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Citizens for Responsibility & Ethics In Washington v. United States Department of Justice

United States District Court, District of Columbia

July 25, 2013

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff: Scott Allan Hodes, LEAD ATTORNEY, LAW OFFICE OF SCOTT HODES, Washington, DC; Anne L. Weismann, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Washington, DC.

For U.S. DEPARTMENT OF JUSTICE, Defendant: Bradley P. Humphreys, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC.

OPINION

JAMES E. BOASBERG, United States District Judge.

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MEMORANDUM OPINION

Plaintiff Citizens for Responsibility and Ethics in Washington brought this action under the Freedom of Information Act, 5 U.S.C. § 552, seeking records related to an investigation by the Department of Justice into allegations of bribery and conflicts of interest involving former Congressman Jerry Lewis (R-CA). After this Court rejected DOJ's attempt to categorically exclude virtually all of the materials sought from disclosure, Defendant released over two thousand documents, at least in part. DOJ also withheld several thousand more under various FOIA exemptions, and the parties have now cross-moved for summary judgment on the validity of these exemptions. Although DOJ's time-consuming efforts here are impressive, the Court is constrained to conclude that

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FOIA requires more. Because the Department has failed to provide sufficient documentation for the Court to be able to evaluate each of its exemption claims, the Court denies Defendant's Motion, grants Plaintiff's Cross-Motion in part, and directs DOJ to produce additional explanations as described below.

I. Background

On January 24, 2011, Plaintiff submitted identical FOIA requests to the Federal Bureau of Investigation, the Criminal Division of the United States Department of Justice (CRM), and the Executive Office for United States Attorneys (EOUSA). See Def. Mot., Exh. 6 (Statement of Material Facts (SUMF)), ¶ 1. Plaintiff sought " all records related to the investigation of Rep. Jerry Lewis (R-CA) conducted by DOJ and the Federal Bureau of Investigation ('FBI') 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." Id., ¶ 2. Both CRM and EOUSA denied Plaintiff's initial requests for various reasons, and CREW brought suit in this Court on June 2, 2011, prior to receiving a decision from DOJ's Office of Information Policy on its pending administrative appeals. Id., ¶ ¶ 3-7.

The parties cross-moved for summary judgment in late 2011 on the issue of whether DOJ could categorically withhold all responsive documents pursuant to FOIA Exemptions 6 and 7(C). In March 2012, this Court denied Defendant's motion and granted partial summary judgment to Plaintiff, ordering CRM and EOUSA to continue processing responsive records, release non-exempt portions thereof, and produce a Vaughn Index describing the withheld information. See Citizens for Responsibility and Ethics in Washington v. U.S. Dep't of Justice (CREW I), 846 F.Supp.2d 63, 75-76 (D.D.C. 2012). In response to this Court's Order, CRM produced 166 pages of non-exempt, responsive records, along with a Vaughn Index describing the thirty-nine additional documents withheld pursuant to FOIA Exemptions 5, 6, and 7(C). See SUMF, ¶ ¶ 11-13; see also Def. Mot., Exh. 1 (Declaration of John E. Cunningham III), Exh. 8 (Criminal Division Vaughn Index) at 1-6.

As a result of its initial search, EOUSA identified a universe of some 2.3 million documents possibly related to Plaintiff's request. See SUMF, ¶ ¶ 14-15. After processing and de-duplication, it identified 95,228 documents, totaling some 1,443,703 pages, that were potentially responsive. Id., ¶ ¶ 16-17. It processed these potentially responsive documents on a rolling basis, eventually determining that there were 6,194 actually responsive documents, totaling 25,414 pages, all of which it sought to withhold in whole or in part. Id., ¶ ¶ 20-22. EOUSA also provided CREW with a Vaughn " Glossary," which divided the 6,194 documents withheld in whole or in part into thirteen categories. Id., ¶ ¶ 22-24, see Def. Mot., Exh. 3 (Second Declaration of Vinay J. Jolly), Exh. I (EOUSA Vaughn Index) at 1-8. These categories are:

o Category 1: Internal AUSA [Asst. U.S. Attorney]/USAO-CAC [U.S. Attorney's Office for the Central District of California] Communications - 1,633 documents
o Category 2: AUSA/USAO-CAC Communications with the FBI - 522 documents
o Category 3: Google Alerts to USAO-CAC Employees - 2,357 documents

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o Category 4: AUSA/USAO-CAC Communications with CRM [DOJ's Criminal Division] - 72 documents
o Category 5: AUSA/USAO-CAC Communications with the Department of Defense - 207 documents
o Category 6: Internal AUSA/USAO-CAC Communications with OIP [Office of Information Privacy] - 16 documents
o Category 7: Internal AUSA/USAO-CAC Communications with the Office of Legislative Affairs - 13 documents
o Category 8: Internal AUSA/USAO-CAC Communications with the Office of the General Counsel [at the Executive Office for United States Attorneys] - 19 documents
o Category 9: AUSA/USAO-CAC Communications with Third Parties of Investigative Interest or Witnesses - 511 documents
o Category 10: Internal AUSA/USAO-CAC Notes - 74 documents
o Category 11: AUSA Legal and Legislative Research - 49 documents
o Category 12: AUSA/USAO-CAC Communications with Multiple Agencies - 294 documents
o Category 13: Miscellaneous Communications and USAO/CAC Electronic Server Data - 427 documents

See 2d Jolly Decl., ¶ ¶ 18-32. Almost all of the 2,367 documents released in part to Plaintiff are confined to Category 3. See EOUSA Vaughn Index at 2. As that category contains only 2,357 documents, the nature of the remaining ten partially released documents remains unclear. These efforts required more than 1,978 personnel hours. See SUMF, ¶ 21.

EOUSA asserted that the remaining documents were exempt from disclosure pursuant to FOIA Exemptions 3, 5, 6, and 7(C), " in order to protect attorney work product, privileged, and third-party privacy protected material, as well as grand jury information intertwined with the responsive records." Id., ¶ 25. Defendant then moved for summary judgment, arguing that it had engaged in a reasonable search for responsive documents and properly withheld records pursuant to the aforementioned exemptions. See Def. Mot. at 10-27. CREW opposed the Motion and filed a Cross-Motion for Summary Judgment, conceding the adequacy of the search but challenging the propriety of the government's withholdings and the sufficiency of its Vaughn Indices. See Pl.'s Opp. and Cross-Mot. at 5-22.

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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895, 369 U.S.App. D.C. 122 (D.C. Cir. 2006). A fact is " material" if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is " genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. " 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" or " showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support

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the fact." Fed.R.Civ.P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527, 395 U.S.App. D.C. 155 (D.C. Cir. 2011). In a FOIA case, a court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when 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 by evidence of agency bad faith." Larson v. Dep't of State, 565 F.3d 857, 862, 385 U.S.App. D.C. 394 (D.C. Cir. 2009) (citation omitted). 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, 926 F.2d 1197, 1200, 288 U.S.App. D.C. 324 (D.C. Cir. 1991) (internal quotation marks omitted). " Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ...


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