United States District Court, District of Columbia
L. FRIEDRICH UNITED STATES DISTRICT JUDGE
its inception in February 2016, this FOIA dispute has
dwindled to a single issue: whether the Consumer Financial
Protection Bureau appropriately withheld portions of two
investigational hearing transcripts under 5 U.S.C. §
552(b)(7)(E). Before the Court are the parties'
cross-motions for summary judgment. For the reasons that
follow, the Court will grant summary judgment in favor of the
February 2016, Frank LLP (Frank) submitted a FOIA request to
the Consumer Financial Protection Bureau (CFPB) seeking
documents related to the CFPB's enforcement action
against-and eventual consent order with-Portfolio Recovery
Associates (PRA). Lazier Decl. ¶ 5, Dkt. 16-3. Frank
represents plaintiffs in a lawsuit against PRA and believes
that “[r]ecords and information in the CFPB's
possession that pertain to the CFPB's findings against
PRA and its attorneys constitute evidence that would greatly
strengthen the claims of the plaintiffs and putative
class” in that lawsuit. Pl.'s Opp'n &
Cross-Mot., Dkt. 20 at 3. After submitting its request, Frank
entered into a series of back-and-forths with the CFPB that
included various administrative denials, appeals, and-after
Frank filed suit-productions. See Lazier Decl.
¶¶ 5-21, Dkt. 16-3 (describing the process). The
final production included redacted versions of two
investigational hearing transcripts from the CFPB's
interviews of two PRA employees. Id. ¶ 21;
see also Pl.'s Opp'n & Cross-Mot., Dkt.
20 at 7. The CFPB invoked exemption 7(E) as the basis for the
redactions. Pl.'s Opp'n & Cross-Mot., Dkt. 20 at
7; see also 5 U.S.C. § 552(b)(7)(E).
2017, the parties filed a joint status report indicating that
they had “narrowed the known issues in this matter to
redactions within [the] two transcripts.” Dkt. 14 at 1.
The Court ordered briefing, Dkt. 15, and the parties filed
cross-motions for summary judgment, Dkts. 16, 20, 21. The
case was reassigned to the undersigned judge on December 4,
of the Federal Rules of Civil Procedure mandates that
“[t]he court shall grant summary judgment if the movant
shows that 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). In FOIA litigation, when a
federal agency moves for summary judgment, all facts and
inferences must be viewed in the light most favorable to the
requester, and the agency bears the burden of showing that it
complied with FOIA. Chambers v. U.S. Dep't of
Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009).
prevail under Rule 56, a federal agency “must prove
that each document that falls within the class requested
either has been produced, is unidentifiable, or is wholly
exempt from [FOIA's] inspection requirements.”
Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982)
(per curiam) (quoting Nat'l Cable Television
Ass'n, Inc. v. F.C.C., 479 F.2d 183, 186 (D.C. Cir.
1973)). The agency must explain in reasonable detail why an
exemption applies to any withheld records. Judicial
Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 147
(D.C. Cir. 2006).
vast majority of FOIA cases can be resolved on summary
judgment.” Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). That
is in part because “[t]he peculiarities inherent in
FOIA litigation, with the responding agencies often in sole
possession of requested records and with information searches
conducted only by agency personnel, have led federal courts
to rely on government affidavits to determine whether the
statutory obligations of the FOIA have been met.”
Perry, 684 F.2d at 126. Accordingly, “[i]n
FOIA cases, summary judgment may be granted on the basis of
agency affidavits if they contain reasonable specificity of
detail rather than merely conclusory statements, and if they
are not called into question by contradictory evidence in the
record or by evidence of agency bad faith.”
Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d
208, 215 (D.C. Cir. 2013) (internal quotations and
alterations omitted). In the absence of evidence to the
contrary, the agency's affidavit is presumed to have been
submitted in good faith. SafeCard Servs., Inc. v.
S.E.C., 926 F.2d 1197, 1200 (D.C. Cir. 1991).
the CFPB has withheld portions of two investigational hearing
transcripts and invoked exemption 7(E). That exemption allows
agencies to withhold
records or information compiled for law enforcement purposes,
but only to the extent that the production of such law
enforcement records or information . . . would disclose
techniques and procedures for law enforcement investigations
or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure
could reasonably be expected to risk circumvention of the
5 U.S.C. § 552(b)(7)(E). The parties dispute whether the
withheld materials qualify under this exemption.
does not appear to dispute, and the Court has little trouble
concluding, that the investigational hearing transcripts at
issue were “compiled for law enforcement
purposes.” 5 U.S.C. § 552(b)(7). An agency
satisfies this requirement when it “establish[es] a
rational nexus between [an] investigation and one of the
agency's law enforcement duties and a connection between
an individual or incident and a possible security risk or
violation of federal law.” Blackwell v. FBI,
646 F.3d 37, 40 (D.C. Cir. 2011) (quoting Campbell v.
Dep't of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998)).
“[L]aw enforcement purposes” include both civil
and criminal matters. Tax Analysts v. IRS, 294 F.3d
71, 77 (D.C. Cir. 2002). As the CFPB notes, “the very
fact that the two transcripts are responsive to Frank
LLP's FOIA request demonstrates that the transcripts were
compiled for law enforcement purposes” because Frank
“sought documents that the ...