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Citizens for Responsibility and Ethics in Washington v. U.S. Dep't of Justice

October 1, 2009

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, PLAINTIFF,
v.
U.S. DEPARTMENT OF JUSTICE, DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

Plaintiff Citizens for Responsibility and Ethics in Washington ("CREW") brings this action under the Freedom of Information Act ("FOIA"), seeking records that were created by the Federal Bureau of Investigation ("FBI") in conjunction with Special Counsel Patrick Fitzgerald's ("Fitzgerald" or the "Special Counsel") interview of former Vice President Richard Cheney. Defendant, the Department of Justice ("DOJ" or the "agency"), identified sixty-seven pages of records documenting the interview, which was conducted as part of the Special Counsel's investigation into who exposed Valerie Plame Wilson as a covert operative for the Central Intelligence Agency ("CIA"). The agency withheld the records of the interview in their entirety on the basis that disclosure of the documents could reasonably be expected to interfere with law enforcement proceedings. See 5 U.S.C. § 552(b)(7)(A). In addition, DOJ identified limited categories of information within the documents that, according to the agency, were exempt from disclosure under other FOIA exemptions.

Now pending before the Court are the parties' cross-motions for summary judgment. Upon careful consideration of the motions, responses and replies thereto, the supplemental briefing submitted by the parties, oral argument during the motions hearings held on June 18, 2009 and July 21, 2009, the applicable law, and the entire record, the Court concludes that the agency has failed to meet its burden of demonstrating that the requested documents were properly withheld in their entirety under any FOIA exemption protecting law enforcement interests. Limited portions of those documents, however, were properly withheld under exemptions designed to protect information that is privileged or that could impinge on personal privacy or threaten national security. Accordingly, and for the reasons stated herein, the Court GRANTS IN PART AND DENIES IN PART both parties' motions and directs the government to produce the records with appropriate redactions to withhold the information that falls within the properly invoked exemptions identified in this Memorandum Opinion.

I. Background

A. Factual Background

Plame's identity as a covert operative for the CIA was publicly revealed shortly after her husband, Ambassador Joseph Wilson, wrote a New York Times editorial in which he argued that the Bush administration had manipulated intelligence to support President Bush's statement in the 2003 State of the Union address that Iraq had purchased uranium from Niger. See Robert D. Novak, Column, Mission to Niger, Wash. Post, July 14, 2003, at A21;Joseph C. Wilson IV, Opinion, What I Didn't Find in Africa, N.Y. Times, July 6, 2003, § 4, at 9. An investigation into the leak of Plame's identity was commenced by the FBI, which eventually led to the appointment of Fitzgerald as Special Counsel. As part of this investigation, a number of senior White House officials, including but not limited to President Bush, Vice President Cheney, and Vice President Cheney's Chief of Staff, I. Lewis Libby, were interviewed by the FBI. Compl. ¶ 19; Answer ¶ 19. Libby was subsequently indicted and, after a jury trial, convicted on charges of perjury, obstruction of justice, and making false statements, all of which arose from his conduct during the investigation. See Tr. of Mot. Hr'g at 9 (June 18, 2009) ("First Mot. Hr'g Tr."). Following the conviction, Libby was sentenced to 30 months of imprisonment. The sentence was subsequently commuted by President Bush on July 2, 2007. See Order, United States v. Libby, No. 05-394 (D.D.C. July 3, 2007) (citing Grant of Executive Clemency). No other criminal cases were brought as a result of the Special Counsel's investigation.

The House of Representatives Committee on Oversight and Government Reform (the "Committee") conducted an independent investigation into the leak of Plame's CIA identity, during which it sought to obtain relevant documents from DOJ. Compl. ¶ 22. As part of the Committee's investigation, DOJ made available redacted reports of FBI interviews with White House personnel for Committee staff to review. Answer ¶ 22. DOJ, however, refused to provide the reports of the interviews with either President Bush or Vice President Cheney to the Committee. Pl.'s Statement of Material Facts Not in Dispute ¶ 4. In June 2008, the Committee issued a subpoena seeking the production of documents, "for which the former Special Counsel has not determined that disclosure would be barred by Federal Rule of Criminal Procedure 6(e) governing grand jury secrecy," relating to interviews with the President, Vice President, and other senior White House officials. See Subpoena, attached as Ex. A to Decl. of Steven G. Bradbury ("Def.'s Ex. A"). Specifically, the Committee demanded unredacted versions of "transcripts, reports, notes, and other documents relating to any interviews outside the presence of the grand jury" of the President and the Vice President.*fn1 Def.'s Ex. A. The Committee also sought "[u]nredacted versions of FBI 302 interview reports" from interviews with Libby, Karl Rove, Condoleezza Rice, Scott McClellan, and Cathie Martin. Def.'s Ex. A.

After DOJ's Office of Legal Counsel ("OLC") assembled and reviewed the documents responsive to the Committee's subpoena, Attorney General Michael Mukasey wrote a letter to President Bush "request[ing] that [the President] assert executive privilege with respect to" the documents subpoenaed by the Committee. Letter from Michael B. Mukasey, Attorney Gen., to President George W. Bush at 1 (July 15, 2008), attached as Ex. B to Decl. of Steven G. Bradbury ("Def.'s Ex. B"); see Def.'s Mem. Supp. Mot. Summ. J. ("Def.'s Mem.") at 2. According to the Attorney General,

[m]any of the subpoenaed materials reflect frank and candid deliberations among senior presidential advisers, . . . [and] concern a number of sensitive issues, including the preparation of [the President's] January 2003 State of the Union Address, possible responses to public assertions challenging the accuracy of a statement in the address, and the decision to send Ms. Plame's husband, Ambassador Joseph Wilson, to Niger in 2002 to investigate Iraqi efforts to acquire yellowcake uranium. Some of the subpoenaed documents also contain information about communications between [the President] and senior White House officials.

Def.'s Ex. B at 1.

In a letter dated July 16, 2008, DOJ notified the Committee that President Bush had granted the Attorney General's request and asserted executive privilege with respect to the subpoenaed documents. See Letter from Keith B. Nelson, Principal Deputy Assistant Attorney Gen., to the Honorable Henry A. Waxman, Chairman, Comm. on Oversight & Gov't Reform at 1 (July 16, 2008), attached as Ex. C to Decl. of Steven G. Bradbury ("Def.'s Ex. C"). Relying on the legal analysis set forth in the Attorney General's letter to the President, DOJ took the position that the documents revealed "communications that lie at the absolute core of executive privilege." Def.'s Ex. C at 1. Moreover, DOJ asserted that the Committee's demand for the documents

raises a serious additional separation of powers concern relating to the integrity and effectiveness of future law enforcement investigations by the Department. Were future Presidents, Vice Presidents and senior White House staff to perceive that providing voluntary interviews in the course of Justice Department investigations would create records that would likely be made available to Congress (and then possibly disclosed publicly outside of judicial proceedings such as a trial), there would be an unacceptable risk that such knowledge could adversely impact their willingness to cooperate fully and candidly in voluntary interviews. They might insist, alternatively, on disclosing information only pursuant to grand jury subpoenas in order to ensure the secrecy protections of Rule 6(e) of the Federal Rules of Criminal Procedure. Such a result would significantly impair the Department's ability to conduct future law enforcement investigations where such investigations would benefit from full and voluntary White House cooperation.

Def.'s Ex. C at 1-2. On July 17, 2008, the Committee announced that the President had invoked executive privilege in response to the subpoena. Compl. ¶ 24.

B. Procedural Background

On the same day the Committee announced that President Bush had asserted executive privilege to withhold the subpoenaed documents, CREW sent a FOIA request to DOJ requesting records "relating to any interview outside the presence of the grand jury of Vice President Richard B. Cheney that are part of Special Counsel Patrick Fitzgerald's investigation into the leak of the identity of Valerie Plame Wilson, a covert CIA officer." Compl. ¶ 25. CREW explained that its request was coextensive with the Committee's subpoena, and sought both a waiver of fees and expedited processing of its FOIA request "in view of the particular urgency to inform the public about the role Vice President Cheney played in the leak of Ms. Wilson's covert identity and the basis for the decision not to prosecute [him]." Compl. ¶¶ 25, 27. By letter dated July 24, 2008, the Chief of Staff of DOJ's Office of Information and Privacy ("OIP") acknowledged receipt of the FOIA request and informed CREW that its expedited request had been granted by the Director of Public Affairs. Compl. ¶ 29.

On August 25, 2008, CREW filed a complaint alleging that DOJ had failed to either produce, withhold, "or otherwise account[] for any responsive documents." Compl. ¶ 32. CREW further claimed that DOJ had failed to expedite the processing of its request, exceeded the "generally applicable twenty-day deadline for the processing of any FOIA request," and "wrongfully withheld" the requested documents from CREW. Compl. ¶¶ 33, 35. As a result, CREW sought declaratory and injunctive relief "with respect to the expedited release and disclosure of the requested records." Compl. ¶ 40. On August 28, 2008, CREW filed a motion for a preliminary injunction, seeking an order requiring DOJ to "process and disclose the requested records immediately." Mem. P. & A. Supp. Pl.'s Mot. Prelim. Inj. at 2. Shortly thereafter, however, the parties agreed to a stipulation for the processing of CREW's request. See Stipulation and Order (Sept. 8, 2008).

On September 18, 2008, DOJ responded to CREW's request by submitting the declaration of Steven Bradbury ("Bradbury declaration"), the then Principal Deputy Assistant Attorney General for OLC.*fn2 That submission included a number of attachments, one of which is a Vaughn index (collectively "original Vaughn submission"). See Ex. F to Decl. of Steven G. Bradbury ("Def.'s Ex. F"). According to the original Vaughn submission, the records responsive to CREW's request consist of (1) an FBI 302 report summarizing Fitzgerald's interview with Vice President Cheney, and (2) two sets of contemporaneous notes taken by FBI agents during the course of the interview. See Decl. of Steven G. Bradbury ¶ 7; Def.'s Ex. F. Collectively, the requested records total sixty-seven pages. Def.'s Mem. at 3.

DOJ withheld all responsive records on the basis that they were exempt from disclosure under various FOIA exemptions. Specifically, OLC concluded that the records were properly withheld in their entirety under Exemption 7(A) and Exemption 5 because of their potential to interfere with law enforcement proceedings. In addition, OLC found that portions of the documents could be withheld under Exemptions 1, 3, 5, 6, and 7(C). DOJ filed an answer to the complaint on September 26, 2008, and a motion for summary judgment on October 10, 2008. CREW's cross-motion for summary judgment was filed on October 30, 2008. Following a hearing on the motions held on June 18, 2009, the Court ordered DOJ to (1) produce the records for in camera inspection, and (2) file supplemental declarations "from appropriate declarants explaining with specificity the precise information contained in the records that is exempt from disclosure under FOIA, which exemptions apply to which portions of the records, and why such exemptions apply." Minute Order (June 20, 2009). The Court also directed the parties to submit supplemental briefing addressing "(1) any known instances in which high level White House officials have engaged in interviews with law enforcement officials outside the context of a grand jury subpoena, and (2) what, if anything, such officials have done to protect against the content of those interviews from becoming public." Id.

As part of its supplemental filing, DOJ submitted declarations from (1) Lanny A. Breuer, the Assistant Attorney General of the Criminal Division of DOJ ("Breuer declaration"); (2) David J. Barron, the Acting Assistant Attorney General for OLC ("Barron declaration"); and (3) Ralph S. DiMaio, the Information Review Officer for the National Clandestine Service of the CIA ("DiMaio declaration"). The Barron declaration, in conjunction with DOJ's supplemental memorandum, claims the applicability of an additional exemption (Exemption 2) because of administrative information "such as FBI file numbers" contained in the documents. See Decl. of David J. Barron ¶ 12; Def.'s Supplemental Mem. Supp. Mot. Summ. J. ("Def.'s Supplemental Mem.") at 5 n.3. In addition, DOJ asserts that the outline the Special Counsel created in preparation for his interview of Vice President Cheney and reproduced as part of the withheld documents is exempt from disclosure under Exemption 5 because of the work-product privilege. See Decl. of David J. Barron ¶ 9; Def.'s Supplemental Mem. at 5 n.3.*fn3

The Court held another hearing on the motions on July 21, 2009, and the motions are now ripe for decision.

II. Legal Framework

A. Rule 56

Pursuant to Federal Rule of Civil Procedure 56, summary judgment should be granted if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Likewise, in ruling on cross-motions for summary judgment, the court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed. See Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir. 1975).

B. FOIA

"'Public access to government documents' is the 'fundamental principle' that animates FOIA." Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003) (quoting John Doe Agency v. John Doe Corp., 493 U.S. 146, 151 (1989)); see Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980) ("[T]he strong policy of the FOIA [is] that the public is entitled to know what its government is doing and why."). As a result, FOIA requires that agencies of the federal government release requested records to the public unless the documents fall within one or more of nine specific statutory exemptions. 5 U.S.C. ยง 552. "Given the FOIA's broad disclosure policy, the United States Supreme Court ...


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