United States District Court, District of Columbia
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff,
U.S. DEPARTMENT OF JUSTICE, Defendant.
MEMORANDUM OPINION (MARCH, 30, 2016) [DKTS. ##29, 32]
RICHARD J. LEON Judge.
This action comes before the Court on remand from the Court of Appeals for the District of Columbia Circuit. Plaintiff, Citizens for Responsibility and Ethics in Washington ("plaintiff or "CREW"), brings this action against the U.S. Department of Justice ("defendant" or "DOJ") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, et seq., seeking records from the Federal Bureau of Investigation ("FBI"), a component of the DOJ. Before the Court are defendant's Motion for Summary Judgment ("Def.'s Mot.") [Dkt. #29] and plaintiffs Cross-Motion for Partial Summary Judgment ("Pl.'s Mot.") [Dkt. #32]. Upon consideration of the parties' pleadings, the relevant law, and the entire record herein, defendant's Motion for Summary Judgment is GRANTED and plaintiffs Cross-Motion for Partial Summary Judgment is DENIED.
By letters dated October 19, 2010, plaintiff sought from the FBI and the Criminal Division of the DOJ ("CRM"), "any witness statements, investigation reports, prosecution memoranda, and [FBI] 302 reports related to the FBI's and DOJ's investigation of former House Majority Leader Tom DeLay[, ] . . . including] ... the FBI's and DOJ's investigation of relationships between Mr. Delay" and various other individuals and organizations. Second Decl. of David M. Hardy ("Hardy Decl. II") ¶ 5 [Dkt. #29-3]. The FBI responded, and without either confirming or denying whether it possessed responsive records, informed plaintiff that it could not release records regarding a third party absent authorization from the third party involved, proof that the third party was deceased, or a clear demonstration that the public interest in disclosure outweighed the third party's personal privacy interest and that a significant public benefit would result from disclosure of the requested records. Def.'s Second Stmt, of Mat. Facts ("Def.'s Second SOMF") ¶ 2 [Dkt. #29-2]; see CREW v. Dep't of Justice, 870 F.Supp.2d 70, 76 n.4 (D.D.C. 2012). Plaintiff did not provide either authorization or evidence of death, and the FBI found no "public justification for release." Def.'s Second SOMF ¶ 2. Accordingly, the FBI categorically withheld the responsive records pursuant to FOIA Exemptions 6 and 7(C), and further invoked Exemptions 2, 3, 7(A), 7(D), and 7(E). Def.'s Second SOMF ¶ 2, 4. The CRM separately conducted a search for its responsive records, but withheld them pursuant to Exemption 7(A) of the FOIA. Def.'s First Stmt, of Mat. Facts ("Def.'s First SOMF") ¶ 15-16 [Dkt. #9-2]. The CRM subsequently determined the requested records should also be withheld pursuant to FOIA Exemptions 3, 5, 6, and 7(C). Def.'s First SOMF ¶ 17-18.
Plaintiff filed the present action on March 22, 2011. See Compl. [Dkt. #1]. The parties promptly cross-moved for summary judgment. Defendant's brief discussed the exemptions set forth by both the FBI and the CRM, see generally Def.'s First Mem. in Supp. of Its Mot. for Summ. J. ("Def.'s First Mem.") 35-38 [Dkt. #10-1], and attached were affidavits from both FBI and CRM officials. First Decl. of David M. Hardy ("Hardy Decl. I") [Dkt. #9-3]; Decl. of Kristen L. Ellis ("Ellis Decl.") [Dkt. #9-6], However, plaintiffs brief made clear that it was only challenging the FBI's response,
Pl.'s First Mem. in Partial Opp'n to Def.'s Mot. for Summ. J. and in Supp. of
Pl.'s Cross-Mot, for Summ. J. (Pl.'s First Mem") 5-6 [Dkt. #12], and thereafter the parties and this Court addressed only those exemptions raised by the FBI. This Court granted defendant's Motion for Summary Judgment, and denied plaintiffs Cross-Motion for Partial Summary Judgment, finding the FBI had conducted a reasonable search and properly withheld documents pursuant to the FOIA exemptions 2, 3, 6, 7(A), 7(C), 7(D), and 7(E). CREW, 870 F.Supp.2d at 78-85. On July 20, 2012, plaintiff appealed this Court's decision. Notice of Appeal [Dkt. #23]. On April 1, 2014, our Circuit Court issued an opinion reversing this Court's ruling and finding that defendant had not sufficiently justified its categorical withholding under Exemptions 7(A) or 7(C) and, furthermore, had not provided sufficient detail as to whether the requested records could properly be withheld under Exemptions 3, 7(D), and 7(E). CREW v. Dep 't of Justice, 146 F.3d 1082, 1102 (D.C. Cir. 2014). As such, the Circuit Court remanded this case for further proceedings. Id.
Thereafter, the FBI ran its search for responsive records anew, using the same parameters and garnering the same results as in its initial search. Def.'s Second SOMF ¶¶ 8-11. After reviewing the results, the FBI determined the search had yielded 328 pages of responsive material. Def.'s Second SOMF ¶ 13; Hardy Decl. II ¶ 15. Invoking FOIA Exemptions 3, 5, 6, 7(C), 7(D), and 7(E), the FBI released 124 pages, many of which contained redactions, to plaintiff and withheld in full the remaining 204 pages. Def.'s Second SOMF ¶ 15;
Pl.'s Second Mem. in Partial Opp'n to Def.'s Mot. for Summ. J. and in Supp. of
Pl.'s Cross-Mot. for Summ. J. ("Pl.'s Second Mem") 5 [Dkt. #32]. On April 2, 2015, defendant moved for summary judgment. On May 5, 2015, plaintiff moved for partial summary judgment, seeking review, once again, of defendant's asserted FOIA exemptions. Plaintiff challenges, and thus the Court addresses, only defendant's withholdings pursuant to FOIA Exemptions 5, 6, and 7(C).
Pl.'s Second Mem. 7, 10.
STANDARD OF REVIEW
"FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). Summary judgment shall be granted when the movant demonstrates "that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "When assessing a motion for summary judgment under FOIA, the Court shall determine the matter de novo.'" Judicial Watch, Inc. v. Dep't of Homeland Sec, 598 F.Supp.2d 93, 95 (D.D.C. 2009) (citing 5 U.S.C. § 552(a)(4)(B)). Under FOIA, "upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . ., [an agency] shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). Congress has exempted nine categories of documents from the disclosure requirement, but, because there is a "strong presumption in favor of disclosure, " Nat 7 Ass 'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep't of State v. Ray, 502 U.S. 164, 173 (1991)), the exemptions "are to be 'narrowly construed, '" id. (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)). In a FOIA action, the agency "is entitled to summary judgment if no material facts are in dispute and if it demonstrates 'that each document that falls within the class requested either has been produced ... or is wholly exempt from [FOIA's] inspection requirements.'" Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (alterations in original) (quoting Golandv. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)).
"An agency withholding responsive documents from a FOIA release bears the burden of proving the applicability of claimed exemptions[, ]" which it typically does "by affidavit." Am. Civil Liberties Union v. Dept. of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011). The Court may award summary judgment based solely on information provided in affidavits or declarations if they "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 (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. SEC, 926F.2d 1197, 1200 (D.C. Cir. 1991). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009). "If an agency's statements supporting exemption contain reasonable specificity of detail as to demonstrate that the withheld information logically falls within the claimed exemption and evidence in the record does not suggest otherwise, ... the court should not conduct a more detailed inquiry . . . ." Id. at 865.
I. FOIA Exemption 5
Defendant seeks to withhold six responsive pages that it calls "pages DeLay 123-128" pursuant to FOIA Exemption 5, 5 U.S.C. § 552(b)(5), which exempts from disclosure "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." Def's Second Mem. in Supp. of Its Mot. for Suram. J. (Def.'s Second Mem.") 11-16 [Dkt. #29-1]. To qualify for this exemption, a document "must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it." Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001). "Courts have incorporated certain civil discovery privileges into Exemption 5, such as attorney-work product, attorney-client privilege, and 'deliberative process' privilege." Performance Coal Co. v. Dep't of Labor, 847 F.Supp.2d 6, 14 (D.D.C. 2012).
Defendant represents that the six pages at issue were part of an electronic communication dated April 2, 2010 that was sent from FBI Special Agents to the CRM for the purpose of communicating the FBI's thoughts about closing a portion of the investigation concerning Tom DeLay and other individuals. Def.'s Second Mem. 13. The pages outline details regarding the allegations and investigation, and they contain the FBI's summary of the DOJ's preliminary decision not to prosecute certain subjects of the investigation. Def.'s Second Mem. 13-14. Defendant argues this material was properly withheld pursuant to Exemption 5 for two reasons. First, defendant argues the material is intra-agency, pre-decisional, and reflects the give-and-take of the Department's decisionmaking process as to whether to prosecute certain individuals and therefore is protected by the deliberative process privilege. Def.'s Second Mem. 12-14 (citing, inter alia, Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). Defendant next argues the material is protected by attorney-client privilege because the pages contain both an exchange of confidential information between Department attorneys and their client, the FBI, and a confidential communication reflecting legal analysis and advice as to whether and why the FBI should close the investigation of certain individuals, including Mr. DeLay. Def.'s Second Mem. 15-16 (citing, inter alia, Judicial Watch, Inc. v. Dep't of Homeland Sec, 926 F.Supp.2d 121, 146 (D.D.C. 2013)).
Plaintiff does not respond to defendant's argument that the material falls within the ambit of Exemption 5, and the Court therefore treats that argument as conceded. See Wilkins v.Jackson, 750 F.Supp.2d 160, 162 (D.D.C. 2010) ("It is well established that if a plaintiff fails to respond to an argument raised in a motion for summary judgment, it is proper to treat that argument as conceded."). Instead, plaintiff claims "the agency is foreclosed from asserting Exemption 5 as a basis for withholding responsive information" because it evinced this argument "for the first time" in its present Motion for Summary Judgment.
Pl.'s Second Mem. 7. Under the law of our Circuit, "the government ordinarily must raise all its claims of exemption in the original proceedings in district court, and may not thereafter assert new claims of exemption, either on appeal or on remand following appeal." Wash. Post Co. v.Dep't of Health and Human Servs., 795 F.2d 205, 208 (D.C. Cir. ...