Shaw v. United States Department of Justice ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SUMMER SHAW,
Plaintiff,
v. Civil Action No. 18-593 (JEB)
THE UNITED STATES DEPARTMENT
OF JUSTICE,
Defendant.
MEMORANDUM OPINION
Timothy Blixseth went bankrupt but believes his financial troubles are due to the
malfeasance of others. In pursuit of this theory, his attorney, Plaintiff Summer Shaw, wields the
Freedom of Information Act in an attempt to obtain evidence of “years of potential corruption by
numerous individuals” relating to bankruptcy proceedings involving Yellowstone Mountain Club
(YMC), Blixseth’s private ski and recreational property in Montana. See ECF No. 32-1
(Declaration of Timothy Blixseth), ¶ 3. To this end, Shaw sent a FOIA request to Defendant, the
Department of Justice, seeking all emails between former Assistant Attorney General Lanny
Breuer and employees at Covington & Burling, LLP, alleging that such records would reveal
collusion between DOJ and adverse parties in the bankruptcy action. Dissatisfied with DOJ’s
response, Plaintiff brought this suit to compel the disclosure of hundreds of emails, asserting that
they were improperly withheld as non-agency records or without a valid FOIA exemption.
Assessing dueling Cross-Motions for Summary Judgment, the Court ultimately concludes that
the Government has correctly discharged its obligations here.
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I. Background
Because Blixseth and YMC’s history is relevant to the public interest involved, the Court
will offer a simplified summary here. Blixseth and his then-wife, Edra, developed YMC with
Blixseth operating as sole owner through his business entity BGI Group, Inc., which
subsequently became BLX Group, Inc. See Kirschner v. Blixseth, No. 11-08283, 2012 WL
12885076, at *2 (C.D. Cal. Nov. 1, 2012); In re BLX Group, Inc., 419 B.R. 457, 460–61 (Bankr.
D. Mont. 2009). On September 30, 2005, Blixseth borrowed $375 million from Credit Suisse to
secure funding for developing the property. See In re BLX Group, Inc., 419 B.R. at 461. That
same day, $209 million of the $375 million wired to BLX was disbursed by Blixseth into various
personal accounts to pay off personal debts. Id.
In 2008, as part of a marital settlement agreement, Edra took ownership of the YMC
entities. Id. According to Blixseth, “She then partnered with . . . Sam Byrne, Ron Burkle,[ who
has ties to Breuer,] and Mike Meldman . . . in placing [YMC] into bankruptcy” just months after
taking ownership. See Blixseth Decl., ¶ 4. During the bankruptcy proceedings, the
circumstances surrounding the $375 million loan came to light. Id., ¶ 5. What followed is
summarized best by the United States Court of Appeals for the Ninth Circuit in a separate but
related case:
Blixseth objected to the proposed bankruptcy settlement plan (the
Plan), arguing that his ex-wife and others were the cause of
Yellowstone’s financial problems. The bankruptcy court disagreed,
[finding] that Blixseth had misappropriated Yellowstone’s cash and
property for his personal use and that his fraudulent intent in doing
so could not be more clear. The bankruptcy court entered a $40
million judgment against Blixseth — the amount the court
determined was necessary to pay off certain classes of creditors.
Blixseth v. Yellowstone Mountain Club, LLC, 742 F.3d 1215, 1218 (9th Cir. 2014) (internal
citations and quotation marks omitted). Credit Suisse, Burkle, and Byrne then bought the
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property and became the new owners. See Blixseth Decl., ¶ 21. The bankruptcy judgment was
ultimately appealed to the United States District Court for the District of Montana and then to the
Ninth Circuit, which affirmed it in 2016. See In re Yellowstone Mountain Club, LLC, 656 F.
App’x 307, 312 (9th Cir. 2016); In re Yellowstone Mountain Club, LLC, No. 12-83, 2014 WL
1369363, at *2–3 (D. Mont. Apr. 7, 2014).
Blixseth contends that during these bankruptcy proceedings, a separate criminal
investigation into his ex-wife was abruptly and improperly terminated. See Blixseth Decl., ¶ 8.
He also avers that Government officials attempted to “intimidate [him] by enlisting numerous
federal agencies[, such as Immigration and Customs Enforcement Agents, the United States
Coast Guard in California, the Internal Revenue Service, and DOJ,] to harass and cause damage
to [him and]. . . to try and send a message to [him] that [he] was not only up against dozens of
lawyers in the bankruptcy process, but also up against the full force of the U.S. Government.”
Id., ¶¶ 9–10.
Meanwhile, as the bankruptcy judgment was on appeal to the Ninth Circuit, the
Yellowstone Club Liquidating Trust (YCLT) also filed suit against Blixseth in California seeking
to recover approximately $220 million on two promissory notes he had executed for YMC.
Id., ¶ 13; see also Kirschner v. Blixseth, 2014 WL 12573851, at *1 (C.D. Cal. June 18, 2014)
(granting YCLT’s motion for summary judgment). Of particular note here, Blixseth claims that
his ex-wife’s former business partner told him in advance that summary judgment in favor of
YCLT would be granted because of an alleged back-room meeting between Edra’s camp and
former top DOJ officials, who were then working for YCLT’s law firm, Covington & Burling,
and were connected to the judge presiding over the case. See Blixseth Decl., ¶¶ 14–16. Alleged
attendees included Steven Fagell, former DOJ Criminal Division Deputy Chief of Staff and
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Counselor and key advisor to Breuer; Edra and her attorney; and Ron Burkle and his attorney.
Id., ¶¶ 15–16. It is not clear what influence these former officials from DOJ’s criminal division
were purportedly wielding in this civil case. At the time of the meeting, for example, Breuer had
already resigned from DOJ to rejoin Covington. Id., ¶ 15. Blixseth, moreover, admits that he
cannot confirm that this meeting actually occurred. Id., ¶ 17. On June 18, 2014, summary
judgment was indeed granted against Blixseth by the United States District Court for the Central
District of California. Id.; see Kirschner, 2014 WL 12573851, at *10.
Blixseth claims that this meeting and the alleged intimidation efforts of ICE, IRS, the
U.S. Coast Guard, and DOJ were the result of YMC’s “new owners enlist[ing] friends in the
highest levels of the Government to intimidate [him] as well as to cause [him] financial harm” so
that he would cease challenging the bankruptcy action. See Blixseth Decl., ¶ 22. He thus
believes that DOJ possesses records that provide evidence of this “potential corruption and
misconduct.” ECF No. 32 (Plaintiff Opp. & Reply) at 3. So, on December 22, 2016, his lawyer
Shaw submitted a FOIA request to DOJ’s Criminal Division. Specifically, she sought emails
between Breuer and individuals with email addresses ending in “cov.com,” the domain name for
Covington, between January 1, 2009, and December 31, 2013. See ECF No. 25 (Pl. MSJ) at 1–
2. After reviewing approximately 2,760 pages of records, Defendant produced 228 pages in full
and 435 in part, withheld 61 pages under certain FOIA exemptions, determined that 1,714 pages
were duplicates, and classified 307 pages as non-agency records. Id. at 2. (While the stated
number of pages produced, withheld under certain FOIA exemptions, determined as duplicates,
and classified as non-agency records is inconsistent between the Motions, the parties only
actively dispute the number of pages classified as non-agency records. See ECF No. 36
(Defendant Reply) at 1 n.1.)
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Plaintiff now moves for partial summary judgement seeking the production of all pages
“improperly” withheld as non-agency records. See Pl. MSJ at 4. Further, she seeks the full
production of the agency records DOJ withheld and redacted pursuant to Exemption 6 (46 pages
in their entirety and 439 redacted pages). See Pl. Reply at 10. Although she also initially
attacked Defendant’s use of Exemptions 5 and 7(C), see Pl. MSJ at 2, she now contests only the
invocation of Exemption 6. See Pl. Opp. at 10. In the alternative, she requests in camera review
of the pages if the Court denies either of her first two requests. Id. at 14–15. Defendant, in turn,
cross-moves for partial summary judgment, contending that all pages were properly withheld
either as non-agency records or under Exemption 6 and that in camera review is unnecessary.
See Def. Reply at 1–2.
II. Legal Standard
Summary judgment may be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A genuine issue of material fact is one that would change the outcome of the litigation.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to
construe the conflicting evidence in the light most favorable to the non-moving party. See
Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006). Factual assertions in the
moving party’s affidavits or declarations may be accepted as true unless the opposing party
submits his own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly,
963 F.2d 453, 456–57 (D.C. Cir. 1992).
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“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); see Bigwood v.
U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In FOIA cases, the agency
bears the ultimate burden of proof to demonstrate the adequacy of its search and that it properly
withheld any records. See Defs. of Wildlife, 623 F. Supp. 2d at 88, 91. The Court may grant
summary judgment based solely on information provided in an agency’s affidavits or
declarations when they “describe the documents and the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information withheld logically falls within the
claimed exemption, and are not controverted by either contrary evidence in the record nor by
evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981). Such affidavits or declarations are “accorded a presumption of good faith, which cannot
be rebutted by ‘purely speculative claims about the existence and discoverability of other
documents.’” SafeCard Servs., Inc. v. Secs. Exchange Comm’n, 926 F.2d 1197, 1200 (D.C. Cir.
1991) (quoting Ground Saucer Watch, Inc. v. Cent. Intelligence Agency, 692 F.2d 770, 771 (D.C.
Cir. 1981)).
III. Analysis
As set out above, Plaintiff requests the production of all “non-agency” records, the
production of responsive pages without Exemption 6 redactions, and, alternatively, in camera
review. See Pl. Opp. at 5. The Court will tackle each contention in turn.
A. Agency Records
Shaw first disputes DOJ’s classification of over 300 pages as “non-agency” records.
“[I]n order for a document to be subject to FOIA disclosure, it must be an ‘agency record.’”
Media Research Ctr. v. DOJ, 818 F. Supp. 2d 131, 139 (D.D.C. 2011) (quoting 5 U.S.C.
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§ 552(a)(4)(B)). “[T]o determine whether a document is an agency record . . . [, the Court] must
‘focus[ ] on a variety of factors surrounding the creation, possession, control, and use of the
document.’” Judicial Watch, Inc. v. U.S. Secret Serv. (Judicial Watch II), 726 F.3d 208, 217
(D.C. Cir. 2013) (quoting Consumer Fed’n of Am. v. Dep’t of Agric., 455 F.3d 283, 287 (D.C.
Cir. 2006)) (second alteration in original). As it is undisputed that a DOJ employee (Breuer)
created the emails and that DOJ currently possesses and controls them, see ECF No. 30-2 (Def.
Opp. & Cross-MSJ) at 6, the Court need focus only on the last factor — namely, their use.
In cases such as this one, where a record “is created by an agency employee [and is
physically located within an agency], consideration of whether and to what extent that employee
used the document to conduct agency business is highly relevant for determining whether that
document is an ‘agency record.’” Bureau of Nat’l Affairs, Inc. v. DOJ, 742 F.2d 1484, 1492
(D.C. Cir. 1984). A record’s use is determined by considering “‘the purpose for which the
document was created, the actual use of the document, and the extent to which the creator of the
document and other employees acting within the scope of their employment relied upon the
document to carry out the business of the agency.’” Media Research Ctr., 818 F. Supp. 2d at 140
(quoting Gallant v. Nat’l Labor Relations Bd., 26 F.3d 168, 172 (D.C. Cir. 1994)).
Christina Butler, DOJ’s Deputy Chief of the Criminal Division’s FOIA/Privacy Act Unit,
explains that the 300 pages in question relate to “family members, health, career information,
religion, vacations, recreational activities, personal time outside of work, and memorial service
information” with attachments of “private photos of family members and friends.” ECF No. 30-
3 (Declaration of Christina Butler), ¶ 37. She further avers that “Breuer did not use the emails to
conduct agency business, the emails do not relate to the mission of the Criminal Division, and
Criminal Division employees did not rely upon these documents to perform their official duties.”
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Id. Breuer, in fact, had been a long-time Covington attorney before he joined DOJ, and it is
unsurprising that he would remain in close contact with his former colleagues on purely personal
matters. With no reason to doubt Butler’s assertions, the Court has little trouble concluding that
these pages were created and used for the purely personal objective of corresponding with
friends and former colleagues in matters entirely unrelated to DOJ activities or Blixseth. See
Gallant, 26 F.3d at 172 (official’s letters and faxes to individuals to secure her reappointment
were not agency records because they were created and used for the “purely personal objective
of retaining her job”).
Plaintiff attempts to breathe life into her argument by alleging that Breuer sent several
emails to his DOJ assistants to organize his personal as well as business appointments. See Pl.
Opp. at 8. This may be true, but DOJ has already disclosed such emails. See Def. Reply at 2–3
(“[A]ny of Mr. Breuer’s email exchanges that mentioned work related matters, but contained
personal information were processed and non-exempt portions were released.”) (citations and
quotation marks omitted). And even if DOJ had not, sending personal emails to assistants to
organize appointments does not render them agency records. See Bureau of Nat’l Affairs, Inc.,
742 F.2d at 1496 (appointment calendars were not agency records because purpose of calendars
was to “organize both their business and personal activities” for personal “convenience” of
officials); Consumer Fed’n of Am., 455 F.3d at 288 (calendars retained for convenience of
individual official “in organizing his ‘personal and business appointments’” were not agency
records even though official’s top assistants “occasionally had access to the calendars”); cf.
Bureau of Nat’l Affairs, Inc., 742 F.2d at 1495 (personal agendas were agency records because
they were distributed to other employees for express purpose of informing his staff of the
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official’s whereabouts for convenience of staff in conducting official business). The Court thus
finds that these pages are indeed non-agency records.
In addition to the merits, Plaintiff takes issue with the sufficiency of Butler’s Declaration.
She first contends that Butler’s assertions are conclusory and fail to rebut the presumption that
the pages constitute “agency records.” See Pl. Opp. at 8.
Because DOJ alone possesses knowledge of the precise content of the pages withheld, the
Declaration must “enable ‘the District Court to make a rational decision whether the withheld
material must be produced without actually viewing the document themselves, as well as to
produce a record that will render the District Court’s decision capable of meaningful review on
appeal.’” King v. DOJ, 830 F.2d 210, 219 (D.C. Cir. 1987) (quoting Dellems v. Powell, 642
F.2d 1351, 1360 (D.C. Cir. 1980)). “Where the agency’s . . . declarations merely ‘parrot the
language of the statute and are drawn in conclusory terms,’ . . . the Court's ability to conduct its
own review of the agency’s determinations is severely frustrated.” Defs. of Wildlife, 623 F.
Supp. 2d at 90 (quoting Carter v. U.S. Dep’t of Commerce, 830 F.2d 388, 393 (D.C. Cir. 1987)).
In Media Research Center, the plaintiffs sought communications between then–Solicitor
General Elena Kagan and the Executive Office of the President. See 818 F. Supp. 2d at 134–35.
DOJ withheld as non-agency records around 100 emails between Kagan and staff members of
the Executive Office that related to her nomination to the U.S. Supreme Court. Id. at 139. In
responding to the plaintiff’s motion to compel their disclosure, DOJ submitted a declaration with
the following justification for withholding the emails:
[Thirty-six] pages consisted of emails sent to or received by Ms.
Kagan in her individual capacity as a nominee to the United States
Supreme Court. . . . These personal emails were communications
between Ms. Kagan and the members of the White House staff who
were responsible for preparing Ms. Kagan for the confirmation
process at the U.S. Senate.
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Media Research Ctr., No. 10-2013, ECF No. 10-3, ¶ 14(b) (Mar. 15, 2011) (Decl. of Valerie
Hall). The court found Hall’s justification sufficiently detailed and relied on it in concluding that
Kagan’s emails were non-agency records. See Media Research Ctr., 818 F. Supp. 2d at 140.
Here, Butler’s Declaration explains:
The emails that were deemed not agency records are private in
nature and unrelated to work. The emails contain purely personal
information regarding family members, health, career information,
religion, vacations, recreational activities, personal time outside of
work, and memorial service information. Some of the emails attach
private photos of family members and friends. Lanny Breuer did
not use the emails to conduct agency business, the emails do not
relate to the mission of the Criminal Division, and Criminal Division
employees did not rely upon these documents to perform their
official duties.
Butler Decl., ¶ 37. Like Hall’s, Butler’s Declaration details the participating parties and the
general content of each email. It therefore provides sufficient detail for the Court to determine
the content of the pages.
Shaw next maintains that Butler’s Declaration is inadequate because she does not have
“personal knowledge regarding whether and to what extent the allegedly personal emails may
have been shared with and/or used by agency employees for official purposes.” Pl. Opp. at 9.
Although a declaration “must be made on personal knowledge” of the records at issue,
see Fed. R. Civ. P. 56(c)(4), “[t]he declaration of an agency official who is knowledgeable about
the way in which information is processed and is familiar with the documents at issue satisfies
the personal knowledge requirement.” Carter, Fullerton & Hayes LLC v. FTC, 520 F. Supp. 2d
134, 146 (D.D.C. 2007). Moreover, a “declarant is not required to independently verify the
information contained in each responsive record” to have personal knowledge. See Barnard v.
DHS, 531 F. Supp. 2d 131, 138 (D.D.C. 2008).
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In Barnard, for example, the Department of Homeland Security submitted a declaration
by Marshall H. Fields, Chief of the FOIA/PA Section at ICE, explaining the contents of records
relating to an investigation into travel restrictions. Id. at 137, 139. Fields’s official
responsibilities included “the general management, oversight, and supervision of the FOIA/PA
Section,” and in response to Barnard’s request, he “reviewed all documents . . . ‘line-by-line’ to
identify information exempt from disclosure or for which a discretionary waiver of exemption
could be applied.” Id. at 139 (quoting Fields Declaration). The plaintiff argued that because
Fields was not directly involved in the investigation, he did not have the requisite personal
knowledge to demonstrate the documents’ classification under FOIA exemptions. Id. at 138–40.
The Court rejected that argument, however, explaining that, as Chief of the FOIA/PA Section,
Fields was “familiar with the processes used to search for the records at issue, and because he
[had] reviewed the records himself, he [was] competent to testify as to the information contained
in those records.” Id. at 139.
Likewise, because Butler, as Deputy Chief of the FOIA/PA Unit at DOJ Criminal
Division, “supervis[es] the handling of the FOIA and PA requests processed by the Criminal
Division, FOIA/PA Unit,” Butler Decl., ¶ 1, and she “reviewed line-by-line” all pages of records
at issue, id., ¶ 69, she is no less knowledgeable about the records than Fields was. See Barnard,
531 F. Supp. 2d at 138–39 (finding sufficient Fields Declaration as to personal knowledge of
FOIA documents). As this Court believes Barnard was correctly decided, it concludes that
Bulter’s Declaration was similarly sufficient in describing the content of the pages at issue.
The Court finds, consequently, that these pages were properly withheld as non-agency
records.
B. Exemption 6
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Moving to Plaintiff’s second argument, the Court next examines whether DOJ was
warranted in redacting and withholding information under Exemption 6, which protects
“personnel and medical files and similar files[,] the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). In such instances, the
government must also show that the privacy interest outweighs the public interest in disclosure.
See Armstrong v. Exec. Office of the President, 97 F.3d 575, 582 (D.C. Cir. 1996). The primary
purpose of this exemption is “to protect individuals from the injury and embarrassment that can
result from the unnecessary disclosure of personal information.” Prison Legal News v. Samuels,
787 F.3d 1142, 1147 (D.C. Cir. 2015) (quoting Judicial Watch of Florida, Inc. v. DOJ (Judicial
Watch I), 365 F.3d 1108, 1124 (D.C. Cir. 2004)). Shaw does not dispute that the records
requested are contained within personnel or similar files. The remaining questions, therefore, are
whether the information withheld is sufficiently private and whether that privacy interest
outweighs the public interest in disclosure.
Generally, agencies have used this exemption to withhold personal information such as
place of birth, date of birth, date of marriage, employment history, addresses, information in a
discipline letter, family history, and the like. See, e.g., U.S. Dep’t of State v. Wash. Post Co.,
456 U.S. 595, 600 (1982). Defendant argues that it properly withheld exactly this type of
information here, such as “personal email addresses, home addresses, personal cell phone
numbers . . . [,] information regarding . . . their family members[,] . . . recreational activities,
personal time outside of work, personal travel, personal finances, religious affiliation, and
personal job related information.” Def. Opp. at 12. Defendant redacted words, sentences, and
paragraphs of 435 pages of emails under Exemption 6. Plaintiff attached some of these emails to
her pleadings, and the Court finds that the context makes clear that the redactions relate to
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private information — e.g., email addresses, names, and event details. See Pl. Opp., Exhs. 1 &
2. Defendant also withheld in full 46 pages under Exemption 6, the vast majority of which were
email attachments of resumes, invitations, and photographs. See Def. Opp. Exh. P (Vaughn
Index). This Court finds that these withholdings and redactions protect a reasonably substantial
privacy interest under Exemption 6. But is there a public interest that overcomes this privacy
interest?
The only valid public interest in the FOIA context is one that serves the Act’s core
purpose of shedding light on an agency’s performance of its statutory duties. See DOJ v.
Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989). The requester has the
burden of establishing that public interest. See Carter, 830 F.2d at 390 n.8, 391 n.13. If a
requester can demonstrate that disclosure would “check against corruption and . . . hold the
governors accountable to the governed,” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
242 (1998), she can generally satisfy this requirement. But the balancing test does not even
come into play when the requester demonstrates only a “bare suspicion” of wrongdoing and
produces no evidence to “warrant a belief by a reasonable person that the alleged Government
impropriety might have occurred.” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157,
175 (2004) (considering balancing test as applied to Exemption 7(C)). Allegations of
government misconduct are “easy to allege and hard to disprove.” Crawford-El v. Britton, 523
U.S. 574, 585 (1989). Consider Blackwell v. FBI, 646 F.3d 37 (D.C. Cir. 2011), where the court
found that the plaintiff failed to meet the Favish standard because the only support he had offered
for his allegations of misconduct was his own affidavit that listed allegedly suspicious
circumstances but lacked any substantive evidentiary support. Id. at 41.
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Such is the case here. While Plaintiff argues that her request “involves potential
corruption at the highest levels of [DOJ],” Pl. MSJ at 1, she offers little beyond conjecture. Like
in Blackwell, Blixseth’s allegation is “bare suspicion,” not evidence that would warrant a belief
by a reasonable person that government impropriety had occurred. See Favish, 541 U.S. at 174–
75. Blixseth hinges his corruption claim on an alleged meeting in which one of the attendees
was connected to a judge, who, after the meeting, granted summary judgement against him. See
Pl. Reply at 4, 5. Blixseth alleges that Covington lawyers who formerly worked at DOJ were
also at this meeting. Id. at 5. But he admits that he does not know if this meeting actually
happened, and his connection of Breuer or Fagell to this alleged gathering is simply a guess. Id.
at 4, 5. Blixseth implies that Breuer or Fagell used their former government criminal ties to
influence the judge against him in that civil proceeding. From this unfounded theory, Plaintiff
believes that Breuer’s DOJ emails from 2009–2013 to “cov.com” — years before the
unconfirmed meeting with unknown attendees — include information of such significant public
interest that the privacy interest in the withheld and redacted information under Exemption 6 is
overcome. This Court is not remotely convinced.
Because Plaintiff fails to demonstrate a public interest to outweigh any privacy interest,
this Court finds that Defendant’s invocation of Exemption 6 is warranted.
C. In Camera Review
Plaintiff also contends that if this Court believes that the records withheld should not be
produced, it should at least review such pages in camera prior to making a final determination.
See Pl. Opp. at 14. The decision to conduct an in camera examination is discretionary and
typically occurs only in exceptional cases. See Robbins Tire, 437 U.S. at 224. “Summary
judgment may not be appropriate without in camera review when agency affidavits in support of
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a claim of exemption are insufficiently detailed . . . .” Armstrong, 97 F.3d at 578. District courts
have broad discretion to decide if this review “is necessary to determine whether the government
has met its burden.” Loving v. U.S. Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008).
This Court at times has agreed that in camera review is appropriate and has performed
this task in numerous cases. See, e.g., Cable News Network, Inc. v. FBI, 384 F. Supp. 3d 19, 27
(D.D.C. 2019); Am. Ctr. for Law & Justice v. U.S. Dep’t of State, 354 F. Supp. 3d 1, 5 (D.D.C.
2018). Here, DOJ has met its burden by submitting a highly detailed Vaughn Index and
declaration. See Butler Decl; Vaughn Index. “When a district court finds that law enforcement
agency’s affidavits sufficiently describe the documents and set forth proper reasons for invoking
an exemption, in camera inspection of those documents is unnecessary.” Juarez v. DOJ, 518
F.3d 54, 60 (D.C. Cir. 2008). Further, in camera review is more appropriate when a few pages
are in question; here, however, Plaintiff asks for hundreds of pages to be reviewed. This is much
more demanding on the Court.
Because DOJ has sufficiently detailed support for why it withheld and redacted pages,
this Court will not grant in camera review.
IV. Conclusion
For the foregoing reasons, the Court will deny Plaintiff’s Motion for Summary Judgment
and grant Defendant’s Motion for Summary Judgment. A contemporaneous Order so stating will
issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: November 19, 2019
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