Citizens for Responsibility and Ethics in Washington v. U.S. Department of Justice , 949 F. Supp. 2d 225 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY
AND ETHICS IN WASHINGTON
Plaintiff,
v. Civil Action No. 11-754 (GK)
U.S. DEPARTMENT OF JUSTICE
Defendant.
MEMORANDUM OPINION
Plaintiff Citizens for Responsibility and Ethics in
Washington ("CREW") brings this action against Defendant United
States Department of Justice ("DOJ") under the Freedom of
Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff seeks
materials relating to DOJ investigations of U.S. Representative
Don Young.
This matter is presently before the Court on Defendant's
Motion for Summary Judgment on Behalf of the Criminal Division
and Federal Bureau of Investigation [Dkt. No. 31], Plaintiff's
Cross-Motion for Partial Summary Judgment [Dkt. No. 35] 1
Defendant's Motion for Summary Judgment on Behalf of the
Executive Office for United States Attorneys [Dkt. No. 37], and
Plaintiff's Cross-Motion for Partial _ $umma~y Judgment with
Respect to Executive Office for United States Attorneys [Dkt.
No. 41] . Upon consideration of the Motions, Oppositions,
Replies, and the entire record herein, and for the reasons
stated below, Defendant's Motions are granted in part and denied
in part, and Plaintiff's Cross-Motions are granted in part and
denied in part.
1
I. BACKGROUND
CREW is a non-profit corporation "committed to protecting
the rights of citizens to be informed about the activities of
government officials and to ensuring the integrity of government
officials." Compl. ~ 3 [Dkt. No. 1].
On January 24, 2011, CREW submitted identical FOIA requests
to three DOJ Components: the Criminal Division, the Federal
Bureau of Investigation ("FBI") and the Executive Office for
United States Attorneys ("EOUSA") It sought records related to
DOJ investigations of Rep. Young, "including but not limited to
DOJ's decision not to bring criminal charges against him."
Def. 's Statement of Undisputed Facts ~ 2 [Dkt. No. 3 7-4] All
three DOJ Components categorically denied CREW's requests under
FOIA Exemptions 6 and 7(C), 5 U.S.C. § 552(b) (6), (7) (C).
The FBI and the EOUSA notified CREW of its right to appeal
the decision to DOJ' s Office of Information Policy ( "OIP") . On
February 7, 2011, CREW appealed the FBI and the EOUSA denials.
1
Unless otherwise noted, the facts set forth herein are
undisputed and drawn from the parties' Statements of Undisputed
Material Facts submitted pursuant to Local Civil Rule 7(h).
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On April 20, 2011, before receiving a decision from OIP, CREW
filed the present lawsuit.
The parties cross-moved for summary judgment regarding
DOJ' s "categorical" denial of CREW's FOIA requests. On January
10, 2012, this Court denied Defendant's Motion for Summary
Judgment and granted Plaintiff's Cross-Motion for Partial
Summary Judgment. Citizens for Responsibility and Ethics in
Wash. v. D.O.J., 840 F. Supp. 2d 226 (D.D.C. 2012) ("CREW I").
In CREW I, the Court held that the Government could not
categorically deny CREW's requests under Exemptions 6 and 7(C),
and ordered the DOJ Components to submit Vaughn indices
regarding any withheld or redacted documents. Id. at 236. The
Court explained that once the indices were submitted, it would
"make a specific individualized decision for each document as to
whether it should be redacted or totally withheld pursuant to
Exemption 6 and 7(C) ." Id.On February 10 , 2012, Defendant filed a Motion for
Clarification regarding the scope of this Court's Order [Dkt.
No. 21] . On March 12, 2012, this Court issued a Minute Order
granting Defendant's Motion, and directed that Defendant's
Vaughn index "focus[] on those records related to U.S.
Department of Justice investigations of U.S. Representative Don
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Young involving allegations of bribery and other illegal conduct
in the matter known as 'Coconut Road.'" 2
The DOJ Components filed their Vaughn indices on April 9,
2012. On April 19, 2012, the FBI released 61 pages of material
with no redactions, 271 pages redacted in part, and withheld 3
pages in full under FOIA Exemption 7 (A) On or about April 23,
2012, the EOUSA released 123 pages of material with no
redactions, 1 page redacted in part, and withheld 4 8 pages in
full under FOIA Exemptions 3, 5, 6, and 7 (C). On May 2, 2012,
the Criminal Division released 31 pages of material with no
redactions, 31 pages redacted in part, and withheld 292 pages in
full under FOIA Exemptions 5, 6, and 7(C).
2
CREW acknowledges that the Court's order limited DOJ's
obligation to produce a Vaughn index to material related to
Coconut Road, but maintains in a footnote that DOJ is still
responsible for identifying and releasing any other documents
that are responsive to its FOIA request. Mem. in Partial Opp'n
to Def.'s Mot. for Summ. J. & In Support of Pl.'s Cross-Mot. for
Partial Summ. J. 4 n.2 [Dkt. No. 35] ("CREW's Opp'n to Criminal
Div. Mot."); Mem. in Partial Opp'n to Def.'s Mot. for Summ. J.
On Behalf of EOUSA & In Support of Pl.'s Cross-Mot. for Partial
Summ. J. 3 n.2 [Dkt. No. 40] ("CREW's Opp'n to EOUSA Mot.").
The Criminal Division did not address this assertion. The
EOUSA insists in a footnote that this argument is an attempt to
seek reconsideration of the Court's ruling on the Government's
motion for clarification. Def. 's Combined Reply Br. in Support
of Its Mot. for Summ. J. on Behalf of the EOUSA & Br. in Opp'n
to Pl.'s Cross-Mot. for Partial Summ. J. 21 n.4 [Dkt. No. 45].
CREW did not respond to that argument in its reply. Given that
neither the Plaintiff nor the Government has fully addressed
this issue, and that it has no bearing on the instant Motions
and Cross-Motions, the Court will not resolve it at this time.
-4-
On September 25, 2012, DOJ filed its Motion for Summary
Judgment on Behalf of the Criminal Division and FBI [Dkt. No.
31]. On October 25, 2012, CREW filed its Opposition and Cross-
Motion for Summary Judgment [Dkt. Nos. 34, 35]. On November 19,
2012, DOJ filed its combined Opposition and Reply [Dkt. Nos. 38,
39]. On December 10, 2012, CREW filed its Reply [Dkt. No. 42].
On November 5, 2012, DOJ filed its Motion for Summary
Judgment on Behalf of the EOUSA [Dkt. No. 37]. On November 30,
2012, CREW filed its Opposition and Cross-Motion for Summary
Judgment [Dkt. Nos. 40, 41]. On January 15, 2013, DOJ filed its
combined Opposition and Reply [Dkt. Nos. 44, 45]. On February
14, 2013, CREW filed its Reply [Dkt. No. 46].
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II. STANDARD OF REVIEW
The purpose of FOIA is to "pierce the veil of
administrative secrecy and to open agency action to the light of
public scrutiny." Morley v. C. I. A., 508 F. 3d 1108, 1114 (D.C.
Cir. 2007) (quoting Dep't of Air Force v. Rose, 425 U.S. 352,
361 (1976)) . FOIA "requires agencies to comply with requests to
make their records available to the public, unless the requested
records fall within one or more of nine categories of exempt
material." Oglesby v. Dep' t of Army, 79 F. 3d 1172, 1176 (D.C.
Cir. 1996) (citing 5 U.S.C. § 552 (a), (b)).
An agency that withholds information pursuant to a FOIA
exemption bears the burden of justifying its decision, Petroleum
Info. Corp. v. Dep't of the Interior, 976 F.2d 1429, 1433 (D.C.
Cir. 1992) (citing 5 U.S.C. § 552 (a) (4) (B)), and must submit an
index of all materials withheld, referred to as a "Vaughn
Index." Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973).
In determining whether an agency has properly withheld requested
documents under a FOIA exemption, the district court conducts a
de novo review of the agency's decision. 5 u.s.c.
§ 552 (a) (4) (B).
"FOIA cases are typically and appropriately decided on
motions for summary judgment." Gold Anti-Trust Action Comm.,
Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d
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123, 130 (D.D.C. 2011) (quoting Defenders of Wildlife v. Border
Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)). Summary judgment
will be granted when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any
affidavits or declarations, show that there is no genuine issue
as to any material fact and that the moving party is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(c).
In a FOIA case, the court may award summary judgment solely
on the basis of information provided in affidavits or
declarations when they (1) "describe the documents and the
justifications for nondisclosure with reasonably specific
detail;" ( 2) "demonstrate that the information withheld
logically falls within the claimed exemption;" and (3) "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. S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991)
(quoting Ground Saucer Watch, Inc. v. C.I.A., 692 F.2d 770, 771
(D.C. Cir. 1981)).
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III. ANALYSIS
The outstanding disputes fall into two categories. First,
CREW argues that the Criminal Division and the EOUSA have
improperly withheld information under Exemption 5. Second, CREW
argues that the Criminal Division and the EOUSA have improperly
withheld information under Exemptions 6 and 7 (C) . 3 Each claim
will be addressed in turn.
A. Exemption 5
Exemption 5 permits an agency to withhold "inter-agency or
intra-agency memorandums or letters which 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 "is interpreted to encompass,
inter alia, three evidentiary privileges: the deliberative
process privilege, the attorney-client privilege, and the
attorney work product privilege." Tax Analysts v. I.R.S., 294
F.3d 71, 76 (D.C. Cir. 2002) (citation omitted).
CREW challenges the withholding and redaction of documents
based on both the attorney work product doctrine, and the
deliberative process privilege. Because the majority of the
documents at issue were appropriately withheld under the
3
CREW has elected to not challenge the FBI's wi thholdings,
CREW's Opp'n to Criminal Div. Mot. 5 n.4., and to not challenge
the one document withheld by the EOUSA under FOIA Exemption 3,
CREW's Opp'n to EOUSA Mot. 4 n.4.
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attorney work product doctrine, the Court addresses that issue
first.
1. Attorney Work Product Doctrine
The attorney work product doctrine protects materials
"prepared in anticipation of litigation." McKinley v. Bd. of
Governors of Fed. Reserve Sys., 647 F. 3d 331, 341 (D.C. Cir.
2011) (citing Fed. R. Civ. P. 26(b) (3)), cert. denied, 132 S.
Ct. 1026 (2012); E.E.O.C. v. Lutheran Soc. Servs., 186 F.3d 959,
968 (D.C. Cir. 1999) (noting that doctrine protects documents or
other information that "can fairly be said to have been prepared
or obtained because of the prospect of litigation" (citation
omitted)). It extends to documents prepared or obtained related
to "foreseeable litigation, even if no specific claim is
contemplated." Schiller v. N.L.R.B., 964 F.2d 1205, 1208 (D.C.
Cir. 1992) (citation omitted), abrogated on other grounds by
Milner v. Dep't of Navy, 131 S. Ct. 1259 (2011)
CREW fails to identify any specific document that it has
reason to believe was wrongfully withheld as attorney work
product. Rather, it asserts that the "D.C. Circuit has long
required agencies to justify invocation of the attorney work
product doctrine through the submission of detailed explanations
establishing the context in which the withheld information was
created." CREW's Opp'n to Criminal Div. Mot. 16; CREW's Opp'n to
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EOUSA Mot. 14. It insists that the Government must identify the
circumstances surrounding the initiation of the investigation
into Young's conduct, the dates on which the investigation
commenced and concluded, and the specific roles various
employees played in the investigation. CREW's Opp'n to Criminal
Div. Mot. 17; CREW's Opp'n to EOUSA's Mot. 15.
There is no support for CREW's broad assertion that our
Court of Appeals requires the submission of such information.
Although such information is often relevant to a deliberative
process privilege claim, where an agency has to establish the
context in which certain materials were used in order to show
that a document is "both predecisional and deliberative," it is
not required in determining the applicability of the attorney
work product exemption. See Ancient Coin Collectors Guild v.
Dep't of State, 641 F.3d 504, 512 (D.C. Cir. 2011) (quoting
Mapother v. Dep't of Justice, 3 F.3d 1533, 1537 (D.C. Cir.
1993)); see also Wolfe v. Dep't of Health & Human Servs., 839
F.2d 768, 774 (D.C. Cir. 1988) (noting that first step in
evaluating deliberative process claim is to "examine the context
in which the materials are used").
Instead, the relevant inquiry in analyzing an attorney work
product claim is far narrower and focuses on whether the
documents in question were prepared in anticipation of
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litigation. CREW does not explain why the contextual information
it seeks is necessary or relevant to that inquiry. Even if such
information was relevant to a claim of attorney work product
privilege, it would not be applicable in this case.
The Government has filed detailed, specific declarations
describing the various documents and explaining that they were
prepared in contemplation of litigation. CREW does not identify
any reason to doubt those explanations, and thus, they are
entitled to a presumption of good faith. See SafeCard Servs.,
926 F. 2d at 1200 (noting that "[a] gency affidavits are accorded
a presumption of good faith, which cannot be rebutted by purely
speculative claims") (internal quotation marks and citation
omitted).
Specifically, the EOUSA asserts that the eleven documents
it seeks to withhold are "records or portions of records that
reflect such matters as potential legal charges and claims,
[U.S. Attorney's Office] resource allocations, investigation
strategy including [Assistant U.S. Attorney] handwritten notes,
and [Assistant U.S. Attorney] evaluations and opinions relating
to a third-party's file" that were "prepared by or at the
request or direction of an [Assistant U.S. Attorney] in
anticipation of or during litigation." Decl. of Vinay J. Jolly ~
19 ("Jolly Decl.") [Dkt. No. 37-2]; see also Def.'s Mot. for
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Summ. J. on Behalf of the EOUSA 15 (asserting that documents
were "prepared by or for the use of attorneys during a potential
investigation undertaken to determine whether federal criminal
charges were warranted") [Dkt. No. 37].
The detailed individual descriptions of each document in
the EOUSA's Vaughn index support its claims. For example,
specific entries in the EOUSA's Second Vaughn Index [Dkt. No.
3 7-3] describe individual documents as "notes regarding
next investigation steps" (Document 1) , "analysis regarding
legal claims, resources, and disposition" (Document 2) t
"notations and analysis of potential legal claims and trial
strategy" (Document 3) , and "legal citations and analysis
related to potential claims" (Document 4) . These are clearly the
type of documents protected by the work product doctrine. See
Senate of Puerto Rico v. Dep't of Justice, 823 F.2d 574, 586
(D.C. Cir. 1987) (noting that "internal memoranda concerning the
status of a criminal investigation, prepared by DOJ attorneys in
the course of their law enforcement duties, are surely the kind
of documents sheltered by the work product doctrine").
The Criminal Division has also established that the vast
majority of the documents it seeks to withhold under Exemption 5
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are attorney work product. 4 The doctrine protects the records of
law enforcement investigations when the investigation is "based
upon a specific wrongdoing and represent[s] an attempt to garner
evidence and build a case against the suspected wrongdoer."
SafeCard Servs. , 92 6 F. 2d at 12 02; see also In re Sealed Case,
146 F.3d 881, 885 (D.C. Cir. 1998) (noting that "when government
lawyers prepare a document in the course of an active
investigation focusing upon specific events and a specific
possible violation by a specific party," they have sufficiently
established that the document was prepared because of the
prospect of litigation) (internal quotation marks and citation
omitted).
The Criminal Division asserts that the documents withheld
"were gathered as part of an investigation of specific
wrongdoing during which the government was attempting to build a
case against a suspected wrongdoer." Decl. of John E. Cunningham
III ~ 17 ("Cunningham Decl.") [Dkt. No. 31-2]; see also id. ~ 20
(noting that "[t] hese documents represent the trial attorneys'
distillation of facts, legal analyses, opinions, and
recommendations about whether to prosecute Rep. Young").
4
The Court evaluates Documents 40-43 and 53-58 under the
deliberative process privilege. See infra sec. III.A.2.
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In addition/ the Criminal Division s Vaughn index and the
1
Cunningham Declaration provide specific individualized
information about each document withheld that supports its
claims. See Criminal Division s 1
Second Vaughn Index [Dkt. No.
31-3] (describing documents as handwritten interview notes
(Documents 1 and 2) 1 a case summary with handwritten notations
(Document 4) 1 an outline and/or timeline (Document 29) 1 and
containing other similar descriptions) ; see also Cunningham
Decl. (describing Document 6 as "inventory summary 11
(~ 24);
Documents 7 1 8 1 and 48 as drafts of "Talking Points 11
discussing
potential charges 1 theories of prosecution 1 and summaries of the
evidence (~ 25); and Documents 9 and 17 as a litigation
outline/timeline (~ 26) 1 among other descriptions). Thus 1 the
Criminal Division has provided sufficient support for its claim
that the majority of the documents withheld under Exemption 5
are attorney work product.
The cases cited by CREW in support of its assertion that an
agency must provide additional context do not support its
position. The first case CREW cites is Senate of Puerto Rico 1
823 F.2d 574. Although our Court of Appeals did reject DOJ 1
S
claim of attorney work product privilege in that case 1 it did so
because the agency provided only a single 1 conclusory sentence
on the issue of whether the documents it sought to withhold were
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prepared "in contemplation of litigation." Id. at 586 (noting
that DOJ asserted that the documents "were prepared by Civil
Rights Division attorneys in anticipation of litigation," but
made "no other reference . . to this essential element" of its
claim). As discussed above, this is the crucial element that an
agency must establish to justify withholding documents as
attorney work product, and the Government has successfully met
its burden on that element in the instant case.
The second case CREW cites, SafeCard Services, Inc. , 92 6
F.2d 1197, directly contradicts its claim that more information
is needed to justify the Government's claims of privilege.
Although the Court of Appeals did note that "the work product
exemption, read over-broadly, could preclude almost all
disclosure from an agency with substantial responsibilities for
law enforcement," 92 6 F. 2d at 12 03, it then stated "that where
an attorney prepares a document in the course of an active
investigation focusing upon specific events and a specific
possible violation by a specific party, it has litigation
sufficiently 'in mind' for that document to qualify as attorney
work product." Id. The Government has sufficiently demonstrated
that the withheld documents were created in the course of the
DOJ's investigation into Rep. Young's potentially illegal
actions with respect to the "Coconut Road" earmark.
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Moreover, the original FOIA request specifically sought all
documents related to DOJ's investigations of Rep. Young
concerning allegations of bribery and other illegal conduct. See
CREW I, 840 F. Supp. 2d at 231. Therefore, the scope of the
document request itself supports the Court's conclusion that the
Government's documents are attorney work product and its
affidavits should be credited. See Ancient Coin Collectors
Guild, 641 F. 3d at 509 ("Uncontradicted, plausible affidavits
showing reasonable specificity and a logical relation to the
exemption are likely to prevail.") (citing Larson v. Dep't of
State, 565 F.3d 857, 862 (D.C. Cir. 2009)).
One set of documents requires further · analysis. The
Criminal Division identified Document 40 as an email chain which
contains "ten emails sent between [Criminal Division] attorneys
and DOJ case agents" that "contain a discussion of an article
identified as 'Quiet Justice on Coconut Road Earmark . ' "
Cunningham Decl. ' 36. "One of the emails appears to have been
sent to a DOJ attorney by a reporter for Congressional
Quarterly. Specifically, the emails involve a discussion among
[Criminal Division] attorneys related to the previously
mentioned article, and further discuss possible responses from
the Criminal Division to a question proffered by the
Congressional Quarterly reporter to a DOJ attorney." Id.-16-
Documents 41-43 and 53-58 are email chains that "contain a
discussion amongst [Criminal Division] attorneys related to the
previously mentioned email from the reporter, and further
discussing possible ramifications to their investigation should
the Criminal Division respond to the inquiry proffered by the
reporter." Id. ~ 37.
While the Criminal Division does not explain how these
documents were "prepared in anticipation of litigation," it is
not necessary to resolve this issue, which has not been
specifically addressed by the parties, because it is clear that
these documents are protected by the deliberative process
privilege. The Government has otherwise fully satisfied its
burden of demonstrating that the withheld records were prepared
in anticipation of litigation, and, thus, that they were
properly withheld as attorney work product under Exemption 5.
Finally, our Court of Appeals has ruled that "any part of a
document prepared in anticipation of litigation, not just the
portions concerning opinions, legal theories, and the like, is
protected by the work product doctrine." Judicial Watch, Inc. v.
Dep't of Justice, 432 F.3d 366, 371 (D.C. Cir. 2005) (citing Tax
Analysts v. I.R.S., 117 F.3d 607, 620 (D.C. Cir. 1997)). Thus,
the Court finds that the agency has met its burden to disclose
all segregable portions of otherwise exempt records. Sussman v.
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Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007) (noting
that district court must make specific finding regarding
segregability of documents withheld under exemptions).
2. Deliberative Process Privilege
The deliberative process privilege protects udocuments
reflecting advisory opinions, recommendations, and deliberations
comprising part of a process by which governmental decisions and
policies are formulated, as well as other subjective documents
that reflect the personal opinions of the writer prior to the
agency's adoption of a policy.,, Tax Analysts, 2 94 F. 3d at 80
(citation omitted) . The ukey question" is whether disclosure of
the information uwould discourage candid discussion within the
agency." Access Reports v. Dep,t of Justice, 926 F.2d 1192, 1195
(D.C. Cir. 1991) (citation and internal quotation marks
omitted)
To invoke the deliberative process privilege, an agency
must show that a document is uboth predecisional and
deliberative." Ancient Coin Collectors Guild, 641 F.3d at 512(quoting Mapother, 3 F.3d at 1537). A document is predecisional
if it was ugenerated before the adoption of an agency policy"
and deliberative if it ureflects the give-and-take of the
consultative process." Judicial Watch, Inc. v. Food & Drug
Admin., 449 F.3d 141, 151 (D.C. Cir. 2006) (citing Coastal
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States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C.
Cir. 1980)).
First, the Court finds that the Criminal Division has
sufficiently established that Documents 40-43 and 53-58 are
predecisional and deliberative. The Cunningham Declaration
describes the content of these emails as discussions related to
"possible responses from the Criminal Division to a question
proffered by the Congressional Quarterly reporter to a DOJ
attorney" and "possible ramifications to their investigation
should the Criminal Division respond to the inquiry proffered by
the reporter." Cunningham Decl. ~~ 36-37. Thus, the documents
are predecisional because the documents were "generated before
the adoption of an agency policy," and deliberative because
there was a "give-and-take" regarding how to proceed. Judicial
Watch, 449 F.3d at 151 (citation omitted).
Other members of this District Court have found similar
documents covered by the deliberative process privilege. See
Judicial Watch, Inc. v. Dep't of Treasury, 796 F. Supp. 2d 13,
31 (D.D.C. 2011) (finding that deliberative process privilege
covered email exchange "reflect [ing] internal deliberations as
to how to respond to a press inquiry"); Judicial Watch, Inc. v.
Dep't of Homeland Sec., 736 F. Supp. 2d 202, 208 (D.D.C. 2010)
(holding that deliberative process privilege covered emails
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"discuss [ing] how to respond to on-going inquiries from the
press") . It is clear that email exchanges between employees
regarding how to respond to pending press inquiries are the
types of discussions that agency employees are entitled to have
without fear of disclosure. See Tax Analysts, 2 94 F. 3d at 80
(noting that the privilege protects "internal deliberations");
see also Access Reports, 926 F.2d at 1195 (focusing inquiry on
whether disclosure "would discourage candid discussion within
the agency").
CREW's generic arguments regarding the deliberative process
privilege are not persuasive with regard to these specific
documents. First, CREW argues that Defendants have not provided
enough context to allow the Court to evaluate whether the
documents were appropriately withheld. They insist that the
Government must identify specific information, including the
"function and significance of the documents in the agency's
decision making process," the "nature of the decisionmaking
authority vested in the office or person issuing the disputed
documents," the "positions in the chain of command of the
parties to the documents," and "a timeframe during which these
activities took place." CREW's Opp'n to Criminal Div. Mot. 10
(citing Arthur Andersen & Co. v. I.R.S., 679 F.2d 254, 258 (D.C.
Cir. 1982) (internal quotation marks and citations omitted));
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Reply Mem. in Support of Pl.'s Cross-Mot. for Partial Summ. J.
With Respect to the Criminal Division 3 [Dkt. No. 42].
There is no case law which mandates that an agency must
always provide the extremely detailed descriptive information
that CREW requests in order to justify withholding documents
under the deliberative process privilege. In fact, our Court of
Appeals has resisted making such categorical rules. See, e.g.,
Judicial Watch, 449 F.3d at 151 (refusing to adopt a categorical
rule that any undated entry cannot be considered predecisional).
Rather, the agency's burden is to submit Vaughn indices and
affidavits that are "specific enough so that the elements of the
privilege can be identified." Judicial Watch, Inc. v. Postal
Serv., 297 F. Supp. 2d 252, 257 (D.D.C. 2004).
As discussed above, the Criminal Division has provided
sufficient information for the Court to evaluate whether the
deliberative process privilege applies. Moreover, with respect
to these documents in particular, the Criminal Division has
identified many of the specifics that CREW requests. It
disclosed the dates of the emails, see Criminal Division's
Second Vaughn Index 5-6, 8-9, and identified the parties
involved with sufficient detail to understand the email
conversations without disclosing personal information that might
invade the privacy interests protected by Exemptions 6 and 7.
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See infra sec. III.B. Thus, CREW's insistence that the
Government has failed to provide sufficient context is
unpersuasive.
Second, CREW argues that the Government must disclose any
documents or portions of documents that articulate and form the
basis for the final decision not to prosecute Rep. Young. 5
However, the deliberative process privilege does not turn on
identifying such a decision. As the Supreme Court has observed,
"the need to protect pre-decisional documents does not mean that
the existence of the privilege turns on the ability of an agency
to identify a specific decision in connection with which a
memorandum is prepared." N.L.R.B. v. Sears, Roebuck & Co., 421
U.S. 132, 151 n.18 (1975); see also Access Reports, 926 F.2d at
1196 ("Any requirement of a specific decision after the creation
of the document would defeat the purpose of the exemption. At
the time of writing the author could not know whether the
decisionmaking process would lead to a clear decision,
establishing the privilege, or fizzle, defeating it.")
Moreover, to the extent that the public is entitled to
disclosure of "the reasons which did supply the basis for an
agency policy actually adopted," see Sears, 421 U.S. at 152-53,
5
The Court notes that the basis for the Government's decision
not to prosecute Rep. Young is not a matter of public record.
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there is no indication that these emails contain the final
decision not to prosecute Rep. Young or the reasons behind that
decision. Rather, the Vaughn index and the Cunningham
Declaration assert that these documents embody a discussion
within the agency about how to respond to a press inquiry. Thus,
CREW's insistence that portions of these documents should be
disclosed because they discuss the agency's decision not to
prosecute Rep. Young is not persuasive.
Third, CREW argues that the Government is withholding
documents that contain "purely factual information" that are not
protected by the deliberative process privilege. Purely factual
material cannot be withheld under Exemption 5 unless it
"reflects an exercise of discretion and judgment calls." Ancient
Coin Collectors Guild, 641 F.3d at 513 (citing Mapother, 3 F.3d
at 1539 (internal quotation marks omitted)). CREW criticizes the
Government's argument that certain fact summaries were
appropriately withheld because they involved an exercise of
judgment with regard to what evidence or testimony might be
relevant or significant to a prosecution. CREW notes that "a
report does not become part of the deliberative process merely
because it contains only those facts which the person making the
report thinks material." CREW's Opp'n to Criminal Div. Mot. 15
(citing Nat'l Whistleblower Ctr. v. Dep't of Health & Human
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Serv., 849 F. Supp. 2d 13, 37 (D.D.C. 2012) ( citations and
internal quotation marks o~itted))
No factual summaries are at issue here, and there is no
reason to believe that these email discussions contain "purely
factual material" that should be segregated and provided to
Plaintiff. Unlike documents that have been found to be purely
factual, these documents do not recount underlying facts
discovered in the investigation in a chronological fashion,
Mapother, 3 F.3d at 1540, or summarize information that already
exists in the public domain, Petroleum Info Corp., 976 F.2d at
1438. Even if some underlying facts were included in these
documents, they clearly "reflect an agency,s preliminary
positions or ruminations about how to exercise discretion,, and
thus are protected by the deliberative process privilege. Id. at
1435.
Therefore, the Court concludes that the Government has
established that Documents 40-43 and 53-58 are protected by the
deliberative process privilege. Moreover, the Court concludes,
based on the agency,s detailed descriptions of these documents,
that they are non-segregable. Sussman, 494 F. 3d at 1117(requiring specific findings regarding segregability) .
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B. Exemption 6 and Exemption 7(C)
Both the Criminal Division and the EOUSA withheld documents
and redacted portions of released documents claiming that the
information was protected by Exemption 6 and Exemption 7 (C) .
Exemption 6, applies to "personnel or 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).
Exemption 7 (C) applies to "records or information compiled for
law enforcement purposes" when disclosure "could reasonably be
expected to constitute an unwarranted invasion of personal
privacy." 5 U.S.C. § 552 (b) (7) (C).
Exemption 7 (C) is "more protective of privacy than
Exemption 6 and thus establishes a lower bar for withholding
material." A.C.L.U. v. Dep't of Justice, 655 F.3d 1, 6 (D.C.
Cir. 2011) (citation and internal quotation marks omitted)
(noting that "Exemption 7(C) permits withholding of
records if disclosure would constitute an 'unwarranted' invasion
of personal privacy, while Exemption 6 requires a '.clearly
unwarranted' invasion to justify nondisclosure") . Because CREW
does not dispute that the requested records are "records
compiled for law enforcement purposes" and thus subject to
Exemption 7 (C) , the Court need only consider whether the EOUSA
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and the Criminal Division properly invoked Exemption 7 (C) . See
id.To evaluate whether records were appropriately withheld
under Exemption 7 (C) the Court must first ascertain whether a
"legitimate privacy interest is implicated." Sussman, 494 F. 3d
at 1115. If so, the requester must "(1) show that the public
interest sought to be advanced is a significant one, an interest
more specific than having the information for its own sake, and
( 2) show the information is likely to advance that interest."
Id. (citation omitted).
CREW's only objection to the Government's withholdings
under Exemptions 6 and 7(C) is that the Government has redacted
information related to Rep. Young, under the umbrella of
protecting the information of "third parties of investigative
interest." CREW insists that this Court has already decided that
Young's information is discoverable and should be disclosed,
citing CREW I, 840 F. Supp. 2d at 236.
In CREW I, this Court addressed the issue of whether DOJ
could categorically withhold all of the relevant documents under
Exemptions 6 and 7(C) "because Rep. Young has a privacy interest
in the requested records and Plaintiff has failed to articulate
a public interest that overrides his privacy interest." Id. at
230. The Court made several findings. First, the Court found
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that Rep. Young had a "substantial - although much diminished -
privacy interest." Id. at 233-34. Second, the Court found that
there was "substantial public interest" in examining how DOJ
enforces the "law governing the activities of federal
officials," particularly considering "the explicit direction
given by Congress to the DOJ to investigate the Coconut Road
matter." Id. at 235. Finally, the Court found that "the
balancing of Rep. Young's privacy interest against the public
interest in releasing the requested documents tips strongly in
favor of the public interest." Id. at 236.
CREW is correct that this Court has already found that
there is a legitimate privacy interest at issue, the public
interest is significant, and the information sought is likely to
advance that interest. Thus, CREW has satisfied its burden. See
Sussman, 494 F.3d at 1115.
The Government insists that the Court has only ruled on its
categorical denial, and points to the Court's observation that
"once a Vaughn index is filed, the Court will make a specific
individualized decision for each document as to whether it
should be redacted or totally withheld pursuant to Exemption 6
and 7 (C) . " CREW I, 840 F. Supp. 2d at 236. The Government is
correct that it is entitled to make individualized arguments as
to why particular documents might be appropriately withheld
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under those Exemptions, but it has failed to actually make those
individualized arguments with respect to Rep. Young.
The Vaughn indices, Declarations, and Briefs proffered by
the Government do not distinguish between Rep. Young and other
third parties. They do not at any point discuss this Court's
findings that Rep. Young's privacy interest is clearly
diminished by the fact that DOJ's investigations into his
activity are "already a matter of public record." See id. at
233. The Government also does not address this Court's
observation that the public interest in this case is enhanced by
the "added, and decidedly uncommon fact" that Congress passed a
specific piece of legislation directing DOJ to investigate
possible improprieties related to the "Coconut Road"
appropriation. Id. at 234.
Currently, the Government's argument is limited to
boilerplate language regarding private and public interests
under these Exemptions. It is sometimes appropriate to evaluate
the interests of broad categories of individuals such as agency
employees, suspects, and witnesses, as the Government did here
and to which CREW did not object. However, in a case cited by
the Government for support, Kimberlin v. Dep't of Justice, 139
F.3d 944 (D.C. Cir. 1998), our Court of Appeals conducted an
individualized analysis of the interests implicated by the
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potential release of documents related to a particular, named
individual. See id. at 949. The Government cannot treat Rep.
Young as merely a "suspect" whose name happens to be mentioned
in these records, because this does not fulfill its obligation
to balance the specific interests involved.
The burden is on the agency to justify its decision to
withhold information pursuant to a FOIA exemption, Petroleum
Info. Corp., 976 F.2d at 1433 (citing 5 U.S.C. § 552 (a) (4) (B)),
and the Government has not done so with regard to the
information related to Rep. Young. The EOUSA and the Criminal
Division are directed to review the documents and portions of
documents that have been withheld under Exemptions 6 and 7 (C)
and disclose such information, or justify more specifically why
it should not do so considering the specific interests
implicated.
C. In Camera Review
CREW has requested that this Court conduct an in camera
inspection of the withheld documents. 5 U.S.C. § 552(a) (4) (B)
grants courts the ability to "examine the contents of such
agency records in camera to determine whether such records or
any part thereof shall be withheld." The decision regarding
whether or not to grant in camera review is left to the broad
discretion of the district court. A.C.L.U. v. Dep't of Defense,
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628 F.3d 612, 626 (D.C. Cir. 2011) (quoting Ctr. for Auto Safety
v. E.P.A., 731 F.2d 16, 20 (D.C. Cir. 1984)).
Our Court of Appeals has made clear that when the agency
has met its burden by means of affidavits, "in camera review is
neither necessary nor appropriate." A.C.L.U., 628 F.3d at 626(quoting Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv., 608 F.2d
1381, 1387 (D.C. Cir. 1979)). In this case, with the exception
of redacted information related to Rep. Young, the agencies have
provided affidavits and Vaughn indices that "set[] forth with
specificity the information withheld and the reasons preventing
its disclosure" under Exemption 5. A.C.L.U., 628 F.3d at 627.
Thus, CREW's request for in camera review of those documents is
denied.
IV. CONCLUSION
For the foregoing reasons, the Government's Motions for
Summary Judgment will be granted in part and denied in part, and
CREW's Cross-Motions for Summary Judgment will be granted in
part and denied in part. The Government will be ordered to
submit an updated Vaughn Index in conformity with this
Memorandum Opinion no later than August 1, 2013.
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An Order shall accompany this Memorandum Opinion.
June 12, 2013
/s/i/~~. ~
Gladys Kessl~ ' ~
United States District Judge
Copies to: attorneys on record via ECF
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