for summary judgment (ECF No. 44).
INTRODUCTION
This case arises from numerous Freedom of Information Act (“FOIA”) requests that
Plaintiff Aaron Greenspan submitted to the FBI, CIA, DEA, Executive Office for U.S Attorneys,
Department of State, and the Department of Treasury, Internal Revenue Service (“IRS”) in 2022
and 2023. See ECF No. 35 (2nd Am. Compl.). The requests sought criminal investigative
documents concerning third-parties, Bola Ahmed Tinubu (“Tinubu”), Lee Andrew Edwards,
Mueez Abegboyega Akande, and Abiodun Agbele (“Agbele”), who, according to Plaintiff,
participated in “an international drug trafficking and money laundering ring with operations in
Chicago, Illinois.” ECF No. 41-1 (Pl.’s Mem.), at 1. The remaining disputes involve Defendants’
Glomar responses 2 to Plaintiff’s request for records about Tinubu (the President of Nigeria) and
the DEA’s Glomar response to Plaintiff’s request for records about Agbele.
1
Plaintiff also sued the Executive Office for U.S Attorneys, Department of State, and the
Department of Treasury, Internal Revenue Service, but on August 13, 2024, he voluntarily
dismissed those defendants. ECF No. 40 (Stip. of Dismissal); Min. Order of Aug. 13, 2024.
2
The phrase “Glomar response” originated from a FOIA case that sought information
concerning a ship named the “Hughes Glomar Explorer,” and the CIA refused to confirm or deny
its relationship with the Glomar vessel because to do so would compromise the national security
or divulge intelligence sources and methods. Phillippi v. CIA, 546 F.2d 1009, 1010 (D.C. Cir.
1976). Glomar responses are proper “if the fact of the existence or nonexistence of agency records
falls within a FOIA exemption.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007).

Page 7 The FBI and DEA properly asserted Glomar responses under FOIA Exemptions 6 and 7(C)
because the requests seek criminal investigative documents pertaining to third parties that, if they
existed, would interfere with the third parties’ substantial privacy interests in not being associated
with law enforcement investigative records. The CIA properly asserted Glomar responses under
FOIA Exemptions 1 and 3 because confirming or denying the existence or nonexistence of records
related to Tinubu would reveal classified information that is protected from disclosure by executive
order and statute. To the extent that Plaintiff attempts to argue that the existence of the requested
records have been officially acknowledged, such that a Glomar response could not be used, this
argument will not succeed for numerous reasons—not the least of which Plaintiff never
demonstrated that such an acknowledgement had ever been publicly and officially made by
Defendants.
There are three central questions before the Court, and Plaintiff’s case fails at each step.
First, whether an affidavit of an agent of the Department of Treasury, IRS, pierces the Glomar
responses of the Defendants, who are not part of the Department of Treasury. That is, whether the
affidavit of an IRS agent constitutes an official acknowledgment of the FBI, DEA, and CIA that
the records requested by Plaintiff exist. Under Circuit precedent, the answer is no.
Second, whether a complaint brought by United States Attorney’s Office of the Northern
District of Illinois seeking forfeiture of seized funds in Tinubu’s bank accounts, based on the IRS
agent’s affidavit, transforms the affidavit into an official and documented public disclosure
confirming that the FBI, DEA, and CIA records requested by Plaintiff exist. The answer to that
question is also no.
Third, even if it is presumed that the affidavit from an agent of one agency is imputed to
other agencies (which the law forbids), Plaintiff must establish that the prior disclosure matches
2

Page 8 and is as specific as the requested information. Here, the information disclosed in the IRS agent’s
affidavit as it relates to Tinubu does not establish the existence of records responsive to Plaintiff’s
requests.
As further explained below, there is no genuine issue as to any material fact in this matter,
and Defendants are entitled to judgment as a matter of law. The Court should deny Plaintiff’s
motion for summary judgment, grant Defendants’ cross-motion for summary judgment, and enter
summary judgment in Defendants’ favor.
BACKGROUND
The remaining Defendants in this FOIA action are the FBI, DEA, and CIA. See ECF No.
40 (Stip. of Dismissal); Min. Order, Aug. 13, 2024 (dismissing other defendants). Additionally, as
to these three defendants, Plaintiff has agreed to waive his claims related to Count VII –
December 1, 2023 FBI FOIA Request (FBI File No. 80-LG-C180); Count IX – July 21, 2022 DEA
FOIA Request (Bola Ahmed Tinubu and Lee Andrew Edwards): waiver limited to Edwards;
Count X – March 23, 2023 DEA FOIA Request (Mueez Adegboyega Akande); and any
corresponding allegations related to these requests raised in Count XIII – Declaratory Judgment.
ECF No. 39 (Jt. Status Rep., Aug. 8, 2024), ¶ 5. Plaintiff further agreed that the only matters in
dispute are: (1) FBI, DEA, and CIA’s Glomar responses as to Tinubu; (2) the DEA’s “selective
invocation of Glomar” as to Agbele; (3) redactions and withholdings as to Tinubu made pursuant
to the Exemptions 6 and 7C (4) redactions and withholdings related to information that was
allegedly publicly disclosed in “the 1992 Indiana criminal case that Agbele was indicted” and “the
1993 civil forfeiture case in Illinois.” Id. ¶ 6. Plaintiff’s FOIA requests that fall outside of the scope
of the parties’ agreement are not discussed below.
3

Page 9 FOIA Requests and Responses
A.
FBI
1.
Request Number 1588244-000
By electronic FOIA dated March 29, 2023, Plaintiff submitted a FOIA request to the FBI
seeking “[t]he entire FBI file for Bola Ahmed Tinubu, DOB 3/29/1952, President-Elect of Nigeria
as of February 2023.” Ex. 1 (Seidel Decl.) ¶ 5. By letter dated April 4, 2023, the FBI acknowledged
receipt of Plaintiff’s FOIA request and notified Plaintiff his request was assigned FBI FOIPA
Request Number 1588244-000. Id. ¶ 6. The FBI informed Plaintiff that because his request sought
records for third-party individuals, it would neither confirm nor deny the existence of such records
pursuant to FOIA Exemptions 6 and 7(C), 5 U.S.C. § 552 (b)(6), (b)(7)(C). Id. The FBI informed
Plaintiff that the mere acknowledgement of the existence of FBI records on a third-party individual
could reasonably be expected to constitute an unwarranted invasion of personal privacy and that
this was the FBI’s standard response to such requests and should not be taken to mean that records
do, or do not, exist. Id. As a result, the FBI advised Plaintiff that it was closing his request. Id. The
FBI informed Plaintiff he could appeal the FBI’s response to the Department of Justice, Office of
Information Policy, within ninety days of its letter. Id.
By electronic appeal submission dated April 26, 2023, Plaintiff submitted an appeal to the
Office of Information Policy. Id. ¶ 7. By letter dated May 4, 2023, the Office of Information Policy
informed Plaintiff it was affirming the FBI’s action because the FBI properly refused to confirm
or deny the existence of records responsive to Plaintiff’s request concerning a third-party
individual. Id. ¶ 9. The Office of Information Policy advised Plaintiff that confirming or denying
the existence of such records, including law enforcement records, concerning a third-party
individual would constitute a clearly unwarranted invasion of personal privacy, and could
reasonably be expected to constitute an unwarranted invasion of personal privacy. Id.; see 5 U.S.C.
4

Page 10 § 552(b)(6), (7)(C). Additionally, the Office of Information Policy informed Plaintiff that it is
reasonably foreseeable that confirming or denying the existence of any such records would harm
the interests protected by these exemptions. Id. The Office of Information Policy advised Plaintiff
that it was closing Plaintiff’s appeal and if Plaintiff was dissatisfied with the action on his appeal,
he could file a lawsuit in federal district court. Id.
2.
Request Number 1593615-000
By eFOIA dated May 25, 2023, Plaintiff submitted a FOIA request to the FBI seeking “FBI
302 interviews with Bola Tinubu from FBI Case No. 245-IP-71386-UUUUUU during the
timeframe 1992-1993.” Id. ¶ 10. By letter dated May 31, 2023, the FBI acknowledged receipt of
Plaintiff’s FOIA request and notified Plaintiff his request was assigned Request Number 1593615000. Id. ¶ 11. The FBI advised Plaintiff that because his request sought records of a third-party
individual, the FBI would neither confirm nor deny the existence of such records pursuant to FOIA
Exemptions 6 and 7(C), 5 U.S.C. § 552 (b)(6), (b)(7)(C). Id. The FBI informed Plaintiff that the
mere acknowledgement of the existence of FBI records on a third-party individual could
reasonably be expected to constitute an unwarranted invasion of personal privacy and that this is
the FBI’s standard response to such requests and should not be taken to mean that records do, or
do not, exist. Id. The FBI informed Plaintiff that his request did not sufficiently demonstrate that
the public's interest in disclosure (relating to the operations and activities of the government)
outweighed the personal privacy interests of the individual. Id. As a result, the FBI closed
Plaintiff’s request and informed him he could appeal the FBI’s response to the Office of
Information Policy within ninety days. Id.
By electronic appeal submission received by the Office of Information Policy on June 6,
2023, Plaintiff submitted an appeal challenging the FBI’s determination. Id. ¶ 12. By letter dated
June 8, 2023, the Office of Information Policy informed Plaintiff it was affirming the FBI’s action
5

Page 11 because the FBI properly refused to confirm or deny the existence of records responsive to
Plaintiff’s request because confirming or denying the existence of such records, including law
enforcement records, concerning a third-party individual would constitute a clearly unwarranted
invasion of personal privacy, and could reasonably be expected to constitute an unwarranted
invasion of personal privacy. Id.; see 5 U.S.C. § 552(b)(6), (7)(C). Additionally, the Office of
Information Policy informed Plaintiff that it is reasonably foreseeable that confirming or denying
the existence of such records would harm the interests protected by these exemptions. Id. The
Office of Information Policy advised Plaintiff that it was closing his appeal and if he was
dissatisfied, he could file a lawsuit in federal district court. Id.
B.
DEA
1. Request Number 22-00892-F
On July 21, 2022, Plaintiff submitted a FOIA request, assigned case number 22-00892-F,
to the DEA seeking “[a]ny records from the DEA's Hammond, Indiana or Washington, D.C.
offices concerning the Nigerian heroin distribution organization active from approximately 1988
to 1994 or later involving any of the following individuals: 1. Bola Ahmed Tinubu 2. Lee Andrew
Edwards. This organization is described in a civil forfeiture complaint and [a confidential] IRS
affidavit in [Civil Action No. 93-4483, filed in the Northern District of Illinois]:
https://www.plainsite.org/dockets/2jqi9omh8/illinois-northern-district-court/usa-v-acct263226700-et-al/.” Ex. 2 (Davis Decl.) ¶ 6. On August 22, 2022, DEA notified Plaintiff that the
agency had decided to neither confirm nor deny the existence of such records pursuant to FOIA
Exemptions 6 and 7(C) as even acknowledging the existence of law enforcement records on
another individual could reasonably be expected to constitute an unwarranted invasion of privacy.
Id. ¶ 7. On August 23, 2022, Plaintiff filed an appeal of DEA’s determination with the Office of
Information Policy, assigned case number A-2022-01983. Id. ¶ 8. On November 30, 2022, the
6

Page 12 Office of Information Policy notified Plaintiff of their decision to affirm DEA’s determination to
neither confirm nor deny the existence of records. Id. ¶ 9.
2.
Request Number 23-00201-F
On December 5, 2023, Plaintiff submitted a FOIA request, assigned case number 2400201-F, to the DEA seeking “[t]he DEA case file for Abiodun Agbele, located in either the
Northern District of Indiana or the Northern District of Illinois, from January 1, 1990 –
December 31, 1995.” Id. ¶ 14. On December 27, 2023, DEA notified Plaintiff that the agency had
decided to neither confirm nor deny the existence of such records pursuant to FOIA Exemptions 6
and 7(C) as even acknowledging the existence of law enforcement records on another individual
could reasonably be expected to constitute an unwarranted invasion of privacy. Id. ¶ 15. On the
same day, Plaintiff filed an appeal of DEA’s determination with the Office of Information Policy,
assigned case number A-2024-00525. Id. ¶ 16. On June 21, 2024, the Office of Information Policy
informed Plaintiff that his appeal file would be closed, pursuant to 28 C.F.R. § 16.8(b)(2), due to
Plaintiff filing a lawsuit with the request as the subject of litigation. Id. ¶ 17.
C.
CIA
On March 23, 2023, Plaintiff submitted a request to the CIA for materials concerning
Tinubu from January 1, 1985, to December 31, 2021. Ex. 3 (Williams Decl.) ¶ 6. By letter dated
July 21, 2023, the CIA notified Plaintiff that CIA assigned his request FOIA number F-202301008. On October 25, 2023, the CIA issued a Glomar response and notified Plaintiff that the
agency can neither confirm nor deny the existence or nonexistence of records responsive to his
request pursuant to FOIA Exemptions 1 and 3. According to the accompanying CIA declaration,
the CIA invoked a Glomar response because confirming or denying the existence or nonexistence
of records related to Tinubu during the relevant period would reveal classified information that is
7

Page 13 protected from disclosure by executive order (Exemption 1) and statute (Exemption 3) and “[a]n
acknowledgement confirming or denying the existence or nonexistence of such records would
reveal classified intelligence information and jeopardize the clandestine nature of the [CIA’s]
intelligence activities and/or disclose information about CIA’s sources and methods.” Ex. 3
(Williams Decl.) ¶¶ 9, 19.
II.
Civil Action
On June 12, 2023, Plaintiff filed a Complaint (ECF No. 1), which the agencies answered
on August 28, 2023 (ECF No. 12). On that same day, Plaintiff filed an Amended Complaint, adding
the CIA as a defendant (ECF No. 8). The agencies answered the Amended Complaint on
September 11, 2023 (ECF No. 13), and the CIA filed a supplemental answer on September 27,
2023 (ECF No. 14). On March 24, 2024, Plaintiff filed a Second Amended Complaint (ECF
No. 35), which the agencies answered on April 8, 2024 (ECF No. 37). From the outset and
throughout the litigation, the FBI, DEA, and CIA have asserted Glomar responses as to Plaintiff’s
requests to each of them for records about Tinubu and as to Plaintiff’s request to the DEA for
records about Agbele. E.g., ECF No. 12 (Jt. Status Rep., Sept. 11, 2023); ECF No. 33 (Jt. Status
Rep., Dec. 5, 2023); ECF No. 38 (Jt. Status Rep., June 4, 2024).
On August 13, 2024, Plaintiff stipulated to the dismissal of the Executive Office for United
States Attorneys, Department of State, and IRS. ECF No. 40 (Stip. of Dismissal). The Court
dismissed these defendants. Min. Order, Aug. 13, 2024. Plaintiff and the remaining Defendants
(FBI, CIA, and DEA) agreed to proceed to summary judgment briefing, limited to certain specified
issues, namely the Glomar responses as to Tinubu and Agbele. ECF No. 39 (Jt. Status Rep., Aug.
8, 2024); see supra at 3.
On September 12, 2024, Plaintiff filed a motion for summary judgment (ECF No. 41).
Defendants now oppose Plaintiff’s summary judgment motion and cross-move for summary
8

Page 14 judgment on the ground that they complied with their obligations under FOIA when responding to
Plaintiff’s requests. For these reasons, and those set forth in the accompanying declarations, the
Court should grant summary judgment in favor of Defendants.
LEGAL STANDARD
Summary judgement is appropriate when the pleadings and evidence “show[] that there is
no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment must demonstrate the absence
of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). A genuine
issue of material fact is one that “might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the movant has met its burden,
the nonmoving party “may not rest upon the mere allegations or denials of his pleading, but must
set forth specific facts showing that there is a genuine issue for trial.” Id.
“Courts decide the ‘vast majority’ of FOIA cases on motions for summary judgment.”
AARC v. CIA, 317 F. Supp. 3d 394, 399 (D.D.C. 2018), aff’d, 781 F. App’x 11 (D.C. Cir. 2019)
(per curiam) (quoting Brayton v. Off. of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011)). An
agency is typically entitled to summary judgment in a FOIA case if it demonstrates that no material
facts are in dispute, it has conducted an adequate search for responsive records, and each
responsive record that it has located either has been produced to the plaintiff or is exempt from
disclosure. See Weisberg v. Dep’t of Just., 627 F.2d 365, 368 (D.C. Cir. 1980). To meet its burden,
an agency may rely on relatively detailed and non-conclusory declarations. See Elec. Frontier
Found. v. Dep’t of Just., 739 F.3d 1, 7 (D.C. Cir. 2014).
ARGUMENT
“In certain cases, merely acknowledging the existence of responsive records would itself
‘cause harm cognizable under [a] FOIA exception.’” People for Ethical Treatment of Animals
9

Page 15 (“PETA”) v. NIH, 745 F.3d 535, 540 (D.C. Cir. 2014) (quoting Wolf v. CIA, 473 F.3d 370, 374
(D.C. Cir. 2007)). In such cases, “an agency can issue a Glomar response, refusing to confirm or
deny its possession of responsive documents.” Id. “Importantly, an agency need not search its
records before invoking Glomar.” Schaerr v. Dep’t of Just., 69 F.4th 924, 928 (D.C. Cir. 2023).
“In the Glomar context, there are ‘no relevant documents for the court to examine other than the
affidavits which explain the Agency’s refusal’ to confirm or deny the existence of responsive
records.” Id. (quoting Wolf, 473 F.3d at 374 n.4); see PETA, 745 F.3d at 540. The agency’s
explanatory burden is not demanding, as the standard is ultimately no different than in a typical
FOIA case: “[A]n agency’s justification for invoking a FOIA exemption is sufficient if it appears
‘logical’ or ‘plausible.’” Wolf, 473 F.3d at 374-75 (quoting Gardels v. CIA, 689 F.2d 1100, 1105
(D.C. Cir. 1982)).
Here, the FBI and DEA properly asserted Glomar under Exemptions 6 and 7(C), and the
CIA properly asserted Glomar under Exemptions 1 and 3.
I.
FBI and DEA Have Properly Asserted Glomar Responses Pursuant to Privacy
Exemptions 6 and 7(C)
FOIA Exemption 6 exempts disclosure of information contained in “personnel and medical
files and similar files the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” 5 U.S.C. § 552(b)(6). The Supreme Court has interpreted Exemption 6 broadly, making
clear that the statutory language files “similar” to personnel or medical files encompasses any
“information which applies to a particular individual.” Dep’t of State v. Wash. Post Co., 456 U.S.
595, 602 (1982).
To be a law enforcement record under Exemption 7, the record must have been “compiled
for law enforcement purposes.” 5 U.S.C. § 552(b)(7). “The term ‘law enforcement’ in Exemption 7
refers to the act of enforcing the law, both civil and criminal.” Pub. Emps. for Env’t Resp.
10

Page 16 (“PEER”) v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mex., 740 F.3d 195, 203 (D.C.
Cir. 2014). “According to the Supreme Court, the term ‘compiled’ in Exemption 7 requires that a
document be created, gathered, or used by an agency for law enforcement purposes at some time
before the agency invokes the exemption.” Id. at 203.
Because Exemption 7(C) is broader than Exemption 6, there is no need to consider
Exemption 6 if the records at ssue are law enforcement records. See Citizens for Resp. & Ethics in
Wash. (“CREW”) v. Dep’t of Just., 854 F.3d 675, 681 (D.C. Cir. 2017). Exemption 7(C) provides
protection for law enforcement information the disclosure of which “could reasonably be expected
to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). In assessing
an agency’s invocation of Exemption 7(C), the Court must “balance the privacy interests that
would be compromised by disclosure against the public interest in release of the requested
information.” Davis v. Dep’t of Just., 968 F.2d 1276, 1281 (D.C. Cir. 1992). To overcome the
privacy interest of a third party, the information must “shed[] light on an agency’s performance of
its statutory duties.” Dep’t of Just. v. Reps. Comm. for Freedom of Press, 489 U.S. 749, 773 (1989).
Information “that reveals little or nothing about an agency’s own conduct” will not overcome a
third party’s privacy interest because the only relevant public interest that weighs into the calculus
for purposes of Exemption 7(C) is “the citizens’ right to be informed about what their government
is up to.” Id.
The FBI and DEA are law enforcement agencies and the requested criminal investigation
records—if they exist—would have been compiled for law enforcement purposes. Jurdi v. United
States, 485 F. Supp. 3d 83, 98 (D.D.C. 2020) (FBI); Higgins v. Dep’t of Just., 919 F. Supp. 2d 131,
145-46 (D.D.C. 2013) (DEA); see Ex. 1 (Seidel Decl.) ¶¶ 16-17; Ex. 2 (Davis Decl.) ¶¶ 5, 24.
11

Page 17 Satisfying the threshold step, the FBI and DEA explained in their declarations why their
Glomar responses were appropriate and established that the privacy interests of the third parties in
their criminal investigative files outweigh the public interest in the release of the requested
information. The agencies’ justifications were, at the very least, logical and plausible, Wolf, 473
F.3d at 374-75, and Plaintiff’s arguments to the contrary should be rejected.
It is well established that “[i]ndividuals have an obvious privacy interest cognizable under
Exemption 7(C) in keeping secret the fact that they were subjects of a law enforcement
investigation.” CREW v. Dep’t of Just., 746 F.3d 1082, 1091 (D.C. Cir. 2014) (cleaned up).
Moreover, release of names and/or other personal information about third parties and their
activities could cause unsolicited and unnecessary attention and harassment to be directed toward
that person. See SafeCard Servs. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991). For this reason,
the names of third parties in law enforcement records are almost always exempt from disclosure.
See id. (“[w]e now hold categorically that, unless access to the names and addresses of private
individuals appearing in files within the ambit of Exemption 7(C) is necessary in order to confirm
or refute compelling evidence that the agency is engaged in illegal activity, such information is
exempt from disclosure.”). Indeed, “[w]hen a FOIA request implicates personal data on third-party
individuals in law enforcement records, ‘the privacy interest . . . is at its apex.’” Am. First Legal
Found. v. FBI, Civ. A. No. 23-2172, 2024 WL 4607496, at *9 (D.D.C. Oct. 29, 2024)
(quoting Reps. Comm., 489 U.S. at 780). “‘[T]he Supreme Court has made clear that requests for
such third party [law enforcement] information are strongly disfavored.’” Id. (quoting Martin v.
Dep’t of Just., 488 F.3d 446, 457 (D.C. Cir. 2007) (citing Reps. Comm., 489 U.S. at 774)). Thus,
“as a categorical matter” disclosure of law enforcement information concerning a third party “‘can
12

Page 18 reasonably be expected to invade [these] citizens’ privacy.’” Id. (quoting Reps. Comm., 489 U.S.
at 780).
A.
FBI: Privacy Interests Outweigh the Public Interests in Disclosure
The FBI’s justification for asserting Glomar under Exemptions 6 and 7(C) is compelling,
let alone logical and plausible. Wolf, 473 F.3d at 374-75. As Michael G. Seidel, the Section Chief
of the Record/Information Dissemination Section, Information Management Division, explained
in his declaration, “The FBI relies on a Glomar response in instances where, if responsive records
existed, even acknowledging their existence would result in harm to an interest protected by one
or more FOIA exemptions. To be credible and effective, the FBI must use a Glomar response in
all similar cases regardless of whether responsive records exist, including instances in which the
FBI does not possess records responsive to a particular request. If the FBI were to invoke a Glomar
response only when it possessed responsive records, the Glomar response would be interpreted as
an admission that responsive records exist.” Ex. 1 (Seidel Decl.) ¶ 18. In this case, “[t]he FBI
determined that it cannot confirm nor deny the existence of records regarding Plaintiff’s requests
for FOIA subject Bola Tinubu. The FBI determined that merely acknowledging whether
responsive records exist would trigger harm to an interest under FOIA Exemptions (b)(6) and
(b)(7)(C), with respect to records responsive to Plaintiff’s request regarding alleged FBI law
enforcement investigation(s) involving Bola Tinubu.” Id. ¶ 19.
As Mr. Seidel explained, “The FBI’s longstanding policy in response to FOIA requests for
third-party records has been to provide an Exemption (b)(6) and (b)(7)(C) Glomar response
(hereinafter privacy Glomar), neither confirming nor denying the existence of law enforcement
records, in those instances where an individual seeks access to information regarding a third party,
unless the requester establishes a significant public interest in disclosure that outweighs the third
party’s privacy interests. The FBI instituted this policy to protect the privacy rights of individuals,
13

Page 19 particularly those who appear in FBI law enforcement files.” Id. ¶ 20. Mr. Seidel discussed the
privacy interests that underlie the policy: “It is well-recognized that individuals have substantial
privacy interests in relation to being associated with law enforcement investigations, either as a
target of an investigation or any alleged government officials assigned to a specific investigation,
because any such association can engender negative connotations or result in harassment,
embarrassment, or stigmatization of the individual, or, in some circumstances, physical harm or
threats of harm or death. Statements by an individual alluding to or acknowledging an association
with a law enforcement investigation do not extinguish the privacy interests of the third party or
constitute a waiver of the third party’s privacy interests.” Id.
Mr. Seidel explained how the FBI balances the significant privacy interests in third-party
law enforcement records with the public interest in such records. “If a requester establishes that
disclosure would serve a public interest under the FOIA, then the FBI balances that public interest
against the third party’s privacy interests. This balancing is done on a case-by-case basis as it is
necessarily fact-specific. Thus, each request must be treated individually, and the FBI must retain
flexibility in the way the FBI handles each request. The FBI will process a request for and release
non-exempt law enforcement records about a third party only if it determines that a significant
public interest outweighs that third-party individual’s privacy interests after conducting the
balancing analysis. For purposes of Exemptions (b)(6) and (b)(7)(C), a public interest exists when
disclosure of information about an individual would significantly increase the public’s
understanding of FBI operations and activities.” Id. ¶ 21.
“In this case,” Mr. Seidel explained, “Plaintiff did not provide a sufficient demonstration
that there exists a significant public interest in disclosure of the material sought that would
outweigh the privacy interests of the Plaintiff’s requests concerning FOIA subject Bola Tinubu,
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Page 20 should such records exist. Specifically, the FBI advised Plaintiff he had not sufficiently
demonstrated that the public's interest in disclosure (relating to the operations and activities of the
government) outweighs the personal privacy interests of the FOIA subject Bola Tinubu.” Id. ¶ 22.
B.
DEA: Privacy Interests Outweigh the Public Interests in Disclosure
Likewise, the DEA’s justification for asserting Glomar under Exemptions 6 and 7(C) is
logical and plausible. Wolf, 473 F.3d at 374-75. As Angela Davis, the Unit Chief of DEA’s
Information/Privacy Act Unit, explained in her declaration, “Given the nature and context of
DEA’s criminal law enforcement investigative records, the disclosure of any information could
potentially tip-off an individual that they are the subject of a DEA surveillance or investigation, or
subject an individual to unwarranted attention for being the subject of an investigation. If DEA
denied the existence of such records in cases when no responsive records existed, it could not then,
in cases where responsive records actually exist, neither affirm nor deny the existence of such
records without in fact disclosing the existence of an investigation. Consequently, DEA must
consistently neither confirm nor deny responsive records exist in situations where the mere
acknowledgement of responsive records would disclose information protected from disclosure by
the FOIA.” Ex. 2 (Davis Decl.) ¶ 26.
In this case, “[f]or surveillance or investigative records of Tinubu and Agbele that could
be located using [the Narcotic and Dangerous Drugs Information System], DEA asserts a Glomar
response pursuant to Exemptions 6 and 7(C) because the individuals are not deceased and the DEA
does not have authorization from the individuals to disclose this information, protected under the
Privacy Act, to Plaintiff and has not officially acknowledged any law enforcement investigations
of the individuals. The disclosure of even the existence of DEA law enforcement records
concerning a third party, such as Tinubu and Agbele, could reasonably be expected to subject them
to unwarranted invasions of personal privacy. Both individuals have a substantial privacy interest
15

Page 21 in not being associated with a DEA law enforcement investigation. Members of the public would
draw adverse inferences about the individuals from the mere fact that they might be mentioned in
the law enforcement investigative records.” Id. ¶ 27. “This is especially of concern for Tinubu,
who is the sitting President of Nigeria, a nation of over 230 million people. This type of disclosure
would likely subject Tinubu to invasions of personal privacy and harassment that could foreseeably
be seen to detrimentally affect his personal and official capacity.” Id. ¶ 32.
As to the public interest, Ms. Davis explained, “The FOIA public interest is limited to
information that would shed light on the government’s performance of its official duties—in
particular, on DEA’s performance of its mission to enforce the controlled substance law, and
investigate violations of the laws, to keep America safe from dangerous drugs and those that traffic
in them. In assessing whether there is a FOIA public interest in disclosure, DEA considered its
mission and whether disclosing personally identifying information sheds light on the operations
and activities of DEA. Disclosure of personally identifying information would not aid the public’s
understanding of how DEA carries out its mission; therefore, the FOIA public interest in the
information is de minimis.” Id. ¶ 35. Ms. Davis, thus, concluded, “The significant privacy interests
outweighed the public interests in the disclosure of information. As such, Exemption 6 and 7(C)
protects this information because disclosure would constitute a clearly unwarranted invasion of
personal privacy.” Id. ¶ 36.
C.
Plaintiff’s Privacy and Public Interest Arguments Are Unpersuasive and
Contrary to Law.
Plaintiff asserts that Tinubu does not have a protectable privacy interest under the FOIA
because he is not a United States citizen or resident. ECF No. 35-28 (FOIA Appeal). Similarly, he
asserts that Agbele has a negligible privacy interest because he “no longer resides in the United
States.” ECF No. 35-56 (FOIA Appeal). This is not the law. “[F]oreign nationals are entitled to the
16

Page 22 same privacy rights under FOIA as United States citizens.” Jud. Watch, Inc. v. Dep’t of Homeland
Sec., 514 F. Supp. 2d 7, 9 n. 4 (D.D.C. 2007) (quotation marks omitted); see also Graff v. FBI,
822 F. Supp. 2d 23, 34 (D.D.C. 2011).
Plaintiff also suggests that Tinubu has forfeited his privacy interests because he is now the
President of Nigeria. Pl.’s’ Mem. (ECF No. 41-1), at 11-13. But public figures do not forfeit their
privacy interests because of their public status. See Am. First, 2024 WL 4607496, at *10 (holding
that public officials do not surrender rights to personal privacy, particularly where the request is
for details of a third-party investigation); Canaday v. U.S. Citizenship & Immigr. Servs., 545 F.
Supp. 2d 113, 118 (D.D.C. 2008). Relatedly, Plaintiff asserts that there is a heightened public
interest in the Tinubu investigative records because Tinubu is the President of Nigeria, ECF No.
35-23 (FOIA Appeal), ECF No. 35-45 (FOIA Appeal), and because United States residents of
Nigerian ancestry and the Nigerian press are interested in Tinubu’s communications with the FBI,
ECF No. 35-28 (FOIA Appeal), but he fails to appreciate that the only relevant public interest that
weighs into the calculus for purposes of Exemption 7(C) is “the citizens’ right to be informed
about what their government is up to,” not what Tinubu was up to. Reps. Comm., 489 U.S. at 773.
Likewise, Plaintiff states that there is a public interest in the Agbele records because Agbele
participated in criminal activity with President Tinubu. ECF No. 35-56 (FOIA Appeal), but, again,
Plaintiff fails to connect how Tinubu’s alleged criminal activity would “shed[] light on an agency’s
performance of its statutory duties.” Reps. Comm., 489 U.S. at 773. Information “that reveals little
or nothing about an agency’s own conduct” will not overcome a third party’s privacy interest. Id.
In Plaintiff’s motion for summary judgment, he tries to make that connection, but he falls
well short of satisfying his evidentiary burden under National Archives & Records Administration
v. Favish, 541 U.S. 157 (2004). Plaintiff states, “One of the crucial open questions about the United
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Page 23 States Government’s activities in the early 1990s is whether or not the Department of Justice and/or
FBI solicited Mr. Tinubu’s cooperation with its sprawling investigation in exchange for Mr.
Tinubu’s ability to return to Nigeria without a public indictment for half a dozen crimes trailing
behind him.” Pl.’s Mem. (ECF No. 41-1), at 16.
However, an alleged public interest in shining light on government wrongdoing cannot rest
on “a bare suspicion in order to obtain disclosure. Rather, the requester must produce evidence
that would warrant a belief by a reasonable person that the alleged Government impropriety might
have occurred.” Favish, 541 U.S. at 174. “[W]here there is a privacy interest protected by
Exemption 7(C) and the public interest being asserted is to show that responsible officials acted
negligently or otherwise improperly in the performance of their duties,” “bare suspicion” will not
permit disclosure. Id. Allegations of “suspicious circumstances” that otherwise “lack[] any
substantiation” fall short of “meeting the demanding Favish standard.” Blackwell v. FBI, 646 F.3d
37, 41 (D.C. Cir. 2011).
Indeed, the Court need not even engage in the private/public balancing test if the requester
cannot make the threshold “meaningful evidentiary showing” that the asserted public interest of
Government misconduct might have occurred. Favish, 541 U.S. at 175; see also id. (holding that
where a requester “has not produced any evidence that would warrant a belief by a reasonable
person that the alleged Government impropriety might have occurred,” the balance of the public
and privacy interests has not been “put . . . into play”); Boyd v. Crim. Div. of. Dep’t of Just.,
475 F.3d 381, 387 (D.C. Cir. 2007) (holding that the requester must satisfy the threshold Favish
requirement “in order to trigger the balancing of public interests against private interests”).
Here, “no evidence in the record, other than plaintiff’s unsworn say-so, has been presented
to lead a reasonable person to believe that any alleged wrongdoing occurred.” Am. First, 2024 WL
18

Page 24 4607496, at *11. Even an affidavit that lacks “any substantiation” fails to meet “the demanding
Favish standard.” Blackwell, 646 F.3d at 41. Plaintiff fails to make the threshold “meaningful
evidentiary showing” that the asserted public interest of Government misconduct might have
occurred. Favish, 541 U.S. at 175. Indeed, even if Plaintiff’s speculation proved to be accurate
(there is no evidence of such), it is unclear what the government would have done wrong in offering
someone a deal for cooperation that led to the prosecution of others involved in the heroin
distribution ring. Having shown no “public interest in disclosure,” this Court “need not linger over
the balance” between the agency’s asserted privacy interests in the requested material and
Plaintiff’s misguided and speculative appeals to the public interest; “something, even a modest
privacy interest, outweighs nothing every time.” Nat’l Ass’n of Retired Fed. Emps. v. Horner,
879 F.2d 873, 879 (D.C. Cir. 1989).
In sum, the FBI and DEA’s Glomar assertions were proper because documents relating to
Plaintiff’s investigation constitute law enforcement records under Exemption 7(C) and because it
was necessary to protect the third-party individual’s considerable privacy interests, which were
not outweighed by the public interest in disclosing whether responsive records exist—if there is
any public interest at all. Accordingly, the FBI and DEA are entitled to judgment as a matter of
law.
II.
CIA Has Properly Asserted Glomar Responses Pursuant to Exemptions 1 and 3
A.
Exemption 1
Exemption 1 permits agencies to withhold records that are “(A) specifically authorized
under criteria established by an Executive Order to be kept secret in the interest of national defense
or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C.
§ 552(b)(1). Agencies may establish the applicability of Exemption 1 by declaration. See ACLU v.
Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). The Court accords such declarations “substantial
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Page 25 weight,” so long as it “describes the justifications for withholding the information with specific
detail, demonstrates that the information withheld logically falls within the claimed exemption,
and is not contradicted by contrary evidence in the record or by evidence of the agency’s bad faith,
. . . summary judgment is warranted on the basis of the affidavit alone.” Id. (internal quotation
marks omitted).
The “operative classification order under Exemption 1” is Executive Order No. 13,526,
75 Fed. Reg. 707 (Dec. 29, 2009). See Jud. Watch, Inc. v. Dep’t of Def., 715 F.3d 937, 941 (D.C.
Cir. 2013); Ex. 3 (Williams Decl.) at 6-8. Executive Order No. 13,526 permits “an original
classifying authority” to classify “information [that] is owned by, produced by or for, or is under
the control of the United States Government” if “the information falls within one or more of the
categories of information listed in [the order]”; “the original classification authority determines
that the unauthorized disclosure of the information reasonably could be expected to result in
damage to the national security”; and “the original classification authority is able to identify or
describe the damage.” Exec. Order 13,526 § 1.1(a). The categories of information that are subject
to classification under Executive Order No. 13,526 include “military plans, weapons systems or
operations”; “foreign government information”; “intelligence activities (including covert action),
intelligence sources or methods, or cryptology”; and “foreign relations or foreign activities of the
United States, including confidential sources.” Id. § 1.4. The Executive Order permits an agency
to respond to a FOIA request by “refus[ing] to confirm or deny the existence or nonexistence of
requested records whenever the fact of their existence or nonexistence is itself classified.” Id.
§ 3.6(a).
The CIA provided a detailed declaration from Mary C. Williams, the Litigation
Information Review Officer for the Information Review and Release Division at the CIA, that
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Page 26 justifies Exemption 1. Ex. 3 (Williams Decl.). As Ms. Williams explained, “Consistent with
sections 1.1(a) and 3.6(a) of Executive Order 13526, . . . the existence or nonexistence of the
requested records in Plaintiff’s request (concerning Tinubu) is a properly classified fact that
concerns intelligence activities, sources, and methods under section 1.4(c) of the Executive Order.
This fact constitutes information that is owned by and under the control of the U.S. Government,
and the unauthorized disclosure of the existence or nonexistence of requested records reasonably
could be expected to result in damage to national security.” Id. ¶ 14.
Ms. Williams explained the CIA’s rationale for the Glomar response. “In most cases, upon
receipt of a FOIA request, the CIA will conduct searches for any responsive documents in its
holdings and provide the requester with all reasonably segregable, non-exempt documents
responsive to the request. In this common scenario, the CIA’s response – either to provide or not
provide the records sought – serves to confirm the existence or nonexistence of CIA records
responsive to the FOIA request. In such a scenario, the fact that the CIA does or does not possess
responsive records is not, in and of itself, classified, even though the information contained within
the records may be classified.” Id. ¶ 15. “However, given the CIA’s mandate to collect and analyze
foreign intelligence and to conduct counterintelligence, there are many instances where the CIA
cannot reveal whether or not it possesses responsive records because the mere confirmation or
denial of the existence of responsive records would, in and of itself, reveal a classified fact: namely,
whether the CIA has an intelligence interest in, or clandestine connection to, a particular individual
or foreign national, group, subject matter, or activity. In these cases, the CIA asserts a Glomar
response because the existence or nonexistence of CIA records responsive to the request is a
currently and properly classified fact, the disclosure of which reasonably could be expected to
cause damage to the national security of the United States. Specifically, disclosure of such
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Page 27 information could provide insight into CIA’s priorities, resources, and capabilities, and could be
used by foreign terrorist organizations, foreign intelligence services, and other hostile adversaries
to undermine CIA intelligence activities and attack the United States and its interests.” Id. ¶ 16.
As Ms. Williams explained, “A defining characteristic of the CIA’s intelligence activities
is that they are carried out through clandestine means, and therefore they must remain secret in
order to be effective. In the context of FOIA, this means that the CIA must carefully evaluate
whether its response to a FOIA request could jeopardize the clandestine nature of the Agency’s
intelligence activities or otherwise reveal previously undisclosed information about CIA sources,
methods, capabilities, authorities, interests, relationships with domestic or foreign entities,
strengths, weaknesses, personnel, and/or resources.” Id. ¶ 17. And “[t]o maintain effectiveness of
the Glomar response, the CIA invokes the response consistently, in all cases where the existence
or nonexistence of records responsive to a FOIA request is a classified fact, including instances in
which the CIA does not possess records responsive to a particular request. If the Agency were to
invoke a Glomar response only in instances where it possessed responsive records, that response
could be interpreted as an admission that responsive records exist and could have the effect of
confirming classified information. This practice would reveal the very information that the CIA
must protect in the interest of national security.” Id. ¶ 18.
“[I]n this case,” Ms. Williams explained, “the CIA issued a Glomar response stating that
it could neither confirm nor deny the existence or nonexistence of records concerning Tinubu
during the relevant time period referenced in the request. An acknowledgement confirming or
denying the existence or nonexistence of such records would reveal classified intelligence
information and jeopardize the clandestine nature of the Agency’s intelligence activities and/or
disclose information about CIA’s sources and methods. For example, if the CIA were to confirm
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Page 28 the existence of responsive records, such response could reveal that the CIA had some type of
involvement in, affiliation with, connection to, or intelligence interest in a particular foreign
national – Tinubu in this case – or a group, subject matter, or activity related to him. On the other
hand, if the CIA denied having records responsive to the request, that response could reveal that
the CIA did not have an intelligence interest in Tinubu or an associated group, thus revealing CIA’s
broader intelligence interests and activities.” Id. ¶ 19. “In either case, confirmation or denial of
the existence or nonexistence of such records would implicate sensitive information about the
CIA’s intelligence activities and sources and methods in a manner that would reasonably be
expected to cause damage to national security.” Id. ¶ 20.
“As a general matter, the CIA does not reveal whether or not it had involvement in,
connection to, or intelligence interests in specific individuals and/or particular groups.
Confirmation or denial of the existence or nonexistence of records responsive to the request here
would do precisely that, and doing so could reveal – among other things – sensitive information
about the CIA’s intelligence interests, activities, operations and collection efforts, technical
capabilities, and authorities.” Id.
The CIA provided an additional rationale for its Glomar response: “the CIA does not reveal
the identity of its human sources [because] [r]evealing the identity of a confidential source could
expose Agency tradecraft, other human sources, and specific intelligence interests and activities.”
Id. ¶ 21. As Ms. Williams further explained, “Human sources can be expected to furnish
information to the CIA only when they are confident the CIA can and will do everything in its
power to prevent the public disclosure of their cooperation. In the case of a person who has been
cooperating with the CIA, official confirmation of that cooperation could cause the targets to take
retaliatory action against that person or against their family or friends. It also places in jeopardy
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Page 29 every individual with whom the cooperating individual has had contact. Thus, the indiscretion of
one source in a chain of intelligence sources can damage an entire spectrum of sources.” Id. “As
such, confirming or denying the existence of records on a particular foreign national, like Tinubu,
reasonably could be expected to cause damage to U.S. national security by indicating whether or
not the CIA maintained any human intelligence sources related to Tinubu, and identifying any
access or lack of access any such sources had to intelligence concerning him.” Id.
“For these reasons,” the CIA “determined that confirming or denying the existence or
nonexistence of records responsive to the request could reasonably be expected to cause damage
to national security. Further, this information is currently and properly classified and is therefore
exempt from disclosure under FOIA exemption (b)(1).” Id. ¶ 22.
B.
Exemption 3
FOIA Exemption 3 incorporates into FOIA “the protections of other shield statutes,”
ACLU, 628 F.3d at 617-18, by excluding from the purview of FOIA “‘matters’ that are ‘specifically
exempted from disclosure by statute’ if the statute ‘requires that the matters be withheld from the
public in such a manner as to leave no discretion on the issue’ or ‘establishes particular criteria for
withholding or refers to particular types of matters to be withheld.’” DiBacco v. U.S. Army,
795 F.3d 178, 183 (D.C. Cir. 2015) (quoting 5 U.S.C. § 552(b)(3)). The “sole issue for decision”
in any case involving Exemption 3 is “‘the existence of a relevant statute and the inclusion of
withheld material with the statue’s coverage.’” Id. at 197 (quoting Morley v. CIA, 508 F.3d 1108,
1126 (D.C. Cir. 2007)).
“Section 102A(i)(1) of the National Security Act of 1947, as amended, 50 U.S.C.
§ 3024(i)(1) (the “National Security Act”), provides that the Director of National Intelligence . . .
‘shall protect . . . intelligence sources and methods from unauthorized disclosure.’ Accordingly,
the National Security Act constitutes a federal statute which, ‘requires that the matters be withheld
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Page 30 from the public in such a manner as to leave no discretion on the issue.’ 5 U.S.C. §552(b)(3).
Under the direction of the [Director of National Intelligence] pursuant to section 102A of the
National Security Act, as amended, and in accordance with section 1.6(d) of Executive Order
12333, the Director of the CIA is required to protect CIA intelligence sources and methods from
unauthorized disclosure.” Ex. 3 (Williams Decl.) ¶ 24. The National Security Act “qualifies as a
withholding statute” under Exemption 3. CIA v. Sims, 471 U.S. 159, 167 (1985). The requested
material about Tinubu falls within the National Security Act’s coverage. “Acknowledging or
denying the existence or nonexistence of records reflecting a classified or otherwise
unacknowledged connection between the CIA and Tinubu would reveal information that concerns
intelligence sources and methods – information protected under the National Security Act.” Ex. 3
(Williams Decl.) ¶ 24.
The requested information also falls within the scope of the Central Intelligence Act, which
also qualifies as a withholding statute under Exemption 3. DiBacco v. Dep’t of Army, 926 F.3d
827, 834-35 (D.C. Cir. 2019). As Ms. Williams explained, “[T]he CIA . . . relies on section 6 of
the Central Intelligence Act of 1949, as amended, 50 U.S.C. § 3507 (the “CIA Act”), as a basis for
withholding. Section 6 of the CIA Act provides that CIA shall be exempted from the provisions of
any law which requires the publication or disclosure of the ‘organization or functions of the
Agency, or of the names, official titles, salaries, or numbers of personnel employed by the
Agency.’ The CIA Act constitutes a federal statute that ‘establishes particular criteria for
withholding or refers to particular types of matters to be withheld.’ 5 U.S.C. § 552(b)(3).” Ex. 3
(Williams Decl.) ¶ 25. The requested material about Tinubu falls within the CIA Act’s coverage.
“[C]onfirming the existence or nonexistence of records on a particular foreign national, like
Tinubu, could reveal how CIA collects (or does not collect) certain information on particular
25

Page 31 subjects or individuals and/or could reveal information about the methods by which the Agency
does (or does not) effectuate such collection, both of which pertain to intelligence collection – a
function of the Agency.” Id.
“Accordingly, the fact of the existence or nonexistence of responsive records is exempt not
only under exemption (b)(1), but also under exemption (b)(3) pursuant to the National Security
Act and the CIA Act. Exemptions (b)(1) and (b)(3) apply independently and co-extensively to
protect from disclosure in this case CIA’s intelligence sources and methods, as well as functions
of the Agency.” Id. ¶ 27.
III.
Defendants Have Never Officially and Publicly Acknowledged the Records that
Plaintiff Requests.
A plaintiff may try to demonstrate that “the agency has officially acknowledged the
existence of [a] record,” which, if properly established, means that the agency cannot use a Glomar
response. Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011). However, “[a] strict test applies to
claims of official disclosure.” Id. (internal quotation marks omitted). Plaintiff has fallen short of
passing this strict test.
To determine whether an item is “officially acknowledged . . . (1) the information requested
must be as specific as the information previously released; (2) the information requested must
match the information previously disclosed; and (3) the information requested must already have
been made public through an official and documented disclosure.” Mobley v. CIA, 806 F.3d 568,
583 (D.C. Cir. 2015) (internal quotation marks omitted). Accordingly, “to overcome an agency’s
Glomar response based on an official acknowledgement, the requesting plaintiff must pinpoint an
agency record that both matches the plaintiff’s request and has been publicly and officially
acknowledged by the agency.” Moore, 666 F.3d at 1333. “The plaintiff bears the burden of
identifying specific information that is already in the public domain due to official disclosure.”
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Page 32 Mobley, 806 F.3d at 583. “To establish official acknowledgment our precedents require certainty,
not assumptions[.]” Leopold v. CIA, 987 F.3d 163, 171 (D.C. Cir. 2021).
Here, Plaintiff has not come close to carrying his burden of pinpointing an agency record
that matches his FOIA requests and has been publicly and officially acknowledged by the FBI,
DEA, or CIA. Plaintiff contends that an affidavit of an IRS special agent that was attached to a
1993 complaint for forfeiture of Tinubu’s funds filed by the Northern District of Illinois United
States Attorney’s Office pierces Defendants’ Glomar responses because Defendants officially
acknowledged Tinubu’s “involvement” with the Chicago narcotrafficking ring. Pl.’s Mem. at 7-8.
Plaintiff is wrong for multiple reasons.
First, the affidavit of a Department of Treasury IRS special agent is not an official public
disclosure of the FBI and DEA (Department of Justice) or CIA (an independent agency). Although
a publicly accessible court filing could be an official and documented disclosure for the purposes
of piercing Glomar (if it contains the same information being sought), disclosure is not “official”
for that purpose when it is made by someone other than the agency from which the information is
being sought. Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999). Only the FBI, DEA, and CIA—
the federal agencies asserting the Glomar responses—can make an effective official
acknowledgment that waives the right to assert a Glomar response. A disclosure by one federal
agency does not waive another agency's right to assert a FOIA exemption. Knight First Amend.
Inst. at Columbia Univ. v. CIA, 11 F.4th 810, 816 (D.C. Cir. 2021); Moore, 666 F.3d at 1333 n.4
(“[T]o the extent Moore suggests that the release of the Report by the FBI constitutes an official
acknowledgment by the CIA, his argument is foreclosed by our precedent.” (emphasis in original));
Frugone, 169 F.3d at 774 (“[W]e do not deem ‘official’ a disclosure made by someone other than
the agency from which the information is being sought.”).
27

Page 33 Second, the Court should reject Plaintiff’s attempt to impute the IRS agent’s affidavit as
an official disclosure of the Department of Justice because the United States Attorney’s Office for
the Northern District of Illinois attached the affidavit to a forfeiture complaint. While one
component of the Department of Justice may bind other components of the same agency, Marino
v. DEA, 685 F.3d 1076, 1082 (D.C. Cir. 2012), the filing of the IRS agent’s affidavit as an exhibit
to a complaint does not transform the affidavit into an official disclosure of the Department of
Justice and its components. Plaintiff has provided no support for this downstream theory of
attribution, which has no basis under the FOIA, and indeed, would set a very dangerous precedent
if every exhibit that the United States Attorney’s Offices attach to their court filings would expose
the Department of Justice to a broad public disclosure waiver of its exempted records. “[I]f,” for
example, “a Department of Justice prosecutor introduces certain records as evidence in court, other
[Department of Justice] components may not claim FOIA exemptions as to those records.” Knight,
11 F.4th at 817. But here, the United States Attorney’s Office has not introduced any DEA, FBI,
or CIA records, but rather, has introduced an affidavit from a completely different agency, the
Department of Treasury. Plaintiff fails to satisfy the “strict test” that applies to claims of official
disclosure. Moore, 666 F. 3d at 1333.
Third, even if the disclosure of one agency could constitute a public and official disclosure
of another agency (which the law forbids), Plaintiff’s argument fails because the IRS agent’s
affidavit does not match, nor is it as specific as, the information that Plaintiff requested from the
DEA and CIA regarding Tinubu. In paragraph 4 of IRS agent’s affidavit—the sole reference that
Plaintiff highlights in his brief, Pl.’s Mem. at 8—the IRS agent states:
As part of my duties and responsibilities as a Special Agent with the IRS, I have
been involved with other agents in an investigation of money laundering and the
proceeds of a heroin distribution organization in the Chicago area. One aspect of
this investigation concerns the money laundering activities of Abegboyega Muez
28

Page 34 Akande. Through my own participation in this investigation and through
information provided to me by other Special Agents of IRS, Drug Enforcement
Administration in Hammond, Indiana, (hereafter ‘DEA’) and the Federal Bureau of
Investigation in Merrillville, Indiana (hereafter ‘FBI’), I am familiar with all aspects
of this investigation. The statements contained in this affidavit are based in part on
information provided by Special Agents of the IRS, DEA, FBI, on information
provided by confidential sources, and on my experience and background as a
Special Agent of the IRS.
ECF No. 41-4 at 5-19 (Moss Aff.), ¶ 4. Tellingly, Plaintiff omits the second sentence of
paragraph 4, see Pl.’s Mem. at 8, wherein the IRS agent states that the DEA and FBI provided
“information” as part of his investigation of the “money laundering activities of Abegboyega Muez
Akande,” not Tinubu.
Plaintiff has not satisfied his burden of “pinpoint[ing] an agency record that both matches
the plaintiff’s request and has been publicly and officially acknowledged by the agency.” Moore,
666 F.3d at 1333. The notation of the IRS agent that the DEA and FBI contributed unidentified
“information” as part of the IRS’s investigation is not sufficient to pierce Glomar. If that was the
case, any joint investigation where one agency makes an official and public disclosure that
mentions the assisting agencies would expose all agencies to disclose exempt documents, which
would undercut the “strict test” that applies to the doctrine. Moore, 666 F.3d at 1333.
The IRS agent discusses in his affidavit that the DEA was generally “involved in the
investigation of a white heroin trafficking network operation in Chicago, Illinois and Hammond,
Indiana.” ECF No. 41-4 at 5-19 (Moss Aff.), ¶ 7; see also id. at 4-6. The IRS agent also states that
a DEA confidential source provided information about “this white heroin distribution network,”
and this information was corroborated by FBI investigation and records. Id. ¶ 8. But as to Tinubu
specifically, the IRS agent states that his investigation revealed that Tinubu worked for Akande in
the distribution organization. Id. ¶ 21. The IRS agent states that, in reaching his decision that there
is probable cause to forfeit Tinubu’s accounts, he reviewed Tinubu’s bank records and credit
29

Page 35 applications and reports, reviewed car dealership records, discussed matters with bank employees,
reviewed IRS and Social Security records, interviewed Tinubu’s employer (Mobil Oil), and had
discussions with Tinubu himself. Id. at 8-15. The affidavit does not even mention the FBI or DEA
in the IRS agent’s discussion of his investigation into Tinubu’s alleged money laundering. Id. At
the very most, in ¶ 47, the IRS agent states that Tinubu told “agents investigating this matter”
(presumably IRS agents) and “law enforcement officers” different things about his relationship
with Akande. Plaintiff, thus, has failed to establish any link between Tinubu and the FBI or DEA,
let alone information previously released that matches and is as specific as the information
requested from the FBI and DEA about the Tinubu investigation. Mobley, 806 F.3d at 583.
This case is materially indistinguishable from the D.C. Circuit’s decision in Moore, 666
F.3d 1330. In Moore, plaintiff requested information from the CIA about a particular individual,
Sveinn B. Valfells Sr., an Icelandic textile merchant who spent time in the United States during
the 1940s and 1950s and who allegedly had ties to the Icelandic Communist Party. Id. at 1331.
The CIA issued a Glomar response, neither confirming nor denying whether it maintained any
such records. Id. Plaintiff argued that the CIA official acknowledged that it had records via an FBI
report, disclosed by the FBI, wherein unspecified “CIA-originated information” was redacted
pursuant to the CIA’s request, and therefore, the CIA could no longer invoke Glomar. Id. The D.C.
Circuit rejected plaintiff’s argument because plaintiff “cannot isolate any specific CIA record that
has been officially acknowledged by the CIA.” Id. The D.C. Circuit explained that plaintiff could
not even show that the redacted information even relates to Valfells, let alone identify specific
records matching the FOIA request. Id. at 1334.
Likewise, in our case, at most, the IRS agent disclosed that the DEA and FBI had some
investigatory involvement in the broader drug distribution network, but as to Tinubu specifically,
30

Page 36 Plaintiff has not shown that their investigation even related to Tinubu, let alone identify specific
records matching the Tinubu records sought in his request. As Mr. Seidel stated in his declaration,
“Plaintiff requested an alleged ‘FBI File’ and alleged ‘FBI 302’s’ concerning FOIA subject Bola
Tinubu that the FBI has not publicly acknowledged exist, or do not exist.” Ex. 1 (Seidel Decl.)
¶ 24; see also Ex. 2 (Davis Decl.) ¶ 29 (“The Plaintiff, in request 22-00892-F, is seeking records
that involve Tinubu to the relevant heroin distribution organization. The Moss Affidavit does not
provide information that such records exist.”). General disclosures about an agency’s involvement
in a certain matter are not sufficient to pierce Glomar. Afshar v. Dep’t. of State, 702 F.2d 1125,
1133 (D.C. Cir. 1983) (where plaintiff requested information about the CIA’s relationship with a
foreign intelligence organization, pointing to previously published books by former CIA officials
that the plaintiff suggested were official acknowledgments, the D.C. Circuit explained that the
content within the books was only a general suggestion of a relationship between the agency and
the intelligence organization and were not sufficiently specific).
As to the CIA, Plaintiff argues that documents posted on the CIA’s FOIA Reading Room
“clearly address Nigeria’s involvement with heroin narcotrafficking during the mid-1980s,” but
acknowledges that “Mr. Tinubu’s name does not appear directly in these documents.” Pl.’s Mem.
at 11; see Ex. 3 (Williams Decl.) ¶ 9 (noting that “Plaintiff’s Motion for Summary Judgement also
acknowledges that Tinubu’s name ‘does not appear directly’ in the FOIA Reading Room
documents referenced”). According to Plaintiff, “it is implausible that no documents responsive to
Plaintiff’s FOIA request to the CIA exist given that the CIA was closely following the issue and
would have at least been aware of Mr. Tinubu once he became a prominent politician in Nigeria.”
Pl.’s Memo. at 11. But as Ms. Williams explained, “that the CIA’s FOIA Reading Room contains
documents discussing Nigeria’s involvement with heroin and narcotrafficking in the mid-1980s
31

Page 37 reveals nothing regarding Tinubu’s connections, if any, to those activities.” Ex. 3 (Williams Decl.)
¶ 9. Plaintiff, thus, is unable to establish that the CIA publicly acknowledged records that match
those requested as he concedes that those records do not even mention Tinubu, let alone are as
specific as those requested. “To establish official acknowledgment our precedents require
certainty, not assumptions,” Leopold, 987 F.3d at 71, and general disclosures about an agency’s
involvement in a certain matter is not sufficient to pierce Glomar, Afshar, 702 F.2d at 1133.
Lastly, Plaintiff argues that the DEA’s Glomar response as to Agbele has been pierced
because the FBI did not redact Agbele’s name on one record that the FBI produced. Pl.’s Mem.
at 9-10; see ECF No. 41-4, at 32. This FBI record does not even mention the DEA, let alone
establish a specific DEA disclosure that matches the Agbele information that Plaintiff requested
from the DEA.
In conclusion, through the detailed declarations, Defendants have satisfied their burden of
providing logical and plausible explanations for their Glomar responses to Plaintiff’s requests for
third-party criminal investigatory records. Plaintiff has failed to articulate a substantiated public
interest cognizable under FOIA, and even if he had, the privacy interests implicated in a request
for third-party criminal investigative record are at their “apex” and outweigh the public interest.
Am. First, 2024 WL 4607496, at *9. Plaintiff has also failed to satisfy his burden of establishing
that the affidavit from a different agency that does not match or is specific as the records he
requests is sufficient to pierce Defendants’ Glomar responses.
*
*
32
*

Page 38 CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court grant summary
judgment in its favor and deny Plaintiff’s motion for summary judgment.
Dated: November 11, 2024
Washington, DC
Respectfully submitted,
MATTHEW M. GRAVES, D.C. Bar #481052
United States Attorney
BRIAN P. HUDAK
Chief, Civil Division
By:
/s/ M. Jared Littman
M. JARED LITTMAN
Assistant United States Attorney
601 D Street, NW
Washington, DC 20530
(202) 252-2523
Jared.Littman@usdoj.gov
Attorneys for the United States of America
33

PDF Page 1	PlainSite Cover Page

PDF Page 2	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 1 of 38 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AARON GREENSPAN, Plaintiff, v. Civil Action No. 23-1816 (BAH) EXECUTIVE OFFICE FOR U.S. ATTORNEYS, et al., Defendants. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

PDF Page 3	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 2 of 38 TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 3 I. II. FOIA Requests and Responses ............................................................................... 4 A. FBI .............................................................................................................. 4 B. DEA ............................................................................................................ 6 C. CIA.............................................................................................................. 7 Civil Action............................................................................................................. 8 LEGAL STANDARD..................................................................................................................... 9 ARGUMENT .................................................................................................................................. 9 I. II. III. FBI and DEA Have Properly Asserted Glomar Responses Pursuant to Privacy Exemptions 6 and 7(C) ......................................................................................... 10 A. FBI: Privacy Interests Outweigh the Public Interests in Disclosure ......... 13 B. DEA: Privacy Interests Outweigh the Public Interests in Disclosure ....... 15 C. Plaintiff’s Privacy and Public Interest Arguments Are Unpersuasive and Contrary to Law. ....................................................................................... 16 CIA Has Properly Asserted Glomar Responses Pursuant to Exemptions 1 and 3 19 A. Exemption 1 .............................................................................................. 19 B. Exemption 3 .............................................................................................. 24 Defendants Have Never Officially and Publicly Acknowledged the Records that Plaintiff Requests. ................................................................................................. 26 CONCLUSION ............................................................................................................................. 33 -i-

PDF Page 4	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 3 of 38 TABLE OF AUTHORITIES Cases ACLU v. Dep’t of Def., 628 F.3d 612 (D.C. Cir. 2011) .................................................................................... 19, 20, 24 Afshar v. Dep’t. of State, 702 F.2d 1125 (D.C. Cir. 1983) ........................................................................................ 31, 32 Am. First Legal Found. v. FBI, Civ. A. No. 23-2172, 2024 WL 4607496 (D.D.C. Oct. 29, 2024) ................................. passim Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................................................................. 9 Blackwell v. FBI, 646 F.3d 37 (D.C. Cir. 2011) ............................................................................................ 18, 19 Boyd v. Crim. Div. of Dep’t of Just., 475 F.3d 381 (D.C. Cir. 2007) ................................................................................................ 18 Brayton v. Off. of U.S. Trade Rep., 641 F.3d 521 (D.C. Cir. 2011) .................................................................................................. 9 Canaday v. U.S. Citizenship & Immigr. Servs., 545 F. Supp. 2d 113 (D.D.C. 2008) ........................................................................................ 17 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ................................................................................................................. 9 CIA v. Sims, 471 U.S. 159 (1985) ............................................................................................................... 25 CREW v. Dep’t of Just., 746 F.3d 1082 (D.C. Cir. 2014) .............................................................................................. 12 CREW v. Dep’t of Just., 854 F.3d 675 (D.C. Cir. 2017) ................................................................................................ 11 Davis v. Dep’t of Just., 968 F.2d 1276 (D.C. Cir. 1992) .............................................................................................. 11 Dep’t of Just. v. Reps. Comm. for Freedom of Press, 489 U.S. 749 (1989) ......................................................................................................... 11, 17 Dep’t of State v. Wash. Post Co., 456 U.S. 595 (1982) ............................................................................................................... 10 DiBacco v. Dep’t of Army, 926 F.3d 827 (D.C. Cir. 2019) ................................................................................................ 25 - ii -

PDF Page 5	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 4 of 38 DiBacco v. U.S. Army, 795 F.3d 178 (D.C. Cir. 2015) ................................................................................................ 24 Frontier Found. v. Dep’t of Just., 739 F.3d 1 (D.C. Cir. 2014) ...................................................................................................... 9 Frugone v. CIA, 169 F.3d 772 (D.C. Cir. 1999) ................................................................................................ 27 Gardels v. CIA, 689 F.2d 1100 (D.C. Cir. 1982) .............................................................................................. 10 Graff v. FBI, 822 F. Supp. 2d 23 (D.D.C. 2011) .......................................................................................... 17 Higgins v. Dep’t of Just., 919 F. Supp. 2d 131 (D.D.C. 2013) ........................................................................................ 11 Jud. Watch, Inc. v. Dep’t of Def., 715 F.3d 937 (D.C. Cir. 2013) ................................................................................................ 20 Jud. Watch, Inc. v. Dep’t of Homeland Sec., 514 F. Supp. 2d 7 (D.D.C. 2007) ............................................................................................ 17 Jurdi v. United States, 485 F. Supp. 3d 83 (D.D.C. 2020) .......................................................................................... 11 Knight First Amend. Inst. at Columbia Univ. v. CIA, 11 F.4th 810 (D.C. Cir. 2021) .......................................................................................... 27, 28 Leopold v. CIA, 987 F.3d 163 (D.C. Cir. 2021) .......................................................................................... 27, 32 Marino v. DEA, 685 F.3d 1076 (D.C. Cir. 2012) .............................................................................................. 28 Mobley v. CIA, 806 F.3d 568 (D.C. Cir. 2015) .................................................................................... 26, 27, 30 Moore v. CIA, 666 F.3d 1330 (D.C. Cir. 2011) ...................................................................................... passim Morley v. CIA, 508 F.3d 1108 (D.C. Cir. 2007) .............................................................................................. 24 Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157 (2004) ................................................................................................... 17, 18, 19 Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873 (D.C. Cir. 1989) ................................................................................................ 19 - iii -

PDF Page 6	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 5 of 38 Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976) ........................................................................................ 1, 3, 4 SafeCard Servs. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) .............................................................................................. 12 Schaerr v. Dep’t of Just., 69 F.4th 924 (D.C. Cir. 2023) ................................................................................................ 10 U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mex., 740 F.3d 195 (D.C. Cir. 2014) ................................................................................................ 11 PETA v. NIH, 745 F.3d 535 (D.C. Cir. 2014) ................................................................................................ 10 Weisberg v. Dep’t of Just., 627 F.2d 365 (D.C. Cir. 1980) .................................................................................................. 9 Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) ........................................................................................ passim Statutes 5 U.S.C. § 552 ...................................................................................................................... passim 50 U.S.C. § 3024 .......................................................................................................................... 24 50 U.S.C. § 3507 .......................................................................................................................... 25 - iv -

PDF Page 7	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 6 of 38 Defendants Federal Bureau of Investigation (“FBI”), Central Intelligence Agency (“CIA”), and Drug Enforcement Administration (“DEA”) (collectively, “Defendants”), 1 by and through undersigned counsel, respectfully submit this memorandum of points and authorities in support of their cross-motion for summary judgment under Federal Rule of Civil Procedure (“Rule”) 56 and in opposition to Plaintiff’s motion for summary judgment (ECF No. 44). INTRODUCTION This case arises from numerous Freedom of Information Act (“FOIA”) requests that Plaintiff Aaron Greenspan submitted to the FBI, CIA, DEA, Executive Office for U.S Attorneys, Department of State, and the Department of Treasury, Internal Revenue Service (“IRS”) in 2022 and 2023. See ECF No. 35 (2nd Am. Compl.). The requests sought criminal investigative documents concerning third-parties, Bola Ahmed Tinubu (“Tinubu”), Lee Andrew Edwards, Mueez Abegboyega Akande, and Abiodun Agbele (“Agbele”), who, according to Plaintiff, participated in “an international drug trafficking and money laundering ring with operations in Chicago, Illinois.” ECF No. 41-1 (Pl.’s Mem.), at 1. The remaining disputes involve Defendants’ Glomar responses 2 to Plaintiff’s request for records about Tinubu (the President of Nigeria) and the DEA’s Glomar response to Plaintiff’s request for records about Agbele. 1 Plaintiff also sued the Executive Office for U.S Attorneys, Department of State, and the Department of Treasury, Internal Revenue Service, but on August 13, 2024, he voluntarily dismissed those defendants. ECF No. 40 (Stip. of Dismissal); Min. Order of Aug. 13, 2024. 2 The phrase “Glomar response” originated from a FOIA case that sought information concerning a ship named the “Hughes Glomar Explorer,” and the CIA refused to confirm or deny its relationship with the Glomar vessel because to do so would compromise the national security or divulge intelligence sources and methods. Phillippi v. CIA, 546 F.2d 1009, 1010 (D.C. Cir. 1976). Glomar responses are proper “if the fact of the existence or nonexistence of agency records falls within a FOIA exemption.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007).

PDF Page 8	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 7 of 38 The FBI and DEA properly asserted Glomar responses under FOIA Exemptions 6 and 7(C) because the requests seek criminal investigative documents pertaining to third parties that, if they existed, would interfere with the third parties’ substantial privacy interests in not being associated with law enforcement investigative records. The CIA properly asserted Glomar responses under FOIA Exemptions 1 and 3 because confirming or denying the existence or nonexistence of records related to Tinubu would reveal classified information that is protected from disclosure by executive order and statute. To the extent that Plaintiff attempts to argue that the existence of the requested records have been officially acknowledged, such that a Glomar response could not be used, this argument will not succeed for numerous reasons—not the least of which Plaintiff never demonstrated that such an acknowledgement had ever been publicly and officially made by Defendants. There are three central questions before the Court, and Plaintiff’s case fails at each step. First, whether an affidavit of an agent of the Department of Treasury, IRS, pierces the Glomar responses of the Defendants, who are not part of the Department of Treasury. That is, whether the affidavit of an IRS agent constitutes an official acknowledgment of the FBI, DEA, and CIA that the records requested by Plaintiff exist. Under Circuit precedent, the answer is no. Second, whether a complaint brought by United States Attorney’s Office of the Northern District of Illinois seeking forfeiture of seized funds in Tinubu’s bank accounts, based on the IRS agent’s affidavit, transforms the affidavit into an official and documented public disclosure confirming that the FBI, DEA, and CIA records requested by Plaintiff exist. The answer to that question is also no. Third, even if it is presumed that the affidavit from an agent of one agency is imputed to other agencies (which the law forbids), Plaintiff must establish that the prior disclosure matches 2

PDF Page 9	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 8 of 38 and is as specific as the requested information. Here, the information disclosed in the IRS agent’s affidavit as it relates to Tinubu does not establish the existence of records responsive to Plaintiff’s requests. As further explained below, there is no genuine issue as to any material fact in this matter, and Defendants are entitled to judgment as a matter of law. The Court should deny Plaintiff’s motion for summary judgment, grant Defendants’ cross-motion for summary judgment, and enter summary judgment in Defendants’ favor. BACKGROUND The remaining Defendants in this FOIA action are the FBI, DEA, and CIA. See ECF No. 40 (Stip. of Dismissal); Min. Order, Aug. 13, 2024 (dismissing other defendants). Additionally, as to these three defendants, Plaintiff has agreed to waive his claims related to Count VII – December 1, 2023 FBI FOIA Request (FBI File No. 80-LG-C180); Count IX – July 21, 2022 DEA FOIA Request (Bola Ahmed Tinubu and Lee Andrew Edwards): waiver limited to Edwards; Count X – March 23, 2023 DEA FOIA Request (Mueez Adegboyega Akande); and any corresponding allegations related to these requests raised in Count XIII – Declaratory Judgment. ECF No. 39 (Jt. Status Rep., Aug. 8, 2024), ¶ 5. Plaintiff further agreed that the only matters in dispute are: (1) FBI, DEA, and CIA’s Glomar responses as to Tinubu; (2) the DEA’s “selective invocation of Glomar” as to Agbele; (3) redactions and withholdings as to Tinubu made pursuant to the Exemptions 6 and 7C (4) redactions and withholdings related to information that was allegedly publicly disclosed in “the 1992 Indiana criminal case that Agbele was indicted” and “the 1993 civil forfeiture case in Illinois.” Id. ¶ 6. Plaintiff’s FOIA requests that fall outside of the scope of the parties’ agreement are not discussed below. 3

PDF Page 10	Case 1:23-cv-01816-BAH I. Document 43-1 Filed 11/11/24 Page 9 of 38 FOIA Requests and Responses A. FBI 1. Request Number 1588244-000 By electronic FOIA dated March 29, 2023, Plaintiff submitted a FOIA request to the FBI seeking “[t]he entire FBI file for Bola Ahmed Tinubu, DOB 3/29/1952, President-Elect of Nigeria as of February 2023.” Ex. 1 (Seidel Decl.) ¶ 5. By letter dated April 4, 2023, the FBI acknowledged receipt of Plaintiff’s FOIA request and notified Plaintiff his request was assigned FBI FOIPA Request Number 1588244-000. Id. ¶ 6. The FBI informed Plaintiff that because his request sought records for third-party individuals, it would neither confirm nor deny the existence of such records pursuant to FOIA Exemptions 6 and 7(C), 5 U.S.C. § 552 (b)(6), (b)(7)(C). Id. The FBI informed Plaintiff that the mere acknowledgement of the existence of FBI records on a third-party individual could reasonably be expected to constitute an unwarranted invasion of personal privacy and that this was the FBI’s standard response to such requests and should not be taken to mean that records do, or do not, exist. Id. As a result, the FBI advised Plaintiff that it was closing his request. Id. The FBI informed Plaintiff he could appeal the FBI’s response to the Department of Justice, Office of Information Policy, within ninety days of its letter. Id. By electronic appeal submission dated April 26, 2023, Plaintiff submitted an appeal to the Office of Information Policy. Id. ¶ 7. By letter dated May 4, 2023, the Office of Information Policy informed Plaintiff it was affirming the FBI’s action because the FBI properly refused to confirm or deny the existence of records responsive to Plaintiff’s request concerning a third-party individual. Id. ¶ 9. The Office of Information Policy advised Plaintiff that confirming or denying the existence of such records, including law enforcement records, concerning a third-party individual would constitute a clearly unwarranted invasion of personal privacy, and could reasonably be expected to constitute an unwarranted invasion of personal privacy. Id.; see 5 U.S.C. 4

PDF Page 11	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 10 of 38 § 552(b)(6), (7)(C). Additionally, the Office of Information Policy informed Plaintiff that it is reasonably foreseeable that confirming or denying the existence of any such records would harm the interests protected by these exemptions. Id. The Office of Information Policy advised Plaintiff that it was closing Plaintiff’s appeal and if Plaintiff was dissatisfied with the action on his appeal, he could file a lawsuit in federal district court. Id. 2. Request Number 1593615-000 By eFOIA dated May 25, 2023, Plaintiff submitted a FOIA request to the FBI seeking “FBI 302 interviews with Bola Tinubu from FBI Case No. 245-IP-71386-UUUUUU during the timeframe 1992-1993.” Id. ¶ 10. By letter dated May 31, 2023, the FBI acknowledged receipt of Plaintiff’s FOIA request and notified Plaintiff his request was assigned Request Number 1593615000. Id. ¶ 11. The FBI advised Plaintiff that because his request sought records of a third-party individual, the FBI would neither confirm nor deny the existence of such records pursuant to FOIA Exemptions 6 and 7(C), 5 U.S.C. § 552 (b)(6), (b)(7)(C). Id. The FBI informed Plaintiff that the mere acknowledgement of the existence of FBI records on a third-party individual could reasonably be expected to constitute an unwarranted invasion of personal privacy and that this is the FBI’s standard response to such requests and should not be taken to mean that records do, or do not, exist. Id. The FBI informed Plaintiff that his request did not sufficiently demonstrate that the public's interest in disclosure (relating to the operations and activities of the government) outweighed the personal privacy interests of the individual. Id. As a result, the FBI closed Plaintiff’s request and informed him he could appeal the FBI’s response to the Office of Information Policy within ninety days. Id. By electronic appeal submission received by the Office of Information Policy on June 6, 2023, Plaintiff submitted an appeal challenging the FBI’s determination. Id. ¶ 12. By letter dated June 8, 2023, the Office of Information Policy informed Plaintiff it was affirming the FBI’s action 5

PDF Page 12	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 11 of 38 because the FBI properly refused to confirm or deny the existence of records responsive to Plaintiff’s request because confirming or denying the existence of such records, including law enforcement records, concerning a third-party individual would constitute a clearly unwarranted invasion of personal privacy, and could reasonably be expected to constitute an unwarranted invasion of personal privacy. Id.; see 5 U.S.C. § 552(b)(6), (7)(C). Additionally, the Office of Information Policy informed Plaintiff that it is reasonably foreseeable that confirming or denying the existence of such records would harm the interests protected by these exemptions. Id. The Office of Information Policy advised Plaintiff that it was closing his appeal and if he was dissatisfied, he could file a lawsuit in federal district court. Id. B. DEA 1. Request Number 22-00892-F On July 21, 2022, Plaintiff submitted a FOIA request, assigned case number 22-00892-F, to the DEA seeking “[a]ny records from the DEA's Hammond, Indiana or Washington, D.C. offices concerning the Nigerian heroin distribution organization active from approximately 1988 to 1994 or later involving any of the following individuals: 1. Bola Ahmed Tinubu 2. Lee Andrew Edwards. This organization is described in a civil forfeiture complaint and [a confidential] IRS affidavit in [Civil Action No. 93-4483, filed in the Northern District of Illinois]: https://www.plainsite.org/dockets/2jqi9omh8/illinois-northern-district-court/usa-v-acct263226700-et-al/.” Ex. 2 (Davis Decl.) ¶ 6. On August 22, 2022, DEA notified Plaintiff that the agency had decided to neither confirm nor deny the existence of such records pursuant to FOIA Exemptions 6 and 7(C) as even acknowledging the existence of law enforcement records on another individual could reasonably be expected to constitute an unwarranted invasion of privacy. Id. ¶ 7. On August 23, 2022, Plaintiff filed an appeal of DEA’s determination with the Office of Information Policy, assigned case number A-2022-01983. Id. ¶ 8. On November 30, 2022, the 6

PDF Page 13	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 12 of 38 Office of Information Policy notified Plaintiff of their decision to affirm DEA’s determination to neither confirm nor deny the existence of records. Id. ¶ 9. 2. Request Number 23-00201-F On December 5, 2023, Plaintiff submitted a FOIA request, assigned case number 2400201-F, to the DEA seeking “[t]he DEA case file for Abiodun Agbele, located in either the Northern District of Indiana or the Northern District of Illinois, from January 1, 1990 – December 31, 1995.” Id. ¶ 14. On December 27, 2023, DEA notified Plaintiff that the agency had decided to neither confirm nor deny the existence of such records pursuant to FOIA Exemptions 6 and 7(C) as even acknowledging the existence of law enforcement records on another individual could reasonably be expected to constitute an unwarranted invasion of privacy. Id. ¶ 15. On the same day, Plaintiff filed an appeal of DEA’s determination with the Office of Information Policy, assigned case number A-2024-00525. Id. ¶ 16. On June 21, 2024, the Office of Information Policy informed Plaintiff that his appeal file would be closed, pursuant to 28 C.F.R. § 16.8(b)(2), due to Plaintiff filing a lawsuit with the request as the subject of litigation. Id. ¶ 17. C. CIA On March 23, 2023, Plaintiff submitted a request to the CIA for materials concerning Tinubu from January 1, 1985, to December 31, 2021. Ex. 3 (Williams Decl.) ¶ 6. By letter dated July 21, 2023, the CIA notified Plaintiff that CIA assigned his request FOIA number F-202301008. On October 25, 2023, the CIA issued a Glomar response and notified Plaintiff that the agency can neither confirm nor deny the existence or nonexistence of records responsive to his request pursuant to FOIA Exemptions 1 and 3. According to the accompanying CIA declaration, the CIA invoked a Glomar response because confirming or denying the existence or nonexistence of records related to Tinubu during the relevant period would reveal classified information that is 7

PDF Page 14	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 13 of 38 protected from disclosure by executive order (Exemption 1) and statute (Exemption 3) and “[a]n acknowledgement confirming or denying the existence or nonexistence of such records would reveal classified intelligence information and jeopardize the clandestine nature of the [CIA’s] intelligence activities and/or disclose information about CIA’s sources and methods.” Ex. 3 (Williams Decl.) ¶¶ 9, 19. II. Civil Action On June 12, 2023, Plaintiff filed a Complaint (ECF No. 1), which the agencies answered on August 28, 2023 (ECF No. 12). On that same day, Plaintiff filed an Amended Complaint, adding the CIA as a defendant (ECF No. 8). The agencies answered the Amended Complaint on September 11, 2023 (ECF No. 13), and the CIA filed a supplemental answer on September 27, 2023 (ECF No. 14). On March 24, 2024, Plaintiff filed a Second Amended Complaint (ECF No. 35), which the agencies answered on April 8, 2024 (ECF No. 37). From the outset and throughout the litigation, the FBI, DEA, and CIA have asserted Glomar responses as to Plaintiff’s requests to each of them for records about Tinubu and as to Plaintiff’s request to the DEA for records about Agbele. E.g., ECF No. 12 (Jt. Status Rep., Sept. 11, 2023); ECF No. 33 (Jt. Status Rep., Dec. 5, 2023); ECF No. 38 (Jt. Status Rep., June 4, 2024). On August 13, 2024, Plaintiff stipulated to the dismissal of the Executive Office for United States Attorneys, Department of State, and IRS. ECF No. 40 (Stip. of Dismissal). The Court dismissed these defendants. Min. Order, Aug. 13, 2024. Plaintiff and the remaining Defendants (FBI, CIA, and DEA) agreed to proceed to summary judgment briefing, limited to certain specified issues, namely the Glomar responses as to Tinubu and Agbele. ECF No. 39 (Jt. Status Rep., Aug. 8, 2024); see supra at 3. On September 12, 2024, Plaintiff filed a motion for summary judgment (ECF No. 41). Defendants now oppose Plaintiff’s summary judgment motion and cross-move for summary 8

PDF Page 15	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 14 of 38 judgment on the ground that they complied with their obligations under FOIA when responding to Plaintiff’s requests. For these reasons, and those set forth in the accompanying declarations, the Court should grant summary judgment in favor of Defendants. LEGAL STANDARD Summary judgement is appropriate when the pleadings and evidence “show[] that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party seeking summary judgment must demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). A genuine issue of material fact is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the movant has met its burden, the nonmoving party “may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Id. “Courts decide the ‘vast majority’ of FOIA cases on motions for summary judgment.” AARC v. CIA, 317 F. Supp. 3d 394, 399 (D.D.C. 2018), aff’d, 781 F. App’x 11 (D.C. Cir. 2019) (per curiam) (quoting Brayton v. Off. of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011)). An agency is typically entitled to summary judgment in a FOIA case if it demonstrates that no material facts are in dispute, it has conducted an adequate search for responsive records, and each responsive record that it has located either has been produced to the plaintiff or is exempt from disclosure. See Weisberg v. Dep’t of Just., 627 F.2d 365, 368 (D.C. Cir. 1980). To meet its burden, an agency may rely on relatively detailed and non-conclusory declarations. See Elec. Frontier Found. v. Dep’t of Just., 739 F.3d 1, 7 (D.C. Cir. 2014). ARGUMENT “In certain cases, merely acknowledging the existence of responsive records would itself ‘cause harm cognizable under [a] FOIA exception.’” People for Ethical Treatment of Animals 9

PDF Page 16	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 15 of 38 (“PETA”) v. NIH, 745 F.3d 535, 540 (D.C. Cir. 2014) (quoting Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)). In such cases, “an agency can issue a Glomar response, refusing to confirm or deny its possession of responsive documents.” Id. “Importantly, an agency need not search its records before invoking Glomar.” Schaerr v. Dep’t of Just., 69 F.4th 924, 928 (D.C. Cir. 2023). “In the Glomar context, there are ‘no relevant documents for the court to examine other than the affidavits which explain the Agency’s refusal’ to confirm or deny the existence of responsive records.” Id. (quoting Wolf, 473 F.3d at 374 n.4); see PETA, 745 F.3d at 540. The agency’s explanatory burden is not demanding, as the standard is ultimately no different than in a typical FOIA case: “[A]n agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Wolf, 473 F.3d at 374-75 (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982)). Here, the FBI and DEA properly asserted Glomar under Exemptions 6 and 7(C), and the CIA properly asserted Glomar under Exemptions 1 and 3. I. FBI and DEA Have Properly Asserted Glomar Responses Pursuant to Privacy Exemptions 6 and 7(C) FOIA Exemption 6 exempts disclosure of information contained in “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy.” 5 U.S.C. § 552(b)(6). The Supreme Court has interpreted Exemption 6 broadly, making clear that the statutory language files “similar” to personnel or medical files encompasses any “information which applies to a particular individual.” Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982). To be a law enforcement record under Exemption 7, the record must have been “compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7). “The term ‘law enforcement’ in Exemption 7 refers to the act of enforcing the law, both civil and criminal.” Pub. Emps. for Env’t Resp. 10

PDF Page 17	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 16 of 38 (“PEER”) v. U.S. Section, Int’l Boundary & Water Comm’n, U.S.-Mex., 740 F.3d 195, 203 (D.C. Cir. 2014). “According to the Supreme Court, the term ‘compiled’ in Exemption 7 requires that a document be created, gathered, or used by an agency for law enforcement purposes at some time before the agency invokes the exemption.” Id. at 203. Because Exemption 7(C) is broader than Exemption 6, there is no need to consider Exemption 6 if the records at ssue are law enforcement records. See Citizens for Resp. & Ethics in Wash. (“CREW”) v. Dep’t of Just., 854 F.3d 675, 681 (D.C. Cir. 2017). Exemption 7(C) provides protection for law enforcement information the disclosure of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). In assessing an agency’s invocation of Exemption 7(C), the Court must “balance the privacy interests that would be compromised by disclosure against the public interest in release of the requested information.” Davis v. Dep’t of Just., 968 F.2d 1276, 1281 (D.C. Cir. 1992). To overcome the privacy interest of a third party, the information must “shed[] light on an agency’s performance of its statutory duties.” Dep’t of Just. v. Reps. Comm. for Freedom of Press, 489 U.S. 749, 773 (1989). Information “that reveals little or nothing about an agency’s own conduct” will not overcome a third party’s privacy interest because the only relevant public interest that weighs into the calculus for purposes of Exemption 7(C) is “the citizens’ right to be informed about what their government is up to.” Id. The FBI and DEA are law enforcement agencies and the requested criminal investigation records—if they exist—would have been compiled for law enforcement purposes. Jurdi v. United States, 485 F. Supp. 3d 83, 98 (D.D.C. 2020) (FBI); Higgins v. Dep’t of Just., 919 F. Supp. 2d 131, 145-46 (D.D.C. 2013) (DEA); see Ex. 1 (Seidel Decl.) ¶¶ 16-17; Ex. 2 (Davis Decl.) ¶¶ 5, 24. 11

PDF Page 18	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 17 of 38 Satisfying the threshold step, the FBI and DEA explained in their declarations why their Glomar responses were appropriate and established that the privacy interests of the third parties in their criminal investigative files outweigh the public interest in the release of the requested information. The agencies’ justifications were, at the very least, logical and plausible, Wolf, 473 F.3d at 374-75, and Plaintiff’s arguments to the contrary should be rejected. It is well established that “[i]ndividuals have an obvious privacy interest cognizable under Exemption 7(C) in keeping secret the fact that they were subjects of a law enforcement investigation.” CREW v. Dep’t of Just., 746 F.3d 1082, 1091 (D.C. Cir. 2014) (cleaned up). Moreover, release of names and/or other personal information about third parties and their activities could cause unsolicited and unnecessary attention and harassment to be directed toward that person. See SafeCard Servs. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir. 1991). For this reason, the names of third parties in law enforcement records are almost always exempt from disclosure. See id. (“[w]e now hold categorically that, unless access to the names and addresses of private individuals appearing in files within the ambit of Exemption 7(C) is necessary in order to confirm or refute compelling evidence that the agency is engaged in illegal activity, such information is exempt from disclosure.”). Indeed, “[w]hen a FOIA request implicates personal data on third-party individuals in law enforcement records, ‘the privacy interest . . . is at its apex.’” Am. First Legal Found. v. FBI, Civ. A. No. 23-2172, 2024 WL 4607496, at *9 (D.D.C. Oct. 29, 2024) (quoting Reps. Comm., 489 U.S. at 780). “‘[T]he Supreme Court has made clear that requests for such third party [law enforcement] information are strongly disfavored.’” Id. (quoting Martin v. Dep’t of Just., 488 F.3d 446, 457 (D.C. Cir. 2007) (citing Reps. Comm., 489 U.S. at 774)). Thus, “as a categorical matter” disclosure of law enforcement information concerning a third party “‘can 12

PDF Page 19	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 18 of 38 reasonably be expected to invade [these] citizens’ privacy.’” Id. (quoting Reps. Comm., 489 U.S. at 780). A. FBI: Privacy Interests Outweigh the Public Interests in Disclosure The FBI’s justification for asserting Glomar under Exemptions 6 and 7(C) is compelling, let alone logical and plausible. Wolf, 473 F.3d at 374-75. As Michael G. Seidel, the Section Chief of the Record/Information Dissemination Section, Information Management Division, explained in his declaration, “The FBI relies on a Glomar response in instances where, if responsive records existed, even acknowledging their existence would result in harm to an interest protected by one or more FOIA exemptions. To be credible and effective, the FBI must use a Glomar response in all similar cases regardless of whether responsive records exist, including instances in which the FBI does not possess records responsive to a particular request. If the FBI were to invoke a Glomar response only when it possessed responsive records, the Glomar response would be interpreted as an admission that responsive records exist.” Ex. 1 (Seidel Decl.) ¶ 18. In this case, “[t]he FBI determined that it cannot confirm nor deny the existence of records regarding Plaintiff’s requests for FOIA subject Bola Tinubu. The FBI determined that merely acknowledging whether responsive records exist would trigger harm to an interest under FOIA Exemptions (b)(6) and (b)(7)(C), with respect to records responsive to Plaintiff’s request regarding alleged FBI law enforcement investigation(s) involving Bola Tinubu.” Id. ¶ 19. As Mr. Seidel explained, “The FBI’s longstanding policy in response to FOIA requests for third-party records has been to provide an Exemption (b)(6) and (b)(7)(C) Glomar response (hereinafter privacy Glomar), neither confirming nor denying the existence of law enforcement records, in those instances where an individual seeks access to information regarding a third party, unless the requester establishes a significant public interest in disclosure that outweighs the third party’s privacy interests. The FBI instituted this policy to protect the privacy rights of individuals, 13

PDF Page 20	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 19 of 38 particularly those who appear in FBI law enforcement files.” Id. ¶ 20. Mr. Seidel discussed the privacy interests that underlie the policy: “It is well-recognized that individuals have substantial privacy interests in relation to being associated with law enforcement investigations, either as a target of an investigation or any alleged government officials assigned to a specific investigation, because any such association can engender negative connotations or result in harassment, embarrassment, or stigmatization of the individual, or, in some circumstances, physical harm or threats of harm or death. Statements by an individual alluding to or acknowledging an association with a law enforcement investigation do not extinguish the privacy interests of the third party or constitute a waiver of the third party’s privacy interests.” Id. Mr. Seidel explained how the FBI balances the significant privacy interests in third-party law enforcement records with the public interest in such records. “If a requester establishes that disclosure would serve a public interest under the FOIA, then the FBI balances that public interest against the third party’s privacy interests. This balancing is done on a case-by-case basis as it is necessarily fact-specific. Thus, each request must be treated individually, and the FBI must retain flexibility in the way the FBI handles each request. The FBI will process a request for and release non-exempt law enforcement records about a third party only if it determines that a significant public interest outweighs that third-party individual’s privacy interests after conducting the balancing analysis. For purposes of Exemptions (b)(6) and (b)(7)(C), a public interest exists when disclosure of information about an individual would significantly increase the public’s understanding of FBI operations and activities.” Id. ¶ 21. “In this case,” Mr. Seidel explained, “Plaintiff did not provide a sufficient demonstration that there exists a significant public interest in disclosure of the material sought that would outweigh the privacy interests of the Plaintiff’s requests concerning FOIA subject Bola Tinubu, 14

PDF Page 21	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 20 of 38 should such records exist. Specifically, the FBI advised Plaintiff he had not sufficiently demonstrated that the public's interest in disclosure (relating to the operations and activities of the government) outweighs the personal privacy interests of the FOIA subject Bola Tinubu.” Id. ¶ 22. B. DEA: Privacy Interests Outweigh the Public Interests in Disclosure Likewise, the DEA’s justification for asserting Glomar under Exemptions 6 and 7(C) is logical and plausible. Wolf, 473 F.3d at 374-75. As Angela Davis, the Unit Chief of DEA’s Information/Privacy Act Unit, explained in her declaration, “Given the nature and context of DEA’s criminal law enforcement investigative records, the disclosure of any information could potentially tip-off an individual that they are the subject of a DEA surveillance or investigation, or subject an individual to unwarranted attention for being the subject of an investigation. If DEA denied the existence of such records in cases when no responsive records existed, it could not then, in cases where responsive records actually exist, neither affirm nor deny the existence of such records without in fact disclosing the existence of an investigation. Consequently, DEA must consistently neither confirm nor deny responsive records exist in situations where the mere acknowledgement of responsive records would disclose information protected from disclosure by the FOIA.” Ex. 2 (Davis Decl.) ¶ 26. In this case, “[f]or surveillance or investigative records of Tinubu and Agbele that could be located using [the Narcotic and Dangerous Drugs Information System], DEA asserts a Glomar response pursuant to Exemptions 6 and 7(C) because the individuals are not deceased and the DEA does not have authorization from the individuals to disclose this information, protected under the Privacy Act, to Plaintiff and has not officially acknowledged any law enforcement investigations of the individuals. The disclosure of even the existence of DEA law enforcement records concerning a third party, such as Tinubu and Agbele, could reasonably be expected to subject them to unwarranted invasions of personal privacy. Both individuals have a substantial privacy interest 15

PDF Page 22	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 21 of 38 in not being associated with a DEA law enforcement investigation. Members of the public would draw adverse inferences about the individuals from the mere fact that they might be mentioned in the law enforcement investigative records.” Id. ¶ 27. “This is especially of concern for Tinubu, who is the sitting President of Nigeria, a nation of over 230 million people. This type of disclosure would likely subject Tinubu to invasions of personal privacy and harassment that could foreseeably be seen to detrimentally affect his personal and official capacity.” Id. ¶ 32. As to the public interest, Ms. Davis explained, “The FOIA public interest is limited to information that would shed light on the government’s performance of its official duties—in particular, on DEA’s performance of its mission to enforce the controlled substance law, and investigate violations of the laws, to keep America safe from dangerous drugs and those that traffic in them. In assessing whether there is a FOIA public interest in disclosure, DEA considered its mission and whether disclosing personally identifying information sheds light on the operations and activities of DEA. Disclosure of personally identifying information would not aid the public’s understanding of how DEA carries out its mission; therefore, the FOIA public interest in the information is de minimis.” Id. ¶ 35. Ms. Davis, thus, concluded, “The significant privacy interests outweighed the public interests in the disclosure of information. As such, Exemption 6 and 7(C) protects this information because disclosure would constitute a clearly unwarranted invasion of personal privacy.” Id. ¶ 36. C. Plaintiff’s Privacy and Public Interest Arguments Are Unpersuasive and Contrary to Law. Plaintiff asserts that Tinubu does not have a protectable privacy interest under the FOIA because he is not a United States citizen or resident. ECF No. 35-28 (FOIA Appeal). Similarly, he asserts that Agbele has a negligible privacy interest because he “no longer resides in the United States.” ECF No. 35-56 (FOIA Appeal). This is not the law. “[F]oreign nationals are entitled to the 16

PDF Page 23	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 22 of 38 same privacy rights under FOIA as United States citizens.” Jud. Watch, Inc. v. Dep’t of Homeland Sec., 514 F. Supp. 2d 7, 9 n. 4 (D.D.C. 2007) (quotation marks omitted); see also Graff v. FBI, 822 F. Supp. 2d 23, 34 (D.D.C. 2011). Plaintiff also suggests that Tinubu has forfeited his privacy interests because he is now the President of Nigeria. Pl.’s’ Mem. (ECF No. 41-1), at 11-13. But public figures do not forfeit their privacy interests because of their public status. See Am. First, 2024 WL 4607496, at *10 (holding that public officials do not surrender rights to personal privacy, particularly where the request is for details of a third-party investigation); Canaday v. U.S. Citizenship & Immigr. Servs., 545 F. Supp. 2d 113, 118 (D.D.C. 2008). Relatedly, Plaintiff asserts that there is a heightened public interest in the Tinubu investigative records because Tinubu is the President of Nigeria, ECF No. 35-23 (FOIA Appeal), ECF No. 35-45 (FOIA Appeal), and because United States residents of Nigerian ancestry and the Nigerian press are interested in Tinubu’s communications with the FBI, ECF No. 35-28 (FOIA Appeal), but he fails to appreciate that the only relevant public interest that weighs into the calculus for purposes of Exemption 7(C) is “the citizens’ right to be informed about what their government is up to,” not what Tinubu was up to. Reps. Comm., 489 U.S. at 773. Likewise, Plaintiff states that there is a public interest in the Agbele records because Agbele participated in criminal activity with President Tinubu. ECF No. 35-56 (FOIA Appeal), but, again, Plaintiff fails to connect how Tinubu’s alleged criminal activity would “shed[] light on an agency’s performance of its statutory duties.” Reps. Comm., 489 U.S. at 773. Information “that reveals little or nothing about an agency’s own conduct” will not overcome a third party’s privacy interest. Id. In Plaintiff’s motion for summary judgment, he tries to make that connection, but he falls well short of satisfying his evidentiary burden under National Archives & Records Administration v. Favish, 541 U.S. 157 (2004). Plaintiff states, “One of the crucial open questions about the United 17

PDF Page 24	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 23 of 38 States Government’s activities in the early 1990s is whether or not the Department of Justice and/or FBI solicited Mr. Tinubu’s cooperation with its sprawling investigation in exchange for Mr. Tinubu’s ability to return to Nigeria without a public indictment for half a dozen crimes trailing behind him.” Pl.’s Mem. (ECF No. 41-1), at 16. However, an alleged public interest in shining light on government wrongdoing cannot rest on “a bare suspicion in order to obtain disclosure. Rather, the requester must produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred.” Favish, 541 U.S. at 174. “[W]here there is a privacy interest protected by Exemption 7(C) and the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties,” “bare suspicion” will not permit disclosure. Id. Allegations of “suspicious circumstances” that otherwise “lack[] any substantiation” fall short of “meeting the demanding Favish standard.” Blackwell v. FBI, 646 F.3d 37, 41 (D.C. Cir. 2011). Indeed, the Court need not even engage in the private/public balancing test if the requester cannot make the threshold “meaningful evidentiary showing” that the asserted public interest of Government misconduct might have occurred. Favish, 541 U.S. at 175; see also id. (holding that where a requester “has not produced any evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred,” the balance of the public and privacy interests has not been “put . . . into play”); Boyd v. Crim. Div. of. Dep’t of Just., 475 F.3d 381, 387 (D.C. Cir. 2007) (holding that the requester must satisfy the threshold Favish requirement “in order to trigger the balancing of public interests against private interests”). Here, “no evidence in the record, other than plaintiff’s unsworn say-so, has been presented to lead a reasonable person to believe that any alleged wrongdoing occurred.” Am. First, 2024 WL 18

PDF Page 25	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 24 of 38 4607496, at *11. Even an affidavit that lacks “any substantiation” fails to meet “the demanding Favish standard.” Blackwell, 646 F.3d at 41. Plaintiff fails to make the threshold “meaningful evidentiary showing” that the asserted public interest of Government misconduct might have occurred. Favish, 541 U.S. at 175. Indeed, even if Plaintiff’s speculation proved to be accurate (there is no evidence of such), it is unclear what the government would have done wrong in offering someone a deal for cooperation that led to the prosecution of others involved in the heroin distribution ring. Having shown no “public interest in disclosure,” this Court “need not linger over the balance” between the agency’s asserted privacy interests in the requested material and Plaintiff’s misguided and speculative appeals to the public interest; “something, even a modest privacy interest, outweighs nothing every time.” Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989). In sum, the FBI and DEA’s Glomar assertions were proper because documents relating to Plaintiff’s investigation constitute law enforcement records under Exemption 7(C) and because it was necessary to protect the third-party individual’s considerable privacy interests, which were not outweighed by the public interest in disclosing whether responsive records exist—if there is any public interest at all. Accordingly, the FBI and DEA are entitled to judgment as a matter of law. II. CIA Has Properly Asserted Glomar Responses Pursuant to Exemptions 1 and 3 A. Exemption 1 Exemption 1 permits agencies to withhold records that are “(A) specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). Agencies may establish the applicability of Exemption 1 by declaration. See ACLU v. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). The Court accords such declarations “substantial 19

PDF Page 26	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 25 of 38 weight,” so long as it “describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency’s bad faith, . . . summary judgment is warranted on the basis of the affidavit alone.” Id. (internal quotation marks omitted). The “operative classification order under Exemption 1” is Executive Order No. 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009). See Jud. Watch, Inc. v. Dep’t of Def., 715 F.3d 937, 941 (D.C. Cir. 2013); Ex. 3 (Williams Decl.) at 6-8. Executive Order No. 13,526 permits “an original classifying authority” to classify “information [that] is owned by, produced by or for, or is under the control of the United States Government” if “the information falls within one or more of the categories of information listed in [the order]”; “the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security”; and “the original classification authority is able to identify or describe the damage.” Exec. Order 13,526 § 1.1(a). The categories of information that are subject to classification under Executive Order No. 13,526 include “military plans, weapons systems or operations”; “foreign government information”; “intelligence activities (including covert action), intelligence sources or methods, or cryptology”; and “foreign relations or foreign activities of the United States, including confidential sources.” Id. § 1.4. The Executive Order permits an agency to respond to a FOIA request by “refus[ing] to confirm or deny the existence or nonexistence of requested records whenever the fact of their existence or nonexistence is itself classified.” Id. § 3.6(a). The CIA provided a detailed declaration from Mary C. Williams, the Litigation Information Review Officer for the Information Review and Release Division at the CIA, that 20

PDF Page 27	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 26 of 38 justifies Exemption 1. Ex. 3 (Williams Decl.). As Ms. Williams explained, “Consistent with sections 1.1(a) and 3.6(a) of Executive Order 13526, . . . the existence or nonexistence of the requested records in Plaintiff’s request (concerning Tinubu) is a properly classified fact that concerns intelligence activities, sources, and methods under section 1.4(c) of the Executive Order. This fact constitutes information that is owned by and under the control of the U.S. Government, and the unauthorized disclosure of the existence or nonexistence of requested records reasonably could be expected to result in damage to national security.” Id. ¶ 14. Ms. Williams explained the CIA’s rationale for the Glomar response. “In most cases, upon receipt of a FOIA request, the CIA will conduct searches for any responsive documents in its holdings and provide the requester with all reasonably segregable, non-exempt documents responsive to the request. In this common scenario, the CIA’s response – either to provide or not provide the records sought – serves to confirm the existence or nonexistence of CIA records responsive to the FOIA request. In such a scenario, the fact that the CIA does or does not possess responsive records is not, in and of itself, classified, even though the information contained within the records may be classified.” Id. ¶ 15. “However, given the CIA’s mandate to collect and analyze foreign intelligence and to conduct counterintelligence, there are many instances where the CIA cannot reveal whether or not it possesses responsive records because the mere confirmation or denial of the existence of responsive records would, in and of itself, reveal a classified fact: namely, whether the CIA has an intelligence interest in, or clandestine connection to, a particular individual or foreign national, group, subject matter, or activity. In these cases, the CIA asserts a Glomar response because the existence or nonexistence of CIA records responsive to the request is a currently and properly classified fact, the disclosure of which reasonably could be expected to cause damage to the national security of the United States. Specifically, disclosure of such 21

PDF Page 28	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 27 of 38 information could provide insight into CIA’s priorities, resources, and capabilities, and could be used by foreign terrorist organizations, foreign intelligence services, and other hostile adversaries to undermine CIA intelligence activities and attack the United States and its interests.” Id. ¶ 16. As Ms. Williams explained, “A defining characteristic of the CIA’s intelligence activities is that they are carried out through clandestine means, and therefore they must remain secret in order to be effective. In the context of FOIA, this means that the CIA must carefully evaluate whether its response to a FOIA request could jeopardize the clandestine nature of the Agency’s intelligence activities or otherwise reveal previously undisclosed information about CIA sources, methods, capabilities, authorities, interests, relationships with domestic or foreign entities, strengths, weaknesses, personnel, and/or resources.” Id. ¶ 17. And “[t]o maintain effectiveness of the Glomar response, the CIA invokes the response consistently, in all cases where the existence or nonexistence of records responsive to a FOIA request is a classified fact, including instances in which the CIA does not possess records responsive to a particular request. If the Agency were to invoke a Glomar response only in instances where it possessed responsive records, that response could be interpreted as an admission that responsive records exist and could have the effect of confirming classified information. This practice would reveal the very information that the CIA must protect in the interest of national security.” Id. ¶ 18. “[I]n this case,” Ms. Williams explained, “the CIA issued a Glomar response stating that it could neither confirm nor deny the existence or nonexistence of records concerning Tinubu during the relevant time period referenced in the request. An acknowledgement confirming or denying the existence or nonexistence of such records would reveal classified intelligence information and jeopardize the clandestine nature of the Agency’s intelligence activities and/or disclose information about CIA’s sources and methods. For example, if the CIA were to confirm 22

PDF Page 29	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 28 of 38 the existence of responsive records, such response could reveal that the CIA had some type of involvement in, affiliation with, connection to, or intelligence interest in a particular foreign national – Tinubu in this case – or a group, subject matter, or activity related to him. On the other hand, if the CIA denied having records responsive to the request, that response could reveal that the CIA did not have an intelligence interest in Tinubu or an associated group, thus revealing CIA’s broader intelligence interests and activities.” Id. ¶ 19. “In either case, confirmation or denial of the existence or nonexistence of such records would implicate sensitive information about the CIA’s intelligence activities and sources and methods in a manner that would reasonably be expected to cause damage to national security.” Id. ¶ 20. “As a general matter, the CIA does not reveal whether or not it had involvement in, connection to, or intelligence interests in specific individuals and/or particular groups. Confirmation or denial of the existence or nonexistence of records responsive to the request here would do precisely that, and doing so could reveal – among other things – sensitive information about the CIA’s intelligence interests, activities, operations and collection efforts, technical capabilities, and authorities.” Id. The CIA provided an additional rationale for its Glomar response: “the CIA does not reveal the identity of its human sources [because] [r]evealing the identity of a confidential source could expose Agency tradecraft, other human sources, and specific intelligence interests and activities.” Id. ¶ 21. As Ms. Williams further explained, “Human sources can be expected to furnish information to the CIA only when they are confident the CIA can and will do everything in its power to prevent the public disclosure of their cooperation. In the case of a person who has been cooperating with the CIA, official confirmation of that cooperation could cause the targets to take retaliatory action against that person or against their family or friends. It also places in jeopardy 23

PDF Page 30	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 29 of 38 every individual with whom the cooperating individual has had contact. Thus, the indiscretion of one source in a chain of intelligence sources can damage an entire spectrum of sources.” Id. “As such, confirming or denying the existence of records on a particular foreign national, like Tinubu, reasonably could be expected to cause damage to U.S. national security by indicating whether or not the CIA maintained any human intelligence sources related to Tinubu, and identifying any access or lack of access any such sources had to intelligence concerning him.” Id. “For these reasons,” the CIA “determined that confirming or denying the existence or nonexistence of records responsive to the request could reasonably be expected to cause damage to national security. Further, this information is currently and properly classified and is therefore exempt from disclosure under FOIA exemption (b)(1).” Id. ¶ 22. B. Exemption 3 FOIA Exemption 3 incorporates into FOIA “the protections of other shield statutes,” ACLU, 628 F.3d at 617-18, by excluding from the purview of FOIA “‘matters’ that are ‘specifically exempted from disclosure by statute’ if the statute ‘requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue’ or ‘establishes particular criteria for withholding or refers to particular types of matters to be withheld.’” DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (quoting 5 U.S.C. § 552(b)(3)). The “sole issue for decision” in any case involving Exemption 3 is “‘the existence of a relevant statute and the inclusion of withheld material with the statue’s coverage.’” Id. at 197 (quoting Morley v. CIA, 508 F.3d 1108, 1126 (D.C. Cir. 2007)). “Section 102A(i)(1) of the National Security Act of 1947, as amended, 50 U.S.C. § 3024(i)(1) (the “National Security Act”), provides that the Director of National Intelligence . . . ‘shall protect . . . intelligence sources and methods from unauthorized disclosure.’ Accordingly, the National Security Act constitutes a federal statute which, ‘requires that the matters be withheld 24

PDF Page 31	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 30 of 38 from the public in such a manner as to leave no discretion on the issue.’ 5 U.S.C. §552(b)(3). Under the direction of the [Director of National Intelligence] pursuant to section 102A of the National Security Act, as amended, and in accordance with section 1.6(d) of Executive Order 12333, the Director of the CIA is required to protect CIA intelligence sources and methods from unauthorized disclosure.” Ex. 3 (Williams Decl.) ¶ 24. The National Security Act “qualifies as a withholding statute” under Exemption 3. CIA v. Sims, 471 U.S. 159, 167 (1985). The requested material about Tinubu falls within the National Security Act’s coverage. “Acknowledging or denying the existence or nonexistence of records reflecting a classified or otherwise unacknowledged connection between the CIA and Tinubu would reveal information that concerns intelligence sources and methods – information protected under the National Security Act.” Ex. 3 (Williams Decl.) ¶ 24. The requested information also falls within the scope of the Central Intelligence Act, which also qualifies as a withholding statute under Exemption 3. DiBacco v. Dep’t of Army, 926 F.3d 827, 834-35 (D.C. Cir. 2019). As Ms. Williams explained, “[T]he CIA . . . relies on section 6 of the Central Intelligence Act of 1949, as amended, 50 U.S.C. § 3507 (the “CIA Act”), as a basis for withholding. Section 6 of the CIA Act provides that CIA shall be exempted from the provisions of any law which requires the publication or disclosure of the ‘organization or functions of the Agency, or of the names, official titles, salaries, or numbers of personnel employed by the Agency.’ The CIA Act constitutes a federal statute that ‘establishes particular criteria for withholding or refers to particular types of matters to be withheld.’ 5 U.S.C. § 552(b)(3).” Ex. 3 (Williams Decl.) ¶ 25. The requested material about Tinubu falls within the CIA Act’s coverage. “[C]onfirming the existence or nonexistence of records on a particular foreign national, like Tinubu, could reveal how CIA collects (or does not collect) certain information on particular 25

PDF Page 32	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 31 of 38 subjects or individuals and/or could reveal information about the methods by which the Agency does (or does not) effectuate such collection, both of which pertain to intelligence collection – a function of the Agency.” Id. “Accordingly, the fact of the existence or nonexistence of responsive records is exempt not only under exemption (b)(1), but also under exemption (b)(3) pursuant to the National Security Act and the CIA Act. Exemptions (b)(1) and (b)(3) apply independently and co-extensively to protect from disclosure in this case CIA’s intelligence sources and methods, as well as functions of the Agency.” Id. ¶ 27. III. Defendants Have Never Officially and Publicly Acknowledged the Records that Plaintiff Requests. A plaintiff may try to demonstrate that “the agency has officially acknowledged the existence of [a] record,” which, if properly established, means that the agency cannot use a Glomar response. Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011). However, “[a] strict test applies to claims of official disclosure.” Id. (internal quotation marks omitted). Plaintiff has fallen short of passing this strict test. To determine whether an item is “officially acknowledged . . . (1) the information requested must be as specific as the information previously released; (2) the information requested must match the information previously disclosed; and (3) the information requested must already have been made public through an official and documented disclosure.” Mobley v. CIA, 806 F.3d 568, 583 (D.C. Cir. 2015) (internal quotation marks omitted). Accordingly, “to overcome an agency’s Glomar response based on an official acknowledgement, the requesting plaintiff must pinpoint an agency record that both matches the plaintiff’s request and has been publicly and officially acknowledged by the agency.” Moore, 666 F.3d at 1333. “The plaintiff bears the burden of identifying specific information that is already in the public domain due to official disclosure.” 26

PDF Page 33	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 32 of 38 Mobley, 806 F.3d at 583. “To establish official acknowledgment our precedents require certainty, not assumptions[.]” Leopold v. CIA, 987 F.3d 163, 171 (D.C. Cir. 2021). Here, Plaintiff has not come close to carrying his burden of pinpointing an agency record that matches his FOIA requests and has been publicly and officially acknowledged by the FBI, DEA, or CIA. Plaintiff contends that an affidavit of an IRS special agent that was attached to a 1993 complaint for forfeiture of Tinubu’s funds filed by the Northern District of Illinois United States Attorney’s Office pierces Defendants’ Glomar responses because Defendants officially acknowledged Tinubu’s “involvement” with the Chicago narcotrafficking ring. Pl.’s Mem. at 7-8. Plaintiff is wrong for multiple reasons. First, the affidavit of a Department of Treasury IRS special agent is not an official public disclosure of the FBI and DEA (Department of Justice) or CIA (an independent agency). Although a publicly accessible court filing could be an official and documented disclosure for the purposes of piercing Glomar (if it contains the same information being sought), disclosure is not “official” for that purpose when it is made by someone other than the agency from which the information is being sought. Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999). Only the FBI, DEA, and CIA— the federal agencies asserting the Glomar responses—can make an effective official acknowledgment that waives the right to assert a Glomar response. A disclosure by one federal agency does not waive another agency's right to assert a FOIA exemption. Knight First Amend. Inst. at Columbia Univ. v. CIA, 11 F.4th 810, 816 (D.C. Cir. 2021); Moore, 666 F.3d at 1333 n.4 (“[T]o the extent Moore suggests that the release of the Report by the FBI constitutes an official acknowledgment by the CIA, his argument is foreclosed by our precedent.” (emphasis in original)); Frugone, 169 F.3d at 774 (“[W]e do not deem ‘official’ a disclosure made by someone other than the agency from which the information is being sought.”). 27

PDF Page 34	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 33 of 38 Second, the Court should reject Plaintiff’s attempt to impute the IRS agent’s affidavit as an official disclosure of the Department of Justice because the United States Attorney’s Office for the Northern District of Illinois attached the affidavit to a forfeiture complaint. While one component of the Department of Justice may bind other components of the same agency, Marino v. DEA, 685 F.3d 1076, 1082 (D.C. Cir. 2012), the filing of the IRS agent’s affidavit as an exhibit to a complaint does not transform the affidavit into an official disclosure of the Department of Justice and its components. Plaintiff has provided no support for this downstream theory of attribution, which has no basis under the FOIA, and indeed, would set a very dangerous precedent if every exhibit that the United States Attorney’s Offices attach to their court filings would expose the Department of Justice to a broad public disclosure waiver of its exempted records. “[I]f,” for example, “a Department of Justice prosecutor introduces certain records as evidence in court, other [Department of Justice] components may not claim FOIA exemptions as to those records.” Knight, 11 F.4th at 817. But here, the United States Attorney’s Office has not introduced any DEA, FBI, or CIA records, but rather, has introduced an affidavit from a completely different agency, the Department of Treasury. Plaintiff fails to satisfy the “strict test” that applies to claims of official disclosure. Moore, 666 F. 3d at 1333. Third, even if the disclosure of one agency could constitute a public and official disclosure of another agency (which the law forbids), Plaintiff’s argument fails because the IRS agent’s affidavit does not match, nor is it as specific as, the information that Plaintiff requested from the DEA and CIA regarding Tinubu. In paragraph 4 of IRS agent’s affidavit—the sole reference that Plaintiff highlights in his brief, Pl.’s Mem. at 8—the IRS agent states: As part of my duties and responsibilities as a Special Agent with the IRS, I have been involved with other agents in an investigation of money laundering and the proceeds of a heroin distribution organization in the Chicago area. One aspect of this investigation concerns the money laundering activities of Abegboyega Muez 28

PDF Page 35	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 34 of 38 Akande. Through my own participation in this investigation and through information provided to me by other Special Agents of IRS, Drug Enforcement Administration in Hammond, Indiana, (hereafter ‘DEA’) and the Federal Bureau of Investigation in Merrillville, Indiana (hereafter ‘FBI’), I am familiar with all aspects of this investigation. The statements contained in this affidavit are based in part on information provided by Special Agents of the IRS, DEA, FBI, on information provided by confidential sources, and on my experience and background as a Special Agent of the IRS. ECF No. 41-4 at 5-19 (Moss Aff.), ¶ 4. Tellingly, Plaintiff omits the second sentence of paragraph 4, see Pl.’s Mem. at 8, wherein the IRS agent states that the DEA and FBI provided “information” as part of his investigation of the “money laundering activities of Abegboyega Muez Akande,” not Tinubu. Plaintiff has not satisfied his burden of “pinpoint[ing] an agency record that both matches the plaintiff’s request and has been publicly and officially acknowledged by the agency.” Moore, 666 F.3d at 1333. The notation of the IRS agent that the DEA and FBI contributed unidentified “information” as part of the IRS’s investigation is not sufficient to pierce Glomar. If that was the case, any joint investigation where one agency makes an official and public disclosure that mentions the assisting agencies would expose all agencies to disclose exempt documents, which would undercut the “strict test” that applies to the doctrine. Moore, 666 F.3d at 1333. The IRS agent discusses in his affidavit that the DEA was generally “involved in the investigation of a white heroin trafficking network operation in Chicago, Illinois and Hammond, Indiana.” ECF No. 41-4 at 5-19 (Moss Aff.), ¶ 7; see also id. at 4-6. The IRS agent also states that a DEA confidential source provided information about “this white heroin distribution network,” and this information was corroborated by FBI investigation and records. Id. ¶ 8. But as to Tinubu specifically, the IRS agent states that his investigation revealed that Tinubu worked for Akande in the distribution organization. Id. ¶ 21. The IRS agent states that, in reaching his decision that there is probable cause to forfeit Tinubu’s accounts, he reviewed Tinubu’s bank records and credit 29

PDF Page 36	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 35 of 38 applications and reports, reviewed car dealership records, discussed matters with bank employees, reviewed IRS and Social Security records, interviewed Tinubu’s employer (Mobil Oil), and had discussions with Tinubu himself. Id. at 8-15. The affidavit does not even mention the FBI or DEA in the IRS agent’s discussion of his investigation into Tinubu’s alleged money laundering. Id. At the very most, in ¶ 47, the IRS agent states that Tinubu told “agents investigating this matter” (presumably IRS agents) and “law enforcement officers” different things about his relationship with Akande. Plaintiff, thus, has failed to establish any link between Tinubu and the FBI or DEA, let alone information previously released that matches and is as specific as the information requested from the FBI and DEA about the Tinubu investigation. Mobley, 806 F.3d at 583. This case is materially indistinguishable from the D.C. Circuit’s decision in Moore, 666 F.3d 1330. In Moore, plaintiff requested information from the CIA about a particular individual, Sveinn B. Valfells Sr., an Icelandic textile merchant who spent time in the United States during the 1940s and 1950s and who allegedly had ties to the Icelandic Communist Party. Id. at 1331. The CIA issued a Glomar response, neither confirming nor denying whether it maintained any such records. Id. Plaintiff argued that the CIA official acknowledged that it had records via an FBI report, disclosed by the FBI, wherein unspecified “CIA-originated information” was redacted pursuant to the CIA’s request, and therefore, the CIA could no longer invoke Glomar. Id. The D.C. Circuit rejected plaintiff’s argument because plaintiff “cannot isolate any specific CIA record that has been officially acknowledged by the CIA.” Id. The D.C. Circuit explained that plaintiff could not even show that the redacted information even relates to Valfells, let alone identify specific records matching the FOIA request. Id. at 1334. Likewise, in our case, at most, the IRS agent disclosed that the DEA and FBI had some investigatory involvement in the broader drug distribution network, but as to Tinubu specifically, 30

PDF Page 37	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 36 of 38 Plaintiff has not shown that their investigation even related to Tinubu, let alone identify specific records matching the Tinubu records sought in his request. As Mr. Seidel stated in his declaration, “Plaintiff requested an alleged ‘FBI File’ and alleged ‘FBI 302’s’ concerning FOIA subject Bola Tinubu that the FBI has not publicly acknowledged exist, or do not exist.” Ex. 1 (Seidel Decl.) ¶ 24; see also Ex. 2 (Davis Decl.) ¶ 29 (“The Plaintiff, in request 22-00892-F, is seeking records that involve Tinubu to the relevant heroin distribution organization. The Moss Affidavit does not provide information that such records exist.”). General disclosures about an agency’s involvement in a certain matter are not sufficient to pierce Glomar. Afshar v. Dep’t. of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983) (where plaintiff requested information about the CIA’s relationship with a foreign intelligence organization, pointing to previously published books by former CIA officials that the plaintiff suggested were official acknowledgments, the D.C. Circuit explained that the content within the books was only a general suggestion of a relationship between the agency and the intelligence organization and were not sufficiently specific). As to the CIA, Plaintiff argues that documents posted on the CIA’s FOIA Reading Room “clearly address Nigeria’s involvement with heroin narcotrafficking during the mid-1980s,” but acknowledges that “Mr. Tinubu’s name does not appear directly in these documents.” Pl.’s Mem. at 11; see Ex. 3 (Williams Decl.) ¶ 9 (noting that “Plaintiff’s Motion for Summary Judgement also acknowledges that Tinubu’s name ‘does not appear directly’ in the FOIA Reading Room documents referenced”). According to Plaintiff, “it is implausible that no documents responsive to Plaintiff’s FOIA request to the CIA exist given that the CIA was closely following the issue and would have at least been aware of Mr. Tinubu once he became a prominent politician in Nigeria.” Pl.’s Memo. at 11. But as Ms. Williams explained, “that the CIA’s FOIA Reading Room contains documents discussing Nigeria’s involvement with heroin and narcotrafficking in the mid-1980s 31

PDF Page 38	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 37 of 38 reveals nothing regarding Tinubu’s connections, if any, to those activities.” Ex. 3 (Williams Decl.) ¶ 9. Plaintiff, thus, is unable to establish that the CIA publicly acknowledged records that match those requested as he concedes that those records do not even mention Tinubu, let alone are as specific as those requested. “To establish official acknowledgment our precedents require certainty, not assumptions,” Leopold, 987 F.3d at 71, and general disclosures about an agency’s involvement in a certain matter is not sufficient to pierce Glomar, Afshar, 702 F.2d at 1133. Lastly, Plaintiff argues that the DEA’s Glomar response as to Agbele has been pierced because the FBI did not redact Agbele’s name on one record that the FBI produced. Pl.’s Mem. at 9-10; see ECF No. 41-4, at 32. This FBI record does not even mention the DEA, let alone establish a specific DEA disclosure that matches the Agbele information that Plaintiff requested from the DEA. In conclusion, through the detailed declarations, Defendants have satisfied their burden of providing logical and plausible explanations for their Glomar responses to Plaintiff’s requests for third-party criminal investigatory records. Plaintiff has failed to articulate a substantiated public interest cognizable under FOIA, and even if he had, the privacy interests implicated in a request for third-party criminal investigative record are at their “apex” and outweigh the public interest. Am. First, 2024 WL 4607496, at 9. Plaintiff has also failed to satisfy his burden of establishing that the affidavit from a different agency that does not match or is specific as the records he requests is sufficient to pierce Defendants’ Glomar responses. * 32 *

PDF Page 39	Case 1:23-cv-01816-BAH Document 43-1 Filed 11/11/24 Page 38 of 38 CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court grant summary judgment in its favor and deny Plaintiff’s motion for summary judgment. Dated: November 11, 2024 Washington, DC Respectfully submitted, MATTHEW M. GRAVES, D.C. Bar #481052 United States Attorney BRIAN P. HUDAK Chief, Civil Division By: /s/ M. Jared Littman M. JARED LITTMAN Assistant United States Attorney 601 D Street, NW Washington, DC 20530 (202) 252-2523 Jared.Littman@usdoj.gov Attorneys for the United States of America 33


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