United States District Court, District of Columbia
Dongkuk International, Inc., et al. Plaintiffs,
U.S. Department of Justice, Defendant.
P. Mehta United States District Judge
case presents a novel question: Is a request for assistance
made by a foreign government under a Mutual Legal Assistance
Treaty (MLAT) subject to public disclosure under the Freedom
of Information Act (FOIA)? Plaintiffs Dongkuk International,
Inc., and Sae-Joo Chang seek a verified copy of portions of a
Request for Assistance letter (the “RFA Letter”)
sent by the Korean Ministry of Justice to Defendant United
States Department of Justice (DOJ) pursuant to an MLAT
between the United States and the Republic of Korea. The
information that DOJ produced pursuant to the RFA Letter led
to the prosecution and conviction in Korea of Plaintiff
Sae-Joo Chang for the offense of habitual gambling. During
his prosecution, the Ministry of Justice refused to disclose
the RFA Letter, although it did make certain representations
to the Korean courts about its contents. Plaintiffs now seek
through FOIA what they could not obtain in Korea-a copy of
the RFA Letter itself.
matter comes before the court on Plaintiffs' Motion for
Preliminary Injunction. The parties have agreed, however,
under Federal Rule of Civil Procedure 65(a)(2), to
consolidate the motion for injunctive relief with the
ultimate decision on the merits. The court therefore need not
consider the non-merits elements of a motion for injunctive
relief-i.e., irreparable harm, the balance of
equities, and the public interest. Instead, the court need
only decide which party prevails on the merits under FOIA.
DOJ has asserted that a host of exemptions justify
withholding the RFA Letter from Plaintiffs, but the court
need only consider one: Exemption 3. As pertinent here,
Exemption 3 requires an agency to withhold from disclosure
any information that is “specifically exempted from
disclosure by statute . . ., if that statute . . . refers to
particular types of matters to be withheld.” The court
concludes that the MLAT between the United States and the
Republic of Korea qualifies as a “statute” for
purposes of Exemption 3 and that the RFA Letter is a
“particular type[ ] of matter[ ] to be withheld”
under the MLAT. Therefore, Exemption 3 applies.
court is not persuaded by Plaintiffs' contention that the
limited disclosure made by the Ministry of Justice to the
Korean courts regarding the RFA Letter's contents
constitutes an official public acknowledgment of those
contents, such that DOJ's invocation of Exemption 3 is
deemed waived. Our Court of Appeals has squarely stated that
a “foreign government [ ] cannot waive a federal
agency's right to asset a FOIA exemption.”
Mobley v. CIA, 806 F.3d 568, 583 (D.C. Cir. 2015).
Accordingly, the court denies Plaintiffs' Motion for
MLAT Between the United States and the Republic of
November 1993, the United States and the Republic of Korea
signed a treaty on mutual assistance in criminal matters,
conventionally referred to as an “MLAT”
(“U.S.-Korea MLAT” or “MLAT”).
See Treaty with the Republic of Korea on Mutual
Legal Assistance in Criminal Matters [hereafter U.S.-Korea
MLAT], 1993 WL 796842, Nov. 23, 1993; see also U.S.
Sen., 104th Cong., 2d Sess., Executive Report No. 104-22
[hereinafter Sen. Ex. Rept. 104-22], at 1
(1996). The purpose of the U.S.-Korea MLAT is to
“provide for the sharing of information and evidence
related to criminal investigations and prosecutions,
including drug trafficking and narcotics-related money
laundering.” Sen. Ex. Rept. at 1. The United States
Senate ratified the U.S.-Korea MLAT on August 2, 1996.
See 142 Cong. Rec. S9661-02, 1996 WL 438434, at
*S9661 (Aug. 2, 1996). The treaty entered into force on May
23, 1997, upon the countries' exchange of instruments of
ratification. See U.S. Dep't of State,
Treaties in Force, at 168 (2013).
4 of the U.S.-Korea MLAT enables the “Central
Authority” in each country-the Attorney General in the
United States, and the Minister of Justice in Korea-to
request assistance from the other Central Authority. Such a
Request for Assistance ordinarily must be in writing and
include the following: (1) “the name of the authority
conducting the investigation, prosecution, or proceeding to
which the request relates”; (2) “a description of
the subject matter and the nature of the investigation,
prosecution, or proceedings, including the specific criminal
offenses which relate the mater”; (3) “a
description of the evidence, information, or other assistance
sought”; and (4) “a statement of the purpose for
which the evidence, information, or other assistance is
sought.” U.S.Korea MLAT, arts. 3, 4.
the U.S.-Korea MLAT, the Central Authority that seeks legal
assistance, referred to as the “Requesting State,
” can ask its counterpart, known as the
“Requested State, ” that its Request for
Assistance be kept confidential. Article 5, paragraph 5
provides: “The Requested State shall use its best
efforts to keep confidential a request and its contents if
such confidentiality is requested by the Central Authority of
the Requesting State.” Id. art. 5, ¶ 5.
That paragraph continues: “If the request cannot be
executed without breaching the requested confidentiality, the
Central Authority of the Requested State shall so inform the
Central Authority of the Requesting State, which shall then
determine whether the request should nevertheless be
7 of the U.S.-Korea MLAT addresses a different topic:
Limitations placed on the use of evidence or information
obtained under the MLAT. Paragraph 1 of that article
provides: “The Requesting State shall not use any
information or evidence under this Treaty in any
investigation, prosecution, or proceedings other than that
described in the request without the prior consent of the
Requested State.” Id. art. 7, ¶ 1.
Paragraph 2 allows a Requested State to place limits on the
public disclosure of the information or evidence obtained. It
states: “The Central Authority of the Requested State
may request that information or evidence furnished under this
Treaty be kept confidential in accordance with conditions
which it shall specify. In that case, the Requesting State
shall use its best efforts to comply with the conditions
specified.” Id. art. 7, ¶ 2. And,
finally, Article 7 provides that “[i]nformation or
evidence which has been made public in the Requesting State
in accordance with paragraph 1 or 2 may thereafter be used
for any purpose.” Id. art. 7, ¶ 3.
Korea's Request for Assistance
2015, the Seoul Central District Prosecutor's Office
commenced a criminal proceeding against Plaintiff Sae-Joo
Chang for the crime of “habitual gambling.”
See Mot. for Preliminary Injunction, ECF No. 4
[hereinafter Pls.' Mot.], Ex. 4, Decl. of Gabriel
Colwell, ECF No. 4-6 [hereinafter Colwell Decl.], ¶ 10.
With some exceptions, Korean law prohibits Korean nationals
from gambling both within and outside the territory of the
Republic of Korea. Id., Ex. 1, Decl. of Jongchul
Jang, ECF No. 4-1 [hereinafter Jang Decl.], ¶ 3. On
April 1, 2015, the Seoul Central District Prosecutor's
Office asked the Korean Ministry of Justice to seek evidence
from the United States concerning, among other things,
Chang's gambling at casinos in the United States.
Id., Ex. 3, ECF No. 4-4, at 7.
April 7, 2015, the Ministry of Justice sent to DOJ a Request
for Assistance letter under the U.S.-Korea MLAT. Id.
¶ 4; Def.'s Mem. in Opp'n, ECF No. 13
[hereinafter Def.'s Opp'n], Decl. of John Cunningham,
ECF No. 13-1 [hereinafter Cunningham Decl.], ¶ 16.
Consisting of 22 pages, the RFA Letter, generally speaking,
contained “factual information possessed by the Central
Authority of the Republic of Korea . . ., as well as the
Korean Prosecution Service's legal theories of the
case.” Cunningham Decl. ¶¶ 16, 18. It also
detailed the history of the legal actions taken against
Chang, a summary of the facts and evidence of the Korean
government's investigation, the statutory basis for the
alleged criminal offenses, personal information concerning
Chang, and the specific assistance requested. Id.
¶ 16. Importantly for present purposes, “the
Korean Prosecution Service asked that the MLAT request, as
well as the evidence obtained through such assistance, be
treated as confidential.” Id.
November 9, 2015, in response to the RFA Letter, DOJ
disclosed relevant information and evidence to the Korean
Ministry of Justice. Jang Decl., ¶ 4, Ex. 2, ECF No.
4-3. Among the evidence that DOJ produced were documents
relating to Chang's gambling practices at the Wynn and
Bellagio casinos in Las Vegas, Nevada. Id. ¶ 4.
The Korean prosecutors used that evidence as part of their
successful efforts to convict Chang for habitual gambling.
Id. During the proceedings, the Korean prosecutors
represented to the Seoul High Court-the trial court before
which Chang was convicted-that the RFA Letter specifically
sought evidence relating to money laundering and casino
gambling by Chang. Id. ¶ 5. They also provided
the court with a summary of the RFA Letter, but not a copy of
the letter itself. Id. ¶ 6. The prosecution,
however, never produced a copy of the RFA Letter to
Chang's Korean defense counsel. Id. The Seoul
High Court sentenced Chang to 42 months in prison, which he
is presently serving. Colwell Decl. ¶ 13.
2016, an intermediate appellate court affirmed Chang's
conviction. Jang. Decl. ¶ 5. As part of its decision,
the appellate court held that the prosecution had lawfully
collected the evidence it obtained through the RFA Letter and
had used to prosecute Chang. Id., Ex. 3 at 5-10. In
so ruling, the court “confirmed” that the
prosecution had told the trial court that the RFA Letter had
identified habitual gambling as an alleged criminal offense
under investigation. Id. at 8.
Plaintiffs' FOIA Request
early December 2015, Plaintiffs Chang and Dongkuk
International, Inc.-Chang is the former Chairman and CEO of
Dongkuk International's parent company, Dongkuk Steel
Mill Co. Ltd.-submitted a request to DOJ for records under
FOIA. Colwell Decl. ¶ 14. The FOIA request sought, in
sum, all evidence turned over by DOJ to the Korean Ministry
of Justice pursuant to the RFA Letter. Id., Ex. 4,
ECF No. 4-10. Plaintiffs later narrowed their request for
disclosure to only one document: the RFA Letter itself.
Id. ¶ 17. DOJ lawyers orally advised
Plaintiffs' counsel that DOJ could not provide the RFA
Letter under the terms of the U.S.-Korea MLAT and DOJ policy
and that the letter ...