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Tokar v. U.S. Department of Justice

United States District Court, District of Columbia

March 29, 2018

DYLAN TOKAR, Plaintiff,




         This 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.


         Journalist 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.” Id.

         As a 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][1] 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 listed below.

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.

         Therefore, 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 request:

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.

         On 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.

         Six 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.

         In the 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 for decision.


         A court 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.

         In 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).

         IV. ...

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