United States District Court, District of Columbia
ADAM PIKE, et al. Plaintiffs,
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
KETANJI BROWN JACKSON, UNITED STATES DISTRICT JUDGE
26, 2011, a government informant recorded Plaintiffs Adam
Pike and Bret Berry having a conversation. The recording was
created without Plaintiffs' knowledge, and once they
learned about it (which occurred because excerpts from the
transcribed conversation were filed in a related civil
lawsuit), Plaintiffs requested a copy of the complete audio
recording and the entire written transcript from the U.S.
Department of Justice ("DOJ" or
"Defendant") under the Freedom of Information Act,
5 U.S.C. § 552 ("FOIA"). In response to the
FOIA request, DOJ located the audio recording and the
transcript of that recorded conversation, but it withheld
these records on the grounds that they were exempt from
release under FOIA because producing them would interfere
with an ongoing criminal investigation. Plaintiffs have filed
the instant lawsuit to challenge the agency's conclusion
that the records are exempt from disclosure, and they have
asked this Court for an order that requires the release of
the transcript and audio recording in their entirety.
(See generally Compl., ECF No. 1.)
this Court at present are the parties' cross-motions for
summary judgment. (See Pls.' Mot. for Summ. J.
(“Pls.' Mot.”), ECF No. 8; Def.'s Mot.
for Summ. J. (“Def.'s Mot.”), ECF No. 10.)
DOJ contends that it has properly withheld the entire audio
recording and transcript under FOIA Exemption 7(A) because
the recording and transcript were created for law enforcement
purposes, and because the disclosure of these records as a
whole would, among other things, interfere with prospective
criminal enforcement proceedings and alert suspects to the
ongoing investigation, thereby allowing them to elude
detection. (See Def.'s Mem. in Supp. of
Def.'s Mot. (“Def.'s Mem.”), ECF No.
10-2, at 8-10.) Additionally, and presumably in the
alternative, Defendant contends that the withholding was
proper under FOIA Exemption 7(D), because the source of the
recording was an FBI confidential informant whose identity
and information are protected from disclosure under the FOIA.
(See Id. at 10-12.) In their cross-motion,
Plaintiffs counter that Defendant previously published
excerpts of the transcript of the recording in the context of
a civil action, and therefore, a substantial portion of the
information at issue is already in the public domain.
(See Pls.' Mem. in Supp. of Pls.' Mot.
(“Pls.' Mem.”), ECF No. 8-1, at 11-13.)
According to Plaintiffs, this means that Defendant has waived
any reasonable purpose or justification for withholding the
disputed records in their entirety under Exemptions 7(A) and
7(D). (See Id. at 11-15; see also Pls.'
Mem. in Opp'n to Def.'s Mot. (“Pls.'
Opp'n”), ECF No. 14, at 4-5.)
reasons explained below, this Court concludes that the
Defendant has shown that the records at issue in this matter
satisfy the requirements of FOIA Exemption 7(A), and thus,
absent any waiver, the government is entitled to withhold
both the audio recording and the transcript in their
entirety. However, because the government previously publicly
disclosed certain excerpts from the transcript, it has waived
the right to withhold those same written excerpts from
disclosure in the context of this FOIA action. Consequently,
both parties' cross-motions for summary judgment will be
GRANTED IN PART and DENIED IN PART, and Defendant must
produce those parts of the written transcript that mirror the
excerpts the government has previously released. A separate
order consistent will this memorandum opinion will follow.
Pike and Berry are the subject of an ongoing fraud
investigation that the Federal Bureau of Investigation
(“FBI”) and DOJ are conducting regarding an
alleged “kickback” scheme that involves Reliance
Medical Systems LLC (Plaintiffs' company) and other third
parties. (See Pls.' Stmt. of Material Facts, ECF
No. 8-2, ¶ 2; Def.'s Resp. to Pls.' Stmt. of
Material Facts, ECF No. 15-1, at 2.) The details of the
underlying fraud are not material to the instant action; it
suffices to say here that the investigation led federal
authorities to file a civil lawsuit against Plaintiffs and
other third parties in the U.S. District Court for the
Central District of California under the False Claims Act, 31
U.S.C. §§ 3729-3733 (“FCA”).
(See Pls.' Stmt. of Material Facts ¶ 3;
Def.'s Resp. to Pls.' Stmt. of Material Facts ¶
3.) In that lawsuit, which is currently pending, the
complaint references and attaches several excerpts from the
transcript of an audio recording dated July 26, 2011.
(See Pls.' Stmt. of Material Facts ¶ 3;
Def.'s Resp. to Pls.' Stmt. of Material Facts ¶
3.) According to DOJ, an undisclosed FBI source who agreed to
assist in the investigation made the audio recording under
the supervision of law enforcement agents. (See
Def.'s Stmt. of Material Facts, ECF No. 10-1,
October 2, 2014, Plaintiffs' counsel filed a FOIA request
with DOJ's Civil Division, seeking “a copy of the
recording and any transcript” on an expedited basis.
(FOIA Request, Compl. Ex. 4, ECF No. 1-1, at 37.) DOJ located
both records, and subsequently explained that both were being
withheld in their entirety pursuant to two FOIA Exemptions:
7(A) and 5. (See Decl. of James M. Kovakas
(“Kovakas Decl.”), Ex. A to Def.'s Mot., ECF
No. 10-3, ¶¶ 3-4); see also 5 U.S.C.
§§ 552(b)(7)(A), (b)(5). DOJ stated that it was
withholding the records under Exemption 7(A) because
disclosure would risk interference with ongoing law
enforcement proceedings, and that the same withholding was
also justified under Exemption 5 because the records
requested were inter-agency or intra-agency documents
protected under the attorney work-product privilege.
(See DOJ's Final FOIA Response, Compl. Ex. 6,
ECF No. 1-1, at 52-53.)
appealed DOJ's withholding decision to the agency's
Office of Information Policy, which affirmed on the ground
that the withholding was permitted under Exemption 7(A).
(See Pls.' Stmt. of Material Facts ¶¶
7-8; Def.'s Stmt. of Material Facts ¶¶ 8-9.)
Plaintiffs then brought the present lawsuit, which was filed
on March 2, 2015, and seeks a court order requiring
“DOJ to produce and disclose the July 26, 2011
recording[.]” (Compl. at 9.) The complaint alleges that
DOJ has invoked Exemption (7)(A) improperly, and that, in any
case, the agency has waived its right to claim an exemption
from releasing the records because it previously widely
published the excerpts from the recording's transcript.
(See Id. ¶ 19.) Per this Court's order, the
parties subsequently filed cross-motions for summary judgment
with respect to the issue of whether or not the requested
records have been properly withheld. (See Min. Order
of Apr. 5, 2015.)
motion for summary judgment argues that FOIA Exemption 7(A),
which exempts from disclosure investigatory records that
could be used in an enforcement action, authorizes the
withholding in this case because disclosure of the records
Plaintiffs seek would risk interference with an ongoing
criminal investigation into health care fraud and related
enforcement proceedings. (See Def.'s Mem. at
8-10.) The agency also asserts that Exemption 7(D) authorizes
the withholding of the audio recording and transcript because
the release of these records could reasonably be expected to
disclose the identity of the FBI's confidential source
(see Def.'s Mem. at 10-12), and that the
government's prior release of certain transcript excerpts
demonstrates that all reasonably segregable material has
already been disclosed (see Id. at 14 (arguing that
disclosure of any further information beyond the quotes
included in the FCA complaint “would significantly
interfere with the ongoing criminal investigation”)).
their part, Plaintiffs argue that the government's prior
publication of a substantial amount of the recording's
transcribed content in the context of the FCA complaint and
in an accompanying press release means that DOJ has waived
its right to assert any exemption under the FOIA.
(See Pls.' Mem. at 11-13.) Plaintiffs also
maintain that, “[g]iven the breadth of the previous
public disclosures[, ]” there is no “[t]ruthful
and [r]easonable [b]asis” for DOJ to assert that
“disclosure of the remaining portion of the audio
recording would interfere with a legitimate
government activity” within the meaning of Exemption
7(A). (Id. at 14 (emphasis in original).) And they
further insist that the circumstances in this case are
“not of a nature warranting an implied assurance of
confidentiality” for Exemption 7(D) purposes.
(Id. at 17; see also id. (asserting that
DOJ has not shown that the agency “expressly assured
the source of the confidentiality of his involvement”
and that, regardless, DOJ could redact the identity of the
source from the recording or the transcript).)
parties' cross-motions are now ripe for this ...