United States District Court, District of Columbia
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; GRANTING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT RE DOCUMENT NO.:
RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE.
case arises from two Freedom of Information Act
(“FOIA”) requests to the Criminal Division of the
U.S. Department of Justice (“DOJ”). Dylan Tokar,
a reporter for the publication Just Anti-Corruption,
which covers investigations and prosecutions under the
Foreign Corrupt Practices Act (“FCPA”), sought
records regarding the selection of corporate compliance
monitors for fifteen corporations that had resolved their
FCPA cases through deferred prosecution agreements
(“DPA”). Following discussions with a DOJ
attorney, during which Mr. Tokar was warned that DOJ would
likely attempt to withhold documents responsive to his first
FOIA requests under several FOIA exemptions, Mr. Tokar
narrowed his request in an attempt to speed up the production
process. Four months after Mr. Tokar narrowed his request,
DOJ informed Mr. Tokar that, pursuant to 28 C.F.R. §
16.8(f), DOJ would need to send notifications to the fifteen
corporations identified in his FOIA request in order to give
them an opportunity to object to DOJ's proposed
disclosures. Following the dispatch of these “submitter
notification” letters, Mr. Tokar submitted a second
FOIA request seeking the disclosure of any objection letters
the fifteen corporations submitted in response to the
notifications. After months without a production in response
to either FOIA request, Mr. Tokar filed this suit. DOJ's
ultimate responses to Mr. Tokar's FOIA requests-a table
with the information he sought through his first request, and
copies of the letters he sought through his second-contained
multiple redactions. DOJ moved for summary judgment following
these releases, and Mr. Tokar cross-moved for summary
judgment, challenging the majority of DOJ's redactions.
For the reasons set forth below, the Court finds that each of
DOJ's redactions under Exemptions 6 and 7(C) were
improper, but that its redaction pursuant to Exemption 4,
which Mr. Tokar did not challenge, was permissible.
FACTUAL AND PROCEDURAL BACKGROUND
Dylan Tokar, of the trade publication Just
Anti-Corruption, has filed two FOIA requests seeking
records and information related to DOJ's selection
process for corporate compliance monitors in FCPA cases.
Corporate compliance monitors are hired at the expense of a
company under DOJ scrutiny and are typically responsible for
“(1) investigating the extent of wrongdoing already
detected and reported to the government; (2) discovering the
cause of the corporation's compliance failure; and (3)
analyzing the corporation's business needs against the
appropriate legal and regulatory requirements.”
Veronica Root, The Monitor-“Client”
Relationship, 100 Va.L.Rev. 523, 531 (2014). Following
public controversy regarding the selection of monitors, DOJ
launched an inquiry into its monitor selection process and
issued the “Morford Memorandum, ” which formally
established principles for monitor selection. See
Pl.'s Mem. L. Opp'n Def.'s Mot. Summ. J. &
Supp. Pl.'s Cross-Mot. Summ. J. (“Pl.'s
Mem.”) at 5, ECF No. 10-1. According to Mr. Tokar, the
memorandum “lays out several mechanisms to achieve the
goals of independence and avoidance of conflict-of-interest,
including the creation of a ‘standing or ad
hoc committee' within DOJ and a reminder to those
involved in the selection process that they must comply with
DOJ conflict-of-interest regulations.” Id.
(internal citation omitted). “More specifically, the
Morford Memorandum calls for the selection of monitors
through the use of a candidate pool ‘of at least three
qualified monitor candidates' whenever possible.”
reporter focused on FCPA enforcement, Mr. Tokar is interested
in obtaining records from DOJ that he claims “would
shed light on [corporate compliance monitor selection],
including whether DOJ [is] abiding by the principles for
monitor selection set forth in the Morford Memorandum.”
Id. at 6. Accordingly, he submitted a FOIA request
on April 24, 2015 seeking “copies of records relating
to the review and selection of independent corporate monitors
under Foreign Corrupt Practices Act (FCPA) settlement
agreements between the Justice Department and [fifteen
specific] corporate defendants, ” including:
1. All documents submitted by counsel for the companies at
the outset of each monitor selection process, including the
names of up to three qualified monitor candidates whom the
companies are allowed to recommend. The information should
identify which candidate, if any, the company specified as
its first choice to serve as monitor.
2. All Monitor Selection Memoranda, including any files,
documents and attachments therein, submitted for review to
the Standing Committee on the Selection of Monitors . . .
[specifically] information about which monitors were approved
or disapproved and the reasons therefore, including the
recommendations submitted by the committee, the Assistant
Attorney General for the Criminal Division, and the Office of
the Deputy Attorney General.
3. Records of the Standing Committee, including its
membership, attendance records, appointments of temporary
designees, voting records and recusals in connection with the
consideration of monitor candidates for each of the companies
Compl., Ex. 1, ECF No. 1-1. During the summer of 2015, Mr.
Tokar spoke on the phone several times with DOJ attorney
Peter Sprung, who warned Mr. Tokar that he believed that
several FOIA exemptions would be asserted as to the documents
he had requested, and therefore that several of those
documents would be withheld. See Pl.'s Statement
of Material Facts (“Pl.'s SMF”) ¶¶
23-27, ECF No. 10-2. Based on these conversations, Mr. Tokar
grew worried that he would not be given documents responsive
to his first FOIA request unless he narrowed its scope. Decl.
Dylan Tokar (“Tokar Decl.”) ¶¶ 12-14,
ECF No. 10-3.
Mr. Tokar and his editor, Mary Jacoby, agreed to
“narrow [the] request” to the following for the
fifteen corporate defendants named in the original FOIA
1. The names of the up to three monitor candidates and their
associated law or consulting firms submitted to the
[d]epartment by the defendant corporations under the terms of
their negotiated resolutions.
2. The names and titles of members of the Criminal
Division's Standing Committee on the Selection of
Monitors for the period Jan. 1, 2009 up through the present
date. Along with the names of the members of the committee,
please give their dates of service . . . [and] the names of
any temporary designees appointed to the committee and the
dates of their service.
Compl., Ex. 2, ECF No. 1-2. Even after narrowing the scope of
his request, however, Mr. Tokar did not receive a speedy
response. In the fall of 2015, Mr. Tokar and Ms. Jacoby
reached out to DOJ on two occasions, reminding them that they
had still not received a response to Mr. Tokar's FOIA
request. See Pl.'s SMF ¶ 31-32; Tokar Decl.
¶ 17. Then, in December 2015, Mr. Sprung informed Mr.
Tokar that DOJ would be notifying the fifteen companies of
Mr. Tokar's FOIA request and would give the companies a
chance to object to the release of the requested information,
pursuant to Executive Order 12, 600 and 28 C.F.R. §
16.8. See Tokar Decl. ¶ 18. Ultimately,
fourteen companies leveled some sort of objection to the
release of the information in Mr. Tokar's FOIA request.
See Tokar Decl. ¶ 23.
April 12, 2016, Mr. Tokar submitted a second FOIA request to
DOJ seeking “copies of [the] 28 C.F.R. § 16.8(f)
statements submitted by companies in connection with [the]
previous FOIA request.” Compl., Ex. 7, ECF No. 1-7.
Eight months later, Mr. Tokar still had not received
responses to either FOIA request, and therefore, on December
9, 2016, he filed suit in this Court. See Compl.
weeks after Mr. Tokar filed his complaint, DOJ provided him
with what it considered to be a response to his first FOIA
request: a table containing the information listed in Mr.
Tokar's narrowed FOIA request, with certain
information-the names of the monitor candidates who were
nominated but not selected, the firms these candidates worked
for if those firms were small, and the names of two members
of the DOJ Standing Committee-redacted pursuant to FOIA
Exemptions 6 (“personnel and medical files and similar
files”) and 7(C) (“records or information
compiled for law enforcement purposes, but only to the extent
that the production of such law enforcement records or
information . . . could reasonably be expected to constitute
an unwarranted invasion of personal privacy”).
See Def.'s Statement of Material Facts
(“Def.'s SMF”) ¶ 8, ECF No. 9; 5 U.S.C.
§ 552(b)(6), (7)(C). DOJ had to issue amended versions
of this table twice after Mr. Tokar identified errors within
it. See Pl.'s SMF ¶¶ 46-51.
summer of 2017, DOJ provided Mr. Tokar with copies of the
response letters that he had sought in his second FOIA
request, with certain information withheld pursuant to FOIA
Exemptions 4 (“trade secrets and commercial or
financial information obtained from a person and privileged
or confidential”), 6, and 7(C), though the agency
ultimately concluded that Exemption 7(C) did not apply to
these letters. See Decl. Peter C. Sprung
(“Sprung Decl.”) ¶ 23, ECF No. 9-2. DOJ not
only again withheld the names of the monitor candidates who
had not been selected, but it also withheld the names of the
private attorneys who had responded to the notices on behalf
of their corporate clients and the name of two DOJ employees
who dealt with the submitter notice process. See
Sprung Decl. ¶ 30. Following these releases, the parties
cross-moved for summary judgment. Their motions are now ripe
may grant a motion for summary judgment when there is
“no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986). A “material”
fact is one that “might affect the outcome of the suit
under the governing law.” Id. at 248. Once the
moving party has demonstrated the absence of a genuine
dispute of material fact, the non-moving party may not simply
rely on the allegations in its pleadings, and must present
more than “a scintilla of evidence” to support
its factual assertions. Id. at 252.
reviewing a motion for summary judgment under the FOIA, the
district court conducts a de novo review of the
record. See 5 U.S.C. § 552(a)(4)(B). In a FOIA
action in which the sufficiency of a search is challenged, a
defendant agency must demonstrate “beyond material
doubt  that it has conducted a search reasonably calculated
to uncover all relevant documents” in order to succeed
on summary judgment. Morley v. CIA, 508 F.3d 1108,
1114 (D.C. Cir. 2007) (alteration in original) (internal
citation and quotation marks omitted). The agency also
carries the burden of demonstrating that any responsive
records that were not provided were properly withheld
pursuant to one of nine express statutory exemptions.
Citizens for Responsibility and Ethics in Washington v.
U.S. Dep't of Justice, 746 F.3d 1082, 1088 (D.C.
Cir. 2014). The agency may carry that burden by submitting
affidavits that “‘describe 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.'” Larson v. Dep't of State, 565
F.3d 857, 862 (D.C. Cir. 2009) (quoting Miller v.
Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)). It is not
sufficient for the agency to provide “vague, conclusory
affidavits, or those that merely paraphrase the words of a
statute . . . .” Church of Scientology of Cal.,
Inc. v. Turner, 662 F.2d 784, 787 (D.C. Cir. 1980). When
an agency invokes an exemption, “it must submit
affidavits that provide ‘the kind of detailed,
scrupulous description [of the withheld documents] that
enables a District Court judge to perform a de novo
review.'” Brown v. FBI, 873
F.Supp.2d 388, 401 (D.D.C. 2012) (quoting Church of
Scientology, 662 F.2d at 786) (alternation in original).
Agency affidavits sometimes take the form of a
Vaughn index, see Vaughn v. Rosen, 484 F.2d
820 (D.C. Cir. 1973), but there is “no fixed
rule” establishing what such an affidavit must look
like, ACLU v. CIA, 710 F.3d 422, 432 (D.C. Cir.
2013). “[I]t is the function, not the form, of the
index that is important.” Keys v. U.S. Dep't of
Justice, 830 F.2d 337, 349 (D.C. Cir. 1987).