United States District Court, D. Columbia.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For JUDICIAL WATCH, INC., Plaintiff: Julie B. Axelrod, Paul J. Orfanedes, JUDICIAL WATCH, INC., Washington, DC.
For CONSUMER FINANCIAL PROTECTION BUREAU, Defendant: Bradley Heath Cohen, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Wendy M. Doty, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.
Emmet G. Sullivan, United States District Judge.
This Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 et seq. , case is before the Court on a motion for partial reconsideration. On September 30, 2013, the Court issued a Memorandum Opinion and Order addressing the parties' cross-motions for summary judgment. Doc. Nos. 22 and 23. The Court held that the Consumer Financial Protection Bureau (" CFPB" or the " Bureau" ) had discharged its FOIA obligations in response to plaintiff Judicial Watch, Inc.'s requests for all the documents at issue except one. Accordingly, the Court granted in part and denied in part the cross-motions.
The Bureau timely filed a motion for reconsideration under Federal Rule of Civil Procedure 54(b), arguing that it had properly withheld the one document at issue. Doc. No. 28. Upon consideration of the motion, the opposition, the reply and the surreply, the relevant caselaw and the record as a whole, the Court will GRANT CFPB's motion for reconsideration, and will VACATE the September 30, 2013 Memorandum Opinion and replace it with this amended Opinion, which is substantively unchanged except for analysis of the single document at issue. See infra Section III.B.1.b. Accordingly, because the Court concludes that the CFPB properly withheld all of the challenged documents in this case, the defendant's Motion for Summary Judgment is GRANTED; the plaintiff's Cross Motion for Summary Judgment is DENIED; and this case is DISMISSED.
I. FACTUAL BACKGROUND
Plaintiff is a non-profit, educational foundation which regularly requests access to the public records of government entities and disseminates its findings to the public. Compl. ¶ 3. On January 12, 2012, plaintiff submitted a FOIA request to CFPB, seeking all records of communications between the CFPB and various entities concerning President Obama's visit to the CFPB and his recess appointment of Richard Cordray as director of the CFPB. Declaration of Brett Kitt (" Kitt Decl." ) Exh. A. The January 12 request was assigned a FOIA tracking number. Id. ¶ 3. On January 25, 2012, plaintiff submitted another FOIA request to CFPB, seeking all records of communications concerning Mr. Cordray's appointment as director of the CFPB and any documentation reflecting travel and lodging for Mr. Cordray, his family, and any additional guests. Id. Exh. B. The January 25 request was also assigned a FOIA tracking number. Id. ¶ 4.
On January 27, 2012 and January 30, 2012, CFPB sent letters to plaintiff formally acknowledging the receipt of the requests. Id. Exhs. C, D. On March 30, 2012, CFPB issued an interim response to plaintiff's January 25 FOIA request, explaining that the Bureau's initial search for the requested documents produced 269 pages, that the Bureau would partially release 220 pages, and that the Bureau would claim FOIA Exemptions 5 and 6 for the remaining 49 pages. Id. Exh. F. With this response, CFPB partially released 220 pages of responsive material. Id. In April 2012, there were additional communications between the parties regarding the status of CFPB's determinations on the pending FOIA requests. Id.
Exhs. G, H. On June 7, 2012, CFPB informed plaintiff by telephone and by e-mail that the Bureau intended to issue its determination shortly. Id. Exh. I. On the same day, plaintiff brought this action alleging that CFPB failed to comply with the relevant timelines set forth in 5 U.S.C. § 552(a)(6)(A) with respect to both of its requests. See generally Compl. On June 8, 2012, CFPB issued its determination as to both of plaintiff's FOIA requests. Kidd Decl. Exhs. J, K. With this response, CFPB partially released an additional 12 pages of responsive material and withheld an additional 3 pages under FOIA Exemptions 5 and 6. Id. The response letters also informed plaintiff of the right to administratively appeal the Bureau's determination. Id.
Subsequently, while this litigation was pending, the CFFB conducted another search for records responsive to both FOIA requests. Kidd Decl. Exh. L. On September 28, 2012 it released a supplemental production to plaintiff consisting of 17 pages of responsive records released in full and 8 pages released in part. Id. Eight hundred eighty pages were withheld in full. Id. While preparing its Vaughn index, the Bureau identified a small amount of previously withheld material which it later determined could be partially released. Id. Exh. N. It released those records to plaintiff. Id.
On November 9, 2012, the Bureau moved for summary judgment, claiming that plaintiff did not exhaust its administrative remedies. Def.'s Mot for Summ. J. at 8-15. The Bureau also argues that its search was adequate and that all of the material it did not release was properly withheld. See generally Id. On January 18, 2013, the plaintiff filed a cross motion for summary judgment. Plaintiff does not challenge the adequacy of the search, nor does it challenge " the majority of CFPB's withheld documents." Pl.'s Combined Cross Mot. for Summ J./Opp'n to Def.'s Mot. Summ. J. (" Pl.'s Combined Cross Mot./Opp'n" ) at 1. Plaintiff argues that it exhausted its administrative remedies, and further argues that the Bureau improperly invoked Exemption 5 for several records. Id. at 2.
II. STANDARD OF REVIEW
A. Summary Judgment in a FOIA Case
Summary judgment is granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991, 353 U.S.App.D.C. 205 (D.C. Cir. 2002). In determining whether a genuine issue of fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Under FOIA, all underlying facts and inferences are analyzed in the light most favorable to the FOIA requester; as such, only after an agency proves that it has fully discharged its FOIA obligations is summary judgment appropriate. Moore v. Aspin, 916 F.Supp. 32, 35 (D.D.C. 1996) (citing Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350, 227 U.S.App.D.C. 253 (D.C. Cir. 1983)). 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) (citations omitted).
In reviewing a motion for summary judgment under the FOIA, the court must conduct a de novo review of the record. See 5 U.S.C. § 552(a)(4)(B) (2012). The court may award summary judgment solely on the basis of information
provided by the department or agency in affidavits or declarations that 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, 211 U.S.App.D.C. 135 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-28, 157 U.S.App.D.C. 340 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). Agency affidavits or declarations must be " relatively detailed and non-conclusory." SafeCard Services v. SEC, 926 F.2d 1197, 1200, 288 U.S.App.D.C. 324 (D.C. Cir. 1991). Such affidavits or declarations are accorded " a ...