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

March 2, 2012

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



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

On January 24, 2011, Plaintiff Citizens for Responsibility and Ethics in Washington (CREW) submitted requests under the Freedom of Information Act to the Department of Justice's Criminal Division, Federal Bureau of Investigation, and Executive Office of U.S. Attorneys. CREW sought any records relating to the criminal investigation of Representative Jerry Lewis, a California Congressman who had been investigated in connection with allegations that he had improperly provided earmarks and government contracts to donors. All three DOJ components categorically denied CREW's requests. CREW appealed their denials, but filed a Complaint initiating the instant suit before a decision was rendered. DOJ has now moved for Summary Judgment, asking the Court to uphold its determination that the requested materials are categorically exempt from disclosure under FOIA Exemptions 6 and 7(C). CREW has filed a Cross-Motion for Partial Summary Judgment, claiming that, in light of the public interest in how the agency has handled high-profile allegations of public corruption, a categorical denial is not appropriate.

After comparing the privacy interests and the public interest at stake in the records at issue, the Court finds that the balance does not so characteristically tip in favor of privacy as to justify DOJ's categorical denial. Although the Government may ultimately be entitled to withhold the majority - or even the entirety - of the requested files, it must provide a legal basis for withholding each responsive document or group of documents. The Court will, accordingly, deny Defendant's Motion for Summary Judgment, grant Plaintiff's Motion for Partial Summary Judgment, and order that the Government submit a Vaughn Index identifying the documents it has withheld and the legal justifications for having done so.

I.Background

In mid-2006 the media began to report that Representative Jerry Lewis, former chairman and ranking member of the House Appropriations Committee, was the subject of a criminal investigation regarding earmarks and government contracts allegedly provided in exchange for financial contributions. See, e.g., Pl.'s Statement of Undisputed Mat. Facts (SUMF), ¶ 2; Pl.'s Mot., Exh. C (Charles Babcock, House Appropriation Chairman Is Facing Federal Investigation, Washington Post, May 12, 2006). Four years later, in December 2010, DOJ announced it had closed its investigation without bringing any charges. See Pl.'s SUMF, ¶ 4; Pl.'s Mot., Exh. G (Associated Press, Justice Dep. Ends Inquiry on Politician, N.Y. Times, Dec. 4, 2010).

By letters dated January 24, 2011, CREW submitted FOIA requests to three components of DOJ - the Criminal Division, the FBI, and EOUSA - for "all records related to investigation of Rep. Jerry Lewis (R-CA) . . . that are not covered by grand jury secrecy pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure, including but not limited to DOJ's decision not to bring criminal charges against him." Def.'s Mot., Exh. A to Decl. of Vinay Jolly (Letter 1 from Adam Rappaport, Jan. 24, 2011) at 1; Pl.'s Mot., Exh. 1 (Letter 2 from Adam Rappaport, Jan. 24, 2011) at 1; Def.'s Mot., Exh. A to Decl. of David Hardy (Letter 3 from Adam Rappaport, Jan. 24, 2011) at 1. CREW contended that it sought those records in order "to contribute to greater public awareness of alleged malfeasance and possible criminal behavior by Rep. Lewis and why, despite this apparent malfeasance, DOJ refused to prosecute Rep. Lewis." Rappaport Letter 2, Jan. 24, 2011, at 2. "The requested documents," it suggested, "would shed light on the conduct of DOJ and the FBI in conducting the investigation of Rep. Lewis, and DOJ's decision to close the investigation without bringing charges against him." Id.

Each component responded separately. By letter dated February 1, 2011, the Criminal Division acknowledged receipt of CREW's request and represented that it would conduct a search to determine whether it had responsive records in its possession, then notify CREW of its disposition of the request following that search. See Pl.'s Mot., Exh. 2 (Letter from Rena Kim, Feb. 1, 2011) at 1. A month later, the Criminal Division informed CREW by letter that it had located one box of documents responsive to its request, but was withholding the records in full pursuant to FOIA exemptions 3, 5, 6, and 7. See Pl.'s Mot., Exh. 3 (Letter from Rena Kim, Mar. 3, 2011) at 1. It also advised CREW that it had located various responsive public records and that it would provide those records if requested. See id. at 2.

By letter also dated February 1, 2011, EOUSA acknowledged receipt of CREW's request and advised CREW that "[r]ecords pertaining to a third party generally cannot be released absent express authorization and consent of the third party, proof that the subject of [the] 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." Def.'s Mot., Exh. B to Jolly Decl. (Letter from William Stewart, Feb. 1, 2011) at 1. Because CREW had not provided proof of Lewis's consent, proof of his death, or a public justification for release of the records, EOUSA denied the request. See id. In so doing, it cited the protections of personal privacy contained in the Privacy Act, 5 U.S.C. § 552a, along with FOIA exemptions 6 and 7. See id. EOUSA also notified CREW that it would conduct a search for responsive public records if requested. See id.

By letter dated February 3, 2011, the FBI acknowledged receipt of CREW's request and, in language identical to that used by EOUSA, stated that it had a policy of denying requests to release records pertaining to third parties absent proof of consent, proof of death, or the identification of a public interest-based justification for release. Def.'s Mot., Exh. B to Hardy Decl. (Letter from David Hardy, Feb. 3, 2011) at 1. Because CREW had provided none of these, the FBI denied its request. See id. Like EOUSA, it cited the protections of personal privacy contained in the Privacy Act, 5 U.S.C. § 552a, along with FOIA exemptions 6 and 7, and it notified CREW that it would conduct a search for responsive public records if the organization so desired. See id.

CREW administratively appealed the decisions of all three components. See Pl.'s Mot., Exh. 4 (Letter from Priscilla Jones, Apr. 4, 2011) at 1; Def.'s Mot., Exh. C to Jolly Decl. (Letter from Adam Rappaport, Feb. 24, 2011); Def.'s Mot., Exh. C to Hardy Decl. (Letter from Adam Rappaport, Feb. 24, 2011) at 1. Prior to receiving decisions regarding its three appeals, however, it filed a Complaint initiating the instant suit on June 2, 2011. CREW contends that "Defendant DOJ has wrongfully withheld agency records . . . by failing to comply with the statutory time limit for rendering decisions on [CREW's] appeals," and it requests the immediate disclosure of all responsive records. Compl., ¶ 22. DOJ has now filed a Motion for Summary Judgment, and CREW, requesting that the Court order the Government to submit a Vaughn Index, has filed a Cross-Motion for Partial Summary Judgment.

II.Legal Standard

Summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record." Fed. R. Civ. P. 56(c)(1)(A). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[A] material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" on an element of the claim. Liberty Lobby, Inc., 477 U.S. at 248. Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

FOIA cases typically and appropriately are decided on motions for summary judgment. Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. United States Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In a FOIA case, the Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations if they are relatively detailed and when 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." Military Audit 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 documents.'" SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Cent. Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).

III.Analysis

FOIA provides that "each agency, upon any request for records which (A) reasonably describes such records and (B) is made in accordance with published rules . . . , shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(4)(B); U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989). "Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary and capricious, the FOIA expressly places the burden 'on the agency to sustain its action' and directs the district courts to 'determine the matter de novo.'" Reporters Comm., 489 U.S. at 755 (quoting 5 U.S.C. ยง 552(a)(4)(B)). "At all times, courts ...


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