Citizens for Responsibility and Ethics in Washington v. U.S. Department of Justice , 870 F. Supp. 2d 70 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY )
AND ETHICS IN WASHINGTON, )
)
Plaintiff, )
) Civil Case No. 11-592 (RJL)
v. )
)
U.S. DEPARTMENT OF JUSTICE, )
)
Defendant. )
)
MEMORANDUM OPINION
(June 2012) [Di598
F. Supp. 2d 93, 95 (D.D.C. 2009) (citing 5 U.S.C. § 552(a)(4)(B)). Summary judgment
shall be granted when the movant demonstrates "that there is no genuine dispute as to any
' material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a). In a FOIA action, the Court may award summary judgment based solely on
information provided in affidavits or declarations if they "describe the documents and the
justifications for nondisclosure with reasonably specific detail, demonstrate that the
information withheld logically falls within the claimed exemption, and are not
controverted by either contrary evidence in the record nor by evidence of agency bad
faith." Mz`litary Aua’it 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
doouments." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)
(citation and internal quotation marks omitted). "Ultimately, an agency’s justification for
invoking a FOIA exemption is sufficient if it appears logical or plausible." Larson v.
Dep ’t of State, 565 F.3d 857 , 862 (D.C. Cir. 2009) (citation and internal quotation marks
omitted).
ANALYSIS
Plaintiff, pursuant to FOIA, seeks documents related to the D()J’s investigation of
Tom DeLay ("Mr. DeLay") and alleges that defendant improperly withheld responsive
documents under various FOIA exemptions. Plaintiff contends that the documents
requested involve a matter of substantial public interest that outweighs any privacy
interest in the contents of the records. Specifically, plaintiff argues that Mr. DeLay’s
privacy interest is diminished because he was a public official and he publicly
acknowledged that he was the subject of a DOJ investigation. However, defendant
contends that despite Mr. Delay’s admissions, he did not waive his interest as to the
details of the investigation. Defendant argues that it conducted an adequate search in
response to plaintiff s requests and properly withheld its responsive documents under
FOIA exemptions 2, 3, 6, 7(A), 7(C), 7(D), and 7(E). Unfortunately for the plaintiff, I
agree with the defendant and, for the reasons that follow, GRANT defendant’s Motion
for Summary Judgment.
Under FOIA, "upon any request for records which (i) reasonably describes such
records and (ii) is made in accordance with published rules . . . , [an agency] shall make
the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). Congress has
exempted nine categories of documents from the disclosure requirement, but, because
there is a "strong presumption in favor of disclosure," Nat ’l Ass ’n of Home Buz`lders v.
Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S. Dep ’t of State v. Ray, 502 U.S.
164, 173 (1991)), the exemptions "are to be ‘narrowly construed,"’ z`a'. (quoting Dep ’t of
Az`r Force v. Rose, 425 U.S. 352, 361 (l976)). Here, defendant asserts the protection of
seven FOIA exemptions: Exemptions 2, 3, 6, 7(A), 7(C), 7(D), and 7(E). Under the law
of our Circuit, "[i]f an agency’s statements supporting exemption contain reasonable
specificity of detail as to demonstrate that the withheld information logically falls within
the claimed exemption and evidence in the record does not suggest otherwise, . . . the
court should not conduct a more detailed inquiry." Larson, 565 F.3d at 865.
I. FOIA Exemptions 6 and 7(C)
Both Exemption 6 and Exemption 7(C) protect an individual’s privacy interest
when balanced against the public interest in disclosure. Exemption 6 protects "personnel
and medical files and similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). Exemption 7(C)
excludes "records of information compiled for law enforcement purposes . . . to the
extent that production of such law enforcement records or information . . . could
reasonably be expected to constitute an unwarranted invasion of personal privacy." Ia’.
§ 552(b)(7)(C). Thus, in determining the applicability of Exemptions 6 and 7(C), the
Court must balance the interests advanced by FOIA’S disclosure requirements against the
privacy interests of the individuals mentioned in the records. Beck v. Dep ’t of Justz'ce,
997 F.2d 1489, 1491 (D.C. Cir. 1993). Because Exemption 7(C) "establishes a lower bar
[than Exemption 6] for withholding material," ACLU v. U.S. Dep ’t of Justz'ce, 655
F.3d l, 6 (D.C. Cir. 2011), the Court will focus its analysis on whether the records were
properly withheld under Exemption 7(C), see Adz`onser v. Dep ’t of Justice, 811 F. Supp.
2d 284, 298 n.15 (D.D.C. 2011) ("[T]he analysis under both [Exemption 6 or Exemption
7(C)] is . . . the same."). Plaintiff concedes "that the requested records were ‘compiled
for law enforcement purposes’ within the meaning of Exemption 7."5 Pl.’s Mot. at 8 n.3
(quoting Def.’s Mot. at 12); see also 5 U.S.C. § 552(b)(7). Therefore, this Court need
only consider the balancing of the privacy and public interests at stake and whether "the
balance characteristically tips in" favor of exemption to justify defendant’s categorical
withholding under Exemptions 6 and 7(C).6 Nation Magazine, Wash. Bureau v. U.S.
Customs Serv., 71 F.3d 885, 893-94 (D.C. Cir. 1995) (quoting U.S. Dep ’i of Justice v.
Reporters Comm. for Freea’om ofPress, 489 U.S. 749, 776 (1989)). Here, it does!
'l`o constitute a privacy interest under FOIA, the claimed interest must be
"substantial"~that is, "anything greater than a de minimis privacy interest." Multi Ag
Media LLC v. Dep ’t ofAgric., 515 F.3d 1224, 1229-30 (D.C. Cir. 2008) (citing Nat’l
Ass ’n of Retired Fea'. Emps. v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989)). Generally,
"individuals have a strong interest in not being associated unwarrantedly with alleged
criminal activity," Stern v. FBI, 737 F.2d 84, 91-92 (D.C. Cir. 1984); see also F and for
Constiiutional Gov ’t v. Nal’l Archives & Records Serv., 656 F.2d 856, 864 (D.C. Cir.
1981) ("There can be no clearer example of an unwarranted invasion of personal privacy
than to release to the public that another individual was the subject of an FBI
5 This also applies to Exemptions 7(A), 7(D) and 7(E).
6 1n the altemative, defendant seeks to withhold, under Exemptions 6 and 7 (C), the
"names and identifying information of FBI agents and personnel and other government
employees; names and identifying information of third-party subjects of the lobbying
investigation, and names and identifying information of third-parties who provided
information to the FBI." Def.’s Mot. at 38-39.
investigation."), and "third parties who may be mentioned in investigatory files and
witnesses and informants who provide information during the course of an investigation
have an obvious and substantial privacy interest in their information," Mariin v. Dep ’t of
Justice, 488 F.3d 446, 457 (D.C. Cir. 2007) (citation and internal quotation marks
omitted). This privacy interest is particularly strong where, as here, an individual has
"been investigated but never publicly charged."7 ACL U, 655 F.3d at 7. Although Mr.
DeLay’s privacy interests is "somewhat diminished" by virtue of his political stature, he
did "not surrender all rights to personal privacy when [he] accept[ed] a public
appointment."9 Quinon v. FB], 86 F.3d 1222, 1230 (D.C. Cir. 1996) (quoting Bast v. U.S.
Dep’t of.]ustice, 665 F.2d 1251, 1255 (D.C. Cir. 1981)).
Plaintiff argues, however, that Mr. DeLay’s privacy interest is further diminished
because "Mr. DeLay and his attorney have publicly acknowledged that he was a subject
of DOJ’s investigation" and "the FBI concede[d] that [it] maintain[s] records concerning
7 Mr. Delay was indicted in a separate proceeding in 'l`exas state court on charges
of money laundering and conspiracy to engage in money laundering. Hardy Decl. 11 20.
This fact does not affect the Court’s analysis. See Cong. News Syndicate v. U.S. Dep ’i of
Jusz‘ice, 438 F. Supp. 538, 544 (D.D.C. 1977).
8 The Court notes that the privacy interests of several third parties are implicated
in this matter; however, in their arguments, both parties focus largely on Mr. Delay’s
privacy interest.
9 l\/loreover, as our Circuit Court has previously noted, the very nature of l\/lr.
DeLay’s public status may, in fact, increase his privacy interest. Funa’for Constiluiional
Gov ’t, 656 F.2d at 865 ("The degree of intrusion is indeed potentially augmented by the
fact that the individual is a well known figure and the investigation one which
attracts . . . national attention . . . . The disclosure of that information would produce the
unwarranted result of placing the named individuals in the position of having to defend
their conduct in the public forum outside of the procedural protections normally afforded
the accused in criminal proceedings.").
Mr. DeLay that were created as part of DOJ’s public corruption investigation."l° Pl.’s
Mot. at 9. But "merely by acknowledging the investigation and making a vague
reference to its conclusion, [Mr. DeLay did not] waive all his interest in keeping the
contents of the [FBI] file confidential." Kimberlin v. Dep ’t of Jusiice, 139 F.3d 944, 949
(D.C. Cir. 1998). Mr. DeLay still maintains a substantial privacy interest in the substance
of the investigation. Unlike in Kimberlz`n, where an Assistant U.S. Attomey publicly
acknowledged that he was the subject of an investigation, "what he was accused of`, and
that he received a relatively mild sanction," ia'., Mr. DeLay has made no such admission.
Mr. DeLay’s public statement relied on by plaintiff discloses only that an investigation
was conducted by the DOJ and has since concluded without charges, Pl.’s Mot. at 2; Mr.
DeLay never disclosed the nature of the investigation.“ Even the court in Kimberlin
10 As a matter of policy, in responding to FOIA requests for third-party
information where no privacy waiver, proof of death, or significant public interest has
been presented, the FBI will "provide[] a Glomar response, neither confirming nor
denying the existence of records." Def.’s Mot. at 6 (citing Hardy Decl. 11 18). However,
"where[, as here,] an FBI investigation has been officially recognized, the FBI will
acknowledge the existence of the investigation and potentially responsive files and, upon
request, release to the requester public source information, but invoke Exemptions 6 and
7(C) for the remainder of responsive information." Ia’. at 6-7 (citing Hardy Decl. 11 19);
cf Benavia’es v. DEA, 968 F.2d 1243, 1246 (D.C. Cir. 1992) (interpreting FOIA
exclusion under 5 U.S.C. § 552(c) that requires acknowledgment of existence of
documents conceming "officially confirmed" infonnant and concluding that Congress
intended that the agency may withhold those documents under Exemption 7(C) despite
acknowledgement), moa’ifiea', 976 F.2d 751 (D.C. Cir. 1992).
ll Nor has the DOJ disclosed the extent of Mr. DeLay’s involvement. Hardy Decl.
11 23; Def.’s Opp’n at 6-7.
10
found that the AUSA maintained a privacy interest in the "details" of the investigation.n
139 F.3d at 949. For these same reasons, the FBI’s concession that it possesses
responsive records does not waive Mr. DeLay’s privacy interests. As discussed, l\/lr.
DeLay maintains a privacy interest in the content of those responsive records, not just in
the disclosure of their existence. Dow Jones & Co., Inc. v. U.S. Dep 't of Justice, 724 F.
Supp. 985 , 990 (D.D.C. 1989) (frnding continued privacy interest in further disclosures
even though prior disclosures "revealed that [the congressman] was the subject of a
criminal investigation and the general contours of the investigation," because "[f]urther
disclosures would likely renew interest in the matter, with a corresponding invasion of
privacy"), a]f’d, 917 F.2d 571 (D.C. Cir. 1990). The Court thus finds that there has been
no waiver and Mr. DeLay maintains a substantial privacy interest in the contents of the
12 So too is the present case different from Nation Magazine, Washington Bureau
v. U.S. Customs Service, 71 F.3d 885 (D.C. Cir. 1995), cited by the plaintiff. There, the
court found a limited privacy interest where Ross Perot publicly disclosed that he offered
to assist "the Customs Service in its drug interdiction efforts," noting in particular, that
disclosure of the requested records would reveal "offers of assistance" rather than
"unwarranted association with criminal activity or reputational harm." 71 F.3d at 887,
894, 894 n.8. Here, Mr. DeLay would be subject to the exact "unwarranted association
with criminal activity or reputational harm" that was not at stake in Naiion Magazine.
11
investigatory file.l3
Where, as here, a court finds that a legitimate privacy interest exists, 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." Boya’ v. Criminal Div. of the U.S. Dep ’t of
Justice, 475 F.3d 381, 387 (D.C. Cir. 2007) (quoting Nai’l Archives & Records Admin. v.
Favish, 541 U.S. 157, 172 (2004)) (internal quotation marks omitted). "[T]he only public
interest relevant for purposes of Exemption 7(C) is one that focuses on the citizens’ right
to be informed about what their government is up to." Davz's v. U.S. Dep ’t of Justice, 968
F.2d l276, 1282 (D.C. Cir. 1992) (quoting Reporters Comm. for Freedom of Press, 489
U.S. at 773) (citation and intemal quotation marks omitted). Thus, the Court must
determine whether the disclosure "contribut[es] significantly to public understanding of
the operations or activities of the government." Reporters Comm. for Freea'om of Press,
489 U.S. at 775.
The burden is on the requester to demonstrate a "sufficient" public interest for
disclosure. Favish, 541 U.S. at 172. Plaintiff contends that disclosure would serve the
13 Though the parties do not spend much time discussing the issue, see Def.’s Mot.
at 17 n.4; Pl.’s Mot. at 13 ; Def.’s Opp’n at 14-15, the Court additionally finds that those
third parties named in plaintiff s FOIA request and in the responsive records, as well as
the FBI Special Agents named in the records all have substantial privacy interests in the
content of the records. Mariin, 488 F.3d at 45 7; see also Scales v. Exec. Oj‘z`ce of U.S.
Aitorneys, 594 F. Supp. 2d 87, 91 (D.D.C. 2009) ("The mere fact that [a third party]
testified at trial, or that she acknowledged at trial that there were forgery charges pending
against her at that time, does not constitute a waiver of her privacy rights to all other
related information . . . requested by the plaintiff."); Lara’ner v. U.S. Dep ’t of Jusiice, No.
03-0180, 2005 WL 758267, *19 (D.D.C. Mar. 31, 2005) (third parties who testified at
trial maintained privacy interests in "their presence in an FBI investigatory fi1e").
12
public interest by "‘shed[ding] light on [the] agency’s performance of its statutory
duties,’ and there is a substantial public interest in reviewing DOJ’s enforcement of the
ethics and anti-corruption laws governing the activities of federal officials, such as Mr.
DeLay.’M Pl.’s Mot. at 14-15 (quoting Reporiers Comm. for Freedom of Press, 489 U.S.
at 7 73).
Unfortunately for plaintiff, however, the documents it presently seeks are "not
very probative of [the DOJ’s] behavior or perforrnance." SafeCard Servs., Irzc. , 926 F.2d
at 1205 (finding the privacy interest in "the names and addresses of potential witnesses"
to outweigh the "insubstantial" public interest in the information’s disclosure under
14 Plaintiff explicitly disavows any allegations of "agency misconduct" to support
its request for disclosure. Pl.’s Mot. at 15-16. Plaintiff’s argument, however, that DOJ
admitted the presence of a public interest by granting expedited processing of plaintiff’ s
request is misguided. Id. at 15. Plaintiff sought expedited processing of its FOIA
request, Compl.11 8, which was granted pursuant to 28 C.F.R. § 16.5(d)(1)(iv), on
grounds that the information sought pertained to "a matter of ‘widespread and
exceptional media interest’ . . . ‘in which there exist possible questions about the
government’s integrity which affect public confidence."’ Hardy Decl. 11 6 (citation
omitted). The standard for expedited processing is quite distinct from the Exemptions’
public interest analysis. Compare 28 C.F.R. § 16.5(d)(l)(iv), with Davis, 968 F.2d at
1282 ("[T]he only public interest relevant for purposes of Exemption 7(C) is one that
focuses on the citizens’ right to be informed about what their government is up to.")
(citation and intemal quotation marks omitted).
As part of its FOIA request, plaintiff also sought a fee waiver pursuant to 5 U.S.C.
§ 552(a)(4)(A)(iii) and 28 C.F.R. § 16.11(k), asserting that disclosure would "contribute
to greater public awareness of alleged malfeasance and possible criminal behavior by the
former majority leader of the House of Representatives, and of DOJ’s recently concluded
investigation into Mr. DeLay’s activities," and "would shed light on DOJ’s conduct in
conducting the investigation of Mr. DeLay, and its apparent decision to close the
investigation without bringing charges against Mr. DeLay." Ex. 1 to Declaration of
Kristin L. Ellis ("El1is Decl.") [Dkt. #9-7], Ex. 6 to Def’s Mot., at 3-4; see also Def.’s
Mot. at 18. lt does not appear that the fee waiver request was granted. Ex. 4 to Ellis
Decl. [Dkt. #9-7] at 1 ("As to your fee waiver request, we will consider that request once
we determine what records we have within the scope of your request and whether any
fees will be incurred in the processing of your request.”).
13
Exemption 7(C)); see also Schrecker v. U.S. Dep ’t of Justice, 349 F.3d 657, 666 (D.C.
Cir. 2003) (rej ecting the asserted public interest in redacted names and other identifying
information_to "shed light on the workings of government by permitting closer public
scrutiny of the . . . investigations"). The FD-3 02s and FD-3 02 inserts contain only
identifying information and factual information principally supplied by third parties and
sources. Hardy Decl. 11 35. While the Court acknowledges that there may be some public
interest in the investigative materials and reports, which describe how evidence was
obtained and are used to update other agencies on the investigation’s progress, id. 11 40,
this minimal public interest does not outweigh the substantial privacy interests of Mr.
DeLay and other third parties in the contents of the documents. As such, 1 find that the
"balance . . . tips in" favor of exemption, Nation Magazine, 71 F.3d at 893 (citation
omitted), and defendant properly categorically withheld the records pursuant to
Exemptions 6 and 7(C).15
II. FOIA Exemption 7(A)
Additionally, 1 find that defendant properly withheld the records in whole pursuant
15 Although 1 find that defendant properly categorically withheld the responsive
records, the Court additionally concludes, for the reasons previously discussed, that
defendant could properly withhold the names and identifying information of the "FBI
agents and personnel and other government employees; . . . third-party subjects of the
lobbying investigations, and . . . third-parties who provided information to the FBI."
Def`.’s Mot. at 38-39. Each of these individuals has a strong privacy interest in protecting
their names and any identifying information from disclosure. See Mariin, 488 F.3d at
457 (third parties, witnesses and inforrnants); F urzal for Consiitutional Gov ’t, 656 F.2d at
864 ("subject of an FBI investigation"); Sussman v. U.S. Marshals Serv., 494 F.3d 1106,
1115 (D.C. Cir. 2007) (investigators, witnesses and informants). These privacy interests
outweigh plaintiffs asserted public interest. Schrecker, 349 F.3d at 666.
14
to Exemption 7(A). Exemption 7 (A) protects from disclosure "records or information
compiled for law enforcement purposes" if disclosure "could reasonably be expected to
interfere with enforcement proceedings." 5 U.S.C. § 552(b)(7)(A). To justify
withholding information pursuant to Exemption 7(A), the agency must demonstrate that
"disclosure (l) could reasonably be expected to interfere with (2) enforcement
proceedings that are (3) pending or reasonably anticipateo’." Mapother v. Dep ’i of
Jusiice, 3 F.3d 1533, 1540 (D.C. Cir. 1993) (emphasis in original). Our Circuit has "held
that the exemption is available where enforcement proceedings are ‘ pending or
contemplated,"’ ia'. (quoting Coasial Staies Gas Corp. v. Dep ’i of Energy, 617 F.2d 854,
870 (D.C. Cir. 1980)), to prevent "agencies [from] be[ing] hindered in their
investigations," NLRB v. Robbirzs Tire & Rubber Co., 437 U.S. 2l4, 224 (1978). The
defendant has fulfilled the second and third prongs as this case involves "enforcement
proceedings that are pending or reasonably anticipated." Not only is the investigation
still ongoing, Hardy Decl. 11 23 (referring to the "continuing large public corruption
investigation"), but "[t]here are several outstanding convictions and sentencing
proceedings . . . which have not yet been completed." Hardy Decl. 11 29; see Kia’a’er v.
FBI, 517 F. Supp. 2d 17, 27 (D.D.C. 2007) (defendant’s pending appeal and ongoing
investigation of other suspects qualified as pending law enforcement proceedings); cf
Cir. for Naz"l Sec. Studies v. Dep’t of./'uslz`ce, 331 F.3d 918, 926 (D.C. Cir. 2003)
("Exemption 7(A) does not require a presently pending ‘enf`orcement proceeding.’
Rather, . . . it is sufficient that the govemment’s ongoing . . . investigation is likely to lead
to such proceedings.") (citation omitted).
15
Defendant has demonstrated that disclosure "could reasonably be expected to
interfere wit " these enforcement proceedings. Defendant is withholding the FD-302s
and FD-302 inserts and the investigative materials and reports, which, if disclosed, would
interfere with the current enforcement proceedings by identifying "individuals, sources,
and potential witnesses" and exposing them to "possible harm . . . or intimidation," Hardy
Decl. 11 3 l; identifying third parties currently under investigation, ia’.; "uncover[ing] the
government’s trial strategy," ial.; and notifying "individuals who remain under
investigation, who could use the released information to their advantage," Def.’s Mot.
at 29. See Maya'ak v. U.S. Dep ’t of Justice, 218 F.3d 760, 765 ("DOJ satisfies its burden
of proof under Exemption 7(A) by grouping documents in categories and offering generic
reasons for withholding the documents in each category.") (citation omitted). The
Supreme Court and our Circuit have upheld the withholding of documents pursuant to
Exemption 7(A) where disclosure would result in witness intimidation or would reveal
the scope and direction of an investigation, which could allow the target to construct
fraudulent defenses or alibis to avoid prosecution or destroy or alter evidence. North v.
Walsh, 881 F.2d 1088, 1097 (D.C. Cir. 1989) (collecting cases). Thus, having
demonstrated the expected harm and interference that disclosure could cause to the
current and pending enforcement proceedings, defendant has properly invoked
Exemption 7(A).
III. FOIA Exemptions 2, 3, 7(D), and 7(E)
1n any event, 1 find that defendant can properly withhold the records pursuant to
FOIA Exemptions 2, 3, 7(D), and 7(E). 1n a FOIA action, an agency must
16
"demonstrate . . . that its search was reasonably calculated to uncover all relevant
documents." Valencia-Lucena v. U.S. Coast Guara’, 180 F.3d 321, 325 (D.C. Cir. 1999)
(citation and internal quotation marks omitted). To meet its burden, the agency may
submit affidavits or declarations that explain in reasonable detail the scope and method of
the agency’s search, which, in the absence of contrary evidence, are sufficient to
demonstrate an agency’s compliance with FOIA. Perry v. Block, 684 F.2d 121, 126-27
(D.C. Cir. 1982) (per curiam). Defendant has demonstrated, through the declaration of
David M. Hardy, the FBI’s Section Chief of the Record/1nforrnation Dissemination
Section, Record Management Division, Hardy Decl. 11 l, that a reasonable search was
conducted. Hardy Decl. 1111 12, 15, 24; Def.’s Mot. at 24.
A. FOIA Exemption 2
Exemption 2 shields from disclosure information that is "related solely to the
intemal personnel rules and practices of an agency." 5 U.S.C. § 5 52(b)(2). Among other
things, Exemption 2 covers intemal information_"that is, the agency must typically keep
the records to itself for its own use." Milner v. Dep ’t of Navy, 131 S. Ct. 1259, 1265 n.4
(2011) (citation omitted). Here, the "secure and nonsecure intemal telephone numbers
and secure intemal facsimile numbers of F B1 personnel" that defendant seeks to
withhold, Def.’s Mot. at 32; Hardy Decl. 11 44, fall squarely within this Exemption. See,
e.g., Miller v. U.S. Dep ’i of Jusiice, 562 F. Supp. 2d 82, 110 (D.D.C. 2008) ("internal
secure telephone numbers and message addresses" properly withheld under
Exemption 2); Skinner v. U.S. Dep’t ofJusiiee, 744 F. Supp. 2d 185, 201 (D.D.C. 2010)
17
(government telephone numbers and contact information withheld under Exemption 2).16
B. FOIA Exemption 3
Exemption 3 permits an agency to prevent the release of records that are
"specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3). In determining
the applicability of Exemption 3, "the sole issue for decision is the existence of a relevant
statute and the inclusion of withheld material within that statute’s coverage." Golarid v.
CIA, 607 F.2d 339, 350 (D.C. Cir. 1978); see Ass ’n of Retirea’ R.R. Workers, Inc. v. U.S.
R.R. Rez‘. Ba’., 830 F.2d 331, 336 (D.C. Cir. 1987).
The FBI seeks to withhold information based on Federal Rule of Criminal
Procedure 6(e), which relates to "matter[s] occurring before the grand jury."" Fed. R.
Crim. P. 6(e)(2)(B). "This phrase~‘matters occurring before the grand jury’-~includes
not only what has occurred and what is occurring, but also what is likely to occur." In re
Motions of Dow Jones & Co., 142 F.3d 496, 499-500 (D.C. Cir. 1998) (interpreting
Federal Rule of Criminal Procedure 6(e)). The Rule does not create "a veil of
secrecy . . . over all matters occurring" before the grand jury, Irz re Sealea’ Case No. 99-
3091 , 192 F.3d 995, 1001-02 (D.C. Cir. 1999) (citation omitted), but information can be
withheld under Rule 6(e) if "disclosure would tend to reveal some secret aspect of the
grand jury’s investigation[,] such matters as the identities or addresses of witnesses or
161n Milner, the Supreme Court eliminated the distinction between "High 2" and
"Low 2" exempted records. 131 S. Ct. at 1265. Inforrnation that traditionally fell within
the "Low 2" Exemption "is all of 2." Ia’.
17 Plaintiff admits that it would "not seek disclosure of’ materials that defendant
"can demonstrate, through an appropriate Vaughn submission, , . . would reveal matters
that actually occurred before a grand jury." Pl.’s Mot. at 23 n.l4.
18
jurors, the substance of testimony, [or] the strategy or direction of the investigation."
Stoli-Nielsen Transp. Grp. Lta'. v. United Staies, 534 F.3d 728, 732 (D.C. Cir. 2008)
(citation and internal quotation marks omitted). Thus, the information that defendant
seeks to withhold pursuant to Rule 6(e)_"information contained in FD-302s that
identif[y] specific records that may be subpoenaed by a Federal Grand Jury, names of
potential grand jury witnesses and interview statements pertaining to proffer agreements
and immunity statements, which could be used as evidence before a Federal Grand Jury,"
Def.’s Mot. at 34; Hardy Decl. 1111 36, 47-is protected from disclosure.
C. FOIA Exemption 7(D)
Exemption 7(D) protects "the identity of a confidential source," if the information
was furnished on a confidential basis, and "information furnished by a confidential
source," if compiled by a law enforcement authority during the course of a criminal
investigation. 5 U.S.C. § 552(b)(7)(D). 1f production of the records "could reasonably
be expected to disclose the identity of a confidential source" or "information furnished
by" such a source, then the exemption is properly asserted. Ia’. The exemption’s
applicability, therefore, "depends upon whether the particular source who furnished the
information at issue was granted confidentiality, either expressly or by implication."
Mays v. DEA, 234 F.3d 1324, 1328 (D.C. Cir. 2000). While "[i]t may be true that many,
or even most, individual sources will expect confidentiality," U.S. Dep ’t of justice v.
Lana'ano, 508 U.S. 165, 176 (1993), without an express assurance of confidentiality, the
agency must demonstrate that, based on the circumstances, "the source nonetheless
‘spoke with an understanding that the communication would remain confidential."’ Roth
19
v. U.S. Dep’t ofJustioe, 642 F.3d 1161, 1184 (D.C. Cir. 2011) (quoting Larzdano, 508
U.S. at 172). In making this determination, the Court may consider factors such as
(1) "the character of the crime at issue," (2) "the source’s relation to the crime,"
(3) "whether the source received payment, and" (4) "whether the source has an ongoing
relationship with the law enforcement agency and typically communicates with the
agency only at locations and under conditions which assure the contact will not be
noticed." la’. (quoting Larza’ano, 508 U.S. at 179) (internal quotation marks omitted).
The FBI asserts this Exemption to protect the identities of informants who
provided information "under express confidentiality and/or under circumstances from
which an assurance of confidentiality may be implied." Hardy Decl. 11 38; see also Def.’s
Mot. at 43. Additionally, the FBI seeks to protect the information provided by these
confidential sources because the information provided "by these individuals and
organizations is singular in nature and if released, could reveal the informant’s identity."
Hardy Decl. 1111 61-62; Def.’s Mot. at 43. Defendant argues that "[g]iven the nature of the
crimes involved in the investigation," Def.’s Opp’n at 25 n.26-high profile political
corruption charges of conspiracy, fraud, and tax evasion, Hardy Decl. 1111 22-23-"and the
toll that connection to this investigation could have on a source’s reputation," Def.’s
Opp’n at 25 n.ZG-"embarrassment, humiliation or even possible physical harm not only
for themselves, but also for their families," Hardy Decl. 11 38_"it is clear that under the
circumstances here it is reasonable to assume that sources provided information with an
understanding that their communications would remain confidential." Def.’s Opp’n at 25
n.26. 1 agree. Considering these factors, the continuing nature of the investigation,
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Hardy Decl. 11 23, the ongoing relationship between the FBI and the sources, id. 11 61, and
the potential "chilling effect" of disclosure on current and future sources, ia’. 11 62, 1 find
that the information was furnished on a confidential basis and is, therefore, exempt from
disclosure.
D. FOIA Exemption 7 (E)
Finally, Exemption 7(E) protects from disclosure law enforcement records to the
extent that their production "would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law." 5 U.S.C. § 552(b)(7)(E); see Judicial Watch,
Inc. v. U.S. Dep’t ofCorrzrnerce, 337 F. Supp. 2d 146, 181 (D.D.C. 2004) ("[E]ven
commonly known procedures may be protected from disclosure if the disclosure could
reduce or nullify their effectiveness.") (citation omitted). The FBI properly applied this
exemption to protect law enforcement techniques and procedures used by FBI Special
Agents during the investigation, which, if disclosed could cause circumvention of the
FBI’s ability to adequately enforce the law. Hardy Decl.11 64. Further, "longstanding
precedent" of this Court and our Court of Appeals, Sussman, 494 F.3d at 1112 (citations
omitted), supports "categorical protection for techniques and procedures used in law
enforcement investigations or prosecutions." Judicial Watch, Inc., 337 F.Supp.2d at 181
(citations and intemal quotation marks omitted).
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CONCLUSION
For all of the foregoing reasons, the defendant’s Motion for Summary Judgment is
GRANTED and the plaintiffs Cross-Motion for Partial Summary Judgment is DENIED,
and this action is DISMISSED in its entirety. An Order consistent with this decision
accompanies this Memorandum Opinion.
\
l
RICHARD J. LE©§`>
United States District Judge
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