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Lardner v. Dep't of Justice

July 31, 2009


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Plaintiff, George Lardner, filed the above-captioned action against Defendant Office of the Pardon Attorney ("OPA"), a component of the Department of Justice ("DOJ"), pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking disclosure of the identities of pardon applicants and commutation applicants whose applications had been denied during former President George W. Bush's term in office. Currently pending before the Court are the parties' cross-motions for summary judgment.*fn1 After thoroughly reviewing the parties' submissions, including the attachments thereto, applicable case law, statutory authority, and the record of the case as a whole, the Court shall GRANT IN PART and DENY IN PART Plaintiff's [9] Motion for Summary Judgment and shall GRANT IN PART and DENY IN PART Defendant's [10] Cross-Motion for Summary Judgment. Specifically, the Court DENIES Plaintiff's motion and GRANTS Defendant's motion with respect to the issues of collateral estoppel and segregabilty, but GRANTS Plaintiff's motion and DENIES Defendant's motion with respect to the propriety of withholding the requested information under Exemptions 6 and 7(C). OPA is therefore required to disclose to Plaintiff the responsive lists of pardon and commutations applicants whose applications were denied by President Bush during his term in office.


A. OPA and the Clemency Process

The facts of this case are straightforward. OPA is the component within DOJ that is assigned to carry out the function of assisting the President in the exercise of his clemency powers. See Declaration of Helen M. Bollwerk, Deputy Pardon Attorney (hereinafter "First Bollwerk Decl."), submitted in support of Defendant's Motion for Summary Judgment, ¶ 3.*fn2

OPA receives petitions addressed to the President for all forms of executive clemency (including pardon, commutation of sentence, remission of fine, and reprieve) for federal criminal offenses and conducts the appropriate investigations on the merits of those petitions. Id. OPA then uses the information collected to prepare reports ("letters of advice") advising the President about the recommended disposition of individual cases. Id. ¶ 3. As Ms. Bollwerk explains, the letters of advice "contain[] a frank and candid analysis of the offense, the applicant's rehabilitation and suitability for clemency, and the likely impact of a grant of clemency." Id. ¶ 4.

Pursuant to Article II, Section 2 of the Constitution, the President has the exclusive authority to make final decisions in clemency cases. Id. ¶ 6. Accordingly, the President is free to disregard OPA's recommendation or to act without any involvement from the OPA whatsoever. Id. OPA, however, concedes that "the President has traditionally relied heavily on the [OPA's] advice in clemency cases to inform his decision-making." Id. ¶ 6.

Once the President makes his final decision whether to grant or deny a clemency request, OPA is then charged with implementing that decision. See id. ¶¶ 15-17. If the President decides to grant clemency, OPA is notified of that decision and is then responsible for preparing and executing the appropriate clemency warrant. Id. ¶ 15. In addition, OPA is responsible for providing DOJ's Office of Public Affairs with a memorandum advising it of the President's decision to grant clemency as well as the date of the President's favorable action, the name of the clemency recipient, the city and state of his residence, the offense for which clemency was granted, the date and district of conviction, the sentence imposed, and the name as well as city and state of residence of the applicant's attorney, if the applicant was represented. Id. ¶ 17. This information is also readily available to the general public for review on DOJ's website. See (last visited July 30, 2009).

If the President decides, however, to deny clemency, the Office of the Counsel to the President provides OPA with written notification that the request for clemency has been denied.

Id. ¶ 15. This written notification serves as the official record of the President's action on the clemency requests of those applicants, and is retained by OPA, which places a copy of the notification in the individual applicant's clemency file and also records the information in OPA's automated database. Second Bollwerk Decl. ¶ 5. As is particularly relevant to the instant action, OPA admits that it maintains lists of clemency applicants whose applications have been denied. Plaintiff's Statement of Material Facts ("Pl.'s Stmt."), ¶ 17; Defendant's Response ¶ 17.

OPA is also responsible for notifying each applicant in writing of the President's decision to deny the applicant's clemency request. First Bollwerk Decl. ¶ 15. Although, in contrast to a grant of clemency, OPA does not typically notify the Office of Public Affairs when the President denies a request for clemency, id. ¶ 17, OPA reserves the right to do so in "cases of substantial public interest," Def.'s MSJ, Ex. E (Privacy Act statement). Moreover, as a matter of general practice, the OPA freely discloses identifying information about unsuccessful clemency applicants to any member of the public upon a request for information about a particular person. Id. ¶¶ 19-20. OPA provides formal notice of its practice of disclosure in the Federal Register as well as in its Privacy Act statement, which is included in and made a part of every clemency application. Id. ¶ 20. Specifically, the Federal Register notice advices interested parties that OPA will publicly disclose the following information to "[a] member of the public who has requested information concerning a specific, named person:" whether a clemency application has been filed, and if so, the date on which it was filed, the type of clemency sought, the offense(s) for which clemency is sought, the date and court of conviction, the sentence imposed, the decision of the President to grant or deny clemency and the date of that decision, the administrative closure of a clemency request and the date of such closure.

67 Fed. Reg. 66417, 66417-18. Similarly, OPA's Privacy Act statement advises clemency applicants that OPA will advise a third-party, "[u]pon specific request," "whether a named person has been granted or denied clemency," First. Bollwerk Decl. ¶ 20, and that the OPA "may" prepare a "public affairs notice . . . describing . . . a denial of clemency in cases of substantial public interest," Def.'s MSJ, Ex. E (Privacy Act statement). As of November 3, 2008, President Bush had granted 157 pardons and six commutations of sentence, and had denied 1,535 pardon requests and 6,290 commutation requests during his administration. Id.

B. Plaintiff's FOIA Request

By letter dated April 10, 2008, Plaintiff submitted a FOIA request to OPA seeking the identities of all those denied pardons and, separately, all those denied commutations by President Bush during his term in office. Pl.'s Stmt. ¶ 2; Defendant's Statement of Material Facts ("Def.'s Stmt."), ¶ 1. OPA declined to produce any of the lists of unsuccessful clemency applicants retained by OPA or any other potentially responsive documents, citing FOIA Exemptions 6 and 7(C) as the basis for withholding all responsive records. Pl.'s Stmt. ¶ 3 & Ex. B (May 22, 2008 Letter from OPA to Plaintiff); Defendant's Response Statement ("Def.'s Resp."), ¶ 3. Plaintiff appealed the denial of his FOIA request by letter dated June 9, 2008. Pl.'s Stmt. ¶ 4 & Ex. C (June 9, 2008 Letter from Plaintiff to OPA); Def.'s Resp. ¶ 4. On August, 12, 2008, having received no response to his appeal, Plaintiff filed the Complaint in the above-captioned matter. See Pl.'s Stmt. ¶ 5; Def.'s Resp. ¶ 5; Compl., Docket No. [1].*fn3 Thereafter, by letter dated September 5, 2008, Plaintiff was advised that the DOJ was closing his appeal file, in light of the filing of the instant lawsuit. Pl.'s Stmt. ¶ 5 & Ex. D (September 5, 2008 Letter from DOJ to Plaintiff); Def.'s Resp. ¶ 5.

As stipulated by the parties, the sole issue now before the Court is whether OPA may properly withhold the names of pardon and commutation applicants (collectively, "clemency applicants") whose applications were denied by President Bush.*fn4 The parties have filed their respective cross-motions for summary judgment. See Pl.'s Motion for Summary Judgment, Docket No. [9], ("Pl.'s MSJ"); Def.'s Motion for Judgment on the Pleadings or, in the Alternative, for Summary Judgment, Docket No. [10], ("Def.'s MJS"). Each party has also filed their respective oppositions, see Plaintiff's Opposition to Def.'s MSJ, Docket No. [13], ("Pl.'s Opp'n"); Defendant's Opposition to Plaintiff's MSJ, Docket No. [14], ("Def.'s Opp'n"), and replies, see Plaintiff's Reply, Docket No. [15], ("Pl.'s Reply"); Defendant's Reply, Docket No. [16], ("Def.'s Reply"). Briefing is therefore complete, and the parties' cross-motions are now ripe for the Court's review and resolution.


In reviewing a motion for summary judgment under FOIA, the Court must conduct a de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). In the FOIA context, "de novo review requires the Court to 'ascertain whether the agency has sustained its burden of demonstrating that the documents requested . . . are exempt from disclosure under [] FOIA.'" Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55, 57 (D.C. Cir. 2003) (quoting Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998)). Summary judgment is proper when "the pleadings, the discovery [if any] and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).

Under FOIA, all underlying facts and inferences are analyzed in the light most favorable to the FOIA requester; as such, only after an agency seeking summary judgment proves that it has fully discharged its FOIA obligations is summary judgment appropriate. Moore v. Aspin, 916 F. Supp 32, 35 (D.D.C. 1996) (citing Weisberg v. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)). In opposing a motion for summary judgment, a party must offer more than conclusory statements. See Broaddrick v. Exec. Office of President, 139 F. Supp. 2d 55, 65 (D.D.C. 2001) (citing Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987)). Indeed, a plaintiff pursuing an action under FOIA must establish that the agency has improperly claimed an exemption as a matter of law or that the agency has failed to segregate and disclose all non- exempt information in the requested documents. See Perry-Torres v. Dep't of State, 404 F. Supp. 2d 140, 142 (D.D.C. 2005).

Congress enacted FOIA for the purpose of introducing transparency to government activities. See Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 88 (D.C. Cir. 1984). Congress remained sensitive, however, to the need to achieve balance between this objective and the vulnerability of "legitimate governmental and private interests [that] could be harmed by release of certain types of information." Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992); see also Summers v. DOJ, 140 F.3d 1077, 1079 (D.C. Cir. 1998). Accordingly, FOIA provides nine exemptions pursuant to which an agency may withhold requested information. See 5 U.S.C. §§ 552(a)(4)(B), (b)(1)-(9). The agency must demonstrate the validity of any exemption that it asserts. See id.; Beck v. DOJ, 997 F.2d 1489, 1491 (D.C. Cir. 1993) ("[c]onsistent with the purpose of the Act, the burden is on the agencyto justify withholding requested documents"). In addition, summary judgment may be granted on the basis of the agency's accompanying affidavits or declarations if they 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 evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). These affidavits may be submitted by an official who coordinated the search, and need not be from each individual who participated in the search. See SafeCard Servs. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991).

An agency also has the burden of detailing what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document. Mead Data Cent. Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). Any non-exempt information that is reasonably segregable from the requested records must be disclosed. Ogelsby v. U.S. Dep't of Army, 79 F.3d 1172, 1178 (D.C. Cir. 1996). In addition, district courts are required to consider segregability issues sua sponte even when the ...

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