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Shapiro v. United States Department of Justice

United States District Court, District of Columbia

September 18, 2013

RYAN SHAPIRO, et al., Plaintiffs,

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[Copyrighted Material Omitted]

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For RYAN NOAH SHAPIRO, Plaintiff: Jeffrey Louis Light, LEAD ATTORNEY, LAW OFFICE OF JEFFREY LIGHT, Washington, DC; Kelly Brian McClanahan, NATIONAL SECURITY COUNSELORS, Arlington, VA.


For DEPARTMENT OF JUSTICE, Defendant: Kenneth A. Adebonojo, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.


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BERYL A. HOWELL, United States District Judge.


The Executive Office for United States Attorneys (" EOUSA" ) denied a Freedom of Information Act (" FOIA" ) request for records, which are maintained in a Freedom

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of Information and Privacy Brief Bank (" Brief Bank" ) and accessible on the Department of Justice's intranet, on grounds that the Brief Bank and any records contained in it are protected by the attorney work product doctrine and, thereby, exempt from disclosure under FOIA exemption (b)(5). 5 U.S.C. § 552(b)(5) (" Exemption 5" ); Def.'s Mem. Supp. Mot. Summ. J. (" Def's Mem." ) ECF No. 12, at 2. Pending before the Court is the defendant's Motion for Summary Judgment, under Federal Rule of Civil Procedure 56. For the reasons set forth below, the defendant's motion is denied.


On September 13, 2011 the plaintiff, Jeffrey Stein [1] (" Stein" or " the plaintiff" ), filed a FOIA request with the EOUSA seeking " a copy of all records in the Freedom of Information and Privacy Brief Bank linked on the Department of Justice (" DOJ" ) intranet page" Def.'s Statement of Material Facts As To Which There Is No Genuine Issue (" Def.'s SMF" ), ECF No. 12-1, ¶ 1; see also Compl., ECF No. 1., ¶ ¶ 153-162. [2] The defendant's description of the Brief Bank includes no information about when this resource was created and how long it has been used as a resource; how frequently it is updated; how many records it contains or how many cases are referenced in it; how often it is accessed or used; or how burdensome, if at all, it would be to disclose the Brief Bank, in whole or in part.

The sparse information provided by the defendant about the Brief Bank indicates that it is " maintained on the [DOJ]'s intranet" and is " only available to and accessible by [DOJ] personnel." Declaration of Sean J. Vanek (" Vanek Decl." ), ECF No. 12-2, ¶ 16. The defendant further states that the Brief Bank " was created and maintained by an attorney on the EOUSA's FOIA and Privacy Act Staff" and that it is " a tool for use in anticipated FOIA litigation." Id. ¶ 17. The Brief Bank is comprised of six categories of records: (1) " selected filings from FOIA lawsuits filed around the country" in federal courts, id. ¶ 18; (2) " basic case-caption information," for each case entry, id. ¶ 19; (3) " a brief summary of the issues involved" for each case entry, id. ; (4) for " some case entries," " what the author of the brief bank considered 'key issues' [which] are linked to the specific briefs that address these issues," id. ¶ 20; (5) " the author of the brief, the date it was filed, and . . . the specific component of the Department of Justice in which the author of the brief works," id. ¶ 21; and (6) " [f]or

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some case entries, the supporting declarations that formed the factual foundation of the brief are included for reference purposes," id. ¶ 22.

EOUSA denied the plaintiff's FOIA request, stating " the brief bank was being withheld in its entirety pursuant to FOIA exemptions (b)(5), (b)(7)(C), and (b)(7)(E)." Id. ¶ 10. The plaintiff timely appealed the denial and his request was remanded to the EOUSA for further processing. Id. ¶ 13. EOUSA had not responded to the remand by the time this lawsuit was filed in November, 2012. Id. ¶ 14. In its pending motion for summary judgment, EOUSA relies solely on the attorney work product privilege under Exemption 5 to justify the withholding of the Brief Bank and any records it contains. Id. ¶ 15. [3]



Congress enacted the FOIA, 5 U.S.C. § 552, " 'to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.'" Am. Civil Liberties Union v. U.S. Dep't of Justice, 655 F.3d 1, 5, 398 U.S. App. D.C. 1 (D.C. Cir. 2011) (quoting Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976)). The Supreme Court has explained that the FOIA is " a means for citizens to know 'what their Government is up to.' This phrase should not be dismissed as a convenient formalism. It defines a structural necessity in a real democracy." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171-172, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) (citation and internal quotation marks omitted). " The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). As a result, the FOIA requires federal agencies to release all records responsive to a request for production. See 5 U.S.C. § 552(a)(3)(A). Federal courts are authorized under the FOIA " to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." Id. § 552(a)(4)(B).

This strong interest in transparency must be tempered, however, by the " legitimate governmental and private interests [that] could be harmed by release of certain types of information." United Techs. Corp. v. U.S. Dep't of Def., 601 F.3d 557, 559, 390 U.S. App. D.C. 136 (D.C. Cir. 2010) (internal quotation marks omitted); see also Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872, 298 U.S. App. D.C. 8 (D.C. Cir. 1992) (en banc). Accordingly, Congress included nine exemptions permitting agencies to withhold information from FOIA disclosure. See 5 U.S.C. § 552(b). " These exemptions are explicitly made exclusive, and must be narrowly construed." Milner v. U.S. Dep't of the Navy, 131 S.Ct. 1259, 1262, 179 L.Ed.2d 268 (2011) (citations and internal quotation marks omitted); see also Pub. Citizen, Inc. v. Office of Mgmt. & Budget,

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598 F.3d 865, 869, 389 U.S. App. D.C. 356 (D.C. Cir. 2010) (" FOIA allows agencies to withhold only those documents that fall under one of nine specific exemptions, which are construed narrowly in keeping with FOIA's presumption in favor of disclosure." ) (citations omitted). When a FOIA requester properly exhausts its administrative remedies, he may file a civil action challenging an agency's response to its request. See 5 U.S.C. § 552(a)(4)(B); Wilbur v. CIA, 355 F.3d 675, 677, 359 U.S. App. D.C. 380 (D.C. Cir. 2004). Once such an action is filed, the agency generally has the burden of demonstrating that its response to the plaintiff's FOIA request was appropriate. See id. at 678.

B. Summary Judgment

It is typically appropriate to resolve FOIA cases on summary judgment. See Brayton v. Ofc. of the U.S. Trade Rep., 641 F.3d 521, 527, 395 U.S. App. D.C. 155 (D.C. Cir. 2011) (" the vast majority of FOIA cases can be resolved on summary judgment" ). When an agency's response to a FOIA request is to withhold responsive records, either in whole or in part, the agency " bears the burden of proving the applicability of claimed exemptions." Am. Civil Liberties Union v. U.S. Dep't of Def. (" ACLU/DOD " ), 628 F.3d 612, 619, 393 U.S. App. D.C. 384 (D.C. Cir. 2011). The government may sustain its burden of establishing that requested records were appropriately withheld through the submission of declarations detailing the reason that a FOIA exemption applies, along with an index, as necessary, describing the materials withheld. See, e.g., ACLU/DOD, 628 F.3d at 619; Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 838, 347 U.S. App. D.C. 235 (D.C. Cir. 2001); Vaughn v. Rosen, 484 F.2d 820, 827-28, 157 U.S. App. D.C. 340 (D.C. Cir. 1973). " If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone." ACLU/DOD, 628 F.3d at 619. As the D.C. Circuit recently explained, in FOIA cases " '[s]ummary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.'" Judicial Watch, Inc. v. U.S. Secret Serv., No. 11-5282, 726 F.3d 208, 406 U.S. App. D.C. 440, at *14 (D.C. Cir. Aug. 30, 2013) (quoting Consumer Fed'n of Am. v. U.S. Dep't of Agric., 455 F.3d 283, 287, 372 U.S. App. D.C. 198 (D.C. Cir. 2006) and Gallant v. NLRB, 26 F.3d 168, 171, 307 U.S. App. D.C. 27 (D.C. Cir. 1994)). While ...

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