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Citizens for Responsibility & Ethics in Washington v. United States Department Of Justice

United States District Court, D. Columbia.

June 11, 2014


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

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JAMES E. BOASBERG, United States District Judge.

As Chairman of the House Appropriations Committee, former Congressman Jerry Lewis (R-CA) had substantial say over the fate of billions of federal dollars. When some of those funds landed in the hands of clients of Lewis's close friends -- and when those friends and clients donated some 37 percent of the $1.3 million that Lewis's political action committee received from 1999 to 2005 -- a federal investigation followed. See Jerry Kammer, A Steady Flow of Financial Influence, San Diego Union Tribune (Dec. 23, 2005), available at Nothing came of that inquiry, though, and the Department

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of Justice ultimately declined to press charges. Perhaps suspicious of that outcome, Plaintiff Citizens for Responsibility and Ethics in Washington, a watchdog group, brought this action under the Freedom of Information Act seeking records related to the Department's decision not to charge Lewis with a crime.

In a preliminary Opinion on summary judgment, this Court rejected DOJ's attempt to categorically exclude from disclosure virtually all of the materials CREW sought. In response, the Government released over two thousand documents at least in part, but it also withheld thousands under various specific FOIA exemptions. Although the Court was impressed bye Defendant's efforts to search and catalog those materials, it concluded in a separate Opinion that the statute required that the agency offer further documentation to support its decision to invoke each exemption. The Government then produced an index describing in some detail a representative sample of responsive documents, and it now moves for summary judgment for the third time. Nearly three years and more than two thousand man-hours after this controversy began, the Court can finally conclude that Defendant has satisfied its FOIA obligations. It will thus grant DOJ summary judgment on all counts.

I. Background

Past Opinions described in some detail the factual background of this suit, so the Court will note here only the facts that are particularly relevant to the pending Cross-Motions for Summary Judgment. On January 24, 2011, CREW submitted a FOIA request seeking " all records related to the investigation of Rep. Jerry Lewis (R-CA) conducted by [the Department of Justice] and the Federal Bureau of Investigation ('FBI') that are not covered by grand jury secrecy . . . including but not limited to DOJ's decision not to bring criminal charges against him." Pl. Mot. and Opp. at 2.

The Government responded that all information that would arise under such a search would be exempt from disclosure under FOIA, so it declined to do anything further. Id. at 3. Although the Department's FOIA-appeals panel had not yet passed on the issue, CREW brought suit in this Court on June 2 of that same year. Id.

In the ensuing months, this Court twice ordered the Government to provide more information regarding the documents it was withholding. See Citizens for Responsibility and Ethics in Washington v. Dep't of Justice (CREW I), 846 F.Supp.2d 63 (D.D.C. 2012); Citizens for Responsibility and Ethics in Washington v. Dep't of Justice (CREW II), 955 F.Supp.2d 4 (D.D.C. 2013). Ordinarily, DOJ would have had to justify each of its withholdings by providing CREW with an index that " describe[s] each withheld document, state[s] which [FOIA] exemption the agency claims for each withheld document, and explain[s] the exemption's relevance." Johnson v. Exec. Office for U.S. Att'ys, 310 F.3d 771, 774, 354 U.S. App.D.C. 49 (D.C. Cir. 2002); see also Vaughn v. Rosen, 484 F.2d 820, 157 U.S. App.D.C. 340 (D.C. Cir. 1973). Rather than force the agency to defend each of the thousands of withholdings at issue in this case, however, the Court ruled that DOJ could sample four percent of the withheld documents and then produce a Vaughn Index focused on this smaller, representative collection. See Minute Order of Aug. 27, 2013; see also Bonner v. Dep't of State, 928 F.2d 1148, 1151, 289 U.S. App.D.C. 56 (D.C. Cir. 1991) (approving sampling of approximately five percent of withheld documents); Meeropol v. Meese, 790 F.2d 942, 948, 956-57, 252 U.S. App.D.C. 381 (D.C. Cir. 1986) (approving sampling of approximately one percent of withheld documents).

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True to this agreement, on November 4, 2013, DOJ produced a representative-sample Vaughn Index meant to provide CREW and the Court with the information necessary to determine whether its withholdings under Exemption 3 (grand-jury materials), Exemption 5 (attorney work product, attorney-client privilege, and deliberative documents), and Exemptions 6 and 7(C) (personal privacy) were appropriate. See Def. Mot., Exh. 2 (Sample Vaughn Index). In order to assist the Court in that analysis, the agency also produced each of the 168 sampled documents for in camera review. See Simon v. Dep't of Justice, 980 F.2d 782, 784, 299 U.S. App.D.C. 1 (D.C. Cir. 1992) (" [I]n camera review . . . is the best way to assure both that the agency is entitled to the exemption it claims and that the confidential source is protected." ). CREW, for its part, has since dropped its challenge to the Government's decision to withhold certain information under Exemption 3 and Exemption 5's attorney-client privilege, see Pl. Mot. and Opp. at 6 n.4, and it forswears any challenge to DOJ's withholding of the personal information of individuals other than Rep. Lewis under Exemptions 6 and 7(C). See CREW II, 955 F.Supp.2d at 22. In addition, although CREW sent the original request to three separate federal law-enforcement agencies, the only issues that remain pertain to the Executive Office for United States Attorneys (EOUSA), a component of the Department. See Def. Mot. at 1 n.1.

As a result, all that remains before the Court is Plaintiff's challenge to DOJ's decision to withhold: (1) documents under Exemption 5's attorney-work-product and deliberative-process privileges; (2) documents that are alleged to relate to Rep. Lewis and that were withheld under Exemptions 6 and 7(C); and (3) documents turned up ...

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