100reporters LLC v. United States Department of Justice ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
100REPORTERS LLC, :
:
Plaintiff, : Civil Action No.: 14-1264 (RC)
:
v. : Re Document Nos.: 83, 86
:
UNITED STATES :
DEPARTMENT OF JUSTICE, :
:
Defendant, :
:
and :
:
SIEMENS AKTIENGESELLSCHAFT, :
THEO WAIGEL, :
:
Defendant-Intervenors. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFF’S CROSS-MOTION FOR
SUMMARY JUDGMENT
I. INTRODUCTION
This matter arises from a Foreign Corrupt Practices Act (“FCPA”) investigation of
Siemens Aktiengesellschaft (“Siemens”) conducted by the United States Department of Justice
(“DOJ”) and Securities and Exchange Commission (“SEC”). As a result of the investigation, in
2008 Siemens pleaded guilty to violating the FCPA’s internal controls and books and records
provisions. The plea agreement imposed a large fine on Siemens and three subsidiaries, and it
required Siemens to hire an independent compliance monitor to ensure that it implemented an
effective corporate governance system and complied with all applicable anti-corruption laws and
regulations.
Siemens hired Dr. Theodore Waigel (the “Monitor”) to serve as its compliance monitor.
Pursuant to his mandate under the plea agreement, the Monitor conducted a multi-year review of
Siemens’ compliance programs. Over four years he provided more than 150 recommendations
to Siemens for ways to improve its compliance programs, and he submitted several written
reports to DOJ, including work plans at the start of each year, summary reports at the end of each
year, and status reports and other correspondence on an ongoing basis. Each year, he also
certified that Siemens was in compliance with the plea agreement’s terms.
In 2013, Plaintiff 100Reporters LLC, a non-profit dedicated to investigative journalism,
submitted a Freedom of Information Act (“FOIA”) request to the DOJ seeking records related to
the monitorship. DOJ denied the request and an administrative appeal. In 2014, 100Reporters
brought this FOIA action before the Court.
DOJ has produced redacted documents falling within the scope of 100Reporters’ request,
while withholding others in full under certain FOIA exemptions. 100Reporters objects to those
withholdings. In 2016, DOJ and 100Reporters filed cross-motions for summary judgment, and
this Court granted DOJ’s motion in part and denied it in part, and it denied 100Reporters’
motion. The Court’s ruling ratified DOJ’s withholdings under FOIA Exemption 4 and the
attorney work product privilege incorporated into Exemption 5, and it directed DOJ to provide
additional factual support for the other exemptions on which it relied, including a representative
sample of documents for in camera review. Now before the Court are DOJ’s renewed motion
for summary judgment and 100Reporters’ opposition. See generally Mem. P. & A. Supp. U.S.
Dep’t Justice’s Renewed Mot. Summ. J. (“DOJ Mem.”), ECF No. 83-2; Pl.’s Opp’n
(“100Reporters Mem.”), ECF No. 86.
2
For the reasons explained below, the Court finds that DOJ’s Exemption 4 withholdings
are overbroad, and that while DOJ has justified the withholding of certain information under
Exemptions 5, 6, and 7(C), DOJ’s withholdings under those Exemptions are also overbroad. The
Court will therefore grant in part DOJ’s motions for summary judgment with respect to the
Exemptions, but will deny DOJ’s motion for summary judgment with respect to its obligation to
segregate and disclose non-exempt material. Finally, the Court will grant in part and deny in part
100Reporters’ cross-motion for summary judgment.
II. BACKGROUND 1
In July 2013, 100Reporters submitted a FOIA request to DOJ for records related to
Aktienengesellschaft, et al., 1:08-cr-367-RJL (D.D.C.), the criminal prosecution of Siemens. See
Def.’s Statement of Material Facts (“DOJ Statement”) ¶ 1, ECF No. 83-1. In February 2014,
100Reporters narrowed its request to the following records:
• “Corporate Compliance Statements” that Siemens filed with DOJ under Siemens’ plea
agreement;
• Documents relating to the Monitor’s evaluation of the effectiveness of Siemens’ anti-
corruption compliance program;
• Documents relating to steps taken by the Monitor to confirm compliance by Siemens;
• Information, records, and facilities requested by the Monitor that fell within his mandate;
• The Monitor’s work plans, reviews, and reports; and
• Disclosures made by Siemens to the Monitor concerning corrupt payments and related
books, records, and internal controls violations.
DOJ Statement 4; Decl. of Suzanna Moberly (“Moberly Decl.”) ¶ 9, ECF No. 59-3.
1
For a more detailed overview of the FCPA proceeding and the monitorship underlying
this dispute, refer to this Court’s prior Memorandum Opinion, ECF No. 78.
3
Months later, in July 2014, 100Reporters brought this suit seeking to compel the
production of documents that are responsive to its request. See generally Compl., ECF No. 1.
DOJ’s Answer raised one affirmative defense—that the requested documents were exempt from
disclosure under FOIA—and it relied on FOIA Exemption 4, Exemption 5, Exemption 6,
Exemption 7(A), Exemption 7(C), and Exemption 7(D) in support of that defense. See DOJ
Answer at 6, ECF No. 11. 2
In 2015, during the pendency of the litigation, DOJ produced two sets of responsive
materials to 100Reporters totaling two videos and approximately 500 pages of documents, many
of which were redacted. See Moberly Decl. ¶ 19; see also Status Report & Proposed Briefing
Schedule at 2, ECF No. 49 (“Federal Defendant provided Plaintiff with some of the documents
previously withheld entirely, largely redacted on December 4, 2015.”). DOJ continued to
withhold in full six video presentations and 4,293 pages of documents. See Moberly Decl. ¶ 19.
These materials are encompassed in: (1) four annual Reports prepared by the Monitor setting
forth the Monitor’s assessment of Siemens’ compliance program and his recommendations for
improvement of the same, and presentations and correspondence submitted about or in
conjunction with the Monitor’s reports and reviews; (2) four annual Work Plans prepared by the
Monitor detailing the manner in which he intended to perform his reviews (some of which were
attached as exhibits to the Monitor’s annual reports), and associated correspondence, documents,
and presentations; (3) Siemens training materials, internal presentations, and compliance
policies; and (4) additional correspondence between the Monitor, DOJ, and SEC. See DOJ
Statement ¶ 27; Decl. of Joel Kirsch (“Kirsch Decl.”) ¶¶ 16, 22, 25, 27, ECF No. 58-2;
Declaration of F. Joseph Warin (“Warin Decl.”) ¶ 25(a)-(e), ECF No 57-2.
2
At this stage in the litigation, DOJ relies only on Exemptions 4, 5, 6, and 7(C).
4
In March and April 2016, the parties filed cross-motions for summary judgment
regarding relevant information that DOJ did not disclose. In their motions, the parties argued
over whether DOJ was obligated to disclose four categories of information: (1) documents
withheld pursuant to Exemption 4 as confidential commercial information; (2) documents
withheld pursuant to Exemption 5’s attorney work product privilege; (3) documents withheld
pursuant to Exemption 5’s deliberative process privilege; and (4) documents redacted pursuant to
Exemptions 6 and 7(C) as records implicating the privacy interests of government employees,
monitorship team members, Siemens employees, and third-party witnesses. See 100Reporters
LLC v. DOJ, 248 F. Supp. 3d 115, 133 (D.D.C. 2017). On March 31, 2017, this Court granted in
part and denied in part DOJ’s motion for summary judgment and denied 100Reporters’ cross-
motion. See id. at 167.
The Court granted summary judgment in favor of DOJ with regard to information
withheld under Exemption 4 and information withheld under Exemption 5’s attorney work
product privilege. Id. at 145, 158. It held, however, that DOJ had failed to justify its
withholdings under Exemption 5’s deliberative process privilege, Exemption 6, and Exemption
7(C), and it denied DOJ’s motion with respect to those Exemptions. Id. at 154, 165. It also held
that DOJ’s Amended Vaughn index 3 and declarations were inadequate in certain respects and did
not permit the Court to assess whether documents were properly withheld under the Exemption 5
deliberative process privilege, nor did they permit the Court to assess whether DOJ had disclosed
all reasonably segregable, nonexempt material. Id. at 154, 166–67. In its discretion, the Court
3
See Moberly Decl., Ex. F. (“Am. Vaughn Index”), ECF No. 59-4. As the Court
explained in its prior Opinion, a “Vaughn index”—named after the case Vaughn v. Rosen, 484
F.2d 820 (D.C. Cir. 1973)—contains the agency’s justification for invoking a particular FOIA
exemption. See 100Reporters, 248 F. Supp. 3d at 132.
5
directed DOJ to provide supplemental submissions in support of its Exemption 5, deliberative
process withholdings showing “(1) the nature of the specific deliberative process involved, (2)
the function and significance of the document in that process, and (3) the nature of the decision-
making authority vested in the document’s author and recipient.” Id. at 154 (quoting Nat’l Sec.
Counselors v. CIA, 960 F. Supp. 2d 101, 189 (D.D.C. 2013)). It also directed DOJ to provide
“one work plan and one annual report prepared by the Monitor, including all attachments to
those two documents” for in camera review. Id. at 166.
DOJ has presented two new declarations and an “Amended Chronology of Events
Supporting the Deliberative Process Privilege” (“Am. Chronology”), and it provided the Court
with the Monitor’s Year Three Work Plan, Year Three Report, and accompanying exhibits, all of
which have been reviewed by the Court in camera. See Decl. of Mark F. Mendelsohn
(“Mendelsohn Decl.”), ECF No. 83-3; Decl. of Charles E. Duross (“Duross Decl.”), ECF No. 83-
4; Am. Chronology, ECF No. 91-1; DOJ Correspondence Regarding Ex Parte In Camera Filing,
ECF No. 83-5. Now before the Court are the parties’ renewed cross-motions for summary
judgment. 4
III. LEGAL STANDARD
FOIA “sets forth a policy of broad disclosure of Government documents in order ‘to
ensure an informed citizenry, vital to the functioning of a democratic society.’” FBI v.
Abramson, 456 U.S. 615, 621 (1982) (quoting NLRB v. Robbins Tire & Rubber Co., 437 U.S.
214, 242 (1978)). “[D]isclosure, not secrecy, is the dominant objective of [FOIA].” U.S. Dep’t
4
Although 100Reporters styled its response as a memorandum in opposition to DOJ’s
motion for summary judgment, in that filing 100Reporters asks the Court to “grant summary
judgment” in its favor. 100Reporters Mem. at 26–27. The Court therefore treats 100Reporters
memorandum in opposition as a cross-motion for summary judgment.
6
of Air Force v. Rose, 425 U.S. 352, 361 (1976). FOIA mandates release of properly requested
federal agency records, unless the materials fall squarely within one of nine statutory
exemptions. Milner v. U.S. Dep’t of Navy, 562 U.S. 562, 565 (2011); Students Against Genocide
v. U.S. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (citing 5 U.S.C. § 552(a)(3)(A), (b)).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) (citing Bigwood v.
U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007)). The agency is entitled to
summary judgment if no material facts are genuinely in dispute and the agency demonstrates
“that its search for responsive records was adequate, that any exemptions claimed actually apply,
and that any reasonably segregable non-exempt parts of records have been disclosed after
redaction of exempt information.” Competitive Enter. Instit. v. EPA, 232 F. Supp. 3d 172, 181
(D.D.C. 2017). “This burden does not shift even when the requester files a cross-motion for
summary judgment because ‘the Government ultimately has the onus of proving that the
documents are exempt from disclosure,’ while the ‘burden upon the requester is merely to
establish the absence of material factual issues before a summary disposition of the case could
permissibly occur.’” Hardy v. ATF, 243 F. Supp. 3d 155, 162 (D.D.C. 2017) (brackets omitted)
(quoting Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904–05 (D.C. Cir. 1999)).
To carry its burden, the agency must provide “a relatively detailed justification,
specifically identifying the reasons why a particular exemption is relevant and correlating those
claims with the particular part of a withheld document to which they apply.” Elec. Privacy Info.
Ctr. v. DEA, 192 F. Supp. 3d 92, 103 (D.D.C. 2016) (quoting Mead Data Cent., Inc. v. U.S.
Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). In conducting its review, a court may
also rely on its own in camera examination of disputed documents to determine whether they
7
were properly withheld under the claimed statutory exemptions. See 5 U.S.C. § 552(a); see also,
e.g., Citizens for Responsibility & Ethics in Washington v. Nat’l Archives & Records Admin., 715
F. Supp. 2d 134, 140–42 (D.D.C. 2010) (relying on the Court’s in camera review to resolve
whether documents had been properly withheld). This Court reviews the agency’s explanations
de novo, and will endorse an agency’s decision to withhold information if the justification for
invoking a FOIA exemption “appears ‘logical’ or plausible.’” Pinson v. DOJ, 245 F. Supp. 3d
225, 239 (D.D.C. 2017) (quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007)).
Nonetheless, “exemptions from disclosure must be narrowly construed . . . and conclusory and
generalized allegations of exemptions are unacceptable.” Morley v. CIA, 508 F.3d 1108, 1114–
15 (D.C. Cir. 2007) (citation and internal quotation marks omitted).
IV. ANALYSIS
DOJ continues to withhold certain documents—some in part and some entirely—
pursuant to FOIA Exemptions 4, 5, 6, and 7(C). 100Reporters argues that (1) DOJ has failed to
show that it properly withheld information under Exemptions 5, 6, and 7(C); and (2) the
documents at issue contain segregable non-exempt information that should be disclosed. For
reasons explained below, the Court holds that DOJ withheld information under Exemption 4 that
is not within the scope of that Exemption. The Court also holds that DOJ has justified the
withholding of certain information pursuant to the deliberative process privilege contained in
Exemption 5, and certain personal information pursuant to Exemptions 6 and 7(C), but that it
similarly applied those Exemptions in an overbroad manner. Accordingly, the Court holds that
DOJ failed to fulfill its obligation to segregate and disclose non-exempt information.
8
A. Exemption 4
The first issue before the Court is whether DOJ’s Exemption 4 withholdings are
appropriately tailored. Having completed its in camera review, the Court holds that certain
withholdings are overbroad because they cover material that is not commercial in nature.
Exemption 4 states that “trade secrets and commercial or financial information obtained from a
person” that are “privileged or confidential” may be withheld from disclosure. 5 U.S.C. §
552(b)(4). An agency may rely on Exemption 4 if it can establish that withheld materials are
“(1) commercial or financial, (2) obtained from a person, and (3) privileged or
confidential.” Pub. Citizen Health Research Grp. v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983).
DOJ states that it has withheld information under Exemption 4 in the following
categories of documents:
• The Monitor’s work plans and related documents;
• The Monitor’s annual reports and exhibits;
• The Monitor’s presentations to DOJ and SEC summarizing various
aspects of his work;
• Emails and correspondence between the Monitor, Mr. Warin, DOJ
attorneys, and SEC attorneys concerning various aspects of the
monitorship;
• Correspondence between the Siemens Board, DOJ and SEC attorneys
concerning various aspects of the monitorship; and
• Siemens compliance policies, descriptions of its compliance programs,
and compliance program training materials.
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Moberly Decl. ¶ 20. This Court previously granted summary judgment for DOJ regarding its
Exemption 4 withholdings in the following categories of documents: (1) the Monitor’s Reports
and associated documents; (2) the Monitor’s Work Plans and associated documents; and (3)
Siemens’ trainings, compliance policies, and associated documents. 100Reporters, 248 F. Supp.
3d at 144–45. DOJ asserts that the categories of documents covered by the prior Memorandum
Opinion “encompass all of the eight enumerated categories listed above.” DOJ Mem. at 17 n.5.
The Court credits DOJ’s assertion, particularly because 100Reporters has not challenged it. See
generally 100Reporters Mem.
While the Court accepted DOJ’s Exemption 4 rationale, it noted that “the Court’s
analysis does not apply to the entirety of the documents themselves.” 100Reporters, 248 F.
Supp. 3d at 145 n.13. It consequently ordered DOJ to produce a representative Work Plan,
Report, and set of Report exhibits for in camera review. Id. Having inspected those materials,
the Court evaluates whether DOJ’s Exemption 4 withholdings are sufficiently narrow for each
category of documents, beginning with the documents reviewed in camera.
1. Documents Reviewed In Camera
The Court has now reviewed the Monitor’s Year Three Work Plan, Year Three Report,
and the Report’s associated exhibits in camera, and it has determined that DOJ’s redactions to
these materials were overbroad because they cover some information that is not commercial. 5
5
DOJ has renewed its Exemption 4 argument under the theory that “disclosure of
information not covered by the ‘competitive harm’ prong [of the Exemption 4 framework laid
out in National Parks Conservation Association v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974)]
would adversely impact DOJ’s ability to collect reliable and quality information in the future,”
and would therefore still be covered by Exemption 4. DOJ Mem. at 15–16. Both National Parks
“prongs,” however, relate to whether information is “confidential” under Exemption 4, and they
both therefore require that the withheld information be “commercial or financial.” Pub. Citizen
Health Research Grp. v. FDA, 704 F.2d at 1290. Because the Court holds that much of the
10
Withheld “information is commercial under [Exemption 4] if, in and of itself, it serves a
commercial function or is of a commercial nature.” Nat’l Ass’n of Home Builders v. Norton, 309
F.3d 26, 38 (D.C. Cir. 2002) (internal quotation marks and citations omitted). Therefore,
Exemption 4 covers “records that actually reveal basic commercial operations, such as sales
statistics, profits and losses, and inventories, or relate to the income-producing aspects of a
business.” See Pub. Citizen Health Research Grp., 704 F.2d at 1290. And in the D.C. Circuit,
Exemption 4 “reaches more broadly and applies (among other situations) when the provider of
the information has a commercial interest in the information submitted to the agency.” Baker &
Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 319–20 (D.C. Cir. 2006) (holding that
letters describing market conditions for domestic lumber companies “plainly contain commercial
information within the meaning of Exemption 4”); see also Pub. Citizen Health Research Grp.,
704 F.2d at 1290 (holding that “documentation of the health and safety experience of [a
company’s] products” was commercial because such documentation was “instrumental in
gaining marketing approval for their products”). Certain material in the Work Plan, Report, and
exhibits is not commercial because it does not fall within the Circuit’s “commercial interest”
standard.
a. Year Three Work Plan
DOJ and Siemens characterize the Work Plans as containing reams of information
relating to Siemens’ operations. For instance, Mr. Kirsch stated that the Plans detail “Siemens’
operations, contracts, projects, and bids that the Monitor intended to review.” See Kirsch Decl. ¶
22. He also stated that they reflect “Siemens’ business operations, structure, and compliance
redacted information is not commercial, DOJ’s renewed argument does not alter the Court’s
analysis.
11
controls.” Id. ¶ 24. Similarly, the Amended Vaughn Index states that the Monitor’s Year One
Work Plan describes “the number of Siemens employees in each country, new orders, new
government orders, joint ventures and business partnerships, and Siemens’ business development
strategy across different sectors of the economy.” DOJ_0000001, Am. Vaughn Index at 18.
The Court’s in camera review, however, has revealed that the Year Three Work Plan
consists mostly of general descriptions of the Monitor’s past and future activities with very few
details about Siemens’ business operations. The Plan is broken into eight sections, which the
Court has analyzed as follows:
• Section I is the Work Plan’s Introduction. It has been produced un-redacted.
• Sections II and III, entitled “The Year One Review” and “The Year Two Review,”
contain summary statistics and general descriptions of the Monitor’s activities in prior
years, noting, for instance, that the Monitor “collected, reviewed, and analyzed
approximately 10,000 Company documents totaling approximately 140,000 pages,” and
that the Monitor “observed more than twenty regularly scheduled compliance-related
meetings.” They contain no information about Siemens’ business operations, competitive
landscape, or compliance programs.
• Section IV, entitled “The Compliance Monitor’s Mandate and Year Three Review,”
describes the obligations of Siemens and the Monitor under the plea agreement, and it
generally describes the Monitor’s “risk-based approach,” again without providing any
information about Siemens’ operations or compliance programs.
• Section V, entitled “Substantive Structure of the Year Three Review,” describes the
seventeen “thematic focus areas” that guided the Monitor’s evaluation. One paragraph in
this Section, on page 12 of the Plan, lists Siemens’ purchasing volume, number of
12
supplier relationships, and number of supplier accounts. Aside from this business
information, however, this Section lays out each thematic focus area without reference to
Siemens’ business operations or its compliance policies.
• Section VI, entitled “Methodology of the Year Three Review,” describes the Monitor’s
tools for conducting his evaluation, including document inspection, on-site observation,
informational meetings, analyses, studies, and testing. Again, while this Section
describes the type of employees the Monitor planned to interview, it does not include
specific employee names, nor does it list specific Siemens sectors and business units that
were targeted for interviews.
• Section VII, entitled “Countries of Interest,” describes the specific countries targeted by
the Monitor for analysis. It includes, for each country, “the number of Siemens
employees in each country, new orders, new government orders, joint ventures and
business partnerships, and Siemens’ business development strategy across different
sectors of the economy.” DOJ_0000001, Am. Vaughn Index at 18.
• Finally Section VIII, the Monitor’s “Proposed Schedule,” lays out specific deadlines for
the Monitor’s evaluation. Again, it contains no commercial information.
Other than the “Countries of Interest” Section, the Work Plan does not reveal “basic
commercial operations” that “relate[] to the income-producing aspects of [Siemens’] business.”
See Pub. Citizen Health Research Grp., 704 F.2d at 1290. And unlike the types of information
held to be commercial in this Circuit’s more expansive reading of Exemption 4, for instance
letters describing market conditions, or “documentation of the health and safety experience of [a
company’s products],” the descriptions of the Monitor’s activities do not elaborate on Siemens’
business or describe its competitive landscape. See Baker & Hostetler LLP, 473 F.3d at 319;
13
Pub. Citizen Health Research Grp., 704 F.2d at 1290. The Monitor’s process and methodology
are not “instrumental” to Siemens’ commercial interests, and therefore do not fall within the
scope of Exemption 4. Id. DOJ therefore may only redact Section VII, “Countries of Interest,”
under Exemption 4, and it must remove the remaining Exemption 4 redactions.
b. Year Three Report
To a lesser degree, the Monitor’s Year Three Report also contains subsections wholly
unrelated to Siemens’ commercial operations. Chapter Four of the Report, entitled “The
Monitor’s Year Three Review and Recommendations,” provides the Monitor’s analysis,
opinions, and recommendations for each thematic focus area identified in the Work Plan. Unlike
in the Work Plan, much of this chapter in the Report was properly withheld under Exemption 4
because it contains detailed analyses of Siemens’ business operations, and how those operations
addressed each focus area. However, the chapter also includes subsections covering “General
Principles and Good Practices,” which contain analyses of industry best practices and guidance
obtained from FCPA decisions involving different companies. Those subsections do not discuss
Siemens’ business operations. Nor do they relate to the Monitor’s actions with respect to
Siemens. They are summaries of third party behaviors, useful as a reference source. They do
not “reveal [Siemens’] basic commercial operations,” and DOJ has failed to demonstrate that
Siemens otherwise has a commercial interest in the information related to other companies. Id.
They may not be redacted under Exemption 4.
DOJ properly redacted the remaining portions of the Report. Chapter One is an
introduction describing specific Siemens compliance initiatives and business decisions. Chapter
Two contains details of the Monitor’s Year Three activities, with references to specific Siemens
business operations. Chapter Three, entitled “Financial Controls in Times of Crisis,” describes
14
Siemens’ response to geopolitical crises in various countries, including specific steps taken by
specific business units. These Chapters “actually reveal basic commercial operations, such as
sales statistics, profits and losses, and inventories, or relate to the income-producing aspects of a
business.” See Pub. Citizen Health Research Grp., 704 F.2d at 1290. And Chapters Five and
Six, entitled “Evaluation of Implementation of the Monitor’s Year One [and Two]
Recommendations,” describe changes to Siemens’ compliance policies. They document “the
way [Siemens] implement[ed] [its] compliance programs,” which in this Circuit is “sufficiently
‘instrumental’ to the [company’s] operations to qualify as ‘commercial.’” Pub. Citizen Health
Research Grp. v. HHS, 66 F. Supp. 3d 196, 208 (D.D.C. 2014). To the extent the Report
contains other material that is arguably non-exempt, it is “inextricably intertwined with exempt
portions” such that it need not be un-redacted. Mead Data Cent., Inc., 566 F.2d at 260.
c. Year Three Report Exhibits
The Year Three Report exhibits also contain non-commercial information that DOJ has
improperly redacted under Exemption 4. Exhibit A is the Year Three Work Plan, which should
receive the same treatment as the standalone Work Plan discussed above. Exhibit B contains the
Monitor’s Work Plans for his evaluations of Siemens’ headquarters and specific countries. They
include general descriptions of the Monitor’s past and future activities that are very similar to
descriptions in the primary Work Plan described above, and their redactions should be rolled
back in accordance with DOJ’s changes to the Work Plan redactions. To the extent that they
contain Siemens’ business operations information similar to the information contained in the
“Countries of Interest” Section of the Work Plan, that information may remain redacted.
Exhibits C, D, and E concern Siemens compliance policies and programs, and are therefore
15
commercial information. See Public Citizen Health Research Grp. v. HHS, 66 F. Supp. 3d at
208. They may remain redacted under Exemption 4.
2. Documents Not Reviewed In Camera
The Court’s prior Memorandum Opinion established that DOJ was justified in redacting
the following categories of documents under Exemption 4:
• The Monitor’s presentations to DOJ and SEC summarizing various
aspects of his work;
• Emails and correspondence between the Monitor, Mr. Warin, DOJ
attorneys, and SEC attorneys concerning various aspects of the
monitorship;
• Correspondence between the Siemens Board, DOJ and SEC attorneys
concerning various aspects of the monitorship;
• Siemens compliance policies and descriptions of various aspects of its
compliance programs; and
• Siemens compliance program training materials
See 100Reporters, 248 F. Supp. 3d at 145; Moberly Decl. ¶ 20. As discussed in Section D,
below, the Court holds that DOJ must reprocess these documents and ensure that their redactions
are consistent with the Court’s guidance regarding the documents reviewed in camera.
It is also unclear whether DOJ’s Exemption 4 withholdings and redactions are
coextensive with its Exemption 5 withholdings and redactions for documents not reviewed in
camera. To the extent that more material has been withheld under Exemption 5 than Exemption
4, DOJ’s Exemption 5 arguments regarding each of these categories are discussed in the
following section.
16
B. Exemption 5, Deliberative Process Privilege
DOJ contends that it has properly withheld documents and redacted information pursuant
to FOIA Exemption 5’s deliberative process privilege. The Court agrees in part. Exemption 5
permits an agency to protect “inter-agency or intra-agency memorandums or letters that would
not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. §
552(b)(5). It incorporates the deliberative process privilege, which “protects documents
reflecting advisory opinions, recommendations and deliberations comprising part of a process by
which government decisions and policies are formulated.” Loving v. U.S. Dep’t of Def., 550
F.3d 32, 38 (D.C. Cir. 2008) (internal quotation marks omitted). “The deliberative process
privilege rests on the obvious realization that officials will not communicate candidly among
themselves if each remark is a potential item of discovery and front page news, and its object is
to enhance ‘the quality of agency decisions,’ by protecting open and frank discussion among
those who make them within the Government.” U.S. Dep't of Interior v. Klamath Water Users
Protective Ass'n, 532 U.S. 1, 8–9 (2001) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
151 (1975)). It also “helps to prevent premature disclosure of proposed policies and protects
against public confusion through the disclosure of documents suggesting reasons for policy
decisions that were ultimately not taken.” Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp.
2d 252, 258–59 (D.D.C. 2004).
“To fall within the deliberative process privilege, materials must bear on the formulation
or exercise of agency policy-oriented judgment.” Petroleum Info. Corp. v. U.S. Dep’t of
Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992). A record only qualifies for this privilege if it is
both “predecisional” and “deliberative.” Access Reports v. DOJ, 926 F.2d 1192, 1194 (D.C. Cir.
1991). “A document is predecisional if it is ‘generated before the adoption of an agency
17
policy.’” McKinley v. FDIC, 744 F. Supp. 2d 128, 138 (D.D.C. 2010) (quoting Coastal States
Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). A document is
“deliberative” if it reflects “the give-and-take of the consultative process.” Coastal States, 617
F.2d at 866.
As a threshold matter, to withhold information under the privilege an “agency must
establish ‘what deliberative process is involved, and the role played by the documents in issue in
the course of that process.’” Senate of P.R. ex rel. Judiciary Comm. v. DOJ, 823 F.2d 574, 585–
86 (D.C. Cir. 1987) (quoting Coastal States, 617 F.2d at 868). “In addition to explaining the
‘function and significance of the document(s) in the agency’s decision-making process,’ the
agency must describe ‘the nature of the decision-making authority vested in the office or person
issuing the disputed document(s), and the positions in the chain of command of the parties to the
documents.’” Elec. Frontier Found. v. DOJ, 826 F. Supp. 2d 157, 168 (D.D.C. 2011) (quoting
Arthur Andersen & Co. v. IRS, 679 F.2d 254, 258 (D.C. Cir. 1982)). The Court may also rely on
its own in camera inspection of documents to discern whether the deliberative process privilege
applies. See Phillippi v. CIA, 546 F.2d 1009, 1012–13 (D.C. Cir. 1976) (“It is clear that the
FOIA contemplates that the courts will resolve fundamental issues in contested cases on the basis
of in camera examinations of the relevant documents.”).
DOJ states that it has withheld information in the following categories of documents
pursuant to the deliberative process privilege:
• The Monitor’s work plans and related materials;
• The Monitor’s yearly reports, exhibits, and related materials;
18
• Emails and correspondence between the Monitor, Mr. Warin, DOJ
attorneys, and SEC attorneys concerning various aspects of the
monitorship;
• Correspondence between the Siemens Board, DOJ, and SEC attorneys
concerning various aspects of the monitorship;
• Siemens compliance policies, descriptions of its compliance programs,
and compliance program training materials; and
• Draft court filings involving the Siemens prosecution. 6
Moberly Decl. ¶ 24. DOJ has reasserted that these withholdings are justified by the deliberative
process privilege, and it has presented additional factual material supporting its invocation of that
privilege, including a sampling of documents for in camera review. See DOJ Mem. at 4–6.
100Reporters argues that “[d]espite the opportunity to bolster its case, DOJ has still failed to
satisfy its burden necessary to withhold information under the deliberative process privilege.”
100Reporters Mem. at 4.
The Court first considers whether DOJ has sufficiently identified the deliberative
processes at issue and the role played by the documents in the course of those processes. It then
determines whether the withheld information is predecisional and deliberative. For the reasons
set forth below, the Court holds that DOJ’s reliance on the deliberative process privilege is
justified only in part, because certain withheld information is not predecisional or deliberative.
6
In its prior Memorandum Opinion, this Court held that DOJ properly withheld the draft
filings under the attorney work product privilege also included in FOIA Exemption 5. The Court
declines to evaluate whether they may also be withheld under the deliberative process privilege
because “if a document is properly withheld under any FOIA exemption, the inquiry is over.”
Mezerhane de Schnapp v. U.S. Citizenship and Immigration Servs., 67 F. Supp. 3d 95, 104
(D.D.C. 2014).
19
1. The Deliberative Process at Issue
In its prior Memorandum Opinion, this Court held that the Monitor’s materials were
intra-agency documents subject to Exemption 5, 7 but that DOJ had not “sufficiently identified
the deliberative process or processes at issue” to allow the Court to fully evaluate DOJ’s
deliberative process invocation. 100Reporters, 248 F. Supp. 3d at 149–50. It noted that DOJ’s
characterization of the deliberative process—whether Siemens had satisfied its obligations under
the plea agreement—would “create a four-year umbrella effectively shielding all agency action
from review.” Id. at 153. The process identified was “too nebulous to allow the Court to
conduct the necessary analysis for each withheld record.” 100Reporters, 248 F. Supp. 3d at 153.
Without reaching the questions of whether the withheld materials are predecisional or
deliberative, the Court permitted DOJ to supplement the record to show “(1) the nature of the
specific deliberative process involved (including whether that process resulted in a decision
independent of, although related to, the ultimate compliance decision), (2) the function and
significance of the document in that process, and (3) the nature of the decision-making authority
vested in the document’s author and recipient.” Id. at 154 (quoting Nat’l Sec. Counselors 960 F.
Supp. 2d at 189). It also directed DOJ to provide the Court with one Work Plan and one annual
7
The Court held that the Monitor was a “consultant corollary” to DOJ, making the
Monitor’s documents “intra-agency,” but it did not extend consultant corollary status to the
Siemens Board. 100Reporters, 248 F. Supp. 3d at 151 n.19. In its renewed motion, DOJ has
failed to establish that the Siemens Board did not “represent an interest of its own” in its
communications with DOJ and SEC, and therefore it again fails to obtain consultant corollary
status for the Board. See Klamath Water, 532 U.S. at 11 (noting that the critical factor in
evaluating a consultant corollary argument is whether the consultant executed independent
judgment). DOJ has not put forth any other argument for why correspondence from the Siemens
Board should be considered intra- or inter-agency documents. Accordingly, the correspondence,
DOJ_0003888 to DOJ_0003889, cannot be withheld or redacted under the deliberative process
privilege.
20
Report prepared by the Monitor, including the Report’s exhibits, so that the Court could review
DOJ’s privilege invocations in camera. 100Reporters, 248 F. Supp. 3d at 166. DOJ has refined
its characterization of the deliberative processes at issue, it has supplemented the record with
additional declarations and a chronology of events relevant to its deliberative process argument,
and it submitted the Monitor’s Year Three Work Plan, Year Three Report, and the Report’s
exhibits for the Court’s in camera review.
The parties dispute whether DOJ’s supplemented record has addressed the Court’s
concerns raised in the prior Memorandum Opinion. DOJ argues that it “has now satisfied each
of [the Court’s] three factors through the Duross and Mendelsohn Declarations.” DOJ Mem. at
6. 100Reporters contends that “[w]hile it has used more words to describe the deliberative
processes it has invoked, DOJ’s showing adds little that would allow the Court to find that each
of the three criteria it identified has been satisfied.” 100Reporters Mem. at 6. The Court is not
persuaded by 100Reporters’ contention. For the reasons set forth below, the Court holds that
DOJ has sufficiently described the nature of the specific deliberative processes involved, the
nature of the decision-making authority vested in the documents’ authors and recipients, and the
function and significance of the documents to the processes.
a. The Nature of the Specific Deliberative Processes Involved
DOJ’s supplemented record is sufficient to identify the specific deliberative processes
underlying its Exemption 5 withholdings. For a document to be evaluated under Exemption 5 “a
court must be able ‘to pinpoint an agency decision or policy to which the document
contributed.’” Senate of P.R., 823 F.2d at 585 (quoting Paisley v. CIA, 712 F.2d 686, 698 (D.C.
Cir. 1983)). The agency therefore has the burden to demonstrate that each withheld document
was “generated as part of a definable decision-making process.” Gold Anti–Trust Action Comm.,
21
Inc. v. Bd. of Governors of the Fed. Reserve Sys., 762 F. Supp. 2d 123, 135–36 (D.D.C. 2011);
see also Coastal States, 617 F.2d at 868. A “broad and opaque description of the deliberative
process involved does not provide the Court with enough detail about whether these documents
are deliberative and predecisional.” Trea Senior Citizens League v. U.S. Dep’t of State, 923 F.
Supp. 2d 55, 68 (D.D.C. 2013).
DOJ asserts that the documents at issue supported two deliberative processes during the
monitorship, each of which involved continuous sub-decisions, and it has supplemented the
record with detailed declarations and a chronology describing these processes. DOJ Mem. at 6.
100Reporters argues that DOJ’s showing “does little to describe ‘the nature of the specific
deliberative process involved’ beyond adding more words to the overbroad descriptions this
Court rejected.” 8 100Reporters Mem. at 7. The Court is satisfied with DOJ’s supplemented
factual record.
First, DOJ argues that it evaluated on a continuous basis, punctuated by yearly sub-
decisions, Siemens’ ongoing efforts to comply with its obligations under the plea agreement.
Duross Decl. ¶ 7; Mendelsohn Decl. ¶ 9. In making this determination, DOJ analyzed (1)
whether Siemens committed any further crimes; (2) whether Siemens continued to assist in
DOJ's ongoing investigations of Siemens officers and employees; (3) whether Siemens
cooperated with the Monitor by making its records, facilities, and personnel available to the
8
100Reporters also argues that the Court did not grant DOJ “leave” to argue that there
were two specific deliberative processes covered by the information withheld under Exemption
5. 100Reporters Mem. at 7 n.5. The Court notes that while DOJ did not explicitly bifurcate the
deliberative processes in its prior briefing, the Amended Vaughn Index does state that “the DOJ
and the SEC were engaged in a deliberative process in evaluating [(1)] whether the Monitor was
fulfilling his mandate and [(2)] whether Siemens was complying with the plea agreement.” See
e.g. DOJ_0003188, Am. Vaughn Index at 106–07. DOJ’s refined argument is permissible.
22
Monitor; and (4) whether Siemens' compliance program and internal controls met the minimum
requirements set forth in the plea agreement. See Mendelson Decl. ¶ 9; Duross Decl. ¶ 7–8.
Second, DOJ argues that it evaluated on a continuous basis, again punctuated by yearly
sub-decisions, whether the Monitor was “fulfilling his mandate to ensure that Siemens carried
out its responsibilities under the plea agreement.” Decl. of Joey Lipton (“Lipton Decl.”) ¶ 5,
ECF No. 59-7; Duross Decl. ¶ 9, Mendelsohn Decl. ¶ 10. More specifically, DOJ assessed (1)
whether the Monitor's work plans would enable the Monitor, DOJ, and SEC to evaluate the
quality and effectiveness of Siemens' compliance with anti-corruption laws in the coming years;
and (2) how successfully the Monitor had discharged his mandate over the course of the previous
year. Mendelson Decl. ¶ 10. In making this determination, DOJ analyzed, among other factors,
(1) whether the Monitor's work plans were appropriately detailed to provide Siemens notice of
the Monitor’s movements within the company; (2) whether the Monitor's work plans and reports
focused on Siemens’ past improper conduct; (3) the Monitor’s use of available resources and the
evolution of his approach year-by-year. Duross Decl. ¶ 10.
The DOJ’s supplemented materials show that each deliberative process involved sub-
decisions after each year of the monitorship. Specifically, DOJ decided (1) whether Siemens
breached its obligations under the resolution; (2) whether the monitorship should continue; (3)
whether the monitorship should be extended; or (4) whether the monitorship should be
terminated because Siemens complied with its obligations. Helou Decl. ¶ 12. Mr. Mendelson
and Mr. Duross stated that these sub-decisions arose from meetings between the Monitor, DOJ,
and SEC to discuss the Monitor’s Work Plans and Reports, status reports supplied by the
Monitor, exchanges of drafts and written feedback, and email discussions. See e.g. Mendelson
Decl. ¶ 26; Duross Decl. ¶ 33; Helou Decl. ¶ 11. DOJ made the decisions “with significant input
23
from the monitor and significant reliance on the information [provided by the Monitor]”. Helou
Decl. ¶ 12.
The Mendelson and Duross Declarations also identify approximately when sub-decisions
were made. For instance, Mr. Duross stated that after receiving the Monitor’s Year Two Report
on October 13, 2010, reviewing presentation materials from a December 9, 2010 meeting
between DOJ, SEC and the monitorship team, and deliberating upon additional materials and
conversations with the Monitor, he “concluded that Siemens was making significant progress
towards complying with its plea agreement.” Duross Decl. ¶¶ 20–24. Similarly, Mr.
Mendelsohn stated that after “reviewing the Year One Work Plan, consulting with Mr. Warin,
SEC staff, and others, taking part in the April 1, 2009 monitorship meeting, and reviewing the
other information and records available to me, I concluded that the Year One Work Plan was
reasonable in fulfilling that part of the plea agreement, that the Monitor's Year Two Review
should proceed, and that the Monitor was faithfully discharging his mandate.” Mendelsohn
Decl. ¶ 18.
This evidence is sufficient to define the deliberative processes involved in DOJ’s
oversight of the monitorship. As DOJ noted in its reply brief, courts in this District have upheld
deliberative process assertions on the basis of less detailed showings. For instance, the court in
Wisdom v. U.S. Trustee Program allowed an agency to withhold, under Exemption 5, documents
pertaining to “the performance review process” for a bankruptcy trustee. 266 F. Supp. 3d 93,
105 (D.D.C. 2017). Similarly, the court in Maydak v. DOJ allowed an agency to withhold
documents generated as part of the agency’s identified “continuing process ... [in making]
decisions regarding [plaintiff's] placement, security level and classification.” 362 F. Supp. 2d
316, 326 (D.D.C. 2005); see also Judicial Watch, Inc. v. DOJ, 306 F. Supp. 2d 58, 71 (D.D.C.
24
2004) (holding that the agency’s identified process of “discussion and analysis concerning
priorities and the way to structure research, on evaluating impact and implications of Enron for
purposes of developing policy,” was sufficient to invoke the deliberative process privilege).
Here, DOJ has more precisely described the “specific deliberative process[es] to which the
withheld [documents] contributed.” Elec. Frontier Found., 826 F. Supp. 2d at 168.
100Reporters, on the other hand, relies on Exemption 5 cases in which agencies
described their deliberative processes in much less detail, more akin to DOJ’s first showing in
this case. Nat’l Sec. Counselors involved, rather ironically, a FOIA request for documents
related to an agency’s treatment of FOIA requests, and the court found insufficient the agency’s
description of the deliberative process at issue as “the process by which the [agency] comes to a
final determination in response to FOIA requests.” 960 F. Supp. 2d at 189–90. The court stated
that the agency was required to elaborate on the “specific deliberative process to which the
withheld [document] contributed,” and its general description was “particularly problematic in
the FOIA processing context because, in responding to a FOIA request, an agency often must
make several different types of decisions, e.g., withholding decisions, fee-waiver decisions,
expedited processing decisions, and others.” Id. at 190. In its first summary judgment motion in
this case, DOJ similarly failed to “point to subsidiary decisions that fall underneath the nebulous
umbrella process” it identified, but it has now supplemented the record to detail the two
processes at issue, the standards and criteria guiding those decisions, and the timing and content
of the sub-decisions associated with those processes. 100Reporters, 248 F. Supp. 3d at 153. The
other cases put forward by 100Reporters on this issue involved similarly nebulous agency
process descriptions. See Judicial Watch, 306 F. Supp. 2d at 70 (holding insufficient a reference
25
to “various ongoing policy issues”). In contrast to these conclusory descriptions, DOJ’s detailed
showing is sufficient to describe the nature of the deliberative processes involved.
b. The Nature of the Decision-Making Authority Vested in the Withheld Documents’ Authors
and Recipients
DOJ’s supplemented record is also sufficient to identify the “nature of the decision-
making authority vested in the withheld documents’ authors and recipients.” Nat’l Sec.
Counselors, 960 F. Supp. 2d at 189. “The identity of the parties to the [document at issue] is
important; a document from a subordinate to a superior official is more likely to be
predecisional, while a document moving in the opposite direction is more likely to contain
instructions to staff explaining the reasons for a decision already made.” Coastal States, 617
F.2d at 868; see also Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184–85
(1975); Elec. Frontier Found. v. DOJ, 739 F.3d 1, 9 (D.C. Cir. 2014) (holding that an opinion
from DOJ's Office of Legal Counsel was predecisional because the author was “not authorized to
make decisions about the FBI's investigative policy, so the OLC Opinion cannot be an
authoritative statement of the agency's policy").
DOJ has demonstrated that the monitorship team advised DOJ, but did not have ultimate
decision-making authority. In general, “[a] monitor’s primary responsibility is to assess and
monitor the company’s compliance with the terms of the settlement agreement.” Helou Decl. ¶
8. Siemens’ Statement of Offense established that the Monitor’s Reports would “set[] forth the
Monitor’s assessment and mak[e] recommendations reasonably designed to improve the
effectiveness of Siemens’ program for ensuring compliance with the anti-corruption
laws.” Statement of Offense, United States v. Siemens Aktiengesellschaft, No. 08–367, Attach. 2
¶ 4 (D.D.C. Dec. 15, 2008), ECF No. 15 (emphasis added). Mr. Warin acted in a similar
advisory capacity, as he “was retained by Siemens as Independent U.S. Counsel to the Monitor
26
to provide counsel regarding compliance with the FCPA and to assist the Monitor in the
performance of his duties and responsibilities as set forth in the [DOJ and SEC] agreements.”
Warin Decl ¶ 8; Helou Decl. ¶ 4. He stated that the materials “authored and submitted by the
Monitor and the monitorship team, as well as our communications with the DOJ and SEC,
were… part of a consultative process by which the Monitor and the monitorship team reported
and provided input to the government agencies… on which the DOJ and the SEC based their
determinations.” Warin Decl. ¶ 12.
DOJ has also demonstrated that the documents’ recipients had decision-making authority.
The Amended Deliberative Process Chronology identifies documents’ recipients and the specific
dates on which they were transmitted. See e.g. Am. Chronology at 7–8 (“Joseph Warin sends a
letter to Chuck Duross, Joey Lipton, Kara Brockmeyer, Tracy Price, and Robert Dodge advising
that the monitorship will be executed as outlined in the Year Four Work Plan.”). Mr.
Mendelsohn and Mr. Duross, recipients of the documents at issue, both stated that they were the
primary DOJ decision-makers tasked with evaluating Siemens’ compliance with the plea
agreement, and that they were heavily involved in that evaluation. Mendelsohn Decl. ¶¶ 5–6;
Duross Decl. ¶ 4. Mr. Lipton and Ms. Weinstein, also frequent recipients of the documents, were
the DOJ trial attorneys charged with day-to-day oversight of the monitorship. Lipton Decl. ¶ 3;
Mendelsohn Decl. ¶ 5. Ms. Price, another frequent recipient, was an Assistant Director in the
SEC’s FCPA Unit, responsible for SEC’s supervision of the monitorship. Price Decl. ¶ 1.
100Reporters unconvincingly argues that DOJ has not made a proper showing because it
only describes the decision-making authority of some of the documents’ recipients.
100Reporters Mem. at 14–16. The Court notes that the DOJ’s Amended Deliberative Process
Chronology names nearly every recipient of the Work Plans, Reports, and related documents.
27
Furthermore, DOJ need only provide the Court “enough information to determine whether the
deliberative process privilege applies.” Pub. Employees for Envtl. Responsibility v. EPA, 213 F.
Supp. 3d 1, 15 (D.D.C. 2016). 100Reports cites to no case holding that DOJ must go beyond this
standard, which it has met by describing the decision-making authority of the documents’ most
senior recipients.
c. The Function and Significance of the Withheld Information in DOJ’s Deliberative Processes
The Court also holds that DOJ’s supplemented record is sufficient to identify the function
and significance of the documents at issue. To allow for proper review of an agency’s
deliberative process claim, the agency must explain the withheld documents’ function and
significance to the specific deliberative processes identified. See Arthur Andersen, 679 F.2d at
259; Elec. Frontier Found., 826 F. Supp. 2d at 167–68. This context is necessary for the Court
to evaluate whether material is predecisional, because “if documents are not a part of a clear
‘process' leading to a final decision on the issue, ... they are less likely to be properly
characterized as predecisional.” Coastal States, 617 F.2d at 868. Further, the function and
significance of a document to the agency’s decision-making process is an important factor in
determining whether a document is bound up in the decision-making process, and thus
potentially privileged, or whether it reflects a summary of a decision already-made, and thus not
privileged. See Taxation With Representation Fund v. IRS, 646 F.2d 666, 678–79 (D.C. Cir.
1981) (requiring the disclosure of documents indexed, compiled, and consulted as sources of
agency law by IRS employees). “The need to describe each withheld document when
Exemption 5 is at issue is particularly acute because ‘the deliberative process privilege is so
dependent upon the individual document and the role it plays in the administrative
process.’” Animal Legal Def. Fund, Inc. v. U.S. Dep't of Air Force, 44 F. Supp. 2d 295, 299
(D.D.C. 1999) (quoting Coastal States, 617 F.2d at 867).
28
DOJ argues that its supplemented materials show that the withheld documents “either
played a crucial function in DOJ’s decision-making process or directly reflect its operation.”
DOJ Mem. at 14. 100Reporters contends that DOJ’s descriptions are “conclusory” and fail “to
discuss the specific role that the documents played in the deliberative process described by the
government.” 100Reporters Mem. at 12. DOJ’s argument carries the day.
Mr. Mendelsohn described in detail how the Monitor’s Work Plans, meetings, and
communications with DOJ and SEC served as the basis of DOJ’s continuing evaluation of the
Monitor’s performance. For instance, Mr. Mendelson stated that he and Ms. Weinstein met with
the monitorship team on April 1, 2009 to discuss the Monitor’s progress:
Mr. Warin made a presentation summarizing the main parts of the Work Plan, and
there was a robust discussion about the Work Plan and how the Monitorship was
progressing . . . Additionally, we discussed the importance of the Monitor’s
independence and the various tools, including external and internal resources at
his disposable to carry out his mandate.
Mendelsohn Decl. ¶ 15. Following the meeting, DOJ and SEC provided feedback to the
monitorship team, sought additional information, and received an updated Work Plan.
Mendelsohn Decl. ¶¶ 16–18. Finally, based on this back-and-forth, Mr. Mendelsohn concluded
that “the Year One Work Plan was reasonable in fulfilling that part of the plea agreement, that
the Monitor's Year Two Review should proceed, and that the Monitor was faithfully discharging
his mandate.” Mendelsohn Decl. ¶ 18. Mr. Duross describes a similar process for the Year Two
Work Plan, Duross Decl. ¶¶ 14–18, Year Three Work Plan, Duross Decl. ¶¶ 26–30, and Year
Four Work Plan, Duross Decl. ¶¶ 34–38.
Mr. Duross described a similar process for how DOJ utilized the Monitor’s Reports and
related materials to evaluate Siemens’ compliance with the plea agreement. For instance, he
stated that the Monitor issued his Year Two Report on October 13, 2010, after which he
reviewed the report, exhibits, and the Monitor’s certification. Duross Decl. ¶ 20; see also Am.
29
Chronology at 4. Mr. Lipton then met with the monitorship team, SEC, and Siemens’ financial
control procedures, finance audit group, and compliance group in Munich, Germany on
December 9, 2010 to discuss the Report’s findings and recommendations. Duross Decl. ¶ 22,
Am. Chronology at 4. Finally,
[a]fter deliberating, among other things, upon all the information and records I
had received to date, including the Monitor's work plans for Years One and Two,
the Monitor's Reports for Years One and Two, the associated materials, the
Monitor's certification concerning the effectiveness of Siemens' compliance
program, the presentation materials from the December 9, 2010, meeting, and my
conversations with Mr. Lipton, Mr. Warin, and SEC staff, I concluded that
Siemens was making significant progress towards complying with its plea
agreement and that the Monitor was carrying out his Mandate effectively.
Duross Decl. ¶ 24.
For documents aside from the Monitor’s Work Plans, Reports, and associated materials,
DOJ’s Vaughn Index, supplemented by the Amended Deliberative Process Chronology and
DOJ’s declarations, describe the documents’ content and when and under what circumstances
they were considered by DOJ. For instance, the Vaughn Index describes an April 13, 2009 email
from a DOJ attorney to the monitorship team as “concerning DOJ feedback on the Monitor’s
draft work plan.” See DOJ_0005222, Am. Vaughn Index at 4. Similarly, it describes a February
8, 2011 letter from the Monitor to DOJ and SEC attorneys as “setting forth the Monitor’s
judgment concerning the sufficiency of the work plan relative to his mandate.” DOJ_0005277,
Am. Vaughn Index at 93.
These showings are sufficient for the Court to evaluate the documents’ functions. Courts
in this District have established that agency declarations properly detail documents’ functions
and roles when they describe the documents, specify that they were involved in a specific agency
decision, and state that they were considered by the relevant agency decision-makers. See Taylor
Energy Co. LLC v. U.S. Dep’t of Interior Bureau of Ocean Energy Mgmt., 271 F. Supp. 3d 73,
30
95–97 (D.D.C. 2017) (holding that an agency properly supported its deliberative process
withholdings with a declaration describing documents sent to agency decision-makers as
containing “tentative views” on whether the agency should take specific actions); Citizens for
Responsibility & Ethics in Washington v. DOL, 478 F. Supp. 2d 77, 82 (D.D.C. 2007) (noting
that the agency’s declarant was “accorded a presumption of good faith” regarding a document’s
role) (internal citation omitted). In accordance with that principle, Mr. Duross and Mr.
Mendelshon characterized the Monitor’s Work Plans, Reports, and related materials as
containing opinions regarding Siemens’ compliance with the plea agreement and proposals for
how the Monitor’s mandate should be carried out, and they stated that they relied on those
opinions and proposals when making decisions.
Again, 100Reporters relies on cases in which agencies submitted far more nebulous
descriptions of the function and significance of documents than the DOJ’s showing here.
Hunton & Williams LLP v. EPA involved boilerplate, sparse Vaughn index assertions that, for
instance, withheld documents reflected “analysis, recommendations, and opinions that were
considered as part of the Agency's decision-making process prior to its actions,” and the agencies
involved did not submit additional factual materials providing context for how documents
functioned within the deliberative processes identified. 248 F. Supp. 3d 220, 242–45 (D.D.C.
2017). The agency involved in Animal Legal Def. Fund offered “not a single description of any
of the withheld documents.” 44 F. Supp. 2d at 299. And the agencies in Nat’l Sec. Counselors
failed to provide details about the decision-making processes at issue that would allow the court
to place documents within those processes. 960 F. Supp. 2d at 190–91. Here, to the contrary,
DOJ has provided detailed descriptions of the deliberative processes at issue and how the
withheld documents fit into those processes.
31
2. Evaluation of DOJ’s Deliberative Process Argument
Because DOJ has provided sufficient context for the Court to evaluate its deliberative
process withholdings, the Court turns to that evaluation. To justify withholding information
pursuant to the deliberative process privilege, an agency must demonstrate that the information is
both (1) predecisional; and (2) deliberative. Coastal States, 617 F.2d at 866. The D.C. Circuit
has suggested that “the agency must make the additional showing that disclosure would cause
injury to the decision-making process.” Nat'l Sec. Archive v. CIA, 859 F. Supp. 2d 65, 70
(D.D.C. 2012),aff'd, 752 F.3d 460 (D.C. Cir. 2014) (citing Army Times Publ'g Co. v. U.S. Dep't
of Air Force, 998 F.2d 1067, 1071 (D.C. Cir. 1993)). “The cases in this area are of limited help .
. . because the deliberative process privilege is so dependent upon the individual document and
the role it plays in the administrative process.” Coastal States, 617 F.2d at 867. However, the
cases do establish certain principles to guide the Court’s evaluation.
The evaluation of whether information is predecisional involves both temporal and
qualitative elements. Documents are predecisional if they are “generated before the adoption of
an agency policy.” McKinley, 744 F. Supp. 2d at 138 (quoting Coastal States, 617 F.2d at 866).
They must also be “prepared in order to assist an agency decision maker in arriving at his
decision.” Grumman, 421 U.S. at 184. Predecisional documents include “recommendations,
draft documents, proposals, suggestions, and other subjective documents which reflect the
personal opinions of the writer rather than the policy of the agency.” Coastal States, 617 F.2d at
866. Documents that provide suggestions regarding ongoing agency processes are more likely to
be predecisional. See Maydak, 362 F. Supp. 2d at 326 (protecting information concerning a
federal inmate that was used by agency officials as part of the continuing process of making
decisions regarding the inmate's status); Wisdom, 266 F. Supp. 3d at 105–06 (upholding the use
32
of privilege where the withheld documents consisted of “discussions, deliberations, opinions and
recommendations regarding" an evaluation of a bankruptcy trustee). But documents that embody
final agency decisions are not predecisional. Rockwell Int’l Corp. v. DOJ, 235 F.3d 598, 602–03
(D.C. Cir. 2001) (noting that "as a general principle[, an] action taken by the responsible decision
maker in an agency's decision-making process which has the practical effect of disposing of a
matter before the agency is 'final' for purposes of FOIA," and therefore not exempt).
The evaluation of whether information is deliberative requires an analysis of how the
information was used, and how it related to the deliberative process at issue. Deliberative
information “reflects the give-and-take of the consultative process.” Coastal States, 617 F.2d at
866. The analysis hinges on “whether disclosure of the information would ‘discourage candid
discussion within the agency,’” Access Reports, 926 F.2d at 1195 (quoting Dudman Commc’ns
Corp. v. U.S. Dep’t of Air Force, 815 F.2d 1565, 1567–68 (D.C. Cir. 1987)), and whether the
information “makes recommendations or expresses opinions on legal or policy matters.”
Vaughn, 523 F.2d at 1143–44. The mere fact that a document was “in the most general sense,
part of an intra-agency discussion relating” to an agency decision, does not necessarily establish
that the document was deliberative. Citizens for Responsibility & Ethics in Washington v. DHS,
648 F. Supp. 2d 152, 158–59 (D.D.C. 2009) (holding that requests for factual information
relating to a decision, and requests for assistance in gathering such information, were not
deliberative).
A thorough evaluation of an agency’s deliberative process withholdings is necessary
because the “purpose of Exemption 5 is ‘to protect the deliberative process of the government,
by ensuring that persons in an advisory role would be able to express their opinions freely to
agency decision-makers without fear of publicity [that might] ... inhibit frank discussion of
33
policy matters and likely impair the quality of decisions.’” Bureau of Nat'l Affairs, Inc. v. DOJ,
742 F.2d 1484, 1497 (D.C. Cir. 1984) (quoting Ryan v. DOJ, 617 F.2d 781, 789–90 (D.C. Cir.
1980). “Such harm cannot be merely presumed,” but must be demonstrated by the agency.
Judicial Watch, 297 F. Supp. 2d at 259 (internal citation omitted). Therefore, “[a]n agency cannot
meet its statutory burden of justification by conclusory allegations of possible harm. It must
show by specific and detailed proof that disclosure would defeat, rather than further, the
purposes of the FOIA.” Mead Data Cent., Inc., 566 F.2d at 258.
Applying the principles to this case, the Court holds (1) that the Monitor’s final Work
Plans are neither predecisional, nor deliberative, although drafts and other preliminary materials
are; (2) that portions of the Reports and Report exhibits are not deliberative; and (3) that
Siemens’ training and compliance materials are not deliberative. Each category of documents is
discussed in turn below.
a. Work Plans
DOJ may withhold drafts, feedback, presentations, and other preliminary materials
related to the Work Plans, but the final Work Plans are not predecisional with respect to the
Monitor’s mandate because they represent a final agency sub-decision, and they are not
deliberative with respect to Siemens’ compliance with the plea agreement because they do not
make recommendations or express opinions regarding that process.
DOJ asserts that the Work Plans were generated to assist the primary DOJ decision-
makers—Mr. Mendelsohn and Mr. Duross—in determining, on a yearly basis, whether the
Monitor’s performance was satisfactory and whether his process was sufficient to generate
information and recommendations necessary to allow DOJ to properly supervise Siemens. DOJ
Mem. at 9–12. For instance, the Amended Deliberative Process Chronology indicates that Mr.
34
Warin sent a draft of the Year Two Work Plan to Mr. Mendelsohn on February 8, 2010 in
advance of a February 23 presentation of that plan involving DOJ and SEC. Am. Chronology at
3; Duross Decl. ¶ 15. The plan “reflected the Monitor’s opinions, recommendations, and
deliberations concerning what steps he should take during the second year of the monitorship to
enable him to fulfill his Mandate.” Duross Decl. ¶ 15; Warin Decl. ¶ 25(a). Mr. Duross
reviewed the Work Plan with his subordinate, Mr. Lipton, and evaluated whether it would
“enable the Monitor to effectively carry out his Mandate as described in the plea agreement and
inform DOJ concerning how the Monitor was planning to proceed.” Duross Decl. ¶ 15; Lipton
Decl. ¶ 5. The monitorship team followed up with additional materials on March 24. Am.
Chronology at 3; Duross Decl. ¶ 17. Mr. Duross stated that only after reviewing and evaluating
the initial draft of the Work Plan, attending the presentation and posing follow up questions, and
receiving follow up materials, did he determine that “the Year Two Work Plan was appropriate
to carry out the terms of the plea agreement, that the Monitor’s Year Two Review should
proceed, and that the Monitor was appropriately discharging his Mandate. Duross Decl. ¶ 18.
DOJ’s factual submissions are sufficient to show that the Work Plan-related preliminary
materials are predecisional and deliberative. Exchanges of Work Plan drafts, presentations,
related communications, and feedback from meetings before DOJ and the Monitor finalized each
Work Plan were “antecedent to the adoption of an agency policy,” the final Work Plan. Ancient
Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 513 (D.C. Cir. 2011). They included
the “recommendations, draft documents, proposals, suggestions, and other subjective
documents” necessary to formulate a final Work Plan; the types of documents that exemplify the
deliberative process privilege. Coastal States, 617 F.2d at 866. The Vaughn index and
Chronology also indicate that they were, for the most part, sent from an adviser—the
35
monitorship team—to decision makers at the DOJ and SEC, which further indicate their
predecisional nature. See Tax Analysts v. IRS, 152 F. Supp. 2d 1, 24–25 (D.D.C. 2001)
(protecting memoranda "written by a component office without decision-making authority to a
different component office" that had such authority).
However, each final Work Plan synthesized the predecisional materials that governed its
drafting into a final policy document, which was not predecisional. In other words, under DOJ’s
characterization of the deliberative process at issue—evaluating whether each Work Plan was
appropriate to carry out the plea agreement’s mandate—each final Work Plan was the final
agency document representing DOJ’s sub-decision and laying out its information-gathering
framework going forward. Such final agency documents are not predecisional. Rockwell, 235
F.3d at 602–03. And those documents, particularly documents describing the framework for an
agency’s decision making process, are therefore not protected by the deliberative process
privilege. See Public Citizen, Inc. v. OMB, 598 F.3d 865, 875–76 (D.C. Cir. 2010) (holding that
“[d]ocuments reflecting [the agency’s] formal or informal policy on how it carries out its
responsibilities” should not be withheld, and that “an agency’s application of a policy to guide
further decision-making does not render the policy itself predecisional”); Sterling Drug, Inc. v.
FTC, 450 F.2d 698, 707–08 (D.C. Cir. 1971) (affirming the agency’s withholding of drafts and
memoranda written by individual agency employees, but requiring disclosure of memoranda
“emanating from [the agency] as a whole . . . they are presumably neither argumentative in
nature nor slanted”). Therefore, the final Work Plans are not predecisional with respect to the
Monitor’s mandate.
Furthermore, the final Work Plans were not deliberative with respect to DOJ’s evaluation
of Siemens because they were too attenuated from that process. The D.C. Circuit’s decision in
36
Mapother v. DOJ is instructive of how courts should evaluate work plans and summaries that are
related to an agency’s decision making process. In that case, the D.C. Circuit contemplated
whether to require disclosure of a report providing the U.S. Attorney General with information
necessary to decide whether to prevent an individual from entering the country. 3 F.3d 1533,
1536 (D.C. Cir. 1993). Holding that the report was properly redacted under the deliberative
process privilege, even though much of it was a factual compilation, the Circuit noted that a
“‘salient characteristic’ of information eligible for protection under [the] deliberative process
privilege is its ‘association with a significant policy decision.’” Id. at 1539 (quoting Petroleum
Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1437 (D.C. Cir. 1992)). The report was
therefore deliberative because it was “assembled through an exercise of judgment in extracting
pertinent material from a vast number of documents for the benefit of an official called upon to
take discretionary action.” Id. A portion of the report, however, was not deliberative because as
a factual summary it “reflect[ed] no point of view,” and therefore its “relation to any Justice
Department deliberations [was] simply too attenuated to be protected by the deliberative process
privilege.” Id. at 1540.
The Court’s in camera review indicates that the Work Plans were not closely related to
DOJ’s determination of whether Siemens complied with the plea agreement in a given year.
They summarized past actions taken by the Monitor, described specific actions the Monitor
would take in the coming year, and provided facts about the Siemens subsidiaries to be analyzed.
They did not, however, contain recommendations or policy judgments regarding whether or not
Siemens was in compliance with the plea agreement, and they did not contain any meaningful
“point of view” regarding Siemens’ compliance. See Mapother, 3 F.3d at 1540; Playboy
Enterprises, Inc. v. DOJ, 677 F.2d 931, 936 (D.C. Cir. 1982) (distinguishing materials prepared
37
to assist an agency in “mak[ing] a complex decision” from materials “prepared only to inform”);
Edelman v. SEC, 172 F. Supp. 3d 133, 158–59 (D.D.C. 2016) (rejecting the agency’s Exemption
5 argument for withholding a memorandum describing the agency’s decision making process
without making recommendations); Judicial Watch, Inc. v. USPS, 297 F. Supp. 2d 252, 262–63
(D.D.C. 2004) (denying summary judgment with respect to the agency’s deliberative process
redactions because, although the materials involved a “give-and-take,” the agency did not
“clearly identify the chronologies themselves as factual or policy-oriented”). Because DOJ has
not clearly demonstrated that the Work Plans make “recommendations or express[] opinions on
legal or policy matters,” the Court cannot hold that they are deliberative. Vaughn, 523 F.2d at
1144.
While courts in this District have held in certain circumstances that work plans are
covered by the deliberative process privilege, those plans are typically drafts or are not sub-
decisions in and of themselves, and they more closely relate to the final agency decision at issue
than the Work Plans. For instance, in Hornbostel v. U.S. Dep’t of Interior, the court evaluated
whether an agency could withhold under Exemption 5 certain documents, including work plans,
related to a real estate project. 305 F. Supp. 2d 21, 25–26 (D.D.C. 2003). The court held that the
work plans could be withheld because they were “part of the group thinking and preliminary
actions . . . related to the formulation of the policy decisions behind the proposed project.” Id. at
31. Similarly, in Citizens for Responsibility & Ethics in Washington v. DHS, the court held that
materials related to hurricane evacuation plans and catastrophic planning initiatives could be
withheld because many of them were proposals rather than final work plans, and they dictated
the agency’s response to a natural disaster. 514 F. Supp. 2d 36, 44–46 (D.D.C. 2007). In both of
those cases, the work plans dictated the agency’s actions regarding the process at issue. Here, on
38
the other hand, the final Work Plans dictated DOJ’s steps to compile information that it would
then use in its decision making process. 9 Accordingly, they were not deliberative with respect to
DOJ’s evaluation of Siemens.
b. Annual Reports
The Annual Reports and related drafts, communications, and presentations are in large
part predecisional and deliberative. Each October, the Monitor issued a Report consisting of a
detailed summary of his analyses over the previous year; an overview of specific actions taken
by Siemens in response to crises; recommendations for improvements to Siemens’ policies that
would enhance its compliance with the plea agreement; an evaluation of Siemens’
implementation of prior recommendations; and a certification that Siemens’ compliance program
was effective. See Am. Chronology at 4–5; DOJ_0000419, Am. Vaughn Index at 56. The
monitorship team then met with DOJ and SEC to present the Report and engage in a “robust
discussion” of the Report and related materials, which were circulated to DOJ and SEC. See e.g.
Am. Chronology at 4–5; Warin Decl. ¶¶ 25(b)–(d); Mendelsohn Decl. ¶ 24. The Reports, and
the monitorship team’s related communications with DOJ and SEC, were generated to assist the
primary DOJ decision-makers in deciding, on a yearly basis, whether to (1) inform the court that
Siemens had breached the terms of its plea agreement; (2) continue the monitorship as planned;
(3) extend the monitorship; or finally (4) inform the court that Siemens had complied with its
obligations and no longer required the Monitor’s oversight. Helou Decl. ¶ 11. Mr. Duross and
9
The final Work Plans are analogous to a court’s final dispositions of discovery disputes.
Those dispositions may have some bearing on the court’s later summary judgment decision, but
they are too attenuated to be considered deliberative with respect to summary judgment. See
Wolfe v. HHS, 839 F.2d 768, 775 n.8 (D.C. Cir. 1988) (noting that “courts have long looked
by analogy to the needs of their own decision-making processes to assess claims of privilege
based on the needs of executive decision-making”).
39
Mr. Mendelsohn stated that only after considering the Monitor’s certifications, Reports and
related materials, and correspondence from all prior monitorship years did they make this
decision. See e.g. Duross Decl. ¶ 33, Mendelsohn Decl. ¶ 25.
DOJ’s factual submissions, in combination with the Court’s in camera review, indicate
that the Reports and related materials were generated before the agency’s yearly sub-decisions
regarding Siemens’ compliance, and that they then played a key role in facilitating those
decisions. The Reports “detail[ed] the Monitor’s assessments of the development and
implantation [of] Siemens’ anti-corruption compliance program . . . and the Monitor’s
recommendations to Siemens.” DOJ_0000419, Am. Vaughn Index at 56. Drafts of the Reports,
DOJ’s feedback, and related presentations and communications embody the collaborative
process by which the Reports were finalized. These materials therefore contained the
“recommendations, draft documents, proposals, suggestions, and other subjective documents
which reflect the personal opinions of the writer rather than the policy of the agency” that the
D.C. Circuit considers core Exemption 5 material. Coastal States, 617 F.2d at 866. Because
they made recommendations, proposed courses of action, expressed opinions, and reflected
feedback relevant to DOJ’s evaluations of the Monitor and Siemens, each of these records
“necessarily reflects the give-and-take of the agency’s deliberative process.” AFGE v. U.S. Dep't
of Commerce, 907 F.2d 203, 208 (D.C. Cir. 1990).
DOJ has also sufficiently detailed the harm to its decision-making processes that could
arise from disclosure of the Reports and related materials. First, several declarants stated that
disclosure of correspondence and documents exchanged between and among the monitorship
team, DOJ, and SEC relating to whether Siemens was complying with the plea agreement could
chill such deliberations. Lipton Decl. ¶ 6; Mendelsohn Decl. ¶¶ 29–30; Warin Decl. ¶¶ 28–30.
40
Chilling of frank, robust discussion of policy matters is exactly the type of harm Exemption 5 is
intended to guard against. See Lewis-Bey v. DOJ, 595 F. Supp. 2d 120, 133 (D.D.C. 2009)
(upholding non-disclosure of ATF agents’ recommendations to superiors regarding the strengths
and weaknesses of agency action, because disclosure would chill such recommendations).
Second, the declarants stated that Siemens provided much of the information used to
generate the Reports, and that public disclosure of such information is likely to chill companies’
provision of that information. Helou Decl. ¶ 13; Price Decl. ¶ 13; Duross Decl. ¶¶ 46–47;
Mendelsohn Decl. ¶ 32. This assertion is well taken. Companies provide full access to monitors
on the condition that the information they share will remain confidential. See Helou Decl. ¶ 14;
Warin Decl. ¶ 26 (noting that certain documents were submitted bearing the marking,
“Confidential Treatment Requested Under FOIA”); DOJ_0002039, Am. Vaughn Index at 66
(identifying a presentation “describing the role of middle management in Siemens’ anti-
corruption program,” stamped with the statement, “for internal use only”). If they believe that
potentially sensitive information will not remain confidential, they are unlikely to provide it.
If monitored companies are not as forthcoming with information in the future, agency
decision makers will be forced to rely on lower-quality information. Impairment of the quality
of agency decision making weighs in favor of withholding material under FOIA Exemption 4,
Nat’l Parks Conservation Ass’n, 498 F.2d at 770, but courts in this District have also taken that
consideration into account when evaluating deliberative process withholdings. See Bloomberg,
L.P. v. SEC, 357 F. Supp. 2d 156, 169 (D.D.C. 2004) (protecting notes taken by SEC officials at
a meeting with companies subject to SEC oversight; holding that release would "severely
undermine" SEC's ability to gather information from regulated entities and in turn undermine
41
SEC's ability to deliberate on the best means to address policymaking concerns in such areas).
That consideration weighs in favor of withholding the Reports here.
While much of the Year Three Report was properly redacted under Exemption 5, the
“General Principles and Good Practices” subsections, which summarize industry best practices
and guidance obtained from FCPA decisions involving different companies, are not deliberative.
These subsections were no doubt beneficial to Siemens in crafting its policies, and helpful for
DOJ as a point of comparison, but they summarize behaviors and agency decisions that were
made previously and that are unrelated to Siemens. The deliberative process privilege does not
protect “documents that merely state or explain agency decisions.” Judicial Watch, Inc. v. HHS,
27 F. Supp. 2d 240, 245 (D.D.C. 1998). These subsections are therefore not covered by the
deliberative process privilege and may not be redacted under Exemption 5.
c. Report Exhibits
Unlike the Reports and related materials, the Report exhibits reviewed by the Court in
camera are not deliberative because they contain purely factual material or are too attenuated
from DOJ’s decision making process to be considered deliberative. The Year Three Report
exhibits A, B, and C include the Monitor’s Year Three Work Plan and final versions of certain
sector-specific work plans. As discussed above, such materials may not be withheld under the
deliberative process privilege. Exhibits D and E contain lists of Siemens’ compliance trainings,
meetings, and walkthroughs. They are akin to the chronology that the Circuit ordered disclosed
in Mapother because they “reflect[] no point of view,” and merely recite facts. 3 F.3d at 1536.
The Amended Vaughn index indicates that other Reports included similar exhibits. For instance,
the Year One Report included “the Siemens Business Conduct guidelines,” and “the English
translation of a memorandum about informational meetings given in advance to participants.”
42
DOJ_0004329, Am. Vaughn Index at 25. While these materials may be redacted under
Exemption 4 as commercial information, they may not be redacted under Exemption 5.
d. Siemens Training Materials
Similarly, Siemens’ compliance and training materials are not deliberative because they
do not reflect the “give-and-take of the consultative process.” Coastal States, 617 F.2d at 866.
The DOJ’s factual submissions indicate that the Monitor sent these documents to DOJ as
reference material, but they were originally generated by Siemens. See DOJ_005248, Am.
Vaughn Index at 36 (describing a letter enclosing a “copy of Siemens’ employee training
program.”). DOJ does not indicate that they were revised pursuant to the process of evaluating
Siemens, nor does it indicate that it provided any feedback on those materials.
The Court does not doubt that DOJ reviewed Siemens’ compliance policies and training
materials during its decision-making process, but again, mere consideration of a document in
relation to an identified deliberative process does not automatically pull that document within the
privilege’s scope. See Pub. Emps. For Envtl. Responsibility v. EPA, 288 F. Supp. 3d 15, 26–27
(D.D.C.) (holding that an agency could not withhold an email discussion of a relevant study,
despite the agency’s contention that the discussion “played some role in decisions” because the
agency failed to show that it was “generated as part of a definable decision-making process”)
(quoting Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 762 F.
Supp. 2d 123, 136 (D.D.C. 2011). These materials may not be redacted or withheld under
Exemption 5.
* * *
For the foregoing reasons, the Court holds that DOJ has shown that certain categories of
intra-agency information were both predecisional and deliberative, but it failed to make that
43
showing with respect to other categories. The Court therefore grants in part summary judgment
in favor of DOJ’s Exemption 5 withholding of this information.
More specifically, DOJ has justified its Exemption 5, deliberative process withholdings
within the following categories of documents:
• The Monitor’s yearly Reports—both drafts and final versions—with the
exception of the “General Principles and Good Practices” subsections in
the Year Three Report reviewed in camera, and similar subsections in the
other Reports;
• The Monitor’s Draft Work Plans
• The Monitor’s presentations to DOJ and SEC regarding the Reports, Work
Plans, and his evaluation of Siemens’ compliance with the plea agreement;
and
• Emails and correspondence amongst the Monitor, Mr. Warin, DOJ
attorneys, and SEC attorneys related to the Reports and Work Plans,
including feedback and proposed amendments to those documents.
On the other hand, DOJ has not justified its Exemption 5, deliberative process
withholdings within the following categories of documents:
• The Monitor’s final Work Plans;
• The “General Principles and Good Practices” subsections of the Year
Three Report, and subsections in other Reports containing similar
material;
• Exhibits to the Monitor’s Reports;
44
• Siemens’ compliance policies, descriptions of its compliance programs,
videos related to its compliance programs, and its compliance training
materials.
To the extent that DOJ’s Exemption 5 withholdings in these categories of
documents are not covered by other Exemptions, DOJ may not withhold the information.
As discussed below, in the Court’s segregability section, DOJ must reexamine the
withheld and redacted documents to ensure that its Exemption 5 withholdings comply
with the guidance set forth in this section.
C. Exemptions 6 and 7(C)
DOJ also argues that it has properly withheld personal information pursuant to FOIA
Exemptions 6 and 7(C). This Court agrees in part.
The Court previously held that DOJ may rely on Exemption 7(C) to justify withholding
personal information because the records at issue were compiled for a law enforcement purpose.
248 F. Supp. 3d at 161. “‘Exemption 7(C) is more protective of privacy than Exemption 6’ and
thus establishes a lower bar for withholding material.” Prison Legal News v. Samuels, 787 F.3d
1142, 1146 n.5 (D.C. Cir. 2015) (quoting ACLU v. DOJ, 655 F.3d 1, 6 (D.C. Cir. 2011)). Thus,
because DOJ relies on Exemptions 6 and 7(C) coextensively, Moberly Decl. ¶ 34, the Court need
engage only in an analysis of whether DOJ properly redacted information and withheld
documents pursuant to Exemption 7(C). See Roth v. DOJ, 642 F.3d 1161, 1173 (D.C. Cir. 2011)
(noting that there is “no need to consider Exemption 6 separately [where] all information that
would fall within the scope of Exemption 6 would also be immune from disclosure under
Exemption 7(C)”); Kleinert v. Bureau of Land Mgmt., 132 F. Supp. 3d 79, 91 (D.D.C. 2015)
45
(“[W]hen an agency cites both exemptions to justify a set of redactions, courts often first analyze
those redactions under Exemption 7(C), turning to Exemption 6 only if necessary.”).
Exemption 7(C) excludes “records or information compiled for law enforcement
purposes . . . to the extent that the production of such law enforcement records or information . . .
could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(7)(C). When evaluating Exemption 7(C) withholdings, a court first must
determine if there is a privacy interest in the information to be disclosed. See ACLU, 655 F.3d at
6–7. If the court finds a privacy interest, it must balance that privacy interest against the public
interest in disclosing the information, considering only the public interest “that focuses on ‘the
citizens’ right to be informed about what their government is up to.’” Davis v. DOJ, 968 F.2d
1276, 1282 (D.C. Cir. 1992) (quoting DOJ v. Reporters Comm. for Freedom of the Press, 489
U.S. 749, 773 (1989)). It is the FOIA requester’s obligation to articulate a public interest
sufficient to outweigh the privacy interest, and the public interest must be significant. See Nat’l
Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004).
DOJ states that it has redacted personal information, under Exemptions 6 and 7(C), in the
following types of documents:
• Monitor’s Work Plans;
• Monitors Reports and exhibits;
• Emails and correspondence between the Monitor, Mr. Warin, DOJ, and SEC
attorneys;
• Correspondence between the Siemens Board, DOJ, and SEC attorneys;
• Siemens compliance policies and descriptions of its compliance programs;
• Siemens training materials; and
46
• Draft court filings.
Moberly Decl. ¶ 30. The Court’s in camera review of the Year Three Work Plan, Report, and
exhibits indicates that the personal information withheld consisted of names and job titles of
Siemens executives, non-executive employees, third parties, and members of the monitorship
team involved in witness interviews. After the Court’s prior Memorandum Opinion, DOJ agreed
to disclose the names and office contact information of DOJ and SEC employees involved in the
Siemens monitorship. DOJ Mem. at 28 n.11; 100Reporters Mem. at 17; see also Am.
Chronology at 2 (“Joseph Warin sends a letter to Mark Mendelsohn, Lori Weinstein, Cheryl
Scarboro, Tracy Price, Denise Hansberry, and Reid Muoio”). DOJ continues to withhold
personal information of the remaining categories of individuals.
The Court will first discuss the privacy interests at stake, then balance those interests
against the public interest served by disclosure of the withheld personal information. For the
reasons stated below, the Court holds that DOJ properly withheld personal information related to
Siemens non-executive employees and third-party witnesses, but improperly withheld such
information related to the monitorship team and Siemens executives, including Board Members.
1. Privacy Interest
Exemption 7(C) may be applied on a categorical basis. See Reporters Comm., 489 U.S.
at 777. To justify such an approach, however, DOJ must identify categories of individuals
whose personal information has been withheld, and it must explain the privacy interests of each
category so that the Court can evaluate whether the statutory requirements for exemption are
satisfied for that category. See Prison Legal News, 787 F.3d at 1149–50; 100Reporters, 248 F.
Supp. 3d at 165. Only then can the Court conduct the necessary balancing of the privacy
interests in nondisclosure against the public interest in disclosure.
47
In this Court’s prior Memorandum Opinion, it noted that DOJ identified several
categories of individuals whose personal information has been redacted, but “made little effort,
in its Amended Vaughn Index or its declarations, to differentiate the privacy concerns at stake.”
Id. at 163. Ms. Moberly stated that identification of government personnel “could subject them
to harassment both in the conduct of their official duties and their private lives,” while
identification of private individuals “engenders comment and speculation and could produce an
unfair stigma which would expose the individual to harassment or criticism,” Moberly Decl. ¶
32, but she did not describe how these potential harms could impact the different groups of
individuals whose information was withheld. For instance, DOJ did not differentiate the
interests of “regular Siemens employees and Board Members.” 100Reporters, 248 F. Supp. 3d at
164. The Court held that “DOJ’s failure to establish the different privacy interests at stake
makes it impossible for the Court to balance the private interests with the public’s interest in
knowing ‘what their government is up to.’” Id. at 165 (quoting Reporters Comm., 489 U.S. at
773).
DOJ has now more precisely categorized its Exemption 7(C) withholdings, but it has
again failed to fully flesh out the privacy interests for each category. In its reply brief, it states
that it is now withholding the following categories of personal information: (1) “Siemens
Representatives,” including senior executives, management, and lower level employees; (2)
monitorship team members; and (3) other third parties. U.S. Dep’t Justice’s Reply Supp.
Renewed Mot. Summ. J. (“DOJ Reply”) at 14, ECF No. 91. These categories can more simply
be broken down into: (1) members of the monitorship team; (2) Siemens non-executives and
other third-party witnesses; and (3) Siemens executives, including Board Members. DOJ argues
that members of the monitorship team are “akin to law enforcement investigators” and have the
48
privacy interests of such investigators. Id. at 18. It argues that Siemens non-executive
employees and third-party witnesses have the privacy interests of law enforcement witnesses
because they supplied key information to the monitor and DOJ. Id. at 16–17. And it argues that
“Siemens board members . . . possess similar substantial privacy interests [to non-executive
employees] by virtue of their role as private individuals and law enforcement witnesses.” Id. at
17.
100Reporters correctly notes that the DOJ’s “additional affidavits—from Messrs.
Mendelsohn and Duross—concern only DOJ’s invocation of the deliberative process under
Exemption 5.” 100Reporters Mem. at 18. Aside from statements in its reply brief and Ms.
Moberly’s declaration, DOJ provides no more specific reasons why the categories of personal
information should be afforded the privacy interests claimed. After analyzing DOJ’s conclusory
arguments with respect to each category, the Court holds that Siemens non-executive employees
and third parties have a substantial privacy interest in nondisclosure of their personal
information, but the monitorship team and Siemens executives do not.
a. Monitorship Team Members
Monitorship team members have a de minimis privacy interest in the nondisclosure of
their personal information. DOJ argues that these individuals are akin to law enforcement
investigators, and that in the D.C. Circuit their personal information may categorically be
withheld unless 100Reporters puts forth “compelling evidence that the agency engaged in illegal
activity.” DOJ Reply at 15 (quoting SafeCard Servs. v. SEC, 926 F.2d 1197, 1206 (D.C. Cir.
1991)). The Court grants that the Circuit’s precedent suggests this view. “The D.C. Circuit has,
after all, ‘consistently supported nondisclosure of names or other information identifying
individuals appearing in law enforcement records, including investigators, suspects, witnesses,
49
and informants.’” Kleinert, 132 F. Supp. 3d at 93 (quoting Schrecker v. DOJ, 349 F.3d 657, 661
(D.C. Cir. 2003)). However, DOJ still must show that the “broad privacy rights” afforded to
“suspects, witnesses, and investigators” are implicated with respect to the individuals whose
personal information it seeks to redact here. See SafeCard, 926 F.2d at 1205 (quoting Bast v.
DOJ, 665 F.2d 1251, 1254 (D.C. Cir. 1981)).
In light of these principles, the Court is not persuaded that the monitorship team has a
substantial privacy interest in nondisclosure of their names and titles. While “[i]t is easy to see
why [the dangers of disclosure] often exist for investigators, suspects, witnesses, and
informants… especially (though not exclusively) in the context of criminal investigations,” DOJ
has failed to demonstrate why the monitorship team faces such dangers here. Kleinert, 132 F.
Supp. 3d at 93 (internal quotation marks omitted). Private sector FCPA attorneys actively solicit
monitorship business, and they advertise their participation in FCPA cases. See Gibson, Dunn &
Crutcher LLP, Biography: F. Joseph Warin, https://www.gibsondunn.com/lawyer/warin-f-
joseph/ (last visited May 7, 2018) (“Served as FCPA counsel for first non-US compliance
monitor in connection with one of the largest ever FCPA resolutions.”). Furthermore, DOJ has
now disclosed the names and addresses of the government attorneys working hand-in-hand with
the monitorship team, and it has disclosed the name of the Monitor and his U.S. counsel. See
generally Am. Chronology.
DOJ’s conclusory reasoning regarding the monitorship team’s privacy interest is
essentially indistinguishable from reasoning rejected in other recent cases in this District. For
instance, in Stonehill v. IRS, an agency sought to withhold under Exemption 7(C) the name of a
revenue agent who participated in an investigation of the plaintiff. 534 F. Supp. 2d 1, 11 (D.D.C.
2008). In support of that withholding, the agency put forth the “generic reasons that disclosure
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‘could cause harassment and/or undue embarrassment or could result in undue public attention
which would constitute an unwarranted invasion of personal privacy.’” Id. The court
acknowledged that the revenue agent could have a privacy interest, but it held that the agency
could not withhold the agent’s name because “the government offers no explanation as
to why disclosure of this particular agent's name would cause embarrassment, undue harassment,
etc.” Id. at 12. Similarly, in United Am. Fin., Inc. v. Potter, the court held that an agency could
not withhold the names of Office of Inspector General special agents where the agency’s
declarations “set forth no factual basis to support any concerns of harassment, intimidation, or
physical harm.” 667 F. Supp. 2d 49, 60 (D.D.C. 2009). Because DOJ has failed to delineate the
specific harm faced by the monitorship team from the disclosure of their personal information,
and because it has released the personal information of similarly-situated individuals, the privacy
interests for this group are de minimis.
b. Siemens Non-Executives, and Other Third Parties
Siemens non-executive employees and other third parties have a substantial privacy
interest in non-disclosure of their personal information. DOJ argues that “the Siemens
representatives and employees who provided information to the Monitor are akin to law
enforcement witnesses, who have substantial privacy interests in avoiding disclosure of the fact
that they provided information in a law enforcement proceeding and in avoiding the disclosure of
any information that would tend to identify them.” DOJ Reply at 16. At the very least,
according to DOJ, these employees are entitled to the privacy protections of private third parties.
Id. at 17. With respect to this class of individuals, DOJ’s argument is well taken.
“Exemption 7(C) takes particular note of the ‘strong interest’ of individuals, whether they
be suspects, witnesses, or investigators, ‘in not being associated unwarrantedly with alleged
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criminal activity.’” Dunkelberger v. DOJ, 906 F.2d 779, 781 (D.C. Cir. 1990) (quoting Stern v.
FBI, 737 F.2d 84, 91–92 (D.C. Cir. 1984)). That interest “extends to persons who are not the
subjects of the investigation but who may nonetheless have their privacy invaded by having their
identities and information about them revealed in connection with the investigation.” Computer
Prof'ls for Social Responsibility, 72 F.3d at 904. Accordingly, Exemption 7(C) “affords broad
privacy rights” to witnesses and informants in criminal investigations. Senate of the Com. of
P.R. on Behalf of Judiciary Comm. v. DOJ, 823 F.2d 574, 588 (D.C. Cir. 1987); see also Piper v.
DOJ, 374 F. Supp. 2d 73, 78–79 (D.D.C. 2005) (“[I]ndividuals who provide information to the
law enforcement authorities . . . have a privacy interest and their identities have traditionally
been protected from disclosure by Exemption 7(C).”)
Accordingly, employee-witnesses have a substantial privacy interest in nondisclosure of
their personal information. For instance, in Brown v. EPA, this Court held that the privacy
interest of employee-witnesses in an agency’s internal investigation was substantial “because
disclosure could subject them to unwarranted questioning concerning the [agency] investigation,
subpoenas issued by private litigants in civil suits, and harassment from co-workers or other
individuals.” 384 F. Supp. 2d 271, 278 (D.D.C. 2005) (quoting Croskey, 9 F. Supp. 2d at 12).
Similarly, in L&C Marine Transp., Ltd. v. United States, the 11th Circuit protected the names of
employee-witnesses interviewed by the defendant agency during an investigation because
disclosure “could cause one or more of them problems at their jobs and with their livelihood,”
and it noted that “[t]here can be little doubt that an employee will feel more free to talk
with federal law enforcement officials about possible employer violations if he feels his name
will not be attached to his statements.” 740 F.2d 919, 922–23 (11th Cir. 1984).
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The Siemens employees—both mid-level managers and lower level personnel—and other
third-party witnesses played an important role in the Siemens investigation’s success. Mr. Warin
stated that the Monitor and his team met with over 2,300 such individuals in service of his
evaluation of Siemens, and while not all those individuals’ names are contained in DOJ’s
records, a fair number of them are. See Warin Decl. ¶ 22, DOJ Reply at 14. DOJ’s declarations
suggest that these meetings and the cooperation of Siemens’ employees were key aspects of the
Monitor’s evaluation process, and therefore key aspects of DOJ’s monitorship oversight. Warin
Decl. ¶ 27(c); Duross Decl. ¶ 46; see also Notice Regarding Corporate Monitorship, United
States v. Siemens Aktiengesellschaft, No. 08-cr-367 (RJL) (D.D.C.) (ECF No. 23). The
employee witnesses and third-party witnesses face potential harassment and retaliation from their
superiors for disclosing information about the company. See Brown, 384 F. Supp. 2d at 278.
They therefore have a substantial privacy interest in the non-disclosure of their personal
information, particularly because the potential for harassment may make potential witnesses
reluctant to consent to interviews, which could chill agencies’ ability to gather information.
c. Siemens Executives
Finally, Siemens executives, including Board Members, have a de minimis privacy
interest in the non-disclosure of their personal information. Like its argument regarding the
monitorship team’s privacy interest, DOJ’s argument with respect to this category fails to
describe the harm that Siemens executives would face should their personal information be un-
redacted, except to claim that disclosure could “engender comment and speculation and could
produce an unfair stigma which could expose the individual to harassment or criticism.” See
DOJ_0003888, Am. Vaughn Index at 143–144. Siemens’ plea and monitorship is public
knowledge, as are the names of Siemens’ executives and Board members. DOJ has gone so far
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as to specifically identify the titles of executives participating in redacted correspondence. See
DOJ_0003888, Am. Vaughn Index at 143–144 (“A letter from the Chairman of the Supervisory
Board of Siemens and the President and CEO of Siemens, respectively”). DOJ has failed to
make a “particularized showing” of why Siemens’ executives have a privacy interest in
nondisclosure of their personal information, in light of the substantial volume of publicly
available personal information related to their involvement in the monitorship. Am. Immigration
Lawyers Ass’n v. Exec. Office for Immigration Review, 830 F.3d 667, 675 (D.C. Cir. 2016). Its
declarations “set forth no factual basis to support any concerns of harassment, intimidation, or
physical harm,” that would justify a stronger privacy interest. United Am. Fin., Inc., 667 F.
Supp. 2d at 60.
2. Public Interest Balancing
The public interest in disclosure of the personal information at issue here weighs in favor
of disclosing the names of monitorship team members and Siemens executives, but not Siemens
non-executives and third parties. Having analyzed the privacy interests at issue, the Court must
balance those interests against the public interest in disclosing the redacted personal information,
considering only the public interest “that focuses on ‘the citizens’ right to be informed about
what their government is up to.’” Davis, 968 F.2d at 1282. “[T]he relevant question” in this
public interest analysis “is not whether the public would like to know the names… but whether
knowing those names would shed light on [DOJs] performance of its statutory duties.” McGehee
v. DOJ, 800 F. Supp. 2d 220, 234 (D.D.C. 2011); see also Reporters Comm., 489 U.S. at 773.
100Reporters claims that disclosure of the personal information at issue would assist the
public in evaluating whether “DOJ’s Monitorship program is an effective way of rehabilitating
bad corporate actors and that it can act as an effective deterrent against future corporate
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malfeasance.” 100Reporters Mem. at 20. With respect to the monitorship team, it argues that
“[t]he public has a strong interest in knowing exactly which officials are involved in assessing
the violator’s remediation efforts, the offices they hold, and the roles they played.” Id. at 19. It
also argues that knowledge of Siemens employee and third-party witness names “will enable
Plaintiff to learn about the scope of the monitorship, whether the DOJ and Monitor investigated
all of the business units implicated in the FCPA violations, and would inform the public as to the
intrusiveness of monitorships in general.” Id. at 20–21. This information would also “facilitate
Plaintiff’s reporting” and “[a]llow follow-up that sheds light on the effectiveness of the
monitorship program.” Id. at 20, 24–25. DOJ simply contends that the only public interest
sufficient to overcome the privacy interests at stake is “to ‘shed . . . light on the unlawful conduct
of any Government agency or official.” DOJ Reply at 21 (quoting Peay v. DOJ, No. 04-1859,
2006 WL 83497, at *4 (D.D.C. Jan. 12, 2006)).
100Reporters correctly asserts that courts have occasionally found a cognizable public
interest in disclosure of personal information in cases that do not involve government
misconduct, but those cases involved either public interests closely tied to the personal
information withheld, or overbroad withholdings. For instance, the D.C. Circuit has ordered
DOJ to disclose personal information about individuals subjected to warrantless cell phone
tracking because that information would allow the public to evaluate “the kinds of crimes the
government uses cell phone tracking data to investigate” and “how often prosecutions against
people who have been tracked are successful, thus shedding some light on the efficacy of the
technique.” ACLU, 655 F.3d at 12–15. Without this information, the public could not evaluate
the “scope and effectiveness of warrantless cell phone tracking as a law enforcement tool.” Id. at
13. Likewise, in Citizens for Responsibility & Ethics in Washington v. DOJ, the court held that
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DOJ could not categorically withhold under Exemption 7(C) all records concerning its publicly
known investigation of a member of the House of Representatives because “[t]he public needs to
know how DoJ carried out its statutory duties to investigate allegations of bribery and corruption
of members of Congress.” 840 F. Supp. 2d 226, 236 (D.D.C. 2012).
Unlike the clear link in ACLU between the personal information sought and the public
interest, here it is unclear exactly how the names and job titles of Siemens non-executives and
third-party witnesses would shed light on DOJ’s performance above and beyond other available
information. 100Reporters claims that the information “will enable Plaintiff to learn about the
scope of the monitorship,” 100Reporters Mem. at 20–21, but the public already has access to
information revealing the scope of the monitorship and the extent of the monitor’s intrusiveness
into Siemens’ operations. See Notice Regarding Corporate Monitorship, United States v.
Siemens Aktiengesellschaft, No. 08-cr-367 (RJL) (D.D.C.) (ECF No. 23 ) (“the Monitor
conducted on-site or remote reviews of Siemens’ activities in 20 countries… reviewed over
51,000 documents totaling more than 973,000 pages in 11 languages; [and] conducted interviews
of or meetings with over 2,300 Siemens employees.”). There is not an “appropriate nexus”
between disclosure of the personal information of Siemens employees and third-party witnesses
and the public’s interest in the “intrusiveness of monitorships” sufficient to overcome the
substantial privacy interest in nondisclosure. Seized Prop. Recovery, Corp. v. U.S. Customs and
Border Prot., 502 F. Supp. 2d 50, 59–60 (D.D.C. 2007) (“[A]ny documents containing
information about [the agency’s] performance or behavior would advance this purpose regardless
of whether they contained the names and addresses of individuals whose property was subject to
forfeiture.”). Accordingly, DOJ is justified in withholding this information under Exemption
7(C).
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On the other hand, the public interest in disclosing the names of monitorship team
members and Siemens executives outweighs the de minimis privacy interest in non-disclosure of
that information. The public has an interest in the identities of government employees and
advisers charged with overseeing a significant FCPA investigation, because the seniority and
experience of those individuals is a strong indication of how seriously DOJ considered its
responsibility to ensure that Siemens complied with its plea agreement. This interest outweighs
the de minimis privacy interest held by the monitorship team. Similarly, the public has an
interest in understanding how DOJ interacted with the key Siemens decision makers, particularly
since the public already knows that such interactions occurred. See Citizens for Responsibility
and Ethics in Washington v. DOJ, 840 F. Supp. 2d at 236 (holding that DOJ could not withhold
personal information of an investigation target where the “investigation of him is not a secret and
. . . he himself publicly announced the results of that investigation and discussed his involvement
in the proceedings”). This interest outweighs the de minimis privacy interest held by Siemens
executives, including the Board of Directors.
* * *
For the foregoing reasons, the Court holds as follows. First, DOJ has justified its
Exemption 7(C) withholding of the personal information of Siemens non-executives and third-
party witnesses because those individuals have a substantial privacy interest in nondisclosure,
and 100Reporters has not asserted a public interest sufficient to overcome that privacy interest.
Second, DOJ has failed to justify its Exemption 7(C) withholding of the personal information of
members of the monitorship team and Siemens executives, including the Board of Directors,
because it failed to demonstrate that those individuals have more than a de minimis privacy
interest in nondisclosure, and disclosure would allow the public to evaluate DOJ’s approach to
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the monitorship. Because the Exemption 7(C) bar for withholding information is lower than the
Exemption 6 bar, DOJ also cannot justify its coextensive Exemption 6 withholding of this
information.
D. Segregation of Non-Exempt Material
The final issue the Court must address is segregability. Because “the focus of FOIA is
information, not documents . . . an agency cannot justify withholding an entire document simply
by showing that it contains some exempt material.” Mead Data Cent., Inc., 566 F.2d at 260.
Rather, FOIA requires the agency to release “[a]ny reasonably segregable portion of a record . . .
after deletion of the portions which are exempt.” 5 U.S.C. § 552(b); see also Mead Data Cent.,
Inc., 566 F.2d at 260 (“It has long been a rule in this Circuit that non-exempt portions of a
document must be disclosed unless they are inextricably intertwined with exempt portions.”).
“Before approving the application of a FOIA exemption, the district court must make specific
findings of segregability regarding the documents to be withheld.” Sussman v. U.S. Marshals
Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007). The agency is “entitled to a presumption that [it]
complied with the obligation to disclose reasonably segregable material,” Hodge v. FBI, 703
F.3d 575, 582 (D.C. Cir. 2013), but that does not excuse the agency from carrying its evidentiary
burden to fully explain its decisions on segregability. See Army Times Pub. Co. v. U.S. Dep’t of
Air Force, 998 F.2d 1067, 1068 (D.C. Cir. 1993).
The parties disagree about whether DOJ has properly segregated and produced non-
exempt material. 100Reporters speculates that several disputed documents contain purely factual
material that can likely be segregated from properly withheld information. See 100Reporters
Mem. at 26; cf. Army Times Publ’g Co. v. U.S. Dep’t of Air Force, 998 F.2d 1067, 1071 (D.C.
Cir. 1993) (“Exemption 5 applies only to the deliberative portion of a document and not to any
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purely factual, non-exempt information the document contains.”). 100Reporters also challenges
the adequacy of DOJ’s segregability explanations. See 100Reporters Mem. at 25–26. DOJ, on
the other hand, argues that the records “have been carefully reviewed to identify reasonably
segregable non-exempt information,” and that “no further segregation of meaningful information
in the withheld documents could be done without disclosing information that FOIA protects from
disclosure.” DOJ Mem. at 30–32.
In its prior Memorandum Opinion, this Court declined to evaluate whether DOJ had
properly segregated and disclosed non-exempt material because DOJ had not yet met its burden
of justifying its Exemption 5, 6, and 7(C) withholdings. 100Reporters, 248 F. Supp. 3d at 166.
Rather, the Court exercised its discretion to require the production of a sampling of responsive
documents for in camera review. Id. (citing Lam Lek Chong v. DEA, 929 F.2d 729, 735 (D.C.
Cir. 1991) (noting that in camera review is appropriate “when agency affidavits are insufficiently
detailed to permit meaningful review of exemption claims”); see also Bonner v. U.S. Dep’t of
State, 928 F.2d 1148, 1151 (D.C. Cir. 1991) (“Representative sampling is an appropriate
procedure to test an agency's FOIA exemption claims when a large number of documents are
involved.”). It directed DOJ to provide “one work plan and one annual report prepared by the
Monitor, including all attachments to those two documents,” presented “in a manner that makes
clear to the Court which portions of the documents were redacted” and indicating “which
exemptions apply to all redacted material.” 100Reporters, 248 F. Supp. 3d at 166–67.
As discussed above, the Court’s in camera review has revealed that DOJ has not properly
segregated and produced non-exempt material. DOJ improperly withheld a significant portion of
the Year Three Work Plan on both Exemption 4 and Exemption 5 grounds, and it also
improperly withheld certain portions of the Report and Report exhibits. DOJ’s failure to
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properly segregate the in camera documents gives the Court reason to “doubt [Ms. Moberly’s]
declaration and the supplemental Vaughn index” with respect to DOJ’s compliance with its
segregability obligations. See Bigwood v. DOD, 132 F. Supp. 3d 124, 151 (D.D.C. 2015)
(holding that a court may rely on an agency’s declarations when evaluating segregability,
“[a]bsent contrary evidence within the record or a showing of bad faith on the part of the
agency”). This is particularly true because DOJ has not supplemented its Vaughn index or
provided additional declarations regarding its process of segregating and producing non-exempt
information.
Accordingly, DOJ must reexamine its withholdings and redactions in light of the Court’s
guidance, it must remove redactions that are not justified under the FOIA Exemptions, and it
must produce the non-exempt material. See Bonner, 928 F.2d at 1154 (“[I]f the error rate for the
sample of 63 documents should prove to be unacceptably high, the [agency] must then reprocess
all of the over 1,700 documents at issue.”); Clemente v. FBI, 854 F. Supp. 2d 49, 58–59 (D.D.C.
2012) (ordering the agency to reexamine non-sample documents because of the error rate in the
agency’s sample Vaughn index); Nat. Immigration Project of Nat. Lawyers Guild v. DHS, 868 F.
Supp. 2d 284, 298 (S.D.N.Y. 2012) (“Rather than review the hundreds of pages at issue to
specify exactly what the Government must disclose . . . the Court orders the Government to
reexamine these documents, as well as the documents yet to be produced, and to make
disclosures according to the principles described in this opinion.”). The parties must submit a
joint status report no later than 30 days from today proposing a schedule for DOJ’s disclosure of
information that can no longer be withheld. Further, if, after DOJ reexamines the documents and
releases non-exempt material to 100Reporters, 100Reporters still disputes DOJ’s withholdings,
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the parties are directed to submit a joint status report scheduling further proceedings to bring this
litigation to an end.
V. CONCLUSION
For the foregoing reasons, DOJ’s Motion for Summary Judgment (ECF No. 83) is
GRANTED IN PART AND DENIED IN PART, and 100Reporters’ Cross-Motion for
Summary Judgment (ECF No. 86) is GRANTED IN PART AND DENIED IN PART. An
order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: June 13, 2018 RUDOLPH CONTRERAS
United States District Judge
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