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Citizens For Responsibility and Ethics In Washington v. U.S. Department of Justice

January 10, 2012


The opinion of the court was delivered by: Gladys Kessler United States District Judge


Plaintiff Citizens for Responsibility and Ethics in Washington ("CREW") brings this action against Defendant U.S. Department of Justice ("DoJ"), challenging its denial of Plaintiff's requests under the Freedom of Information Act ("FOIA" or "the Act"), 5 U.S.C. § 552. Plaintiff's FOIA requests sought materials relating to DoJ investigations of U.S. Representative Don Young involving allegations of bribery and other illegal conduct.

This matter is presently before the Court on Defendant's Motion for Summary Judgment ("Def. Mot.") [Dkt. No. 10] and Plaintiff's Cross-Motion for Partial Summary Judgment ("Pl. Mot.") [Dkt. No. 12]. Upon consideration of the Motions, Oppositions, and Replies, the entire record herein, and for the reasons set forth below, Defendant's Motion for Summary Judgment is denied and Plaintiff's Cross-Motion for Partial Summary Judgment is granted.


On January 24, 2011, Plaintiff submitted identical FOIA requests to DoJ component agencies, the Federal Bureau of Investigation ("FBI"), the Executive Office for United States Attorneys ("EOUSA"), and the Criminal Division of DoJ ("CRM"). Each of the three requests sought "all records related to investigations conducted by DoJ and the Federal Bureau of Investigation ("FBI") of Rep. Don Young (R-AK) that are not covered by grand jury secrecy . . . , including but not limited to DoJ's decision not to bring criminal charges against him." Defendant's Statement of Material Facts Not in Dispute ¶¶ 1,8,16 ("Def. Stmt of Facts")[Dkt. No. 10-2].

On January 25, 2011, the FBI issued its response to Plaintiff's FOIA request. Id. ¶ 9. The EOUSA responded on February 1, 2011, and the CRM responded after the filing of the present litigation. Id. ¶¶ 2, 18; Def. Mot. 9. Without conducting a search for the requested documents, all three entities categorically denied Plaintiff's requests pursuant to FOIA Exemptions 6 and 7(C). Def. Stmt. of Facts, ¶¶ 2, 9; Declaration of Kristin Ellis ("Ellis Decl.") [Dkt. No. 10-3]. As stated in the FBI's denial:

You have requested records concerning a third party . . . . Records pertaining to a third party generally cannot be released absent express authorization and consent of the third party, proof that the subject of your request is deceased, or a clear demonstration that the public interest in disclosure outweighs the personal privacy interest and that significant public benefit would result from the disclosure of the requested records. Since you have not furnished a Certificate of Identity form, proof of death, or public justification for release, the release records concerning a third party would result in an unwarranted invasion of personal privacy and would be in violation of the Privacy Act, 5 U.S.C. § 552a. These records are also generally exempt from disclosure pursuant to section (b)(6) and (b)(7)(C) of the Freedom of Information Act, 5 U.S.C. § 552.

If requested, we will conduct a search for any public records maintained in our files, such as court records and news clippings, without the express authorization of the third party, proof of death, or public justification for release provided the subject is of sufficient notoriety.

The FBI and EOUSA also notified Plaintiff of its right to appeal the decision to DoJ's Office of Information Policy ("OIP"). Id. ¶¶ 3, 10. Plaintiff appealed the FBI and EOUSA denials on February 7, 2011, but filed the present lawsuit before receiving a decision from OIP.*fn2 Id. ¶¶ 4, 6, 11,



A. Statutory Framework

The courts have long recognized that FOIA's "basic purpose reflect[s] a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." Dep't of Air Force v. Rose, ("Rose") 425 U.S. 352, 360-61 (1976) (citation and internal quotations omitted). See also Multi Ag Media LLC v. Dep't of Agriculture ("Multi Ag Media"), 515 F.3d 1224, 1227 (D.C. Cir. 2008). In other words, "[a]t all times, courts must bear in mind that FOIA mandates a 'strong presumption in favor of disclosure.'" Nat'l Ass'n of Home Builders 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)). Because FOIA's "basic policy that disclosure, not secrecy, is the dominant objective of the Act," Rose, 425 U.S. at 361, FOIA's exemptions "must be narrowly construed." Id.

The Act "requires agencies to comply with requests to make their records available to the public, unless the requested records fit within one or more of nine categories of exempt material." Oglesby v. U.S. Dep't of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996). In narrowly construing the applicability of the FOIA exemptions, it is essential to remember that the Act's central purpose is "to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). In order to further that purpose, federal agencies claiming applicability of any of FOIA's exemptions bear the burden of providing a "'relatively detailed justification' for assertion of an exemption, and must demonstrate to a reviewing court that records withheld are clearly exempt." Birch v. U.S. Postal Service, 803 F.2d 1206, 1209 (D.C. Cir. 1986) (quoting Vaughn v. Rosen ("Vaughn"), 484 F.2d 820, 827-28 (D.C. Cir. 1973)).

To satisfy that requirement, our Court of Appeals established, in Vaughn v. Rosen, a procedural framework for evaluating exemption claims which directs exactly how agencies must proceed when seeking to deny disclosure of requested documents. In Mead Data Central, Inc. v. Department of the Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977), the Court spelled out the Vaughn requirement that "when an agency seeks to withhold information, it must provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of withheld documents to which they apply." Since Vaughn and Mead were decided, the usual practice has been for agencies to submit an affidavit (referred to as the "Vaughn Index") specifically identifying each document they seek to withhold and/or the precise redaction of each document they wish to make, along with "a relatively detailed justification" for their assertions. Thereafter, a plaintiff can respond to the justification offered by the agency and, most importantly, the court can assess on a document-by-document basis, as described in the Vaughn Index, whether the Government is justified in withholding the listed material under the specific FOIA exemption claimed. As our Court of Appeals has said in Kimberlin v. U.S. Department of Justice, 139 F.3d 944, 950 (D.C. Cir. 1998), The purpose of a Vaughn index is to permit adequate adversary testing of the agency's claimed right to an exemption, and those who contest denials of FOIA requests--who are, necessarily, at a disadvantage because they have not seen the withheld documents--can generally prevail only by showing that the agency's Vaughn index does not justify withholding information under the exemptions invoked. (quoting, Schiller v. NLRB, 964 F.2d 1205, 1209 (D.C. Cir. 1992)).

In short, the procedures established in Vaughn and Mead have created a system under which the agency has a full opportunity to make its claim for withholding information, the requester has a full opportunity to challenge those claims, and the court -- not the agency-- makes the final decision as to the legality of the Government's claims. It is fair to say that over ...

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