Tokar v. U.S. Department of Justice ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DYLAN TOKAR, :
:
Plaintiff, : Civil Action No.: 16-2410 (RC)
:
v. : Re Document No.: 9, 10
:
U.S. DEPARTMENT OF JUSTICE, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT; GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This case arises from two Freedom of Information Act (“FOIA”) requests to the Criminal
Division of the U.S. Department of Justice (“DOJ”). Dylan Tokar, a reporter for the publication
Just Anti-Corruption, which covers investigations and prosecutions under the Foreign Corrupt
Practices Act (“FCPA”), sought records regarding the selection of corporate compliance
monitors for fifteen corporations that had resolved their FCPA cases through deferred
prosecution agreements (“DPA”). Following discussions with a DOJ attorney, during which Mr.
Tokar was warned that DOJ would likely attempt to withhold documents responsive to his first
FOIA requests under several FOIA exemptions, Mr. Tokar narrowed his request in an attempt to
speed up the production process. Four months after Mr. Tokar narrowed his request, DOJ
informed Mr. Tokar that, pursuant to 28 C.F.R. § 16.8(f), DOJ would need to send notifications
to the fifteen corporations identified in his FOIA request in order to give them an opportunity to
object to DOJ’s proposed disclosures. Following the dispatch of these “submitter notification”
letters, Mr. Tokar submitted a second FOIA request seeking the disclosure of any objection
letters the fifteen corporations submitted in response to the notifications. After months without a
production in response to either FOIA request, Mr. Tokar filed this suit. DOJ’s ultimate
responses to Mr. Tokar’s FOIA requests—a table with the information he sought through his first
request, and copies of the letters he sought through his second—contained multiple redactions.
DOJ moved for summary judgment following these releases, and Mr. Tokar cross-moved for
summary judgment, challenging the majority of DOJ’s redactions. For the reasons set forth
below, the Court finds that each of DOJ’s redactions under Exemptions 6 and 7(C) were
improper, but that its redaction pursuant to Exemption 4, which Mr. Tokar did not challenge, was
permissible.
II. FACTUAL AND PROCEDURAL BACKGROUND
Journalist Dylan Tokar, of the trade publication Just Anti-Corruption, has filed two FOIA
requests seeking records and information related to DOJ’s selection process for corporate
compliance monitors in FCPA cases. Corporate compliance monitors are hired at the expense of
a company under DOJ scrutiny and are typically responsible for “(1) investigating the extent of
wrongdoing already detected and reported to the government; (2) discovering the cause of the
corporation’s compliance failure; and (3) analyzing the corporation’s business needs against the
appropriate legal and regulatory requirements.” Veronica Root, The Monitor-“Client”
Relationship, 100 Va. L. Rev. 523, 531 (2014). Following public controversy regarding the
selection of monitors, DOJ launched an inquiry into its monitor selection process and issued the
“Morford Memorandum,” which formally established principles for monitor selection. See Pl.’s
Mem. L. Opp’n Def.’s Mot. Summ. J. & Supp. Pl.’s Cross-Mot. Summ. J. (“Pl.’s Mem.”) at 5,
ECF No. 10-1. According to Mr. Tokar, the memorandum “lays out several mechanisms to
achieve the goals of independence and avoidance of conflict-of-interest, including the creation of
2
a ‘standing or ad hoc committee’ within DOJ and a reminder to those involved in the selection
process that they must comply with DOJ conflict-of-interest regulations.” Id. (internal citation
omitted). “More specifically, the Morford Memorandum calls for the selection of monitors
through the use of a candidate pool ‘of at least three qualified monitor candidates’ whenever
possible.” Id.
As a reporter focused on FCPA enforcement, Mr. Tokar is interested in obtaining records
from DOJ that he claims “would shed light on [corporate compliance monitor selection],
including whether DOJ [is] abiding by the principles for monitor selection set forth in the
Morford Memorandum.” Id. at 6. Accordingly, he submitted a FOIA request on April 24, 2015
seeking “copies of records relating to the review and selection of independent corporate monitors
under Foreign Corrupt Practices Act (FCPA) settlement agreements between the Justice
Department and [fifteen specific]1 corporate defendants,” including:
1. All documents submitted by counsel for the companies at the
outset of each monitor selection process, including the names of
up to three qualified monitor candidates whom the companies
are allowed to recommend. The information should identify
which candidate, if any, the company specified as its first choice
to serve as monitor.
2. All Monitor Selection Memoranda, including any files,
documents and attachments therein, submitted for review to the
Standing Committee on the Selection of Monitors . . .
[specifically] information about which monitors were approved
or disapproved and the reasons therefore, including the
recommendations submitted by the committee, the Assistant
Attorney General for the Criminal Division, and the Office of
the Deputy Attorney General.
1
The fifteen corporations listed were; Alcatel-Lucent, S.A.; Alliance One International
AG; Alstom S.A.; Avon Products, Inc.; BAE Systems plc; Bilfinger SE; Biomet Inc.; Daimler
AG; Diebold Inc.; Innospec Inc.; JGC Corporation; Smith & Nephew, Inc.; Technip S.A.;
Universal Corporation; and Weatherford International Ltd. See Compl., Ex. 1, ECF No. 1-1.
3
3. Records of the Standing Committee, including its membership,
attendance records, appointments of temporary designees,
voting records and recusals in connection with the consideration
of monitor candidates for each of the companies listed below.
Compl., Ex. 1, ECF No. 1-1. During the summer of 2015, Mr. Tokar spoke on the phone several
times with DOJ attorney Peter Sprung, who warned Mr. Tokar that he believed that several
FOIA exemptions would be asserted as to the documents he had requested, and therefore that
several of those documents would be withheld. See Pl.’s Statement of Material Facts (“Pl.’s
SMF”) ¶¶ 23–27, ECF No. 10-2. Based on these conversations, Mr. Tokar grew worried that he
would not be given documents responsive to his first FOIA request unless he narrowed its scope.
Decl. Dylan Tokar (“Tokar Decl.”) ¶¶ 12–14, ECF No. 10-3.
Therefore, Mr. Tokar and his editor, Mary Jacoby, agreed to “narrow [the] request” to the
following for the fifteen corporate defendants named in the original FOIA request:
1. The names of the up to three monitor candidates and their
associated law or consulting firms submitted to the [d]epartment
by the defendant corporations under the terms of their negotiated
resolutions.
2. The names and titles of members of the Criminal Division's
Standing Committee on the Selection of Monitors for the period
Jan. 1, 2009 up through the present date. Along with the names
of the members of the committee, please give their dates of
service . . . [and] the names of any temporary designees
appointed to the committee and the dates of their service.
Compl., Ex. 2, ECF No. 1-2. Even after narrowing the scope of his request, however, Mr. Tokar
did not receive a speedy response. In the fall of 2015, Mr. Tokar and Ms. Jacoby reached out to
DOJ on two occasions, reminding them that they had still not received a response to Mr. Tokar’s
FOIA request. See Pl.’s SMF ¶ 31–32; Tokar Decl. ¶ 17. Then, in December 2015, Mr. Sprung
informed Mr. Tokar that DOJ would be notifying the fifteen companies of Mr. Tokar’s FOIA
request and would give the companies a chance to object to the release of the requested
4
information, pursuant to Executive Order 12,600 and 28 C.F.R. § 16.8. See Tokar Decl. ¶ 18.
Ultimately, fourteen companies leveled some sort of objection to the release of the information
in Mr. Tokar’s FOIA request. See Tokar Decl. ¶ 23.
On April 12, 2016, Mr. Tokar submitted a second FOIA request to DOJ seeking “copies
of [the] 28 C.F.R. § 16.8(f) statements submitted by companies in connection with [the] previous
FOIA request.” Compl., Ex. 7, ECF No. 1-7. Eight months later, Mr. Tokar still had not received
responses to either FOIA request, and therefore, on December 9, 2016, he filed suit in this Court.
See Compl.
Six weeks after Mr. Tokar filed his complaint, DOJ provided him with what it considered
to be a response to his first FOIA request: a table containing the information listed in Mr.
Tokar’s narrowed FOIA request, with certain information—the names of the monitor candidates
who were nominated but not selected, the firms these candidates worked for if those firms were
small, and the names of two members of the DOJ Standing Committee—redacted pursuant to
FOIA Exemptions 6 (“personnel and medical files and similar files”) and 7(C) (“records or
information compiled for law enforcement purposes, but only 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”). See Def.’s Statement of Material Facts (“Def.’s
SMF”) ¶ 8, ECF No. 9; 5 U.S.C. § 552(b)(6), (7)(C). DOJ had to issue amended versions of this
table twice after Mr. Tokar identified errors within it. See Pl.’s SMF ¶¶ 46–51.
In the summer of 2017, DOJ provided Mr. Tokar with copies of the response letters that
he had sought in his second FOIA request, with certain information withheld pursuant to FOIA
Exemptions 4 (“trade secrets and commercial or financial information obtained from a person
and privileged or confidential”), 6, and 7(C), though the agency ultimately concluded that
5
Exemption 7(C) did not apply to these letters. See Decl. Peter C. Sprung (“Sprung Decl.”) ¶ 23,
ECF No. 9-2. DOJ not only again withheld the names of the monitor candidates who had not
been selected, but it also withheld the names of the private attorneys who had responded to the
notices on behalf of their corporate clients and the name of two DOJ employees who dealt with
the submitter notice process. See Sprung Decl. ¶ 30. Following these releases, the parties cross-
moved for summary judgment. Their motions are now ripe for decision.
III. LEGAL STANDARD
A court may grant a motion for summary judgment when 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A “material” fact is
one that “might affect the outcome of the suit under the governing law.” Id. at 248. Once the
moving party has demonstrated the absence of a genuine dispute of material fact, the non-
moving party may not simply rely on the allegations in its pleadings, and must present more than
“a scintilla of evidence” to support its factual assertions. Id. at 252.
In reviewing a motion for summary judgment under the FOIA, the district court conducts
a de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). In a FOIA action in which the
sufficiency of a search is challenged, a defendant agency must demonstrate “beyond material
doubt [] that it has conducted a search reasonably calculated to uncover all relevant documents”
in order to succeed on summary judgment. Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007)
(alteration in original) (internal citation and quotation marks omitted). The agency also carries
the burden of demonstrating that any responsive records that were not provided were properly
withheld pursuant to one of nine express statutory exemptions. Citizens for Responsibility and
Ethics in Washington v. U.S. Dep’t of Justice, 746 F.3d 1082, 1088 (D.C. Cir. 2014). The agency
6
may carry that burden by submitting affidavits that “‘describe 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.’” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)
(quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)). It is not sufficient for the agency
to provide “vague, conclusory affidavits, or those that merely paraphrase the words of a statute . .
. .” Church of Scientology of Cal., Inc. v. Turner, 662 F.2d 784, 787 (D.C. Cir. 1980). When an
agency invokes an exemption, “it must submit affidavits that provide ‘the kind of detailed,
scrupulous description [of the withheld documents] that enables a District Court judge to
perform a de novo review.’” Brown v. FBI, 873 F. Supp. 2d 388, 401 (D.D.C. 2012) (quoting
Church of Scientology, 662 F.2d at 786) (alternation in original). Agency affidavits sometimes
take the form of a Vaughn index, see Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), but there
is “no fixed rule” establishing what such an affidavit must look like, ACLU v. CIA, 710 F.3d 422,
432 (D.C. Cir. 2013). “[I]t is the function, not the form, of the index that is important.” Keys v.
U.S. Dep’t of Justice, 830 F.2d 337, 349 (D.C. Cir. 1987).
IV. ANALYSIS
DOJ has moved for summary judgment regarding its responses to Mr. Tokar’s FOIA
requests. DOJ first claims that Mr. Tokar’s first request, as narrowed, was a request for
information, rather than documents, and therefore that the agency’s response to that narrowed
request (a table) was an act of agency grace because DOJ was not “obligated to conduct a search
for responsive documents in the ordinary sense.” Def.’s Mem. Supp. Def.’s Mot. Summ. J.
(“Def.’s Mem.”) at 3, ECF No. 9. It further argues that not only has it demonstrated that its
search in response to the request was adequate, but also that its redactions to the table under
7
FOIA Exemptions 6 and 7(C) were lawful. Additionally, DOJ argues that it has sufficiently
shown that its redactions to the response letters under FOIA Exemptions 4 and 6 were
permissible. Mr. Tokar counters that his narrowed FOIA request was a request for documents,
not information, and now requests that DOJ turn over the documents that it used to make its
table. Additionally, he claims that DOJ’s redactions to the documents released in response to his
first and second requests pursuant to Exemptions 6 and 7(C) were impermissible. However, he
does not object to DOJ’s single redaction pursuant to Exemption 4. For the reasons set forth
below, the Court finds that Mr. Tokar’s narrowed request should have been interpreted as a
request for documents, not simply information, given that his original request was a similarly
worded request for both documents and information. It further finds that DOJ’s redactions
pursuant to Exemptions 6 and 7(C) were impermissible, but affirms DOJ’s decision to redact
several paragraphs of text pursuant to Exemption 4.
A. Narrowing of the First FOIA Request
This case presents an uncommon situation, in which a request for a wide array of
documents was narrowed to a request for the disclosure for certain information, rather than
specific, identified documents—information that the requester would have had access to if he
had received the documents he had initially sought through the request that the defendant agency
had encouraged him to narrow. Therefore, in adjudicating these motions for summary judgment,
the Court must first determine the legal effect of the narrowing of Mr. Tokar’s first FOIA
request. DOJ claims that the language in the email in question “narrowed [Mr. Tokar’s] request
in a manner that no longer sought the release of the actual documents identified in the original
request, but instead sought only certain information with regard to the 15 FCPA matters
identified in his original request.” Def.’s SMF ¶ 3. DOJ therefore claims that Mr. Tokar’s
8
narrowing was not a legitimate FOIA request, because FOIA requests must seek documents, not
simply information. See Def.’s Mem. at 3. It backs up this claim with a follow-up email Mr.
Tokar sent five months after the narrowing of his request, in which he reiterated that he had
narrowed his request so that he was “merely asking for (1) [t]he names and law firm affiliations
of the three monitor candidates put forth by each company on our list [and] (2) [t]he names and
titles of members of the Standing Committee on the Selection of Monitors, including their dates
of service and any temporary designees.” Def.’s SMF ¶ 5 (citing Compl., Ex. 6, ECF No. 1-6)
(alternations in original). DOJ claims that “because Plaintiff’s narrowed request did not seek
underlying documents but instead certain information, DOJ reasonably responded to the FOIA
request by creating a table that contained the requested information.” Id. ¶ 6. Mr. Tokar responds
that his request was a proper FOIA request seeking documents, as evidenced by the fact that his
narrowed request was an alteration of a clearly permissible FOIA request that had sought
documents, as well as the fact that DOJ categorized his narrowed request as a FOIA request with
a unique FOIA request case number. Additionally, Mr. Tokar believes that the Court should
credit his good faith attempt to narrow his FOIA request and imply from the narrowing of his
request that he was seeking records that reflected a narrower scope of information than that in his
original request. See Pl.’s Mem. at 12–14, ECF No. 10-1. Mr. Tokar is correct that DOJ should
have construed his narrowed request as a request for the documents containing the information
he sought.
FOIA requests must “reasonably describe[]” the records sought. 5 U.S.C. § 552(a)(3)(A).
In determining whether a request reasonably describes the records sought, courts should consider
whether the request would allow agency staff to determine precisely which records are being
requested and to locate them. See Yeager v. Drug Enf’t Admin., 678 F.2d 315, 326 (D.C. Cir.
9
1982). Agencies are not required to “dig out all the information that might exist, in whatever
form or place it might be found, and to create a document that answers plaintiff’s questions.”
Frank v. U.S. Dep’t of Justice, 941 F. Supp. 4, 5 (D.D.C. 1996). Normally, an agency “is not
obliged to look beyond the four corners of the request . . . .” Kowalczyk v. Dep’t of Justice, 73
F.3d 386, 389 (D.C. Cir. 1996). However, agencies have a duty to “construe a FOIA request
liberally.” LaCedra v. Exec. Office for U.S. Attorneys, 317 F.3d 345, 348 (D.C. Cir. 2003)
(quoting National Magazine, Washington Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.
Cir. 1995)) . Under DOJ’s own regulations, if the component of DOJ that has received the
request “determines that it does not reasonably describe the records sought, the component shall
inform the requester what additional information is needed or why the request is otherwise
insufficient.” 28 C.F.R. § 16.3(b).
Generally, requests for information rather than records are not considered proper FOIA
requests. See Jean-Pierre v. Fed. Bureau of Prisons, 880 F. Supp. 2d 95, 103–104 (D.D.C.
2012). FOIA “does not obligate agencies to create or retain documents; it only obligates them to
provide access to those which it in fact has created and retained.” Kissinger v. Reporters Comm.
for Freedom of the Press, 445 U.S. 136, 142 & n.7 (1980); see also Rodriguez-Cervantes v. U.S.
Dep’t of Health & Human Servs., 853 F. Supp. 2d 114, 117 (D.D.C. 2012) (“As [plaintiff’s]
letters merely pose questions . . . or ask for assistance in applying for Social Security benefits,
they do not constitute valid FOIA requests.”); Thomas v. Comptroller of the Currency, 684 F.
Supp. 2d 29, 33 (D.D.C. 2010) (“To the extent that plaintiff’s FOIA requests were questions or
requests for explanations of policies or procedures, these are not proper FOIA requests requiring
the OCC’s response.”)
10
This case, however, is not a simple case in which an individual requested information
instead of documents because the request being interpreted is the narrowing of a previous request
that had unequivocally requested documents and specified the types of information the requester
wanted to see in those documents. For example, Mr. Tokar requested “[a]ll documents submitted
by counsel for the companies at the outset of each monitor selection process, including the names
of up to three qualified candidates whom the companies are allowed to recommend.” Compl.,
Ex. 1. The goal of this request was clear: Mr. Tokar wanted all of the documents submitted by
counsel at the outset of the selection process, and wanted to emphasize that he was especially
interested in obtaining documents that indicated which individuals each company nominated to
serve as monitors. The two other types of documents he sought in his original request also
included this linguistic mix of document and information request. See id.
Mr. Tokar’s narrowed request asked for some of the exact same information he had asked
for in his original request, but without the specification that the information be released in
specific records. However, taking both requests together, it can be reasonably inferred that Mr.
Tokar sought the same sort of documents in his narrowed request, and was simply informing
DOJ that he no longer sought documents from the fifteen companies’ attorneys or the standing
committee that reflected other information not identified in the narrowed request. And indeed,
given that the agency was already on notice of what Mr. Tokar was seeking from his previous
request, DOJ, construing the narrowed request liberally, should have reasonably interpreted that
Mr. Tokar was now seeking “documents submitted by counsel for the companies that indicated
the names of up to three monitor candidates and their associate law firm consulting firms” and
“records of the standing committee that indicate the names and titles of its members from
January 1, 2009 to August 11, 2015, their dates of service, and the names of any temporary
11
designees to the committee and their dates of service,” and was simply informing DOJ that he no
longer sought documents from the fifteen companies’ attorneys or the standing committee that
reflected other information. If DOJ could not reasonably interpret from Mr. Tokar’s narrowed
request what types of records or information he was seeking, it had a duty to confer with Mr.
Tokar to clear up any confusion. See 28 C.F.R. § 16.3(b). In order to save the agency some time
and provide Mr. Tokar the requested information in a more user-friendly format, the agency
certainly could have reached an agreement with Mr. Tokar regarding his acceptance of a chart in
lieu of the requested documents. But the record does not reflect that such an agreement was
reached and the agency cannot unilaterally reinterpret the request in this fashion.
Accordingly, the Court finds that DOJ is required to search for and release to Mr. Tokar
records submitted by the fifteen companies’ attorneys that reflect “[t]he names of [] up to three
monitor candidates and their associated law or consulting firms submitted to the [d]epartment by
the defendant corporation under the terms of their negotiated resolutions,” and standing
committee records that reflect “[t]he names and titles of members of the Criminal Division’s
Standing Committee on the Selection of Monitors for the period Jan. 1, 2009 up through the
present date,” as well as those members’ “dates of service . . . [and] the names of any temporary
designees appointed to the committee and the dates of their service.” Pl.’s Mot. Summ. J., Ex. F,
ECF No. 10-9.2
2
It is not clear to the Court that Mr. Tokar really wants the records or whether he will be
content with an unredacted chart as ordered herein. See Pl.’s Mem. at 14 (“Although he did not
agree to it, Plaintiff would have been satisfied with an accurate, unredacted table providing only
the specific information that is the subject of his First FOIA Request, as narrowed, in lieu of
responsive records.”). Clearly, the Court does not wish to order the expending of additional
agency resources in this case if the dispute at hand is solely one over principle, rather than
documents. However, absent such an agreement regarding the sufficiency of the chart, the Court
must order the search for and processing of the records.
12
B. Adequacy of the Search
When considering a motion for summary judgment in a FOIA case, courts have an
independent duty to determine whether the agency’s search for responsive records was adequate.
See Winston & Strawn, LLP v. McLean, 843 F.3d 503, 507–08 (D.C. Cir. 2016) (under the
Federal Rules of Civil Procedure, a “District Court may enter summary judgment only if, after
fully considering the merits of the [unchallenged] motion, it finds that it is warranted”). In order
to be granted summary judgment, an “agency must demonstrate that it has conducted a search
reasonably calculated to uncover all relevant documents.” Steinberg v. U.S. Dep’t of Justice, 23
F.3d 548, 551 (D.C. Cir. 1994) (internal citation and quotation marks omitted).
Mr. Tokar has not directly challenged the adequacy of DOJ’s searches in response to
either of his FOIA requests. Indeed, in response to his second FOIA request, DOJ was able to
locate and produce each of the fifteen documents he requested. See Sprung Decl. ¶ 23. However,
he does indirectly challenge the adequacy of the search for records that DOJ used to compile its
table in response to his first request by pointing out that “Defendant has twice revised [the table]
to correct errors, and Plaintiff has no way of knowing whether Defendant’s now-third version of
its table is accurate.” Pl.’s Mem. at 2 (emphasis in original). Mr. Tokar now insists that he is
entitled to copies of the actual documents responsive to his first FOIA request, and as this Court
has explained, the agency is required to produce them.
Because DOJ has not yet produced to Mr. Tokar the documents responsive to his first
FOIA request, the Court cannot yet determine the adequacy of its search. However, DOJ’s
description of the way it searched for documents that allowed it to create the table it released to
Mr. Tokar appears to be a promising start. DOJ has explained its process of searching for records
with information responsive to Mr. Tokar’s first FOIA request as follows:
13
(1) we consulted with individuals in the Fraud Section of the
Criminal Division who had knowledge of the subject matter of the
request; (2) we identified the custodians of records involving DOJ’s
review and selection of the monitors in the 15 FCPA matters in
question; (3) we determined that there was no single document that
listed the information Plaintiff was requesting; (4) upon devising
appropriate search parameters, we searched the custodians’ email
accounts and obtained certain other relevant electronic and paper
files; (5) we queried a correspondence tracking system maintained
by the Office of the Assistant Attorney General for the Criminal
Division (“AAG”); and (6) having obtained the necessary records
and loaded the electronic records into a text searchable database, we
reviewed the records and extracted the information necessary to
prepare the table.
Sprung Decl. ¶ 9. Replicating this process should bring DOJ well on its way to adequately
searching for responsive records and adequately responding to Mr. Tokar’s FOIA request.
C. The Redactions
DOJ has redacted certain information contained in the table and response letters it
released to Mr. Tokar under FOIA Exemptions 4, 6, and 7(C). From its response to Mr. Tokar’s
first FOIA request—a table which contained “the date the Deputy Attorney General (‘DAG’)
approved the selection of the monitor candidate or other available information when the date of
the DAG’s approval was unknown, the names of the Standing Committee members, the name of
any professional services firm with whom [] the nominee was associated, and the name of the
appointed monitor,” Sprung Decl. ¶ 10 (internal footnotes omitted)—DOJ redacted, pursuant to
Exemptions 6 and 7(C), “the names of monitor selection committee members who are not part of
DOJ’s senior management” and “the names and related personal identifying information
concerning the individuals nominated but not selected to be monitors.” Id. ¶ 12. From its
response to Mr. Tokar’s second FOIA request—copies of the letters responding to DOJ’s
submitter notices—DOJ redacted, pursuant to Exemption 4, several paragraphs of text describing
certain internal steps one of the companies, Daimler AG, took to evaluate and enhance its FCPA
14
compliance programs, as well as the names of the nominees who were not selected to be
monitors, the names of private attorneys who responded to the submitter notices, and the names
of two DOJ employees who either received the responses or handled the FCPA cases, all
pursuant to Exemption 6. Id. ¶¶ 25–28, 30. Mr. Tokar does not challenge the redaction under
Exemption 4,3 but does challenge the redactions under Exemptions 6 and 7(C). For the following
reasons, the Court finds that the redacted portions of the table and letters were not properly
withheld pursuant to Exemptions 6 and 7(C), and therefore must be released.
3
Although Mr. Tokar has not challenged DOJ’s withholding pursuant to Exemption 4,
the Court still has an independent duty to “determine for itself whether the record and any
undisputed material facts justify granting summary judgment,” because a Court may not grant
summary judgment simply because the withholding was not challenged. See Winston & Strawn,
LLP, 843 F.3d at 505 (citing Grimes v. District of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015)
(Griffith, J., concurring)). Under FOIA Exemption 4, agencies may withhold “trade secrets and
commercial or financial information obtained from a person and privileged or confidential.” 5
U.S.C. § 552(b)(4). The terms “‘commercial’ and ‘financial’ in the exemption should be given
their ordinary meanings.” Pub. Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290
(D.C. Cir. 1983). DOJ claims that the redacted text, which “describes certain internal steps
Daimler [AG] took to evaluate and enhance its FCPA compliance programs,” is “‘commercial’
within the meaning of Exemption 4, because it serves a commercial function and is of a
commercial nature, and Daimler has a commercial interest in the information in that it is helpful
or instrumental to its business interest.” Sprung Decl. ¶¶ 25, 27. Courts in this circuit have
previously found information about “the way [] companies implement their compliance
programs” is “sufficiently ‘instrumental’ to the companies’ operations to qualify as
‘commercial.’” Public Citizen v. U.S. Dep’t Health & Human Servs., 66 F. Supp. 3d 196, 208
(D.D.C. 2014); see also 100Reporters LLC v. U.S. Dep’t of Justice, 248 F. Supp. 3d 115, 137
(D.D.C. 2017). As such, the Court finds that the information regarding Daimler’s FCPA
compliance that the company shared with DOJ when responding to the submitter notice was
“commercial” within the meaning of Exemption 4.
DOJ also claims that the information is confidential because it was submitted to the
agency voluntarily and is a type of information that is not usually released to the public. See
Def.’s Mem. at 13 (citing Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975
F.2d 871, 879 (D.C. Cir. 1992)); see also Sprung Decl. ¶ 28. The Court has no reason to
disbelieve this assertion. Because the agency has submitted an affidavit that reasonably describes
how this information meets all of the requirements of Exemption 4, the Court finds that DOJ’s
redaction of this information was permissible.
15
1. The Unselected Candidates
DOJ originally redacted from the table it supplied to Mr. Tokar in response to his first
FOIA request “the names of monitor selection committee members who are not part of DOJ’s
senior management” and “the names and related personal identifying information concerning the
individuals nominated but not selected to be monitors.” Sprung Decl. ¶ 12. 4 It also redacted the
names of the unselected nominees when those names appeared in a company’s response letter to
its submitter notice. See generally Def.’s Mot., Ex. A, ECF No. 9-2. In the case of the table, DOJ
claims that these names were properly withheld pursuant to Exemptions 6 and 7(C) because the
records the names were extracted from were “compiled for law enforcement purposes” and their
release would constitute an invasion of those individuals’ privacy. Def.’s Mem. at 4; see also
Def.’s Reply at 5 n.1, ECF No. 13. In the case of the response letters, it originally supported its
redactions by citing to Exemptions 6 and 7(C), but has since conceded that 7(C) is not applicable
to these letters, as they were not compiled for a law enforcement purpose. Def.’s SMF ¶ 14.
DOJ has since released the names of every individual on the monitor selection committee
to Mr. Tokar. See Def.’s Reply, Suppl. Sprung Decl. ¶ 7, ECF No. 13-2; Def.’s Reply, Suppl.
Sprung Decl., Ex. A, ECF No. 13-2. Therefore, the Court need only determine whether DOJ’s
decision to withhold from the table and the letters the names of the individuals nominated but not
selected to be monitors, as well as their firms when those firms are small, was permissible under
either Exemption 6 or 7(C).5 See Def.’s Reply at 6. DOJ argues that releasing the names of these
4
The “related personal identifying information” that DOJ alludes to is “the name[] of any
professional services firm with whom an unsuccessful nominee was associated . . . where
disclosure would enable the unsuccessful nominee to be identified” because “the nominee was
associated with a firm employing [fewer] than 10 attorneys or the firm was a sole
proprietorship.” Sprung Decl. ¶ 17.
5
While the Court has ruled that DOJ’s attempt to answer Mr. Tokar’s request for
documents with a table was not permissible, the Court will still address the question of whether,
16
individuals, or the release of information that would allow the public to identify them, would be
an “unwarranted invasion of personal privacy.” Def.’s Mem. at 6. Mr. Tokar argues in response
that “DOJ has failed to show that these individuals have any privacy interest, let alone a
substantial one, that would outweigh the significant public interest in this information.” Pl.’s
Mem. at 16. The Court concludes that while DOJ has demonstrated that these individuals have
more than a de minimis privacy interest in their anonymity, the public interest in learning these
individuals’ identities outweighs that privacy interest, and therefore, the individuals’ names and
firms must be released.
Under Exemption 6, an agency may withhold “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). “Similar files” has a “broad, rather than narrow meaning,” U.S.
Dep’t of State v. Wash. Post Co., 456 U.S. 595, 600 (1982), and has been interpreted to include
“personal information in public records.” Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d
873, 875 (D.C. Cir. 1989). When evaluating withholdings under Exemption 6, there is a
now that DOJ has created and released this record, its attempt to redact information pursuant to
Exemptions 6 and 7(C) were permissible. While DOJ has never explicitly conceded that it
believed the table was responsive to Mr. Tokar’s FOIA request, it did release the table “in a good
faith effort to respond to the narrowed request” for information. Sprung Decl. ¶ 9. While the
D.C. Circuit has yet to deal “with the precise question of how it should treat an erroneous
redaction made within a non-responsive document that the agency originally classified as
responsive, [it] has held that ‘under [FOIA’s] statutory framework, once the government
concludes that a particular record is responsive to a disclosure request, the sole basis on which it
may withhold particular information within that record is if the information falls within one of
the statutory exemptions from FOIA’s disclosure mandate.’” Wallick v. Agric. Mtkg. Serv., 281
F. Supp. 3d 56, 77 (D.D.C. 2017) (quoting Am. Immigration Lawyers Ass’n v. Exec. Office for
Immigration Review, 830 F.3d 667, 670 (D.C. Cir. 2016)). Because DOJ released this record “in
a good faith effort to respond to the narrowed request,” the Court will evaluate whether the
information was permissibly redacted from the document. The same analysis regarding
Exemptions 6 and 7(C) will apply to the documents DOJ releases in response to Mr. Tokar’s first
FOIA request in compliance with this opinion.
17
“presumption in favor of disclosure [that] is as strong as can be found anywhere in the Act.”
Multi Ag Media LLC v. U.S. Dep’t of Agric., 515 F.3d 1224, 1227 (D.C. Cir. 2008) (citation
omitted). Therefore, an agency may withhold personal information only if “disclosure would
compromise a substantial, as opposed to a de minimis, privacy interest.” Horner, 879 F.2d at
874.
When a “substantial” privacy interest is at stake, the Court must “balance the individual’s
right of privacy against the basic policy of opening agency action to the light of public scrutiny.”
Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (citation and internal
quotation marks omitted). The Supreme Court has held that the only public interests relevant to
the Exemption 6 analysis are those that “contribut[e] significantly to public understanding of the
operations or activities of the government.” U.S. Dep’t of Def. v. Fed. Labor Relations Auth., 510
U.S. 487, 495 (1994) (internal citation and quotation marks omitted)). In other words,
“information about private citizens that is accumulated in various governmental files but that
reveals little or nothing about an agency’s own conduct” is not the type of information to which
FOIA permits access. Id. at 496 (citations and internal quotation marks omitted).
As such, the Court must first decide whether the unselected candidates have a privacy
interest in their continued anonymity. DOJ claims that it redacted the names of unselected
candidates because the release of those names could cause “harm or embarrassment.” Def.’s
Mem. at 7. It analogizes to a case in which this Court found that the names of two individuals
being considered to serve as the next Director of the Bureau of Prisons, as well as their
professional qualifications and official biographies, could be properly redacted under Exemption
6 because the unselected “individual[s] [had] a considerable privacy interest in avoiding having
his or her non-selection disclosed to the public, a disclosure which would likely cause
18
embarrassment.” Pinson v. U.S. Dep’t of Justice, 202 F. Supp. 3d 86, 114 (D.D.C. 2016)
(internal citation and quotation marks omitted). The Court found particularly relevant the fact
that no evidence on the record had shown that the individuals had “affirmatively sought public
office or bid to run BOP.” Id. Therefore, the Court concluded “that a substantial privacy interest
would be implicated by the disclosure of the information.” Id. In this case, however, it bears
mentioning that while it is possible that the revelation of non-selection would bring some
embarrassment to the unsuccessful candidates, the names in question belong to individuals who
presumably had already agreed to allow DOJ to consider their candidacies, and therefore the
names do not appear in these responsive records through no fault of the candidates’.
Mr. Tokar also analogizes to a case from this District, in which a court found that
individuals who had applied for executive clemency and had had their applications denied did
not have a privacy interest in the mere fact that they had applied for, and been denied, that
clemency. See Pl.’s Reply at 12, ECF No. 15 (citing Lardner v. U.S. Dep’t of Justice, No. 03-
180, 2005 WL 758267, at *16 (D.D.C. Mar. 31, 2005)). The court had found particularly
important the distinction between the release of the fact that an individual applied for a pardon
and the materials comprising the pardon application itself. See Lardner, 2005 WL 758267, at
*16. However, the Court made an additional distinction that is relevant here: that in the case of
pardon applications, “[t]he conviction that the pardon applicant is seeking to annul was itself
public, and it cannot be thought that the information that the individual later was denied a pardon
application adds much additional embarrassment beyond the original conviction.” Id. at *17.
In this case, however, we are dealing with the privacy of individuals who, presumably,
have not been publicly implicated in any previous wrongdoing. Rather, the privacy interests at
stake are those of high-level professionals who were nominated, but not ultimately selected, to
19
participate in a lucrative contract. Whether the release of these names would cause the same level
of embarrassment as the release of the names of unsuccessful applicants for government jobs, as
was the case in Neary v. FDIC, 104 F. Supp. 3d 52 (D.D.C. 2015) (permitting withholding under
Exemption 6), or unsuccessful applicants for government grants and part-time appointments, as
in Kurzon v. HHS, 649 F.2d 65 (1st Cir. 1981) (not permitting withholding under Exemption 6)
and Physicians Comm. for Responsible Med. v. Glickman, 117 F. Supp. 2d 1 (D.D.C. 2000) (also
not permitting withholding under Exemption 6), is unclear from the record. After all, this could
be a situation in which it is an honor just to be nominated for this role. However, it is plausible
that these individuals would prefer to have their consideration and ultimately non-selection
withheld from the public’s view.6 The Court therefore finds that a sufficient privacy interest in
implicated in this case to warrant coverage under Exemption 6. Accordingly, the Court must next
“balance the individual’s right of privacy against the basic policy of opening agency action to the
light of public scrutiny,” Norton, 309 F.3d at 32, and consider whether the release of the
candidates’ names will “contribut[e] significantly to public understanding of the operations or
activities of the government.” Fed. Labor Relations Auth., 510 U.S. at 495.
Defendants claim that the release of the names, without more, will not lead to a greater
understanding of the monitor selection process, see Def.’s Reply at 10, but Mr. Tokar claims that
it will, see Pl.’s Reply at 18–23. This time, Mr. Tokar’s reliance on Lardner is instructive. In that
case, the Court found “that release of the identity of unsuccessful pardon applicants would shed
6
The fact that Avon readily “agreed to voluntarily provide the name of [its] FCPA
monitor and firm affiliation, as well as the two other candidates and their firm affiliation,”
because it did not believe that the information was “confidential business information,” belies
this assertion somewhat, however. See Pl.’s Mot., Ex. I, ECF No. 10-12. If the possibility of
embarrassment to the unselected candidates were so obvious, Avon would have likely objected
to the disclosure of the requested information, just as the fourteen other companies did.
20
light on the exercise of the pardon power in important ways,” because “[a] comparison of
successful and unsuccessful applicants would illuminate—indeed, a claim could be made that it
is essential to an understanding of—the circumstances in which the executive chooses to grant or
deny a pardon and the factors that bear on that decision.” Lardner, 2005 WL 758267, at *17
(internal citation and quotation marks omitted).
Mr. Tokar has explained that “the names and professional services firms of corporate
compliance monitor candidates would certainly assist Plaintiff in his reporting on how DOJ has
implemented directives of the Morford Memorandum,” because “[w]ithout disclosure of the
names of candidates who are nominated, but not ultimately selected, for corporate monitorship
positions, it is difficult (if not impossible) to know whether either the government or the
corporate entity under investigation is taking advantage of the selection process in a manner that
undermines the objectives of the DPA.” Pl.’s Reply at 19–20. He explains further that, by
evaluating who was nominated to be a monitor and who the agency did not ultimately choose, he
will be able to learn about the inner workings of the selection process which is now cloaked in
secrecy, outside of the supervision of any courts. See id. at 20–23. For example, the release of the
names will allow him to investigate whether any of the fifteen companies pursued a strategy
similar to the one Deutsche Bank attempted during its prosecution in the Southern District of
New York, when it nominated three monitor candidates for the presiding judge to select from,
two of whom were so underqualified that the judge selecting the monitor was given no choice
but to select the third, who, presumably, was the company’s first choice. See id. Mr. Tokar insists
that the only way he will be able to discover this sort of manipulation of the system, or any other
act of noncompliance with the Morford Memorandum, if it exists, is to receive the names of the
unselected monitor candidates.
21
It is true, as DOJ points out, that Mr. Tokar would have had a much easier time learning
about the inner workings of the monitor selection process if DOJ had simply responded to his
initial FOIA request, rather than encouraging him to narrow its scope. However, the D.C. Circuit
has recognized that “a relevant public interest could exist where [a list of names] might provide
leads for an investigative reporter seeking to ferret out what government is up to.” Painting &
Drywall Work Preservation Fund, Inc. v. Dep’t Housing & Urban Dev., 936 F.2d 1300, 1303
(D.C. Cir. 1991) (internal quotation marks omitted) (quoting Fed. Labor Relations Auth. v. U.S.
Dep’t of Treasury, Fin. Mgmt. Serv., 884 F.2d 1446, 1452 D.C. Cir. 1989)); see also ACLU v.
U.S. Dep’t of Justice, 655 F.3d 1, 15 (D.C. Cir. 2011) (recognizing that courts in this circuit
should “take[] derivative uses into account in evaluating the impact of disclosure on the public
interest”); Gilman v. DHS, 32 F. Supp. 3d 1, 14–16 (D.D.C. 2014) (ordering the release of the
names and addresses of private citizen landowners in a series of emails between the landowners
and U.S Customs and Border Protection because in the aggregate, such information would assist
the public in understanding the impact of CBP’s construction of a wall along the U.S.-Mexico
border). This sort of aggregating, for the purpose of discovering what the government is up to, is
precisely what Mr. Tokar intends to do here. Because Mr. Tokar has demonstrated that the
release of even this small amount of information will serve the public interest, to an extent that
outweighs the candidates for these lucrative positions’ interest in keeping their identities secret,
the Court finds the unselected candidates’ names cannot be properly withheld pursuant to
Exemption 6. Therefore, DOJ is directed to release the names of any unselected monitor
candidates that appear in any of the fifteen submitter notice response letters.
Although the names of the unselected candidates that appear in the table cannot be
withheld pursuant to Exemption 6, the Court must consider whether they may be properly
22
withheld pursuant to Exemption 7(C).7 Exemption 7(C) allows an agency to withhold “records or
information compiled for law enforcement purposes, but only 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). Although both Exemption 6
and Exemption 7(C) are meant to protect the private information of third parties from being
divulged, Exemption 7(C) has less stringent requirements for withholding than Exemption 6,
because in order to properly invoke it an agency need only show that the release of the
information “could reasonably be expected” to be an “unwarranted” invasion of personal
privacy, as opposed to a “clearly unwarranted” invasion of personal privacy. See Braga v. FBI,
910 F. Supp. 2d 258, 267 (D.D.C. 2012). “The courts have construed this provision as permitting
exemption if the privacy interest at stake outweighs the public’s interest in disclosure.” Nation
Magazine, Washington Bureau v. U.S. Customs Service, 71 F.3d 885, 893 (D.C. Cir. 1995)
(citing U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 776
(1989)). The D.C. Circuit has emphasized that “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 criminal activity.’” Dunkelberger v. Dep’t of
7
The documents used to create the table, as well as the table itself, contains information
compiled for law enforcement purposes—the enforcement of the FCPA. See Assassination
Archives & Research Ctr., Inc. v. CIA, 903 F. Supp. 131, 132–33 (D.D.C. 1995) (holding that
information collected from criminal investigation files and compiled in an administrative file for
use before a congressional committee “certainly satisfies the threshold requirement of Exemption
7”); see also Stein v. DOJ, 134 F. Supp. 3d 457, 485 (D.D.C. 2015). Mr. Tokar does not dispute
the fact that the table was made from documents that were compiled for law enforcement
purposes. Because the documents used to create the table were compiled for law enforcement
purposes, the information gleaned from those files must be evaluated under both Exemption 6
and Exemption 7(C).
23
Justice, 906 F.2d 779, 781 (D.C. Cir. 1990) (quoting Stern v. FBI, 737 F.2d 84, 91-92 (D.C. Cir.
1984)).
The Court has already found that the release of these names “would constitute a clearly
unwarranted invasion of personal privacy” under Exemption 6. As such, based on a purely
linguistic analysis, the Court would also necessarily need to find that the release of these names
“could reasonably be expected to constitute an unwarranted invasion of personal privacy” under
Exemption 7(C). However, traditionally, the privacy interests at stake in an Exemption 7(C)
analysis are those resulting from the stigma of being associated with a criminal investigation. See
e.g., Fitzgibbon v. CIA, 911 F.2d 755, 767 (D.C. Cir. 1990) (recognizing “strong interest of
individuals, whether they be suspects, witnesses, or investigators, in not being associated
unwarrantedly with alleged criminal activity”); Neely v. FBI, 208 F.3d 461, 464–66 (4th Cir.
2000) (finding that law enforcement personnel and third-party suspects have “substantial
interest[s] in nondisclosure of their identities and their connection[s] with particular
investigations”). Additionally, courts have also found that if a witness or investigator’s public
association with a criminal investigation could lead to harassment, a sufficient privacy interest is
implicated to warrant withholding under Exemption 7(C). See e.g., Computer Prof’ls for Soc.
Responsibility v. U.S. Secret Serv., 72 F.3d 897, 904 (D.C. Cir. 1996) (citing McDonnell v.
United States, 4 F.3d 1227, 1255 (3d Cir. 1993)).
Here, because the type of stigma or harassment that traditionally triggers protection under
Exemption 7(C) is not present, as evidenced by the fact that DOJ freely released the names of
those candidates who were selected to be compliance monitors—i.e. the actual people who
would be associated with investigating whether the fifteen companies were complying with their
24
DPAs, the privacy interests are much weaker than in a traditional Exemption 7(C) case.8
Accordingly, because, as explained above, the Court has determined that Mr. Tokar has
sufficiently demonstrated that the public interest will be significantly served by the release of
these names, the public interest in disclosure of the information outweighs the weak privacy
interests at issue. Therefore, the Court finds that withholding the names of unselected candidates
pursuant to Exemption 7(C) is impermissible as well.
2. The Attorneys Who Sent and Received the Responses to the Submitter Notices
Next the Court must consider DOJ’s Exemption 6 redactions in its response to Mr.
Tokar’s second FOIA request seeking the objection letters, when it chose to withhold 1) the
names of the attorneys who drafted the fifteen companies’ responses to the submitter notices, and
2) the names of two DOJ employees who received some of the responses. See Def.’s Reply at 11;
Sprung Decl. ¶¶ 30, 32. DOJ justifies its redactions of the DOJ and private attorneys’ names
pursuant to Exemption 6 by pointing out that Mr. Tokar “has failed to identify any public interest
in this information, and it is well-established that government employees and third-parties whose
names appear in government records have at least a modest privacy interest in non-disclosure.”
Def.’s Reply at 12. Mr. Tokar argues in response that DOJ has failed to show that any of these
individuals have any privacy interest in preventing the disclosure of their names. See Pl.’s Reply
at 14–18.
As explained above, an agency may withhold personal information if “disclosure would
compromise a substantial, as opposed to a de minimis, privacy interest.” Horner, 879 F.2d at
874. When a “substantial” privacy interest is at stake, the Court must “balance the individual’s
8
This conclusion is bolstered by the fact that one of the fifteen companies, Avon, did not
object to the release of any of the information requested in Mr. Tokar’s narrowed request,
including the names of the unselected candidates. See Pl.’s Mot, Ex. I.
25
right of privacy against the basic policy of opening agency action to the light of public scrutiny.”
Norton, 309 F.3d at 32 (citation and internal quotation marks omitted). The standard “means less
than it might seem,” as a substantial privacy interest is “anything greater than a de minimis
privacy interest.” Multi Ag Media LLC, 515 F.3d at 1229–30. The Supreme Court has held that
the only public interests relevant to the Exemption 6 analysis are those that “contribut[e]
significantly to public understanding of the operations or activities of the government.” Fed.
Labor Relations Auth., 510 U.S. at 495 (internal citation and quotation marks omitted)). In other
words, “information about private citizens that is accumulated in various governmental files but
that reveals little or nothing about an agency’s own conduct” is not the type of information to
which FOIA permits access.” Id. at 496 (citations and internal quotation marks omitted). This
protection applies even when the privacy interest at stake is modest, because “something, even a
modest privacy interest, outweighs nothing every time.” Horner, 879 F.2d at 879.
The Court will first address DOJ’s withholding of the names of the two DOJ attorneys,
whose job titles are Information Specialist and Trial Attorney. See Supp. Sprung Decl. ¶ 7.
Courts in this district have reached different conclusions regarding the magnitude of the privacy
interest lower-level government employees have in complete anonymity. For example, to support
his contention that the names of the two DOJ employees should be released, Mr. Tokar cites to
Leadership Conference on Civil Rights v. Gonzalez, in which a court found that there is “no
privacy interest associated with the agency paralegals and their involvement with
communications about plaintiff’s FOIA requests.” 404 F. Supp. 2d 246, 257 (D.D.C. 2005).
Conversely, however, in Center for Public Integrity v. U.S. Department of Energy, a court
refused to release the names of lower-level Department of Energy employees, who had been
accused of no misconduct or wrongdoing, that appeared in files the plaintiff had requested. No.
26
15-cv-1314, 2018 WL 401225, at *14–15 (D.D.C. Jan. 12, 2018). Finding that “there can be little
doubt that these individuals have a ‘substantial’ privacy interest in avoiding disclosure of their
names,” and finding that the release of these names would bring the plaintiffs no closer to
discovering “what the government is up to” in any meaningful sense, the court determined that it
“need not linger over the balance” of the individual privacy interests at stake against the public
interest in disclosure, because “[i]n the end, ‘something, even a modest privacy interest,
outweighs nothing every time.’” Id. at *15 (citations omitted).
In this case, Mr. Tokar has proffered no explanation of how the release of these
attorneys’ names will allow him to better understand the monitor selection process. As such, the
Court must determine whether the attorneys at issue hold “even a modest privacy interest” in
their anonymity that would warrant the continued withholding of their names. It is difficult to see
how they do. The names of government attorneys involved in FCPA and FOIA matters are
released in public court filings on a daily basis. Indeed, in this case, one of the names withheld
belongs to a DOJ Trial Attorney, who, just like Mr. Sprung, the DOJ’s public declarant in this
case, must include their name, email address, and phone number on the docket of every case in
which they file an appearance. There is no allegation that these attorneys have any particular
interest in having their names remain anonymous, apart from the fact that they do not hold any
leadership role within the Department of Justice. Indeed, Mr. Sprung and these attorneys served
the exact same role in this case, receiving the responses to the submitter notices on behalf of
DOJ, but Mr. Sprung’s name and credentials have been documented extensively in this case. See
generally Vaughn Index; Sprung Decl.; Supp. Sprung Decl. In Horner, the case DOJ cites for the
proposition that “something, even a modest privacy interest, outweighs nothing every time,”
there was a clear privacy interest at stake because the document the plaintiff sought “reveal[ed]
27
not only the names and addresses of hundreds of thousands of individuals; it also indicate[d] that
each [wa]s retired or disabled (or the survivor of such a person) and receive[d] a monthly annuity
check from the federal Government.” Horner, 879 F.2d at 876. The court worried that “[a]rmed
with this information, interested businesses, charities, and individuals could, and undoubtedly
would, subject the listed annuitants ‘to an unwanted barrage of mailings and personal
solicitations.’” Id. (quoting Minnis v. U.S. Dep’t of Agric., 737 F.2d 784, 787 (9th Cir. 1984)).
Here, so such interest in anonymity has been articulated. While it is true that “in
evaluating the privacy impact of the release of information, the courts have taken into
consideration potential derivative uses of that information,” ACLU, 655 F.3d at 7, there is no
indication in the record that Mr. Tokar, or anyone else, will use their knowledge of which DOJ
employees handled the responses to the submitter notices for nefarious or harassing purposes.
Therefore, without a showing of a modest, rather than simply a de minimis, privacy interest in
the names remaining redacted, the Court orders that the names of the two DOJ employees be
released.
Next the Court considers whether the names of the attorneys who responded on behalf of
their clients to the submitter notices were properly redacted pursuant to Exemption 6. As a
preliminary matter, each attorney who responded to the submitter notices were “advised that the
information provided by the submitter under 28 C.F.R. § 16.8(f) may itself be subject to
disclosure under the FOIA.” Compl. Ex. 4, ECF No. 1-4. This warning put the attorneys on
notice that their names could be revealed through a FOIA request. Cf. Lardner, 2005 WL
758267, at *16 (emphasizing that a regulation providing that that “[p]etitions, reports,
memoranda, and communications submitted or furnished in connection with the consideration of
a petition for executive clemency generally shall be available only to the officials concerned with
28
the consideration of the petition” contained the phrase “generally” and did not state that the fact
that an application was submitted would remain confidential). DOJ has provided no evidence
that making public a particular attorney’s handling of a response to a submitter notice on behalf
of their corporate client would amount to a modest invasion of that attorney’s personal privacy.
See Landmark Legal Found. v. IRS, 87 F. Supp. 2d 21, 28 (D.D.C. 2000) (“Without a more
particularized assertion of the affected individuals’ expectations of privacy with respect to the
letters written and information provided to the government here, the court does not find more
than a de minimis privacy interest.”). Even if, as DOJ claims, the public interest will not be
served by Mr. Tokar’s receipt of these names, the fact that these attorneys have, at most, a de
minimis privacy interest in keeping their names redacted, means that those names must be
released.
V. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 9) is
GRANTED IN PART AND DENIED IN PART and Plaintiff’s Motion for Summary
Judgment (ECF No. 10) is GRANTED. An order consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Dated: March 29, 2018 RUDOLPH CONTRERAS
United States District Judge
29