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Dongkuk International, Inc. v. U.S. Department of Justice

United States District Court, District of Columbia

August 31, 2016

Dongkuk International, Inc., et al. Plaintiffs,
v.
U.S. Department of Justice, Defendant.

          MEMORANDUM OPINION

          Amit P. Mehta United States District Judge

         I. INTRODUCTION

         This 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.

         This 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.

         Defendant 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.

         The 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 Preliminary Injunction.

         II. BACKGROUND

         A. MLAT Between the United States and the Republic of Korea

         In 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).[1] 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).[2]

         Article 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.

         Under 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 executed.” Id.

         Article 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.

         B. Korea's Request for Assistance

         In 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.

         On 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.

         On 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.

         In May 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.

         C. Plaintiffs' FOIA Request

         In 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. ΒΆ 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 ...


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