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JUDICIAL WATCH, INC. v. UNITED STATES DEPARTMENT OF JUSTICE

March 3, 2004.

JUDICIAL WATCH, INC., Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants



The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge

MEMORANDUM OPINION

The financial collapse of Enron Corp. ("Enron") caused immense public interest in the company and its former chairman, Kenneth Lay. Just three days after the December 2, 2001, filing of Enron's voluntary bankruptcy petition, Judicial Watch, Inc. ("Judicial Watch"), a public interest organization, submitted a request under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), to the Department of Justice ("DOJ"), the Federal Energy Regulatory Commission ("FERC"), and the Department of the Treasury ("Treasury") for records relating to Enron and Mr. Lay. These government agencies then searched their files and produced some documents, while withholding others in full or in part pursuant to various FOIA exemptions. Not satisfied with the level of disclosure, Judicial Watch filed suit on January 14, 2002. Currently before the Court are two motions for summary judgment, which Judicial Watch opposes in part.*fn1 For the following reasons, the Court will grant these motions in part and deny them in part. Page 2

I. BACKGROUND

  The facts are not disputed and are taken mainly from the defendants' thorough presentations. In its December 2001 FOIA request, Judicial Watch sought 19 different categories of records relating to Enron and Mr. Lay, including all documents that refer or relate to "[t]he bankruptcy of the Enron Corporation." Compl. Exh. 1. DOJ made an interim production of responsive non-exempt documents on March 14, 2002, and completed production on May 24, 2002. FERC made four rolling productions of documents on February 28, 2002, April 12, 2002, July 8, 2002, and February 14, 2003. Treasury — which received 15 similar requests for Enron-related materials — began its production of documents on February 19, 2002, and made 20 additional productions through January 15, 2003.*fn2 In addition, Treasury determined that certain documents it had collected originated with the Department of State ("State"), the Executive Office of the President ("EOP"), and the Office of the United States Trade Representative ("USTR"), among others. Such documents were referred back to the originating entities. Production of these documents, in full or in part, and withholding of some pursuant to FOIA exemptions, is now complete.

  A. DOJ

  Judicial Watch's FOIA request to DOJ was sent to the Office of Information and Privacy ("OIP").*fn3 OIP determined that the Offices of the Attorney General, Deputy Attorney Page 3 General, Associate Attorney General, and the Department Executive Secretariat were reasonably likely to have responsive records. Searches of those offices revealed 22 documents, totaling 90 pages. On March 14 and May 24, 2002, OIP released in whole 12 documents totaling 33 pages and released another five documents in part based on FOIA Exemptions 5 and 6. Three documents, totaling four pages, were withheld in full pursuant to Exemption 5. DOJ produced a Vaughn index of responsive, exempt documents on July 1, 2002.*fn4

  In addition, OIP referred one document to the Executive Office for United States Attorneys ("EOUSA") for processing and direct response and one document of 18 pages to the Criminal Division of DOJ. After initially informing Judicial Watch that it would release two pages in part, EOUSA later released the document referred to it in full. The Criminal Division released three of the 18 pages referred to it and referred the remaining 15 pages to the Internal Revenue Service ("IRS"). IRS withheld all 15 pages under Exemption 3.

  B. FERC

  After some initial correspondence concerning Judicial Watch's request for a fee waiver for processing its request, which was granted in all material respects, FERC searched all of its offices in response to the initial 19 categories of requests and additional requests received from Judicial Watch on January 14, 2002.*fn5

  On February 28, 2002, in the first of its rolling responses to Judicial Watch, FERC released 72 documents together with an index. FERC further released 210 documents on April 12, 2002. Approximately two months later, on July 8, 2002, FERC released 47 documents in full and Page 4 36 in part. Like DOJ, FERC produced a Vaughn index on July 1. Finally, FERC sent complete copies of an additional nine documents, that had previously been withheld in whole or in part, on February 14, 2003. In the end, FERC withheld in full 59 documents. FOIA Exemptions 5 and 6 were cited as the basis for its withholdings and redactions.

  C. Treasury

  Treasury received 15 requests for Enron-related documents, including the December 2001 request from Judicial Watch. Pursuant to regulation, it afforded all such requests priority treatment as required when it receives more than five requests for substantially the same documents. See 31 C.F.R. § 1.5(a)(4). All Treasury offices were required to search their files, to certify their completion of that search, and to provide responsive documents to the Counselor for the General Counsel. Technical help was provided to employees who were having difficulty searching electronic files. Treasury retrieved and searched records that had been sent to storage under normal retention procedures and also searched the closed electronic files of departed officials reasonably believed to have responsive documents. The Counselor for the General Counsel received approximately 13,000 pages in response to these instructions.

  At this point, Treasury is no longer certain of the number of documents it has produced specifically in response to the December 2001 request from Judicial Watch. From February 19, 2002, to January 14, 2003, Treasury released 5,456 pages in full and 4,779 pages in part, and withheld 280 pages in full in response to all of the Enron-related FOIA requests it received. These documents were produced to all requesters, including Judicial Watch.

  Additionally, Treasury discovered over 1,000 pages of documents that originated with other agencies and referred those documents back to the originating agencies. Seven of those Page 5 agencies determined that documents referred to them contained exempt material: the Export-Import Bank ("Ex-Im Bank"), the Overseas Private Investment Corporation ("OPIC"), the Department of Labor ("DOL"), the Federal Reserve Bank ("Federal Reserve"), State, EOF, and the USTR. With respect to the document referred to Ex-Im Bank, Treasury was instructed to release three pages in full and, pursuant to FOIA Exemptions 4 and 5, redact two pages and withhold the remaining pages. OPIC determined that three documents referred to it should be withheld in full and two documents should withheld in part under Exemptions 4 and 5. A document referred to DOL was released in redacted form pursuant to Exemptions 5 and 7(a). Of the ten responsive documents referred to the Federal Reserve, five were redacted and one was withheld in full pursuant to Exemptions 4 and 5.

  Treasury referred 94 documents to State, which released 22 documents in full, 48 documents in part, and withheld 19 documents in full based on Exemptions 1, 4, 5 and 6 of FOIA. State also returned two documents to Treasury, which released them in full, and referred three documents for inter-agency coordination. OPIC withheld several lines from one of the three documents pursuant to Exemption 4; the other two were produced directly to Judicial Watch by the Department of Commerce. In consultation with EOP, Treasury released 28 pages in full and withheld 50 pages in part pursuant to Exemptions 2, 4 and 5. USTR withheld eight of 11 referred documents under Exemption 5.

  II. LEGAL STANDARD

  Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). This procedural device is not a "disfavored legal shortcut" but a reasoned and careful way to resolve cases fairly and expeditiously. Page 6 Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). In determining whether a genuine issue of material fact exists, the Court must view all facts and reasonable inferences in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). To be "material" and "genuine," a factual dispute must be capable of affecting the substantive outcome of the case. Anderson, 477 U.S. at 247-48;Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987).

  In the context of FOIA, the government must demonstrate that it "conducted a search reasonably calculated to uncover all relevant documents" and that any withheld material falls within a statutory exemption. Weisberg v. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983); see also 5 U.S.C. § 552(a)(4)(B); Petroleum Info. Corp. v. Dep't of Interior, 976 F.2d 1429 (D.C. Cir. 1992). With respect to the latter showing, an "agency may meet this burden by submitting affidavits or declarations that describe the withheld material in reasonable detail and explain why it falls within the claimed FOIA exemptions." Judicial Watch, Inc. v. United States Postal Service, 2004 U.S. Dist. LEXIS 1147, No. 02-1101, at *5 (D.D.C. Jan. 21, 2004). "[D]isclosure, not secrecy, is the dominant objective of [FOIA, so its exemptions] are explicitly made exclusive . . . and must be narrowly construed." Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976).

  III. ANALYSIS

  Unlike the typical FOIA lawsuit, Judicial Watch does not challenge the adequacy of the defendants' searches.*fn6 It argues only that the defendants "are improperly withholding many Page 7 [documents]."*fn7 Pl.'s Opp. to 1st Mot. for Summ. J. at 2 ("Because a close examination of the Defendants' Vaughn Indexes demonstrates that their claims of exemption cannot withstand scrutiny, [Judicial Watch] respectfully submits that Defendants . . . are not entitled to summary judgment as a matter of law. Rather, the responsive documents at issue must be turned over to [Judicial Watch] without further delay."). The Court will address these disputed withholdings in turn.

  A. Exemption 1

  Exemption 1 of FOIA protects from disclosure records that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order[.]" 5 U.S.C. § 552(b)(1). In determining whether certain information should be withheld under this exemption, courts are "quite deferential" to the agency's classification decisions. See Washington Post v. Dep't of Defense, 766 F. Supp. 1, 6-7 (D.D.C. 1991).

 
[T]he court is not to conduct a detailed inquiry to decide whether it agrees with the agency's opinions; to do so would violate the principle of affording substantial weight to the expert opinion of the agency. Judges, moreover, lack the expertise necessary to second-guess such agency opinions in the typical national security FOIA case.
Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980) (footnote omitted).

  Pursuant to Executive Order 12958, as amended, Treasury withheld material classified as confidential from 43 documents that it had previously referred to State.*fn8 Executive Page 8 Order 12958, entitled "Classified National Security Information," provides that information may be classified if it concerns, among other things, "foreign government information" or "foreign relations or foreign activities of the United States, including confidential sources[.]" Executive Order 12958 § 1.4(b) and (d). "The ...


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