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

United States District Court, District Circuit

June 12, 2013

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.

MEMORANDUM OPINION

GLADYS KESSLER, District Judge.

Plaintiff Citizens for Responsibility and Ethics in Washington ("CREW") brings this action against Defendant United States Department of Justice ("DOJ") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff seeks materials relating to DOJ investigations of U.S. Representative Don Young.

This matter is presently before the Court on Defendant's Motion for Summary Judgment on Behalf of the Criminal Division and Federal Bureau of Investigation [Dkt. No. 31], Plaintiff's Cross-Motion for Partial Summary Judgment [Dkt. No. 35], Defendant's Motion for Summary Judgment on Behalf of the Executive Office for United States Attorneys [Dkt. No. 37], and Plaintiff's Cross-Motion for Partial Summary Judgment with Respect to Executive Office for United States Attorneys [Dkt. No. 41]. Upon consideration of the Motions, Oppositions, Replies, and the entire record herein, and for the reasons stated below, Defendant's Motions are granted in part and denied in part, and Plaintiff's Cross-Motions are granted in part and denied in part.

I. BACKGROUND[1]

CREW is a non-profit corporation "committed to protecting the rights of citizens to be informed about the activities of government officials and to ensuring the integrity of government officials." Compl. ¶ 3 [Dkt. No. 1].

On January 24, 2011, CREW submitted identical FOIA requests to three DOJ Components: the Criminal Division, the Federal Bureau of Investigation ("FBI") and the Executive Office for United States Attorneys ("EOUSA") It sought records related to DOJ investigations of Rep. Young, "including but not limited to DOJ's decision not to bring criminal charges against him." Def.'s Statement of Undisputed Facts ¶ 2 [Dkt. No. 37-4] All three DOJ Components categorically denied CREW's requests under FOIA Exemptions 6 and 7(C), 5 U.S.C. § 552(b) (6), (7) (C).

The FBI and the EOUSA notified CREW of its right to appeal the decision to DOJ's Office of Information Policy ("OIP"). On February 7, 2011, CREW appealed the FBI and the EOUSA denials. On April 20, 2011, before receiving a decision from OIP, CREW filed the present lawsuit.

The parties cross-moved for summary judgment regarding DOJ's "categorical" denial of CREW's FOIA requests. On January 10, 2012, this Court denied Defendant's Motion for Summary Judgment and granted Plaintiff's Cross-Motion for Partial Summary Judgment. Citizens for Responsibility and Ethics in Wash. v. D.O.J., 840 F.Supp.2d 226 (D.D.C. 2012) ("CREW I"). In CREW I, the Court held that the Government could not categorically deny CREW's requests under Exemptions 6 and 7(C), and ordered the DOJ Components to submit Vaughn indices regarding any withheld or redacted documents. Id. at 236. The Court explained that once the indices were submitted, it would "make a specific individualized decision for each document as to whether it should be redacted or totally withheld pursuant to Exemption 6 and 7(C)." Id.

On February 10, 2012, Defendant filed a Motion for Clarification regarding the scope of this Court's Order [Dkt. No. 21]. On March 12, 2012, this Court issued a Minute Order granting Defendant's Motion, and directed that Defendant's Vaughn index "focus[] on those records related to U.S. Department of Justice investigations of U.S. Representative Don Young involving allegations of bribery and other illegal conduct in the matter known as Coconut Road.'"[2]

The DOJ Components filed their Vaughn indices on April 9, 2012. On April 19, 2012, the FBI released 61 pages of material with no redactions, 271 pages redacted in part, and withheld 3 pages in full under FOIA Exemption 7 (A) On or about April 23, 2012, the EOUSA released 123 pages of material with no redactions, 1 page redacted in part, and withheld 48 pages in full under FOIA Exemptions 3, 5, 6, and 7 (C). On May 2, 2012, the Criminal Division released 31 pages of material with no redactions, 31 pages redacted in part, and withheld 292 pages in full under FOIA Exemptions 5, 6, and 7(C).

On September 25, 2012, DOJ filed its Motion for Summary Judgment on Behalf of the Criminal Division and FBI [Dkt. No. 31]. On October 25, 2012, CREW filed its Opposition and Cross-Motion for Summary Judgment [Dkt. Nos. 34, 35]. On November 19, 2012, DOJ filed its combined Opposition and Reply [Dkt. Nos. 38, 39]. On December 10, 2012, CREW filed its Reply [Dkt. No. 42].

On November 5, 2012, DOJ filed its Motion for Summary Judgment on Behalf of the EOUSA [Dkt. No. 37]. On November 30, 2012, CREW filed its Opposition and Cross-Motion for Summary Judgment [Dkt. Nos. 40, 41]. On January 15, 2013, DOJ filed its combined Opposition and Reply [Dkt. Nos. 44, 45]. On February 14, 2013, CREW filed its Reply [Dkt. No. 46].

II. STANDARD OF REVIEW

The purpose of FOIA is to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Morley v. C.I.A. , 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Dep't of Air Force v. Rose , 425 U.S. 352, 361 (1976)). FOIA "requires agencies to comply with requests to make their records available to the public, unless the requested records fall within one or more of nine categories of exempt material." Oglesby v. Dep't of Army , 79 F.3d 1172, 1176 (D.C. Cir. 1996) (citing 5 U.S.C. § 552 (a), (b)).

An agency that withholds information pursuant to a FOIA exemption bears the burden of justifying its decision, Petroleum Info. Corp. v. Dep't of the Interior , 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552 (a) (4) (B)), and must submit an index of all materials withheld, referred to as a "Vaughn Index." Vaughn v. Rosen , 484 F.2d 820, 827-28 (D.C. Cir. 1973). In determining whether an agency has properly withheld requested documents under a FOIA exemption, the district court conducts a de novo review of the agency's decision. 5 U.S.C. § 552 (a) (4) (B).

"FOIA cases are typically and appropriately decided on motions for summary judgment." Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys. , 762 F.Supp.2d 123, 130 (D.D.C. 2011) (quoting Defenders of Wildlife v. Border Patrol , 623 F.Supp.2d 83, 87 (D.D.C. 2009)). Summary judgment will be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits or declarations, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c).

In a FOIA case, the court may award summary judgment solely on the basis of information provided in affidavits or declarations when they (1) "describe the documents and the justifications for nondisclosure with reasonably specific detail;" (2) "demonstrate that the information withheld logically falls within the claimed exemption;" and (3) "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. S.E.C. , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. C.I.A. , 692 F.2d 770, 771 (D.C. Cir. 1981)).

III. ANALYSIS

The outstanding disputes fall into two categories. First, CREW argues that the Criminal Division and the EOUSA have improperly withheld information under Exemption 5. Second, CREW argues that the Criminal Division and the EOUSA have improperly withheld information ...


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